A motion to dismiss is used to ask a judge to dismiss all of part of the counts included in the information that the prosecutor files after the preliminary hearing. Below we will explain when an attorney can use a motion to dismiss and in what circumstances it can be successful.
When a defendant is charged with a felony offense, he or she may be indicted by a grand jury or have a preliminary hearing where a judge determines if there is probable cause or “sufficient evidence” that a crime has been committed and that the defendant committed it. If so, then the defendant is committed and is ordered to be brought before the trial court for further proceedings. At this time, a defense attorney may bring a motion to dismiss under Penal Code 995.
Defendants can also challenge sentence enhancements and special circumstances allegations. A 995 motion is based on the transcript from the preliminary hearing where a judge determines if probable cause exists as to each element of the charged offense or offenses or if an enhancement or special circumstances exist.
A defense attorney can use or file a 995 motion following the preliminary hearing and before the trial when there is evidence that the defendant was:
- Illegally committed
- Or committed without probable cause
- Your right to be represented by an attorney or that you were advised of that right
- Your right to have the hearing conducted in one session
- Your right to confront, cross-examine and to offer witnesses
In a preliminary hearing, the judge must ascertain if there is probable cause that a crime was committed and that the defendant was the one who committed it. Probable cause is defined as “a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”
The standard is much lower than that of proof beyond a reasonable doubt since guilt or innocence is not the issue. So long as there is some evidence that ties the defendant to a crime, then the defendant will be committed to the trial court.
There are a number of circumstances under which a 995 motion can be successful:
If there was testimony and evidence at the preliminary hearing that indicated that law enforcement personnel obtained evidence without a search warrant and that the search did not fit within any of the exceptions to the warrant requirement, then the judge should grant the 995 motion as to that count.
If a search warrant was issued but the search exceeded its scope or the officer who secured the warrant fabricated facts in support of its issuance, the 995 motion should also be granted.
The prosecution has the burden of presenting enough evidence to demonstrate probable cause as to each element of a charged offense or to a sentence enhancement. For example, the prosecution must show probable cause that a defendant had specific intent to commit a certain offense. Another is sufficient proof of an element of the offense such as proof that property that was stolen had a value of at least $950 so as to charge the defendant with grand theft.
Before the preliminary hearing, the prosecution has a duty to provide any exculpatory evidence, or evidence that would tend to exonerate the defendant, to the defense. If no provided, then this violates your due process right to a fair trial.
As indicated above, the prosecution has 15 days to file an information after the preliminary hearing. If not, the defense can move to dismiss the charges.
The judge at the preliminary hearing can make a factual finding that is adverse to the prosecution and fatal to the case. For example, if the sole witness to a crime testifies and the court finds that the witness lacked credibility or that the testimony was too incredible for any reasonable person to believe, then a 995 motion to dismiss should be granted if the preliminary hearing judge found probable cause nonetheless.
While most preliminary hearings can be fully conducted in an hour or less, there are some cases where there are multiple counts or the case is extremely complex so that the proceeding may take several days or longer. A “single” session does not mean one day or even one week. If the hearing is to extend over time, the preliminary court judge must make the hearing a priority. If the judge puts the hearing off to conduct a one-week trial, for example, the defendant can request a dismissal for violating his procedural due process rights.
A prosecutor can re-file charges on counts that were dismissed unless there was a factual finding that was expressly made and which should have been fatal to the case. If the charges are again dismissed, then the prosecution is barred from re-filing the charges a third time.
The prosecutor can also appeal a 995 motion that dismisses certain counts and request a continuance of the trial until the appeal is heard and resolved or move forward to trial on those counts that remain.
A defendant may also appeal an adverse 995 motion ruling. If the motion was based on lack of probable cause, you have 15 days to appeal the ruling. If it was based on your being illegally committed, you have 60 days from your arraignment to file the appeal.