Penal Code 995 PC – Motion to Dismiss/Motion to Set Aside Information
This motion may be filed if your attorney believes that one or more of the charges filed against you have not been filed legally. This may occur because your attorney believes that the evidence at the preliminary hearing did not provide probable cause to pursue the charges against you. If the judge rules in your favor, he/she will dismiss some or all of the charges. A Motion to Dismiss under §995 may also be filed to dismiss the case if there were other procedural errors. For instance, after the preliminary hearing, the prosecution must file a second charging document within fifteen (15) days of the conclusion of the preliminary hearing. If that deadline is missed by the prosecution, the case may be dismissed under a 995 motion. Also, if a defendant were held based on illegally gathered information, such as an illegal search by the police or a violation of the defendant's Miranda Rights, the case could then potentially be dismissed under a 995 motion. A motion under Penal Code §995 is, for the most part, limited to the reporter's transcript of the preliminary hearing. The transcript must contain evidence to support each component of the charged offense. Inferences drawn from the evidence must be reasonable. And, the reviewing judge must discard speculative inferences that originate their substance from guesswork, speculation, or conjecture.
If no evidence is presented, a Penal Code §995 motion should be granted on the count it was filed for. An insufficient showing of any element of a crime should, in essence, result in the court's granting of a §995 motion. The burden of proof at a preliminary hearing is on the prosecution to show that “there is a reasonable probability, enough to induce a strong suspicion in the mind of a man of ordinary caution or prudence, that a crime has been committed and that defendant is guilty.” (People v. Slaughter, 35 Cal. 3d 629, 644, 200 Cal. Rptr. 448, 677 P.2d 854 (1984), quoting Garabedian v. Superior Court of City and County of San Francisco, 59 Cal. 2d 124, 126-127, 28 Cal. Rptr. 318, 378 P.2d 590 (1963).)
Timing for the Filing of a 995 Motion
A 995 motion can only be filed after a Grand Jury indictment or after the preliminary hearing, and it must be filed prior to trial. If the motion is not filed during this time, you will lose the ability the challenge the evidence at a preliminary hearing on appeal. A preliminary hearing is a great way to challenge the sufficiency of the evidence and lock witnesses into testimony under oath. Hence, it can also be important in setting up the case for a possible motion to dismiss so you get a second chance to have your case thrown out. The filing of the 995 motion serves two very important practical purposes. 1) When the judge who handled the preliminary hearing made a mistake in denying a motion to dismiss, a 995 motion seeks to correct that error.2) The motion can educate the new judge about the case facts, the weakness of the evidence and issues that are dispositive. Yet, these should not be the sole purposes for filing the motion. If it became known that one of these instances was the sole purpose for filing the motion, the court may regard the motion as “frivolous” and could hurt the client and the client's attorney's credibility. For clarity sake, an example of an instance where a 995 should be filed is as follows:
A defendant is being held to answer charges of “possession with intent to sell”. The prosecutor introduces to the court the fact that the defendant was arrested for possessing narcotics, two pills to be exact. Your attorney would then file a 995 motion claiming that the two pills is insufficient to prove that you intended to sell the pills. Two pills, rather, is more consistent with simple personal use. If the motion is successful, the judge will set aside the information and the case (or charge) will be dismissed.
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