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Top 22 Motions in Criminal Defense: California Criminal Law & Procedure

The following represents a brief overview of the most common criminal defense motion used by defense attorney in California criminal cases. For more information, contact our criminal defense attorneys today for a free consultation.

Motion for Judicial Diversion (PC 1001.95): A PC 1001.95 motion to enter diversion, also called “Judicial Diversion,” is a request made to the criminal court judge to have the defendant’s misdemeanor criminal prosecution circumvented, or “diverted.” If the judge agrees to divert the defendant’s prosecution, then the defendant will be ordered to fulfill “diversion condition.” Diversion conditions are similar to probation conditions, such as pay fines, violate no law (new misdemeanor or felony charge), comply with criminal protective orders, pay restitution, etc. If the defendant completes the diversion conditions, the judge will dismiss the defendant’s criminal charges.

Note: Judicial Diversion is not available in felony cases, sex offense cases where the defendant must register as a sex offender, domestic violence cases, and DUI cases, and stalking cases. Also, whether the defendant is allowed to enter Judicial Diversion is entirely up to the judge. This is true even where the district attorney objects to the defendant being offered Judicial Diversion. For more information, See PC 1001.95 Judicial Diversion.

Motion to Withdraw a Plea (PC 1018): A PC 1018 motion to withdraw a plea allows a defendant to withdraw his plea of “guilty” or “no contest” for up to 180 days after sentencing. This motion is brought after sentencing, as opposed to other motions to withdraw a plea that are brought before sentence. The 1018 motion to withdraw a plea must be supported by good cause, such as ineffective assistance of counsel, failure to properly advise the defendant of his trial rights, and more. If the judge grants the motion to withdraw a plea, then the defendant is placed back on the pretrial calendar as though no plea was entered. For more information, see Penal Code 1018 Motion.

Motion to Dismiss (Interest of Justice): A Penal Code section 1385 motion to dismiss is a request by the district attorney (or the judge) to dismiss a criminal charge in the interest of justice. A motion to dismiss in the interest of justice occurs in several situations, for example, where the district attorney cannot move forward with the prosecution of the defendant for some legal reason (i.e., lack of evidence or witness, district attorney unavailable, etc.), or where the criminal charges are dismissed as part of a plea bargain.

Note: Once a district attorney files a criminal complaint against a defendant, the district attorney may not withdraw or dismiss that criminal complaint without court approval. With a PC 1385 motion to dismiss in the interest of justice, the district attorney or the judge must make the request (not the defendant); however, a defendant may “invite” the judge to make the request on the court’s own authority. For more information, see PC 1385 Motion to Dismiss in the Interest of Justice.

Motion to Suppress Evidence (PC 1538.5): A motion to suppress evidence, also commonly referred to as a PC 1538.5 motion, or a motion to suppress illegally obtain evidence, is one of the most common criminal defense motions filed by a defendant.

Essentially, a Penal Code section 1538.5 motion to suppress is a defendant’s request to a criminal court judge to have the judge render certain evidence unavailable to the prosecution. The reason for the defendant’s request is that the evidence sought to be suppressed was obtained only by a violation of the defendant’s Fourth Amendment Right against warrantless unreasonable searches and seizure. Even where law enforcement obtain evidence named in a warrant, the defendant may nevertheless be entitled to have that evidence suppressed where the warrant was not based upon reasonable Probable Cause. For more information, see Motion to Suppress Evidence.

Motion to Reduce Felony to Misdo (PC 17(b)): A motion to reduce a felony to a misdemeanor is allowed under Penal Code 17(b) in certain circumstance. For one, any crime that is charged as a felony, which could have been charged alternatively as a misdemeanor, is eligible for a PC 17(b) motion to reduce the felony charge to a misdemeanor charge. The reclassification of the criminal charge from a felony to a misdemeanor may accomplished with the district attorney consent (usually as part of a plea bargain agreement), or without the district attorney’s consent (such as through a contested motion, which is usually brought after a preliminary hearing).

Note: A PC 17(b) motion to reduce a felony to a misdemeanor may be brought at any time during the criminal proceedings, including after sentencing. However, for the most part, a motion to reduce a felony to a misdemeanor is usually brought contemporaneously with the preliminary hearing. This is because the preliminary hearing is usually the first opportunity for a criminal judge to hear sufficient evidence in the case to make an informed decision on the issue.

Also, whether a judge reclassifies a felony to a misdemeanor depends on many factors, including the defendant’s criminal history and the presence of any mitigating circumstances in the case. Finally, if the judge decides to reduce the felony to a misdemeanor, then the criminal case continues to move forward as a misdemeanor allegation, unless the reclassification is part of a court-assisted plea bargain. For more information, see California “Wobbler” Crime Information.

Motion to Dismiss Misdemeanor (PC 991): A Penal Code motion to dismiss a misdemeanor is brought at arraignment in misdemeanor cases. The PC 991 motion only applies to misdemeanor criminal charges and may only be brought if the defendant is in custody at the time of arraignment on a misdemeanor. Essentially, the PC 991 motion to dismiss a misdemeanor is based on the lack of sufficient evidence in the case, or at least the argument that the district attorney’s case lacks sufficient evidence. If the judge grants the PC 991 motion, then the criminal charges levied against the defendant are dismissed. In most cases, the district attorney will have an opportunity to refile the misdemeanor charges.

Note: For practical purposes, most defendants are “cite-released” upon misdemeanor allegations. Therefore, a PC 991 motion usually only applies to the most serious of misdemeanor cases, such as where the defendant has previously failed to appear at court, or in misdemeanor sex crimes, such as annoy or molest a child (PC 647.6(a)(1)), misdemeanor possession of child pornography (PC 311.11(a)), and more. For more information, see PC 991 Motion to Dismiss a Misdemeanor.

Motion to Set Aside Info. (PC 995): A Penal Code section 995 motion to set aside the information is a defendant’s request to have a criminal court judge reconsider the “holding order” of the judge who presided over the preliminary hearing. Essentially, this means the defendant is asking a judge to reconsider an earlier judge’s decision to “hold the defendant to answer” at trial. The reconsideration request is based upon the idea that the prelim judge made a mistake in some way or another. For more information, see PC 995 Motion & Preliminary Hearing Information.

Note: A "Stanton Motion" is related to a PC 995 motion. A Stanton motion is a Common Law motion that asks the judge to consider evidence outside the preliminary hearing transcript, such as evidence that was not available at the preliminary hearing for some reason (Brady violation, new evidence discovered after the prelim, etc.). [Stanton v. Superior Court, 193 Cal 3rd, 265].

Motion to Reduce Bail: A motion to reduce bail is the defendant’s request to a criminal court judge to have the judge reduce the amount of money or property that is required to be held by the court and intended to ensure the defendant’s presence in court through the pretrial proceedings. A motion to reduce bail is made on several grounds, including the defendant’s danger to the community, the defendant’s risk of not appear in court as ordered if released on lowered bond, the defendant’s ability to pay the bail set, and more. For more information, see Bail Issues in Criminal Court.

Motion for Release on Own Recognizance: A motion to release the defendant on her own recognizance (aka “OR release”) is the defendant’s request to a criminal court judge to have the judge release the defendant from custody during the pretrial proceedings. Generally, the defendant must post bail in order to be released from custody during the pretrial proceedings. However, if the judge is so willing, in some cases, the defendant may be release from custody during the pretrial proceedings without the posting of bail. For more information, see Bail Issues in Criminal Court.

Brady Motion (PC 1054): A “Brady Motion” is also called a “Motion to Compel Evidentiary Disclosure.” Essentially, a motion to compel is a defendant’s request to a criminal court judge to have that judge order the district attorney to deliver certain items to the defendant because those evidentiary items include exculpatory or inculpatory evidence related to the defendant.

Motion to Continue Hearing (PC 1050): A motion to continue a criminal court hearing, or PC 1050 motion, is a request to the criminal court judge, which is made by either the criminal defendant or the district attorney, to grant more time before moving forward with a particular hearing (usually preliminary hearing or trial).

The PC 1050 motion is based upon good cause as to why the court should grant more time. For purposes of the district attorney requesting more time, the judge is generally less lenient due to the fact that the criminal defendant has “speedy trial” rights. A motion to continue a hearing is a very common motion in criminal court. It is so common in fact, that most judge dispense with the requirement that the motion be drafted and served in advance on opposing side, at least where preliminary hearing or trial is not the court hearing that is the subject of the requested continuance.

Motion to Disqualify Judge (PC 170.1): A motion to disqualify a judge is exactly as it sounds. Essentially, the grounds for disqualify a judge usually relate to a perceived prejudice that a defendant, or the defendant’s attorney, believes to exist between the judge and the client or the judge and the client’s attorney.

A motion to disqualify a judge is a common motion, but the motion is not likely to be granted where the defendant has already had several hearings in the judge’s court and waited to bring the motion. On the other hand, a motion to disqualify a criminal court judge, which is requested at the earliest opportunity, is allowed by law in most situations.

Franks Motion: A Franks motion is a request to “traverse the warrant.” In other words, a Franks motion is a defendant’s request to examine the affidavit that supports a warrant to show that no reasonable judge would have issued a warrant based on the information contained in the warrant (i.e., affidavit supporting warrant does not create reasonable probable cause to believe a crime was committed and a search and/or seizure of evidence is allowed). If the defendant wins her Franks motion it is possible that the criminal court judge will suppress the evidence seized as part of the invalid warrant.

Marsden Motion: A Marsden Motion is a motion brought by a defendant who is using the services of the public defender. The motion is a request by the defendant to have the defendant’s appointed public defender removed from the case and have another attorney substitute in place of the appointed public defender. A Marsden motion is only successful upon a showing that the defendant’s rights will be substantially impaired if she is made to continue her case with the appointed public defender.

Messiah Motion: A Messiah Motion is a criminal defendant’s request to a judge to have her statement(s) removed because the defendant’s statement(s) was made after the defendant’s Sixth Amendment’s right to counsel had already attached when the statement(s) was made. Essentially, if the defendant requests an attorney to be present during any questioning by law enforcement, then any interrogation by law enforcement of the defendant afterwards is inadmissible.

Note: A Messiah Motion may apply even where a Miranda warning was issued to the defendant and the defendant agreed to speak to law enforcement, so long as the defendant also requested an attorney to be present during any law enforcement interrogation. Essentially, a Sixth Amendment right to have an attorney present during questioning, if requested by the defendant, is actually a stronger right than the defendant’s right to be silent (Fifth Amendment Right). The reason for this is that the defendant’s right to remain silent is presumed waived if the defendant begins to talk to law enforcement after she was given a Miranda warning. On the other hand, the defendant’s Sixth Amendment Right to have an attorney present during law enforcement questioning is never presumed waived.

Note: When “Miranda” warnings are read to a criminal suspect, those warning include both a Fifth Amendment right to remain silent AND a Sixth Amendment right to have an attorney present during any questioning by law enforcement. Therefore, when a defendant remains silent immediately after being advised to do so, the interrogating officer may continue to request a statement on 1) unrelated criminal matters, and 2) if the defendant changes her mind and wishes to speak to law enforcement. However, as stated, the Sixth Amendment right is not presumed to be waived in either of the circumstances related to the defendant’s Fifth Amendment rights. For more information, see Miranda Warnings.

Pitchess Motion: A Pitchess Motion is a request by the defendant, to a criminal court judge, to have that judge order the personnel file of law enforcement related to the case disclosed to the defendant. The basis of the motion is defendant’s claim, based on supporting evidence, that demonstrates the arresting officer’s prior use of excessive force against criminal suspect, or that the arresting officer is biased against the defendant, or that the arresting officer has a history of falsifying evidence.

Romero Motion: A Romero Motion is a common criminal court motion that may be brought a any time during the criminal prosecution, including after trial. The Romero Motion is a criminal defendant’s request to the court to dismiss a prior conviction suffered by the defendant, and one that is presently being used to enhance a criminal penalty against the defendant.

For example, if a defendant has a ten-year prior conviction for the crime of assault with a deadly weapon, and the defendant is facing a new criminal allegation where the penalty is being enhanced because of her prior conviction, then the defendant might wish to file a Romero Motion to dismiss the prior in order to have his current criminal exposure reduced.

Serna Motion: A Motion to dismiss for lack of timely prosecution, also called a Serna Motion, or Jones Motion, is a request by a criminal defendant, to a criminal court judge, to have the judge dismiss the defendant’s criminal case where the district attorney unreasonably delayed prosecution, and that unreasonable delay prejudiced the defendant.

Note: A Serna motion is available where there is no justifiable delay for filing criminal charges against the defendant, despite the fact the criminal charges were filed within the applicable statute of limitation for that crime. A Serna motion might also apply where the district attorney formally files charges against the defendant, but the prosecution is unreasonably delayed because the district attorney did not “bring the defendant to court after a warrant for the defendant was issued by the court. This second situation is probably more common and occurs where the defendant does not appear for court as ordered and the district attorney does not follow up with collecting the defendant on a warrant. For more information, see Serna Motion.

Motion for Severance: A motion to sever a criminal case is a defendant request for a judge to separate either criminal defendants’ related case, or criminal charges related to a single defendant. The basis of the “severance motion” is that the defendant cannot receive a fair trial if the defendant is either associated with other codefendants, or the criminal charges are not separated for jury trial.

For example, if two codefendants are jointly charged, and one defendant is charged with murder in the first degree (PC 187(a)), and the murderer’s codefendant is charged with accessory after the fact (PC 32), then the defendant charged with the much less serious crime of PC 32 may want to separate (sever) his criminal case from that of his codefendant’s.

Trombretta Motion: A Motion to Dismiss a criminal charge, also called a Trombretta Motion, is based on the idea that the district attorney lost or destroyed evidence, and that lost or destroyed evidence would have exonerated the defendant if it were otherwise available. A Trombretta motion only applies where the prosecutor, or prosecutor’s agent, is the person who lost or destroyed the evidence, and only where the evidence that was lost or destroyed is relevant and essential to the defendant’s defense.

More Common Criminal Defense Motions: In addition to the top 20 criminal defense motions listed above, other common defense motions include: motion to examine the source of bail (PC 1275.1), motion to change venue, motion to appoint an expert, Murgia Motion, and more.

Request to Appear "977": A motion to appear 977 means a request to appear in criminal court by way of counsel (attorney). In misdemeanor cases, the defendant's attorney may usually have his attorney appear for him so long as the defendant has given his attorney "977 authority."

A few misdemeanor cases require the defendant to personally appear in person at arraignment so that he may be issued a criminal protective order, such as in misdemeanor domestic violence cases, misdemeanor stalking cases, misdemeanor criminal threats, and so on (See PC 977). In these types of cases, the defendant cannot authorize his attorney to appear for him with PC 977 authority, at least not at the arraignment state.

In felony cases, the defendant must appear at all hearing unless, and until, the defendant is allowed to have his attorney appear for him. There are a few exceptions to this rule, such as where the defendant is in custody on another case in another county, or there is an unavoidable emergency not caused by the defendant. For more information, see PC 977.

For more information on common criminal defense motions in California, including PC 1538.5 motions, Serna Motions, 17(b) motions, and more, contact our criminal defense lawyers today for a free consultation. Our criminal defense lawyers represent persons charged with any felony or misdemeanor crime in the Inland Empire, including the cities of Redlands, Fontana, Rancho Cucamonga, Victorville, San Bernardino, Yucaipa, Ontario, Rialto, Hesperia, Colton, Chino, and more. In some cases, we can even visit inmates in local county jails for a small fee (West Valley, CDC, Glen Helen Jail). Call today!


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Criminal law motions, California, criminal defense lawyers, pitchess, pc 1538.5, serna motion, 17(b) motion, bail, judicial diversion, san bernardino
Top 21 Motions in Criminal Defense


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