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Penal Code 991 Motion to Dismiss Explained: Criminal Defense Lawyers

Per California criminal law, a defendant who is charged with a misdemeanor crime, and who is in custody at the time of her first court appearance, may file a motion to dismiss her misdemeanor criminal charges for lack of probable cause to believe that a criminal offense has been committed by her.

The judge must consider the defendant’s 991 motion and decide if there is sufficient supporting evidence to justify the district attorney’s continued prosecution of the defendant. This is known as a Penal Code 991 motion to dismiss, or simply a “991 Motion.”

Of course, a defendant who is in custody (jail) and awaiting her first court appearance (arraignment) on a misdemeanor charge, will almost certainly need a criminal defense attorney to file the 991 motion on her behalf.

In some cases, the defendant may continue her arraignment in order to have time to file the 991 motion, but this continuance will be likely be a short amount of time and the defendant will still be in custody, which makes it difficult for the defendant to file the 991 motion without the assistance of counsel.

Purpose of a PC 991 Motion: Penal Code 991 motions are used to dismiss criminal charges at an early stage when those criminal charges are based on minimal and weak supporting evidence. A motion to dismiss a misdemeanor at arraignment (PC 991 motion) is similar to a motion to dismiss a felony at preliminary hearing (PC 995).

PC 991 Motion Granted: In short, if the judge grants the defendant’s Penal Code 991 motion, the judge will order the criminal charges dismissed and the defendant will be released from custody (unless the district attorney immediately refiles the criminal charges against the defendant, or the defendant is in custody on additional charges).

As stated, if the criminal court judge dismisses the misdemeanor criminal charges against the defendant, then the district attorney might refile the criminal charges; however, there are limitations to the district attorney’s ability to refile certain misdemeanor criminal charges (see below).

PC 991 Motion Denied: If the judge denies the defendant’s Penal Code 991 motion, then the case continues on its procedural course (i.e. pretrial, hearing on other motions, trial, etc.). In fact, the criminal court judge could release the defendant on her own recognizance after the denial of her PC 991 motion.

Do I qualify for a PC 991 Motion to Dismiss?

Before we consider whether or not a defendant qualifies for a PC 991 motion to dismiss, some legal terms and laws should be explained:

In Custody: A defendant is in custody when she is incarcerated in a county jail, prison, city jail, or even a court holding facility.

Misdemeanor: A misdemeanor is a classification of crimes that is considered lower-level public offenses. Common examples include misdemeanor DUI, shoplifting, simple battery, domestic battery, disturbing the peace, public intoxication, indecent exposure, commercial burglary, reckless driving, trespass, prostitution, loitering for prostitution, etc.

Arraignment: Arraignment is the defendant’s first court appearance (in most instances). To “arraign” someone means to bring them before a judge and formally accuse her of a public offense. The arraignment is the court hearing where the defendant enters a plea (i.e. not guilty, no contest, guilty, etc.).

The arraignment is also the time that the defendant learns of the formal accusations against her and where she is given the opportunity to present a Penal Code 991 motion.

Other issues are resolved at arraignment, such as demurrers, setting of further hearings, receipt of discovery (evidence), and more. But these issues are usually handled by the defendant’s criminal defense attorney.

Probable Cause: Probable cause is phrase used in criminal court to mean that there is reasonable cause to believe, based on articulated facts, that a crime has been committed and that the defendant is the person who committed the crime. Probable cause does not mean “proof beyond a reasonable doubt.” Probable cause simply means that the judge finds there is sufficient evidence to support the district attorney’s continued prosecution of the criminal charges.

Continuance: A continuance means the matter is continued to another date. In criminal legal procedure, a defendant has a right to have matters heard within certain time limits. When a defendant requests a matter be continued to another day, then this usually means the defendant is “waiving” her right to have a judge hear the matter within the statutory time requirements.

Of course, a defendant can only “waive” her rights to a timely court hearing if she knows what those rights are. In most cases, the defendant must be arraigned within 48 hours of her arrest if she is custody. Other time limitations apply to district attorneys for their requested continuance in order to respond to a 991 motion (3 days). Other statutory time limitations apply to criminal cases in general, but those time limitations are not relevant to this discussion.

Dismissal: A dismissal of the criminal complaint means that the district attorney is forbidden from further prosecution unless the district attorney refiles the criminal charges. In a misdemeanor case, if the defendant secures to two dismissals of the criminal charges, then ordinarily the district attorney is barred from further prosecution of the criminal charges.

Wobbler: A wobbler crime is public offense that may be charged either as a misdemeanor, or alternatively as a felony. A felony is a higher-level classification of crime. As to wobbler offenses, a PC 991 motion does not apply. Common wobbler offenses that do not qualify for a Penal Code 991 motion to dismiss include: unauthorized use of vehicle, elder theft, assault with a deadly weapon, inflict corporal injury to spouse, evading police, prohibited weapons, sexual battery, vandalism, welfare fraud, etc.

Bail & Own Recognizance Release: Bail is the process of staking money or property with the court, usually through a bail bond company, in order to be released from custody pending the criminal prosecution of a case. The bail amount is intended to secure the defendant’s presence at court as the bail posted will be forfeited if the defendant does not appear as ordered after her court ordered release from custody.

An own recognizance release means the defendant is released from custody without the need for bail and despite the fact that the criminal matter has not resolved. Own recognizance release is also known as ‘release on good behavior,’ or ‘OR release.’

Refile of Criminal Charges: A district attorney may usually be allowed to refile misdemeanor charges after those charges are dismissed pursuant to a Penal Code 991 motion to dismiss. To refile simply means to 'charge the defendant again with the same offense.'

Of course, if the defendant remains in custody because of an immediate refiling by the district attorney, then the defendant may file another PC 991 motion. Unless the district attorney has new evidence after the granted of a PC 991 motion, and assuming the defendant remains in custody after the refiling, then the judge is likely to have the same result as the first PC 991 motion (second dismissal). Therefore, in practice, a second PC 991 motion is rarely available (because the defendant is released from custody before the district attorney refiles the misdemeanor charges).

Penal Code 991 Law

(a) If the defendant is in custody at the time he appears before the magistrate for arraignment and, if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate, on motion of counsel for the defendant or the defendant, shall determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty thereof.

(b) The determination of probable cause shall be made immediately unless the court grants a continuance for good cause not to exceed three court days.

(c) In determining the existence of probable cause, the magistrate shall consider any warrant of arrest with supporting affidavits, and the sworn complaint together with any documents or reports incorporated by reference thereto, which, if based on information and belief, state the basis for such information, or any other documents of similar reliability.

(d) If, after examining these documents, the court determines that there exists probable cause to believe that the defendant has committed the offense charged in the complaint, it shall set the matter for trial.

If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant.

(e) Within 15 days of the dismissal of a complaint pursuant to this section the prosecution may refile the complaint.

A second dismissal pursuant to this section is a bar to any other prosecution for the same offense.

Evidence Considered by a Judge in PC 991 Motions

At the early stages of a criminal prosecution, the defendant will not likely be able to present too much evidence in support of her PC 991 motion. Nevertheless, the judge will consider arrest warrant affidavits, police reports, sworn complaints used to support an arrest, and possibly defense witness testimony.

Also, per PC 991, the district attorney only has 15 days to refile criminal charges against a defendant after the defendant successfully obtains a dismissal based on a PC 991 motion (See above).

Note: If the district attorney immediately refiles the misdemeanor charges against the defendant, and the defendant is successful on a second PC 991 motion to dismiss based on those same criminal charges, then the district attorney is ordinally barred from attempting a third filing on the misdemeanor offense.

Example of PC 991 Motion in Practice: Melissa is charged with a violation of Penal Code 647.6(a) [Annoying or Molesting a Child]. Melissa is jailed based on the allegations and she is awaiting arraignment the following day. Melissa engages a criminal defense attorney who collects evidence to present to the judge the following day as part of Melissa’s motion to dismiss (PC 991 Motion). At arraignment, the judge may do any of the following: grant the motion and dismiss the PC 647.6(a) allegations, continue the PC 991 motion for up to three days to allow the district attorney time to respond to Melissa's motion, or deny her motion and move to the next stage in the criminal process, including possibly releasing Melissa on bail or her own recognizance.

Example II: Melissa is charged with misdemeanor false imprisonment, a wobbler offense. Melissa is awaiting arraignment and she decides to file a PC 991 motion to dismiss the misdemeanor charges. In this case, the judge will not hear the PC 991 motion because Melissa is charged with a wobbler offense, which means that the district attorney could elevate the classification of the false imprisonment charge to a felony, and felonies do not qualify for PC 991 motions to dismiss.

Example III: Melissa is charged with misdemeanor simply battery (a non-wobbler offense). However, Melissa is not in custody at the time of her arraignment, either because she bailed out of jail, or because she was cite-released by the investigating officer. In this case, the judge will not entertain a PC 991 motion because Melissa is not in custody at the time of her arraignment on the misdemeanor simple battery charge.

Example IV: Melissa is charged with misdemeanor trespass and felony vandalism. At arraignment, Melissa may bring a PC 991 motion to dismiss on the misdemeanor trespass charge (assuming Melissa is in custody on at the time of arraignment on both criminal charges). This is true even though Melissa is also facing a felony vandalism charge. Of course, if the judge grants Melissa’s Penal Code 991 motion to dismiss as to the misdemeanor trespass charge, she will still need to resolve the felony vandalism charge. But with one charge dismissed (misdemeanor trespass), Melissa might have her bail reduced sufficiently enough for her to be able to afford a pretrial release on bail.

Example V: Melissa is charged with misdemeanor DUI. Melissa is in custody until arraignment. At arraignment, Melissa pleads guilty to the court’s ‘indicated sentence’ and Melissa is ordered to immediately serve an additional thirty days in custody as a condition of probation. Thereafter, Melissa argues for a PC 991 motion to dismiss the misdemeanor DUI charges. In this case, Melissa’s PC 991 motion to dismiss will be denied because Melissa has already plead guilty.

Remember: Penal Code 991 only applies to defendant’s who plead not guilty at arraignment. The same result would apply to Melissa is she had plea ‘no contest’ at arraignment. This is because a ‘no contest’ plea is the same as a guilty plea for purposes of Penal Code 991 motions in criminal cases.

In short, a PC 991 motion only applies to defendants who meet all of the following:

In custody at the time of arraignment.

Charged with a non-wobbler misdemeanor offense.

Requests 991 motion after pleaded “not guilty” to the charged offense.

Note: A finding of Probable Cause is required by police officers in order for them to arrest a person for a misdemeanor offense in the first place, therefore, PC 991 motions tend to be uphill battles; however, probable cause insufficiency can still be argued in cases where the defendant has additional evidence to support her innocence (not collected by officers), where a non-officer makes an arrest (citizen’s arrest), or where there is warrant for a defendant based on one-sided, alleged victim, allegation(s). This is most common in non-scientific cases of ‘he said, she said,’ such as misdemeanor domestic battery, trespass, indecent exposure, non-recorded harassment by telephone allegations, etc.

Other Misdemeanor Dismissal Options

If the defendant does not qualify for a PC 991 motion, or the defendant’s PC 991 motion was denied, the defendant may still obtain a dismissal of a misdemeanor criminal charge in certain circumstances. This includes the dismissal of a misdemeanor charge, along with a felony charge, after a preliminary hearing in a felony case, after the granting of motion to suppress evidence (PC 1538.5), as part of plea bargain, where the misdemeanor is dismissed in exchange for the defendant’s plea on a separate criminal charge, and more.

Also, a misdemeanor is sometimes dismissed as part of a diversion program, as part of a Serna motion (prejudicial delayed prosecution), or simply because the district attorney, or court, does not believe there is sufficient evidence to continue prosecution in light of defense evidence after arraignment (PC 1385 request).

To learn more about California Penal Code Section 991, contact our criminal defense lawyers today for a free consultation. Our criminal defense lawyers represent all persons charged with any misdemeanor or felony crimes in San Bernardino County, including the cities or Redlands, Fontana, San Bernardino, Rancho Cucamonga, Ontario, Yucaipa, Hesperia, Victorville, Chino, and more.

Our team of experienced criminal defense lawyers are available to discuss you case with you seven days a week, including holidays. Our lawyers can even visit local county jails for consults for a minimal charge (West Valley Detention Center, Central Detention Center, Glen Helen Rehabilitation Center, and Adelanto Jail. Call today for an experienced criminal defense attorney!


PC 991 Motion to Dismiss: California Criminal Defense Lawyers
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