Penal Code section 995

A Penal Code section 995 motion is a motion to dismiss an information after a preliminary hearing or an indictment from a grand jury.

Statute

(a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:

(1) If it is an indictment:

(A) Where it is not found, endorsed, and presented as prescribed in this code.

(B) That the defendant has been indicted without reasonable or probable cause.

(2) If it is an information:

(A) That before the filing thereof the defendant had not been legally committed by a magistrate.

(B) That the defendant had been committed without reasonable or probable cause.

(b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.

(Amended by Stats. 1982, Ch. 1505, Sec. 3.)

Dismissal of an information

An information can be dismissed because of a lack of a probable cause or because of an illegal commitment. Illegal commitments "refers to the examination of the case and the holding of the defendant to answer." (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874, citing Ex parte Baker () 88 Cal.84, 85.) However, an information will not be dismissed for "some irregularity or minor error in the procedure of the preliminary examination," but it will be dismissed if "the defendant has been denied a substantial right." (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874.) No prejudice need be shown for a 995 based on denial of a substantial right. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529["The right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities."]; People v. Coleman (1988) 46 Cal.3d 749, 773 ["if a defendant makes a timely motion in the trial court to set aside the information and shows that a substantial right was denied, the information must be set aside without a showing of prejudice."].)

The following all constitute illegal commitments:

• The preliminary hearing wasn't timely, either because it violated the statutory time limits or it was continued without good cause.
• Denial of the right to counsel.
• Denial of the right to cross-examination. (Jennings v. Superior Court (1967) 66 Cal.2d 867 [59 Cal.Rptr. 440, 428 P.2d 304].)
• Denial of the right to present evidence. (Jennings v. Superior Court (1967) 66 Cal.2d 867 [59 Cal.Rptr. 440, 428 P.2d 304].)
• Denial of the right to present an affirmative defense. (Jennings v. Superior Court (1967) 66 Cal.2d 867 [59 Cal.Rptr. 440, 428 P.2d 304].)
• Denial of the right to a public preliminary hearing. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 526.)
• Denial of the right to close the preliminary hearing. (People v. Elliot (1960) 54 Cal.2d 498, overruled on other grounds in People v. Pompa-Ortiz (1980) 27 Cal.3d 519.)
• Denial of the right to have the preliminary hearing in one session without good cause (People v. Bucher (1959) 175 Cal.App.2d 343.)
• Defendant was mentally incompetent. (Chambers v. Municipal Court (1974) 43 Cal.App.3d 809
• Prosecution recharges as a felony what the magistrate had 17b'd to a misdemeanor. (Malone v. Superior Court (1975) 47 Cal.App.3d 313, 319.)
• Prosecution recharges an offense that the magistrate had dismissed on a factual finding. (Jones v. Superior Court (1971) 4 Cal.3d 660, 662.)
• Prosecution won't reveal an informant's identity, even though the defense has shown it is material. (People v. Paltrow (1978) 84 Cal.App.3d 540, 549.)
• Prosecution has failed to file the information within 15 days of the magistrate's holding order.