PC 995 Motion: Request to Dismiss a Felony after Preliminary Hearing

What is a PC 995 Motion


A Penal Code 995 motion is a criminal defendant’s request to a judge that the judge dismiss the criminal charges against the defendant despite the fact that a different judge, at a preliminary hearing, has already found that there is probable cause to believe that the defendant has committed the alleged criminal offense(s).


In essence, a PC 995 motion is an appeal of another judge’s decision on whether there is sufficient evidence in a criminal case to order the defendant to go to trial.


For example: Jessie is charge with felony criminal threats. At a preliminary hearing, the judge finds that there is sufficient evidence to send the case to the criminal trial court. Thereafter, Jessie asks a different judge to review the decision of the preliminary hearing judge (PC 995 motion) and subsequently dismiss the criminal threats charge.


Note: A PC 995 motion may be used to dismiss (“set aside”) both felony and misdemeanor charges against a criminal defendant, so long as the defendant is attempting to have at least one felony dismissed after the preliminary (See Preliminary Hearings). A PC 995 motion is not a proper motion in a criminal case where only misdemeanor(s) are charged against the defendant; however, a PC 991 motion to dismiss a misdemeanor might be available in criminal cases where only misdemeanors are charged against the defendant (See PC 991 Motion).


Penalty Enhancements: A PC 995 motion may also be used to dismiss a penalty enhancement that was improperly found to exist by a previous judge.


For example, if a defendant is charged with criminal threats (PC 422) and a special allegation (penalty enhancement) of participating in a criminal street gang while making the criminal threats, then the defendant’s attorney might argue that the penalty enhancement itself (the gang allegation) was not based on a finding of sufficient probable cause at the preliminary hearing. If successful, the defendant will still have to face the criminal threats charges, but the criminal street gang penalty enhancement should be dismissed.


What is a Preliminary Hearing


A quick not about preliminary hearings: A preliminary hearing is similar to a mini-trial where the prosecutor must demonstrate to a criminal court judge that there is probable cause to believe that the defendant committed the alleged offense(s). Probable cause is a much lower burden than proof beyond a reasonable doubt (see below). The district attorney usually calls the arresting officers to testify at the preliminary hearing, but alleged victim’s can also be called to testify. The preliminary hearing has more relaxed evidentiary rules than a trial and there is no jury present at a preliminary hearing. If the district attorney is successful, the court will “hold the defendant to answer (for trial).” If the district attorney is not successful at the preliminary hearing the criminal charges will be dismissed without further request to the court.


Note: Sometimes, a defendant can be ‘held to answer’ on some crimes, but not all crimes alleged. If the defendant is charged with misdemeanor and felony crimes, and only the misdemeanor crimes are sustained at the preliminary hearing, then the defendant is not ‘held to answer’ on those crimes; rather, the case proceeds to trial or pretrial stage (case is usually set for pretrial in the misdemeanor court).


If the defendant is ‘held to answer’ after the preliminary hearing, then the district attorney will file a new criminal charges against the defendant. The new criminal charges are contained in a document called an “information.”


When Do I File a PC 995 Motion


A PC 995 motion is filed by the defendant after the defendant was “held to answer” to criminal charges by the judge at a preliminary hearing. A PC 995 motion must be heard before the start of a trial on the criminal allegations.


Will a Judge Grant My PC 995 Motion


As stated, a PC 995 motion is a request to have a judge reconsider another judge’s decision as to whether there is sufficient evidence to ‘hold the defendant to answer.’ Thus, PC 995 motions are usually difficult motions upon which to succeed. Nevertheless, a PC 995 motion will be granted if the criminal defendant can show that the earlier judge held the defendant to answer without probable cause, or that the defendant was illegal committed.


Probable Cause: Probable cause is defined as reasonable and strong suspicion, based on articulated facts, that demonstrate that the defendant is more likely than not guilty of the alleged offense. In essence, this means that a PC 995 motion asks a subsequent judge to reconsider the balance of evidence offered at the preliminary hearing. A judge is not likely to overturn the preliminary hearing judge’s decision without some articulated reason(s) listed in a PC 995 motion to dismiss.


Note: Probable Cause is not equal to “proof beyond a reasonable doubt.” This means that the defendant can be ‘held to answer’ on a criminal allegation (move forward to trial) without the judge making a determination as to whether the judge believes the defendant is guilty beyond a reasonable doubt. The ‘beyond a reasonable doubt’ language is a ‘burden of proof’ that the district attorney must meet at jury trial (or court trial) on the criminal allegations. For more information, see Insufficient Evidence Defense.


Common PC 995 “Lack of Probable Cause” Claims


A PC 995 motion to dismiss is common where the judge basis her ‘holding order’ decision on unreliable evidence at the preliminary hearing (i.e. clearly unreliable witness statements, use of multi-level hearsay, lack of foundation to introduce prosecution evidence, etc.).


Note: The “probable cause” standard applies to every element of the alleged felony offense. For example, if the defendant is charged with felony vandalism because the amount of the loss to the alleged victim is alleged to be above $950, but the district attorney shows no evidence of the amount of the loss to the alleged victim at the preliminary hearing, then the defendant may file a PC 995 motion to dismiss the felony vandalism allegation.


Illegal Commitment: A defendant is “illegally Committed” when she is denied certain rights at the preliminary hearing. These preliminary hearing rights include:


  • Right to a ‘continuous’ and uninterrupted preliminary hearing (no unreasonable delay once the preliminary hearing starts);


  • No attorney provided to the defendant during the preliminary hearing and/or no warning to the defendant that she has a right to a lawyer for the preliminary hearing;


  • No opportunity given to the defendant to cross-examine witnesses;


  • Due Process violation (i.e. failure of the district attorney to provide known exculpatory evidence before the preliminary hearing, use of illegally obtain evidence, failure to timely file the “information,” etc.), and more.


Note: The district attorney has 15 days from the last day of the preliminary hearing to file the “information” against the defendant. The information is the charging document that starts the case on the road to trial. A defendant will enter a plea as to the allegations in the “information” even though the defendant has already entered a plea at the arraignment stage. For this reason, the process of entering a plea on the “information” is called the “information arraignment.” The reason the defendant enters another plea in these felony cases is that the preliminary hearing will often, but not always, result in different charges than those criminal charges that started the defendant’s criminal case.


Example I: If the defendant was initially charged with one count of lewd and lascivious acts on a minor (PC 288(a)), but the preliminary hearing prosecutor is able to find more instances of PC 288(a) crimes committed by the defendant at the preliminary hearing, then the prosecution will likely add more PC 288(a) charges in the “information.”


Example II: David is arrested on suspicion of a Residential Burglary (PC 459/460). During the drive to the police station the arresting officer asks David questions about the alleged residential burglary. David is not Mirandized or given any warning that his statements could be used against him in a court of law. Later, at the preliminary hearing, the arresting officer testifies at the preliminary hearing as to David’s statements that were made in the police vehicle. Thereafter, the judge holds the defendant to answer (held to answer at trial for the allegations). Subsequently, David’s attorney files a PC 995 motion to dismiss because the defendant was held to answer based on illegally obtained evidence (use of David’s non-Mirandized statements at the preliminary hearing).


Note: If the only evidence used against the defendant at the preliminary hearing is illegally obtained evidence, then the PC 995 motion to dismiss should be granted. On the other hand, if the evidence used at the preliminary hearing was a mix of illegally obtained evidence and legally obtained evidence, and the legally obtained evidence is sufficient to find probable cause without the use of the illegally obtained evidence, then a PC 995 motion to dismiss based on illegal commitment should not be granted.


PC 995 Motion Granted: If the defendant is successful with her PC 995 motion to dismiss, then the charges against the defendant will be dropped. A PC 995 motion can be granted as to some criminal allegations and not granted as to other criminal allegations. This is common in sex crimes offenses such as lewd and lascivious acts against a minor (PC 288(a)), where the alleged victim is certain as to the number of times he was sexually violated according to the police report, but then at the preliminary hearing, the alleged victim changes his story or the officer indicates that the alleged victim was uncertain at the time of reporting the allegations.


Note: If the court reverses the preliminary hearing judge’s hold order, then the court “sets aside” the allegations. Thereafter, the district attorney may refile the allegation (two filing in most felonies is allowed [two felony dismissal rule]), or the district attorney can appeal the “set aside” decision. The district attorney may also elect to not prosecute any criminal allegations dismissed by the criminal defendant’s 995 motion and simply move forward with prosecution on any remaining felonies that were not dismissed pursuant to the same PC 995 motion. Also, there are some exceptions to the “two felony dismissal” rule.


Also, if the judge grants the defendant’s PC 995 motion to dismiss, and there are no pending allegations against the defendant, then the defendant is entitled to have his bail return (if any bail was staked with the court).


PC 995 Motion Denied: If the defendant’s PC 995 motion to dismiss is denied, then the defendant may appeal the court’s decision. There are strict time limitations when it comes to appealing a denied 995 motion. It is important to speak to a criminal defense lawyer at the earliest opportunity if your PC 995 motion is denied.


PC 995 Motion Process in a Nutshell


  • Defendant’s case advances to preliminary hearing (prelim). Keep in mind that many cases are plea bargained before preliminary hearing or are otherwise dismissed for other reasons (motion to dismiss for untimely prosecution, motion to dismiss in the interest of justice after a successful suppression motion, etc.).


  • The preliminary hearing judge finds there is sufficient evidence against the defendant such that the defendant should answer for allegations at the trial court level (i.e. “defendant held to answer” after prelim).


  • The defendant files a written PC 995 motion in the trial court to have the trial judge reconsider the preliminary hearing judge’s decision(s) [i.e. lack of probable cause or illegal commitment issues]. “Oral” PC 995 motion might be allowed, but not suggested.


  • If defendant loses her PC 995 motion the issue usually ends there; however, a defendant may file for a reconsideration of the trial court’s decision to deny her PC 995 motion. Strict time limitation apply to these appeals. If the defendant wins her PC 995 motion then the district attorney may also appeal, or simply move forward with prosecution on any felony that were not dismissed pursuant to the defendant’s 995 motion.

Penal Code 995 Law (Abbreviated)


PC 995(a) … the information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:


PC 995(a)(2) If it is an information:

  • (A) That before the filing thereof the defendant had not been legally committed by a magistrate.


  • (B) That the defendant had been committed without reasonable or probable cause.


  • (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.

To learn more about California Penal Code section 995 motions to dismiss a felony after preliminary hearing (also called “motion to set aside the information”), contact our criminal defense lawyers today.


Our team of criminal defense lawyers have experience with defending hundreds of felony and misdemeanor criminal charges in San Bernardino County, including the cities of Redlands, Alta Loma, Yucaipa, San Bernardino, Colton, Fontana, Victorville, and more. We offer free in-office, first meeting consultations for the accused. In some cases we can even visit local jails for a consultation for a small fee (West Valley Detention Center, Central Detention Center, & Adelanto Jail). Call today for a free consultation and to learn more about PC 995 motions. Call now!


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