Penal Code 995 Motion to Dismiss
Defense counsel must file a 995 motion to dismiss the information if a defendant was indicted without probable cause. If defense counsel does not raise the 995 issue, it is waived on appeal. A clerk must provide copies of the transcript 10 days after the holding order, and a 995 motion can be filed in writing or made at the preliminary hearing by oral argument. Upon showing of good cause, the 10 days for delivery of the transcript can be extended to 20 days. If only certain counts are dismissed, the prosecution proceeds to trial on the remaining counts and the government may appeal those that have been dismissed. To be timely, a 995 motion must be filed within 60 days after arraignment in the trial court, unless the defense was unaware of that the information lacked probable cause and had no opportunity to raise it.
In the event the defendant wants the court to consider facts outside the record of the preliminary hearing transcript, counsel may have the court review a common law (nonstatutory) motion to dismiss to be heard at the same time. This is called a Stanton motion, from Stanton v. Superior Court, 193 CA3d 265.
If two reasonable inferences can be drawn from the evidence, one showing probably cause, the court must deny a 995 motion. In a charge of Penal Code 647(a) — annoying and molesting a child — the defendant filed a Stanton motion because the error was not visible based on the four corners of the preliminary hearing transcript in which it was argued that statements of the lead detective were subsequently discovered to be false based on forensic evidence obtained after the preliminary hearing. In its 995 motion, the defense argued that a holding order could not stand for conduct that was not illegal or annoying when the victim was not aware that the defendant purportedly was trying to take pictures of the alleged victim from behind.
Although the evidence supporting the information or indictment must also be admissible, exceptions allow for hearsay evidence to be admissible as presented by a peace officer (see Prop 115) and uncorroborated testimony of an accomplice. If there is not enough evidence to support an enhancement or any element of the crime beyond a reasonable doubt, the 995 should be granted as to that count. For example, sometimes the People cannot prove intent to sell in a possession of drugs for sale case, the existence of an unlawful agreement in a conspiracy case, a prior petty theft conviction to elevate the crime to a felony petty theft case, or a prior felony conviction for ex felon in possession of firearm.
The standard of proof of probable cause for arrest is the same as probable cause to support an Information. Therefore, if an officer lacked probable cause to make an arrest in the first instance, that lack of probable cause can be argued in a 995 motion to dismiss. Experienced defense counsel, such as those at Walk Free Law, should be able to identify all the viable bases for making a timely 995 motion based on a substantial right affected in the record, or a common law motion to dismiss based on evidence outside that record of insufficient evidence or probable cause that a crime was committed as charged.
In the event the defendant wants the court to consider facts outside the record of the preliminary hearing transcript, counsel may have the court review a common law (nonstatutory) motion to dismiss to be heard at the same time. This is called a Stanton motion, from Stanton v. Superior Court, 193 CA3d 265.
If two reasonable inferences can be drawn from the evidence, one showing probably cause, the court must deny a 995 motion. In a charge of Penal Code 647(a) — annoying and molesting a child — the defendant filed a Stanton motion because the error was not visible based on the four corners of the preliminary hearing transcript in which it was argued that statements of the lead detective were subsequently discovered to be false based on forensic evidence obtained after the preliminary hearing. In its 995 motion, the defense argued that a holding order could not stand for conduct that was not illegal or annoying when the victim was not aware that the defendant purportedly was trying to take pictures of the alleged victim from behind.
Although the evidence supporting the information or indictment must also be admissible, exceptions allow for hearsay evidence to be admissible as presented by a peace officer (see Prop 115) and uncorroborated testimony of an accomplice. If there is not enough evidence to support an enhancement or any element of the crime beyond a reasonable doubt, the 995 should be granted as to that count. For example, sometimes the People cannot prove intent to sell in a possession of drugs for sale case, the existence of an unlawful agreement in a conspiracy case, a prior petty theft conviction to elevate the crime to a felony petty theft case, or a prior felony conviction for ex felon in possession of firearm.
The standard of proof of probable cause for arrest is the same as probable cause to support an Information. Therefore, if an officer lacked probable cause to make an arrest in the first instance, that lack of probable cause can be argued in a 995 motion to dismiss. Experienced defense counsel, such as those at Walk Free Law, should be able to identify all the viable bases for making a timely 995 motion based on a substantial right affected in the record, or a common law motion to dismiss based on evidence outside that record of insufficient evidence or probable cause that a crime was committed as charged.