A California Penal Code 995 motion asks a trial court judge to dismiss one or more criminal charges because the preliminary hearing judge improperly allowed the case to proceed to trial. The motion is filed after the district attorney files the criminal complaint, known as an information, but before trial begins. Technically, this legal mechanism is known as a motion to set aside the information.
The motion functions as an appeal of the preliminary hearing judge's decision to bind the case over for trial. When a defendant files this motion, the trial judge reviews the preliminary hearing judge's decision to determine whether sufficient legal grounds existed to hold the defendant over for trial. If the trial judge finds insufficient legal grounds, the motion is granted and charges are dismissed. Otherwise, the case proceeds to trial unless the defendant accepts a plea agreement.
A 995 motion applies exclusively to cases involving felony charges or cases that include both felony and misdemeanor charges. Defendants charged solely with misdemeanors cannot file this motion because misdemeanor cases do not require preliminary hearings. Consequently, without a preliminary hearing, no preliminary hearing decision exists to challenge through this procedural mechanism.
The motion extends beyond challenging the primary charges. It may also contest sentencing enhancements, special circumstance allegations, and charges added by the prosecutor or judge after the preliminary hearing. All charges, including enhancements and special circumstances, must be supported by facts presented during the preliminary hearing. The preliminary hearing judge evaluates whether those facts demonstrate sufficient strength to justify proceeding to trial.
California Penal Code Section 995 establishes the legal foundation for this motion. The statute requires the court to set aside an indictment or information when the defendant was committed without reasonable or probable cause, or when the defendant was not legally committed by a magistrate before the information was filed. This statutory provision ensures defendants do not face full jury trials without proper legal justification for the charges against them.
Courts recognize two primary grounds for granting a 995 motion: illegal commitment and lack of probable cause. These grounds can manifest in several distinct circumstances that justify dismissal of criminal charges following a preliminary hearing.
Probable cause at the preliminary hearing stage requires sufficient evidence that a reasonable person could have an honest and strong suspicion of guilt. The standard remains substantially lower than proof beyond a reasonable doubt but demands a legitimate factual connection between the accused and the charged offense. Courts disregard evidence admitted over timely objection that was later deemed inadmissible when evaluating probable cause. The prosecution must present more than speculation, conjecture, or guesswork to establish guilt. Cases relying entirely on uncorroborated hearsay or absent corpus delicti fail to meet this threshold.
Fourth Amendment violations constitute valid grounds when the information relies on evidence seized in violation of constitutional protections. If the only evidence connecting a defendant to criminal charges derives from an unlawful search or seizure, the court should grant the motion. The standard of proof for probable cause to arrest matches the standard for probable cause to support an information. Correspondingly, if an officer lacked probable cause to make an arrest initially, that deficiency can be raised in the motion.
Illegal commitment occurs when substantial rights are denied during the preliminary hearing. These rights include:
Denial of confrontation rights or admission of irrelevant testimony also constitutes illegal commitment. The magistrate's jurisdictional overreach provides additional grounds for dismissal.
The prosecution must introduce facts supporting every element of each felony charge, all misdemeanor charges, any sentencing enhancement, and grounds for special circumstances. Charges relying on conclusory testimony without factual support, particularly for gang or firearm penalties, warrant dismissal. When witness testimony establishes defendant innocence, such as credibility rulings or inadequate identification evidence, the motion should succeed. Failure to provide discovery within mandated timeframes, specifically the prosecutor's duty to disclose favorable evidence within 15 days, also justifies dismissal.
Arrested for a crime?
The filing window for a 995 motion opens once the prosecutor files the information with the trial court following the preliminary hearing. Defendants must file this motion within 60 days after arraignment on the information or indictment. The arraignment represents the court hearing where the defendant receives formal notice of charges and enters an initial plea. This 60-day period begins immediately after arraignment, regardless of whether the defendant has retained counsel or fully comprehends the charges.
Pretrial motions, including 995 motions, must be served and filed at least 10 court days before the scheduled hearing date. The motion must be accompanied by a memorandum. Papers opposing the motion require filing at least 5 court days before the hearing, while reply papers need submission at least 2 court days prior. Proof of service of the moving papers must be filed no later than 5 court days before the hearing.
The court clerk provides copies of the preliminary hearing transcript within 10 days after the holding order. Upon showing of good cause, courts may extend this delivery period to 20 days. Defense attorneys can file the motion in writing or present it through oral argument at the preliminary hearing. The written format allows thorough documentation of legal arguments, while oral presentation enables immediate challenges to the magistrate's decision.
Missing the 60-day deadline produces significant consequences. If a defendant files the motion after this period expires, the trial court may still hear it. However, if the court denies the motion, the defendant generally cannot seek pre-trial appellate review. Additionally, failure to raise the issue through a timely 995 motion results in waiver of the grounds on appeal. Courts may consider the moving party's failure without good cause to serve and file a memorandum within the permitted time as an admission that the motion lacks merit.
Defendants typically file 995 motions before any other pretrial hearings. This timing allows the trial judge to address fundamental defects in the case before investing judicial resources in additional pretrial proceedings or trial preparation.
Filing the motion requires adherence to specific procedural steps that begin with obtaining the preliminary hearing record and conclude with judicial consideration of the arguments presented.
The court reporter delivers the certified preliminary hearing transcript within 10 to 15 days of the hearing. Defense counsel must thoroughly review this transcript to identify grounds for dismissal, including insufficient evidence, procedural violations, or constitutional rights violations during the preliminary hearing. The transcript serves as the primary evidentiary foundation for the motion, as the trial judge evaluates the preliminary hearing solely based on this record rather than conducting a new evidentiary hearing.
The motion consists of written documents that explain the factual and legal basis for requesting dismissal. Defense counsel prepares points and authorities detailing specific grounds for dismissal, supported by citations to relevant case law and statutory provisions. The motion must articulate why the preliminary hearing judge erred in binding the case over for trial, whether due to insufficient probable cause, illegal commitment, or other valid grounds. Counsel may additionally prepare a common law motion to dismiss, known as a Stanton motion, when requesting the court to consider facts outside the preliminary hearing transcript.
Local court rules govern the filing requirements. Defense counsel files the written motion with the court clerk, accompanied by points and authorities, a copy of the preliminary hearing transcript, and any supporting exhibits. The filing occurs after the case is assigned to a trial judge but before other pretrial proceedings commence. Proper service of the motion on the prosecutor's office must be completed according to procedural rules.
The trial judge sets a hearing date once the motion is filed. The hearing typically lasts less than one hour. Unlike the preliminary hearing, no witnesses testify during this proceeding. Defense counsel argues first, presenting legal arguments based on the preliminary hearing record. The prosecutor responds, often contending that all reasonable inferences favor the commitment decision. Defense counsel then delivers a final rebuttal argument. The judge usually issues a decision immediately after arguments conclude, though occasionally the court continues the matter to consider the arguments further.
The trial court's decision on the motion determines the immediate trajectory of the criminal case and establishes what procedural options remain available to both parties.
The affected charges are dismissed when the trial court grants a 995 motion. However, the prosecutor retains the right to appeal this decision. During the pendency of their appeal, the prosecutor may proceed with a trial on any remaining charges or request a continuance of the trial until the appeal resolves. Alternatively, the prosecutor can bypass the appeal process and simply refile the charge in a new complaint.
California follows a two-dismissal rule that restricts prosecution after repeated dismissals. Charges dismissed twice generally cannot be prosecuted again. This rule pressures prosecutors toward negotiated resolutions rather than repeated attempts at prosecution.
When all charges are dismissed following a granted motion, the court must either refund the defendant's bail within 15 days or apply the bail to new charges if the prosecutor refiles. This bail refund obligation protects defendants from prolonged financial burden when charges lack proper foundation.
A defendant cannot directly appeal a denied 995 motion. Instead, the defendant may file a petition for a writ of prohibition in the court of appeal. This petition must be filed within 15 days after denial if the basis involves lack of reasonable or probable cause. The 60-day limitation applies if the grounds concern illegal commitment.
The defendant may also petition for a writ of habeas corpus in the trial court, appellate court, or California Supreme Court. If the trial court denies this petition, a new petition can be filed in the court of appeal. Denial by the court of appeal permits filing a petition for review in the California Supreme Court.
Filing an effective motion, even when denied, alerts the court and prosecution to significant case issues and often inspires more favorable settlement negotiations.
This procedural mechanism represents one of the most powerful tools available in California criminal defense. The motion enables defendants to challenge the legal validity of charges and potentially secure dismissal before investing resources in a full trial. Correspondingly, successful motions can reduce felony charges to lesser offenses, limit the prosecution's evidence, or eliminate charges entirely.
The strategic value extends beyond immediate case resolution. Even when courts deny the motion, filing creates negotiation leverage by exposing weaknesses in the prosecution's case. Defense attorneys use this opportunity to demonstrate to prosecutors that key counts lack sufficient evidentiary support, often prompting favorable plea agreements or outright dismissals without argument. Furthermore, the motion alerts both the court and prosecution to significant legal issues, frequently inspiring more favorable settlement terms.
The motion serves dual functions within California's criminal justice system. First, it provides judicial error correction by giving the trial court a second review of the preliminary hearing record to ensure constitutional and statutory rights were respected. Second, it enhances case-screening efficiency by requiring each felony count to rest on at least a rational inference of guilt, preventing weak prosecutions from consuming judicial resources and taxpayer funds.
Defendants benefit from avoiding the stress, uncertainty, and financial burden of prolonged litigation when charges are dismissed early. This unique procedural avenue allows complete case dismissal by a judge without risking jury trial.
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This page was reviewed and approved by William S. Kroger, a leading criminal defense attorney in Los Angeles. Mr. Kroger has decades of experience defending clients in both state and federal courts. He is recognized for his strong trial skills and dedication to protecting the rights of the accused. Throughout his career, he has successfully represented clients facing a wide range of serious criminal charges. His personalized defense strategies are designed to achieve the best possible outcome in every case. Clients trust Mr. Kroger for his knowledge, commitment, and proven results.
He is also an active member of respected legal organizations, including the American Bar Association and the National Association for Criminal Defense Lawyers. With his expertise and reputation, William S. Kroger is regarded as one of California’s top defense lawyers.
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