What is a Demurrer in Criminal Court: Definition of Demurrer in Criminal Court

In California criminal court, a demurrer is defined as an objection to the validity of the district attorney's criminal complaint. The following is a brief overview of California criminal law demurrers and related laws. For more information, contact our criminal defense attorneys for a free consultation.

Demurrer Overview


A demurrer, in criminal court, is an objection to the validity of the prosecutor’s complaint (alleged criminal charges). The alleged invalidity of the prosecutor’s complaint may be based upon several grounds, including the following defects in a criminal complaint:


A) The court does not have the power to hear the prosecutor’s criminal complaint because the criminal charges were not brought within the applicable statute of limitation related to the charged offense.


B) The court does not have the power to hear the prosecutor’s criminal complaint because the defendant has already been prosecuted for the same crimes by the same sovereign (Double Jeopardy)


C) The facts as alleged in the criminal complaint do not amount to a public offense


D) The court does not have the power to hear the prosecutor’s criminal complaint because the court does not have personal jurisdiction over the issues (lack of jurisdiction)


E) The criminal statute that the defendant allegedly violated is so vague that a reasonable person could not understand what conduct the statute proscribes


F) The criminal charges in the complaint are not sufficiently detailed, or otherwise conform to the rules for proper pleadings (PC 950 – 954)


G) The defendant’s criminal case is improperly joined to a codefendant’s criminal case without relevant legal relationship between the two criminal cases. The result of which causes undue prejudice to the defendant

Demurrer at Arraignment: A demurrer must be made before the defendant enters a plea, such as not guilty, guilty, no contest, etc. The defendant ordinarily enters a plea at the time of arraignment (defendant's first court appearance). In some cases, a criminal court judge might allow the defendant more time to file his demurrer where there is excusable mistake or neglect on the part of the defendant.


Note: When the defendant enters a plea, such as guilty, not guilty, no contest, etc., the defendant’s entry of plea serves as an implied admission that the court has the power to hear the case. Therefore, a demurrer must be entered before the defendant’s plea in most circumstance. However, if the demurrer is based on a violation of the statute of limitations, then the defendant may enter that demurrer at any time.


Continued Arraignment: Because a defendant must ordinarily make his demurrer before he enters a plea at arraignment, and because a demurrer must be declared in a written document, which is served on the district attorney and timely filed in court, most defendant's will request a continuance of the arraignment in order to properly write, serve, and file a demurrer.


Dismissal of Criminal Charges: If the court grants the defendant’s demurrer, then the defendant must be immediately released from custody and any monetary funds that the defendant staked with the court for bail has must be immediately returned. There are exceptions to this rule for certain types of cases and where the defendant is facing additional charges not subject to the demurrer.


Also, if the judge grants the demurrer, the district attorney may have up to ten days to cure the defect in the criminal complaint, so long as the district attorney does not allege new criminal charges in his effort to cure the criminal complaint’s defects.


Note: Some legal issues related to a demurrer may not be cured by the district attorney. For example, if the court sustains the demurrer on the grounds that the criminal charges would violate the law against double jeopardy, then that defect cannot be cured. This is because the defendant cannot change the charge related to the demurrer.


District Attorney’s Refiling: If the defendant’s demurrer is granted by the judge, then the district attorney may attempt to cure the defect within ten days, or the district attorney might simply refile the criminal charges with more clarity in the charging documents. This district attorney strategy is not available where a defect cannot be cured as it relates to a double jeopardy issue or a statute of limitations issue.


Note: In misdemeanor cases, the district attorney may usually refile the criminal charges after a dismissal of those criminal charges (One dismissal rule); in a felony case, the district attorney will usually be allowed to file criminal charges against the defendant twice (Two dismissal rule). There are exceptions for up to three dismissals in cases where the defendant is facing life in prison. For more information, see What's the Difference Between a Felony and a Misdemeanor.


Example: David is charged with continuous sexual abuse of a minor under fourteen years of age pursuant to California Penal Code Section 288.5(a). David is also charged with a penalty enhancement of substantial sexual conduct pursuant to PC 1203.066(b). Both offenses are alleged in the complaint and both offenses are alleged to have occurred over the same time period. A special provision of PC 288.5(c) provides that these two charges may not overlap in time period. Therefore, David, before entering a plea to the criminal complaint demurrers. David does so because there is a legal defect on the face of the complaint (overlapping time periods related in violation of PC 288.5(c)). Result: David will likely have his PC 1203.066(b) penalty enhancement dismissed.


Note: In the above example, if David does not demurrer before arraignment, the judge may nevertheless allow David to Demur after arraignment, or the district attorney may simply refile the PC 288.5(a) charges without the penalty enhancement allegations. See Penalty Enhancement & PC288.5(a)-F for more information.


California Demurrer Laws (PC 1002 – 1012)


PC 1002: The only pleading on the part of the defendant is either a demurrer or a plea.


PC 1003: Both the demurrer and plea must be put in, in open Court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.


PC 1004: The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:


1) If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if any information or complaint that the court has no jurisdiction of the offense charged therein (PC 1004.1);


2) That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information (PC 1004.2);


3) That more than one offense is charged, except as provided in Section 954 (PC 1004.3);


4) That the facts stated do not constitute a public offense (PC 1004.4);


5) That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution (PC 1004.5).


PC 1005: The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the accusatory pleading, or it must be disregarded.


PC 1006: Upon the demurrer being filed, the argument upon the objections presented thereby must be heard immediately, unless for exceptional cause shown, the court shall grant a continuance. Such continuance shall be for no longer time than the ends of justice require, and the court shall enter in its minutes the facts requiring it.


PC 1007: Upon considering the demurrer, the court must make an order either overruling or sustaining it. If the demurrer to an indictment or information is overruled, the court must permit the defendant, at the defendant’s election, to plead, which the defendant must do forthwith, unless the court extends the time. If the demurrer is sustained, the court must, if the defect can be remedied by amendment, permit the indictment or information to be amended, either forthwith or within such time, not exceeding 10 days, as it may fix, or, if the defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing of a new information or the submission of the case to the same or another grand jury. If the demurrer to a complaint is sustained, the court must, if the defect can be remedied, permit the filing of an amended complaint within such time not exceeding 10 days as it may fix. The orders made under this section shall be entered in the docket or minutes of the court.


PC 1008: If the demurrer is sustained, and no amendment of the accusatory pleading is permitted, or, in case an amendment is permitted, no amendment is made or amended pleading is filed within the time fixed therefor, the action shall be dismissed, and, except as provided in Section 1010, the court must order, if the defendant is in custody, that he be discharged or if he has been admitted to bail, that his bail be exonerated, or, if money or other property has been deposited instead of bail for his appearance, that such money or other property be refunded to him or to the person or persons found by the court to have deposited such money or other property on his behalf.


PC 1009: An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint.


PC 1010: When an indictment or information is dismissed after the sustaining of a demurrer, or at any other stage of the proceedings because of any defect or insufficiency of the indictment or information, if the court directs that the case be resubmitted to the same or another grand jury or that a new information be filed, the defendant shall not be discharged from custody, nor the defendant’s bail exonerated nor money or other property deposited instead of bail on the defendant’s behalf refunded, but the same proceedings must be had on such direction as are prescribed in Sections 997 and 998.


PC 1012: When any of the objections mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court and the objection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment.


PC 950: The accusatory pleading must contain:


1) The title of the action, specifying the name of the court to which the same is presented, and the names of the parties (PC 950.1);


2) A statement of the public offense or offenses charged therein (PC 950.2).


PC 952: In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.


PC 954: An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.


To learn more about demurrer in criminal court, or Penal Code Section 1002 – 1012 & 950 – 954, contact our criminal defense attorneys today for a free consultation. Our criminal defense attorneys have successfully defended hundreds of misdemeanors and felonies in San Bernardino & Riverside Counties, including Redlands, Fontana, Rialto, Colton, Grand Terrace, Yucaipa, Victorville, San Bernardino, Ontario, Rancho Cucamonga, Hesperia, and more. Our defense lawyer are available seven days a week for free in-office, first-visit consultations. Call today!


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What is a Demurrer in Criminal Court