PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

source

UNDER CALIFORNIA PENAL CODE 1385 COURT ALWAYS HAS AUTHORITY TO DISMISS CASES 
_{( PEOPLE v. AGUERREMARIANO (SAN BERNARDINO CO))}

California Penal Code Section 1385(A) – Interpretation

In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court instructed that “in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a) . . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161)

Penal Code section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, “and in furtherance of justice,” to order an action dismissed. (Pen. Code, 1385, subd. (a).) In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court held a trial court may rely on Penal Code section 1385 to strike or vacate a prior strike for purposes of sentencing under the Three Strikes law, “subject, however, to strict compliance with the provisions of Penal Code section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Likewise, a trial court’s “failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.)

In ruling on a Romero motion, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

Dismissal of a strike is a departure from the sentencing norm. Therefore, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified when the trial court was unaware of its discretion to strike a prior strike, or refused to do so at least in part for impermissible reasons. (Id. at p. 378.) But where the trial court, aware of its discretion, “‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ citation.” (Ibid.)

Similarly, the denial of the motion to reduce the criminal threat crime to a misdemeanor is reviewed for abuse of discretion. “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’Concomitantly, ‘a decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.”” (Alvarez, supra, 14 Cal.4th at pp. 977-978.) source

The application guidelines of this statute are as follows. “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney and in furtherance of justice, order an action to be dismissed.” (Penal Code section 1385(a).) Specifically, the California Supreme Court in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, held that trial courts may dismiss “strike” priors in furtherance of justice under Penal Code § 1385. Dismissal in the furtherance of justice is a matter within the court’s exclusive and broad discretion. (People v. Johnson (1966) 247 Cal.App.2d 331, 333; People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502-503.) Therefore, the court may order dismissal over the prosecutor’s objection. (People v. Superior Court (Romero), supra, 13 Cal.4th 497; People v. Superior Court (Howard), supra, 69 Cal.2d at p. 501.) The reasons for the dismissal must be set forth in an order entered upon the minutes. (Penal Code section 1385(a).)

In People v. Williams (1998) 17 Ca.4th 148, the California Supreme Court held that in properly exercising its discretion under Penal Code section 1385, “[T]he court in question must consider whether, in light of the nature of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes law’s] spirit . . . .” (Id. at p. 161. Emphasis Added.) source

Newly Enacted California Penal Code section 1385 allows a judge to dismiss all enhancements including prior DUIs.

Under California Bill SB 81, passed in 2022, the judges have a lot more power over the outcome of a criminal case. If you are arrested for a crime in Los Angeles, the prosecutor has complete discretion in filing a criminal case. Yet, once the case is filed, the prosecutor has no discretion to “unilaterally” dismiss the case.

Because nolle prosequi is abolished in California, the prosecutor may not unilaterally abandon a prosecution (Pen. Code, § 1386); only the court may dismiss a criminal charge (id., § 1385, subd. (a)).”
(Steen v. Appellate Division of Superior Court (2014)

This means that the court can refuse to dismiss a case even if the prosecutor asks. A “‘district attorney can only recommend dismissal to the court. Dismissal is within the latter’s exclusive discretion.’” (People v. Roman (2001) 92 Cal.App.4th 141, 145; see People v. Levins (1978) 22 Cal.3d 620, 623-624 [section 1385 “does not require that a court dismiss a criminal action upon application of the district attorney; rather, the statutory language clearly indicates the creation of a discretionary power in the court”]; People v. Ward (1890) 85 Cal. 585, 590 [“we find no authority for the proposition that ‘it is the duty of a justice . . . to enter a dismissal upon the motion of the district attorney”].)

However, a criminal case in Los Angeles can be rejected from prosecution. This happens when the prosecutor (such as Los Angeles County District Attorney or Los Angeles City Attorney) decides that the evidence that they have is not “beyond the reasonable doubt”, which is the standard of proof required at trial in a criminal case. If your criminal case in Los Angeles is not rejected from filing by the prosecutor, but instead is filed by the prosecutor, you have to talk to Los Angeles criminal defense attorney about defending your criminal case in Los Angeles. Los Angles criminal defense attorney will defend your criminal case in Los Angeles through trial, fight it through motions, settle it with the Los Angeles Prosecutor or work out a deal with the judge (commonly known as, pleading open to the court).

PC 1385 Prior to 2022

California Penal Code section 1385 is a very old code section that in the past was used to dismiss criminal cases in Los Angeles in “the interest of justice”. Using this code section, the court can dismiss a case when justice requires it. In the past, California Penal Code 1385 was mostly used when prosecutors agreed to dismiss and or for a “Romero” motion, which is a motion to “strike” a prior “strike” so that defendant does not have to be sentenced under the three-strike-rules (usually due to older strikes being too old).

Originally Penal Code section 1385 was adopted in California in the 19th century and went through a number of revisions over the years. For example, until 1986, the entire Penal Code section 1385 was what is now only a subsection “(a)” of the statute. In the 1990s, California passed a number of reforms to enhance punishments and limit judges’ ability to dismiss counts or strikes by disallowing striking prior convictions. For example, before 2018, Penal Code sections 12022.5 and 12022.53 prohibited a trial court from striking a firearm enhancement in the interest of justice under section 1385 because at that time, the Legislature’s goal” was “to protect Californians and deter violent crime by imposing . . . the harshest applicable punishment” in each case. But eventually “the enhancement scheme ‘caus[ed] several problems,’” including a significant increase in the prison population and its corresponding impact on the state’s budget. So, in 2018 the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) to amend sections 12022.5 and 12022.53, and to give a trial court discretion to dismiss a firearm enhancement in the interest of justice under section 1385.

Similarly, recently, California reformed Section 1385 once again, giving the judges the power to reduce punishment even when the prosecutor objects. source

MOTION TO DISMISS “IN THE INTEREST OF JUSTICE” – PENAL CODE 1385 PC

Posted by Dmitry Gorin | Aug 16, 2023

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Dismissal in the Interests of Justice (Penal Code § 1385)?

In a Nutshell: A “dismissal in the interests of justice,” under Penal Code § 1385, is needed to thereafter seek sealing and destruction of a police report and court filed under Penal Code §§ 851.87 – 851.92, which then deletes the arrest and case filing from one’s DOJ record visible on a Livescan report.  However, a 1385 dismissal is not the only way one can be eligible for sealing and destruction of a police report and court file.

in  People v. S.M. (1st App. Dist., 2017) 9 Cal.App.5th 210. 

The prosecution appealed the ruling to the First Appellate District, which affirmed the trial court (People v. S.M. (2017 DJDAR 1885)).  The First Appellate District approached the issue by stating first and foremost that the standard for appellate review of a decision to dismiss charges in the furtherance of justice is whether the trial court abused its discretion.  People v. Ortega (2000) 84 Cal.App.4th 659, 666.

The discretion cannot be exercised to accommodate judicial convenience or court congestion.  People v. Kessel (1976) 61 Cal.App.3d 322, 326.

In reviewing the case facts, the appellate court found that the loss was actually never paid and that a conviction would have a devastating effect on S.M.’s career choice in high tech security. source

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

What is an appeal?

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2022 edition)

MALICIOUS PROSECUTION CACI No. 1501 925 Copyright Judicial Council of California

downland entire Judicial Council of California Civil Jury Instructions CACI Here

Family Treatment Court Best Practice Standards

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to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

1538.5 Motion – To Suppress Evidence in a California Criminal Case

In California criminal cases, a motion to suppress evidence is a pretrial motion where you ask the court to exclude evidence because it was obtained by way of an illegal search or seizure. Often called a “suppression motion” or “1538.5 motion,” you make the motion either

1. as part of the preliminary hearing or
2. at a separate pretrial hearing.

If the court grants the motion to suppress evidence (that is, rules in favor of you), then the prosecutor is barred from introducing the evidence in question at trial.¹ This often results in the case being dismissed, or a plea bargain agreement more favorable to you.

Penal Code 1538.5 provides that a court shall suppress evidence that was obtained:

1. Through an unreasonable police search that was done without a search warrant,² OR
2. Through a police search conducted with a warrant, IF
   • The warrant was deficient,
   • The evidence obtained was not the kind described in the warrant,
   • The warrant was issued without probable cause, or
   • The search was carried out in a way that violated the California Constitution or the U.S. Constitution.³

Procedure for a Penal Code 1538.5 motion to suppress evidence

A motion for suppression of evidence is part of pretrial criminal proceedings. This means that in most cases it will be filed and decided before a criminal trial actually begins.⁴

Depending on whether you are charged with a misdemeanor or a felony, your motion to suppress evidence may be addressed:

• At your preliminary hearing, or
• At a pretrial hearing held specifically to address your motion to suppress (this is sometimes called a “suppression hearing”).⁵

A motion to suppress evidence is just one kind of pretrial motion that your criminal defense attorney may file in order to start fighting the criminal charges against you before your trial even begins.

Other pretrial motions include:

• Penal Code 995 PC motions to set aside the information, and
• Pitchess motions to obtain more information on potential police misconduct.

In order to help you better understand how a Penal Code 1538.5 PC motion to suppress works, our California criminal defense attorneys⁶ will address the following:

• 1. What is a 1538.5 motion?
  • 1.1. Legal definition of an “unlawful search or seizure”
  • 1.2. Burden of proof for a motion to suppress
  • 1.3. Legal definition of “reasonable expectation of privacy”
  • 1.4. “Derivative” evidence / fruit of the poisonous tree
• 2. What happens at a motion to suppress evidence hearing?
  • 2.1. Misdemeanor charges
  • 2.2. Felony charges
  • 2.3. Suppression hearings
  • 2.4. The ruling on a motion to suppress evidence
  • 2.5. Proceedings where suppressed evidence is admissible
• 3. Are there other pretrial motions to bring?
  • 3.1. Penal Code 995 PC motions to set aside the information
  • 3.2. Pitchess motions

1. What is a 1538.5 motion?

Simply put, California Penal Code section 1538.5 PC authorizes you to move for

1. the exclusion of any evidence that is the product of an unlawful search and seizure, and/or
2. the return of any property that was illegally seized.⁷

The former result—suppression of illegally-obtained evidence—is a far bigger priority. This is because the prosecution may not have a solid case against you if that evidence is excluded.

1.1. Legal definition of an “unlawful search or seizure”

Penal Code 1538.5 PC sets out the reasons why a search or seizure may be unlawful—and, by extension, why a motion to suppress the evidence obtained in that search may be granted.

These are:

1. The search was performed without a search warrant, and was “unreasonable.”
2. The search was performed with a warrant but was unreasonable, for one of the following reasons:
   1. The warrant was insufficient on its face,
   2. The property or evidence was not of the type described in the warrant,
   3. The warrant was issued without probable cause,
   4. The warrant was executed in a way that violated the California constitution or the U.S. Constitution (for example, the officers conducting the search committed police misconduct), OR
   5. There was any other violation of state or federal constitutional standards.⁸

The rationale behind a Penal Code 1538.5 motion goes back to the Fourth Amendment to the U.S. Constitution⁹—and Article I, Section 13, of the California Constitution.¹⁰ These constitutional sections provide that all citizens have the right to be free from unreasonable searches and seizures.¹¹

Example : Travis has been obeying all traffic laws but is pulled over solely because the police were engaging in racial profiling. During the “pat down” search, police discover cocaine in his pocket and arrest him for California Health and Safety Code 11350 HS drug possession.¹²

As part of the pretrial process, Travis and his attorney file a motion to exclude the cocaine as evidence. They argue that 1) the pat-down search of Travis was done without a warrant in violation of criminal procedure, and 2) the search was unreasonable under the circumstances.

Example : Police suspect George of engaging in theft of power tools, and they search the motel he owns under a warrant that allows them to look for stolen power tools. They find no tools—but they do seize several TV sets that turn out to be stolen. George is charged with receiving stolen property.

The police had a warrant to search George’s motel—but the stolen televisions were not among the things that they had a warrant to search for. Therefore, the seizure was invalid—and George’s motion to suppress evidence with respect to the TV sets is granted.¹³

1.2. Burden of proof for a motion to suppress

The question of who bears the burden of proof—the prosecution or you—on a Penal Code 1538.5 motion to suppress depends on whether or not the search or seizure was conducted without a warrant.¹⁴

Specifically:

1. If the search was conducted without a warrant, the presumption is that it was unreasonable—and the burden is on the prosecutor to prove that it was actually reasonable;¹⁵ BUT
2. If the search was conducted with a warrant, then it is presumed to have been legal—and the burden is on you to prove that it was not.¹⁶

Whichever side bears the burden of proof has to prove their case by a preponderance of the evidence.¹⁷ A “preponderance of the evidence” means that it is more likely than not that the search / seizure was unreasonable.¹⁸

Example : Melissa is being charged with sale or transportation of a controlled substance. She and her lawyer plan to argue that the search warrant under which police officers conducted a search of her home was not specific enough with respect to items that the officers were supposed to be looking for.

Because the search was conducted with a warrant, Melissa will bear the burden of showing that the warrant was so vague that it was invalid on its face—and the officers could not have reasonably believed it was valid.

1.3. Legal definition of “reasonable expectation of privacy”

Before the court will even entertain your 1538.5 motion to suppress evidence, you must prove that you had a “reasonable expectation of privacy” in the place that was searched or the items that were seized.

If you did not have a reasonable expectation of privacy, then

• the search or seizure could not have been illegal, and
• the evidence, therefore, should not be suppressed.¹⁹

As San Francisco criminal defense attorney Neil Shouse²⁰ explains,

“This is an objective standard. Whether or not you personally believe you had a ‘reasonable expectation of privacy’ is irrelevant. The issue is whether you had an objectively reasonable expectation of privacy–that is, one that society would be ready to accept as reasonable.”

Places and property in which you do not have a reasonable expectation of privacy in California law include:

• Abandoned property (for example, something thrown away in a wastebasket),²¹
• A car which you have stolen,²² and
• A car in which you are riding, but in which you have no ownership or other rights.²³

Though you do have a reasonable expectation of privacy in

• Your home,
• Your vehicle,
• The contents of your cellphone,
• A tent or tarp designed to shield the inhabitant from public view,²⁴ and
• If you are a public school student, the personal belongings that you bring to school.²⁵

Example: Rich, a robbery suspect, leaves his hotel room without checking out. The motel owner calls the police, who search the motel room without a warrant and find the robbery victim’s stolen possessions. Rich is arrested and charged.

Rich’s subsequent motion to suppress the evidence from in motel room search is not successful. That is because there is no reasonable expectation of privacy in abandoned property, so he had no reasonable expectation of privacy in the room.²⁶

1.4. “Derivative” evidence / fruit of the poisonous tree

In addition to property or evidence that was seized or discovered during an illegal search—a motion to suppress evidence may also apply to other evidence that is the indirect result of an illegal search.²⁷

This is known as “derivative” evidence.²⁸ The legal theory under which it is also suppressed is known as the “fruit of the poisonous tree” doctrine.²⁹

Example : As part of an investigation into a criminal fraud case, police illegally search a computer without a warrant and discover some incriminating electronic files.

They know they cannot seize the computer and use it as evidence—so instead they issue a subpoena to the criminal defendants for those same electronic files. Though those files cannot be used as evidence against the defendants because the police would not have known about them were it not for the illegal search.³⁰

If you try to argue through a Penal Code 1538.5 motion that certain evidence is “fruit of the poisonous tree” and should be excluded, the prosecution will try to get the evidence admitted anyway by arguing one of three theories:

1. that the possibly tainted evidence is so far removed from the illegal search or seizure that it does not make sense to enforce the exclusionary rule,³¹
2. that the evidence was found through an independent channel, not just through the illegal search,³² or
3. that there is a “reasonably strong probability” that the evidence would have ultimately been discovered even without the illegal search.³³

2. What happens at a motion to suppress evidence hearing?

2.1. Misdemeanor charges

If you face only misdemeanor charges, your criminal defense lawyer may file a 1538.5 motion to suppress evidence as early as your California arraignment.³⁴

As part of the pretrial process, this motion

• must be heard prior to your jury trial, and
• will be argued and ruled on at a special pretrial hearing known as a “suppression hearing.”³⁵

The only exception to this is if you do not discover that evidence against you was illegally obtained until your trial has already begun. In cases like this, you may bring a motion to suppress evidence during the course of the trial.³⁶

2.2. Felony charges

If you face felony charges (or both misdemeanor and felony charges filed in the same case) your lawyer has two options:

1. your lawyer may argue this motion at your preliminary hearing (where he/she will be limited to trying to suppress evidence that the prosecutor intends to introduce at that hearing), or
2. your lawyer may choose to wait and have the motion to suppress handled at a special suppression hearing devoted only to this issue.³⁷

If your motion is heard (and denied) at the preliminary hearing, you also have the right to file it again, and have it heard in a separate suppression hearing.³⁸ However, the evidence at the suppression hearing will be limited to:

1. The transcript of the preliminary hearing, and
2. Any evidence that couldn’t reasonably have been presented at the preliminary hearing.³⁹

2.3. Suppression hearings

The suppression hearing is where both sides have the opportunity to argue their positions on the motion to suppress. It takes place before a judge—not a jury.

The suppression hearing will involve some or all of:

• Testimony from you about the illegal search or seizure,
• Testimony from any witnesses who can help your case,
• Testimony from the police involved in the search or seizure,
• Cross-examination of you and your witnesses by the attorney for the prosecution,
• Cross-examination of the prosecution’s witnesses by your lawyer, and
• Oral arguments by your criminal defense attorney and the prosecuting attorney as to why the motion should be granted or denied.

Penal Code 1538.5 suppression hearings are subject to the rules of the California Evidence Code.⁴⁰ The exception is that hearsay (that is, out-of-court statements that are offered for their truth)—which is not admissible in normal criminal trials—may be admissible at a suppression hearing.⁴¹

2.4. The ruling on a motion to suppress evidence

Once the judge has heard all of the evidence, they must decide whether to exclude or admit the controversial evidence—that is, whether to grant or deny the Penal Code 1538.5 motion.

Depending on the circumstances, the judge may also decide to grant the suppression motion in part—excluding some, but not all, of the evidence in question.

If the motion to suppress evidence is granted, the prosecutor’s case against you may well fall apart. They may choose to

• dismiss the charges, or
• negotiate a generous plea bargain.

But if the prosecutor is determined to press forward with the charges anyway, they may also

• appeal the granting of the motion to suppress evidence,⁴²
• dismiss the charges and file a new complaint,
• seek a grand jury indictment, or
• attempt to reinstate the original complaint.⁴³

If the judge rules against you (denies the motion to suppress), the evidence will remain admissible. At that point, you and your attorney will discuss whether you should

1. plead guilty or nolo contendere (aka, “no contest”) to the charged offense,
2. try to “strike a deal” with the prosecution so that you can plead guilty or nolo contendere (“no contest”) to a reduced charge, or
3. proceed to trial.

If your motion to suppress is not granted, you may file an appeal of the ruling—within 30 days of the ruling.⁴⁴

2.5. Proceedings where suppressed evidence is admissible

The rule that illegally-obtained evidence cannot be admitted in a criminal trial—which is known as the “exclusionary rule”—does not apply to all legal proceedings.⁴⁵

Therefore, even if you win on a motion to suppress evidence, that evidence may still be admissible at

• parole revocation hearings,
• grand jury proceedings, and/or
• civil deportation hearings of immigrants facing deportation for criminal convictions.⁴⁶

3. Are there other pretrial motions to bring?

A Penal Code 1538.5 motion to suppress is only one of several kinds of motions your California criminal defense attorney may choose to file as part of the pretrial process. Others include:

3.1. Penal Code 995 PC motions to set aside the information

A Penal Code 995 PC “motion to set aside the information” is essentially a request for the judge to dismiss one or more of the charges against you.⁴⁷ It makes sense to file this motion if you and your attorney believe that either:

1. Your rights were violated during your preliminary hearing, or
2. There is no probable cause to charge you with the crime.⁴⁸

3.2. Pitchess motions

A California Pitchess motion is a request for information contained in a law enforcement officer’s personnel file.⁴⁹ Criminal defense lawyers typically raise this motion when they believe that you have been the victim of police misconduct.

Pitchess motions are only valid if you can show “good cause” to believe

• that the officer might have engaged in misconduct, and
• that the misconduct is relevant to your defense case.⁵⁰

If the judge believes that you have demonstrated good cause as to why the sought information is material to the case, they will conduct an in-camera Pitchess hearing. An “in-camera” hearing is one that is private rather than conducted in open court like a suppression hearing.

For additional help…

If you or a loved one is in need of help with Penal Code 1538.5 PC motion to suppress evidence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a consultation in the office or by phone.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. We also practice personal injury law.

See our related article on Miranda rights in California.

For more information on law and motion in Nevada’s criminal court system, please see our pages on motions to suppress evidence in Nevada criminal cases.

Legal References:

Cal. Code Civ. Proc. § 1008 Section 1008

Motion to reconsider matter and modify, amend or revoke prior order

Motion for Reconsideration in California

Section 1008 - Motion to reconsider matter and modify, amend or revoke prior order

What Is a Motion for Reconsideration?

California Code of Civil Procedure section 1008.  

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.

(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(f) For the purposes of this section, an alleged new or different law shall not include a later enacted statute without a retroactive application.

(g) An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.

(h) This section applies to all applications for interim orders. cited https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=1008.

(Amended by Stats. 2011, Ch. 78, Sec. 1. (AB 1067) Effective January 1, 2012.)

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to the US CONSTITUTION Click Here to visit their site

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The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Penal Code 995 Motion to Dismiss in California

Penal Code “995 Motions” in California

In California state criminal prosecutions, a Penal Code 995 Motion is a defense motion asking the court to dismiss one or more felony counts on the grounds that they were improperly sustained at the preliminary hearing. The motion can be brought after the preliminary hearing but before trial.

A 995 motion (pronounced “nine-nine-five”) is essentially an appeal of the preliminary hearing judge’s decision to bind the case over for trial. Technically it is known as a “motion to set aside the information.” “Information” is the legal name for the criminal complaint in a California felony prosecution.

Thus a 995 motion asks the trial judge to “set aside” (dismiss) all or part of the complaint. The judge will grant the motion if there were insufficient legal grounds to bind the defendant over for trial.

1. What is a Penal Code 995 motion?

A motion under California Penal Code 995 asks a trial judge to dismiss all or part of a criminal case.

It applies in cases in which:

• All the charges are for felonies, or
• The charges include both felony and misdemeanor charges.¹

The motion may also apply to a prosecutor’s request for sentencing enhancements and/or allegations of special circumstances.

All the charges – including enhancements and special circumstances – must be supported by facts. The preliminary hearing judge must decide if those facts are strong enough to merit a trial.

If the defense believes the preliminary hearing judge decided incorrectly, they can bring a 995 motion. This asks the trial judge to review the preliminary hearing judge’s decision.

2. When can you make a 995 motion?

When a defendant is charged with a felony there is a preliminary hearing. At this hearing, a judge determines whether there is enough evidence to send the case to trial.²

If so, the judge will “hold the defendant to answer” for the crimes. This means the case can move forward. The prosecutor will then file an “information” (complaint) with the trial court.

Once the prosecutor files the information with the trial court, the defense can make a Penal Code 995 “motion to set aside the information.” This is usually done before any other California pretrial hearings.

In essence, the motion asks the trial judge to review the preliminary judge’s decision.

What Are Some Reasons Why a Motion to Dismiss Can Be Filed?

A motion to dismiss is often filed based on procedural reasons, rather than the merits of the claim. Some reasons a party might file a motion to dismiss include:

• The statute of limitations has expired.
• The court does not have jurisdiction over the parties or the subject matter of the case.
• The venue, or location where the lawsuit was filed, is not proper.
• The complaint was not served on the defendant properly.
• The plaintiff failed to name a necessary party in the complaint, or named the wrong party.

The defendant might also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. In other words, the plaintiff has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action.

3. What are the legal grounds for a 995 motion?

The purpose of the preliminary hearing is to “weed out groundless or unsupported charges.”³

Charges are considered groundless or unsupported when:

1. The defendant was illegally committed for trial, and/or
2. The defendant was committed for trial without probable cause.

If either of these applies, the trial court will grant the motion to set aside the information.

Let’s take a closer look at what these two things mean.

3.1. The defendant was illegally committed for trial

A defendant is “illegally committed” when they are denied a substantial right during the preliminary hearing. Such rights include (but are not limited to):

• The right to be represented by a lawyer;⁴
• The right to be advised that they can be represented by a lawyer;⁵
• The right to have the preliminary hearing conducted in “one session”;⁶ and
• The right to present and cross-examine witnesses at the hearing.⁷

3.2. The defendant was committed without probable cause

The Due Process Clause of the Fourteenth Amendment requires that a judge have probable cause in California to try someone for a crime.

This means that a judge can only send a case to trial if the allegations in the complaint are supported by facts.⁸

The facts do not need to prove that the defendant is guilty beyond a reasonable doubt. That determination is for the jury (or, in a bench trial, the judge).

Though the facts must be sufficient enough that a reasonable person could have “an honest and strong suspicion that the defendant is guilty” of the crime(s) charged.⁹

As Palm Springs criminal defense attorney Michael Scafiddi¹⁰ explains:

“As long as there is some evidence that supports probable cause, a judge cannot grant a 995 motion.¹¹ Still it is often worth bringing the motion anyway. A 995 motion is an opportunity to highlight weaknesses in the prosecution’s case at an early stage.”

3.3. Examples of specific defects

Lack of probable cause and illegal commitment can arise in a number of situations. Some of the most common include (but are not limited to):

3.3.1. Illegal evidence

Evidence of a crime may not be obtained by violating federal or California search and seizure laws. If the only evidence in the case came from an illegal search, the judge should grant the 995 motion.¹²

Example: The police pull Bill over for a broken brake light on his car. During the stop, Bill is polite and cooperative. He does not seem intoxicated. But the police tell Bill to open his trunk. Inside they find a bag of cocaine. Bill is arrested and charged with Health and Safety Code 11350, possession of a controlled substance and Health and Safety Code 11351, possession of drugs for sale.

But the police had no probable cause to suspect Bill of a crime. So ordering him to open his trunk was illegal. If there is no other evidence, the preliminary hearing judge should not set the case for trial. If they do, however, Bill’s California criminal defense attorney should be able to prevail on a 995 motion.¹³

3.3.2. Insufficient evidence

The prosecution must introduce facts to support every element of the charges, including:

• All elements of each felony charge,
• All elements of any misdemeanor charges,
• Any basis for a sentencing enhancement, and
• Grounds for a finding of special circumstances.

Example: Let’s say in the above example that Bill was acting suspicious. This gave the police probable cause to search his trunk. But the prosecutor presents no evidence of intent to sell (such as scales or separate baggies). The complaint simply contains the bare allegation that Bill intended to sell the cocaine. Since there are no facts to support the allegation, Bill’s 995 motion should be granted as to the possession for sale charge.¹⁴

3.3.3. “Fatal” findings of fact

Sometimes the preliminary judge makes a factual finding that tends to establish the defendant’s innocence.

A common example is a ruling that a key eyewitness is not credible.¹⁵ For instance,

• a witness may not have been able to adequately identify the defendant because of poor lighting and distance from the crime scene, or
• a witness may have testified only that the defendant “looked like” the perpetrator.¹⁶

If this is the only evidence supporting a complaint, the preliminary hearing judge should not commit the charge to trial. If they do, it is an error. The trial judge should grant the 995 motion.

3.3.4. Failure to provide discovery

The Due Process Clause requires a prosecutor to disclose any and all evidence that is favorable to the defendant.¹⁷ If they willfully fail to do so, the charges should be dismissed.

Example: When the police stop Bill in the example above, Bill tells them he borrowed the car from his neighbor. During their investigation, the police speak to several other people who tell them Bill asked to borrow a car from them earlier that evening. The prosecutor does not disclose this to Bill. Since their testimony could have helped prove that Bill was telling the truth, the failure to disclose it violates Bill’s due process rights.

3.3.5. Failure to file the information within the deadline

The prosecutor has only 15 days after the preliminary hearing in which to file the “information” (trial complaint) against the defendant.¹⁸

If the prosecutor does not file the complaint within 15 days of the preliminary judge’s order, the trial judge should grant the defendant’s 995 motion to dismiss the case.¹⁹

4. What charges can a motion to set aside the information apply to?

California preliminary hearings apply to felony complaints. If there are no felony charges, there is no preliminary hearing.

A criminal complaint often combines both felony and misdemeanor counts. It may also allege facts in support of:

• Sentencing / penalty enhancements (such as a California gang enhancement), or
• Special circumstance allegations (such as lying in wait in a California murder case).

The defense can use a 995 motion to challenge any of these counts, enhancements or circumstances, including the misdemeanors.²⁰

5. What is the process for a Penal Code 995 motion?

The defense will typically file a 995 motion after the case is assigned to a trial judge and before any other pretrial proceedings.

The hearing on the motion does not take long – usually less than one hour. The defense attorney argues first, then the prosecutor. The defense attorney then has the opportunity to make a final argument.

The judge will usually issue a decision immediately after the arguments conclude. Though they may occasionally continue the case in order to consider the arguments further.

6. What happens if I win a 995 motion?

If the trial court grants a 995 motion, the affected charges will be dismissed. Though the prosecutor has the right to appeal the decision.

While the appeal is pending, the prosecutor can:

• Proceed with a California jury trial or bench trial on the remaining counts (if any), or
• Request a continuance of the trial until the appeal is resolved.²¹

Or the prosecutor can skip the appeal and simply re-file the charge(s) in a new complaint. Though California follows a “two dismissal” rule. Under this rule, charges that have been dismissed twice can generally not be prosecuted again.²²

There are some exceptions to the two-dismissal rule. Your California criminal lawyer can explain the exceptions to you if you are in this situation.

6.1. What happens to my bail if my case is dismissed?

If all the charges are dismissed after a 995 motion, the court must either:

• Refund the defendant’s California bail within 15 days,²³ or
• If the prosecutor refiles the charges, apply the bail to the new offense(s).²⁴

7. What happens if I lose a 995 motion?

If the judge denies a 995 motion, the defendant has the right to appeal the decision. The time in which the appeal must be filed depends on the original grounds cited in the motion.

If the grounds were an illegal commitment, the defendant has until 60 days from the date of their California arraignment to file an appeal.²⁵

If the grounds were commitment without probable cause, the appeal must be filed within 15 days of the judge’s denial of the 995 motion.²⁶

If the defendant does not appeal or loses the appeal, the case will proceed toward trial.

Legal references:

In California state criminal procedure, a motion to dismiss pursuant to Penal Code Section 995 gives the defendant the option of moving a trial court to dismiss their criminal case following a preliminary hearing at which the defendant was held to answer on one or more criminal charges.

In simple terms, a PC 995 motion to dismiss is a legal motion asking for the dismissal of a criminal case. It’s filed after a preliminary hearing in a felony case.

Under Penal Code 995, if the judge at the preliminary hearing incorrectly allowed the case to proceed, then a defendant’s criminal defense lawyer could file a PC 995 motion. This motion is asking the trial judge to partially or entirely dismiss the criminal complaint. In other words, the defense makes the motion after the preliminary hearing, but before a trial.

A 995 motion is an appeal of the preliminary hearing judge’s decision to set the case for trial and often called a “motion to set aside the information.” Typically, a judge will grant the motion if they find there were insufficient legal grounds to hold the defendant over for trial.

A 995 motion can’t be used to respond to a criminal complaint of only misdemeanor charges, but could be used if the charges include both felony and misdemeanor charges. This is because without a felony charge, there will be no preliminary hearing. Filing motions, such as a PC 995, is a crucial component in the criminal case process in California.

There are many situations where it’s appropriate to file a Penal Code 995 motion. However, the most common are a lack of probable cause and illegal commitment.

To give readers important information about a 995 motion to dismiss, our California criminal defense attorneys are providing an overview below.

PRELIMINARY HEARING AND PROBABLE CAUSE

At a preliminary hearing, the court hears evidence, usually from one or more police officers, regarding the basis for the defendant’s arrest. The preliminary hearing has many features of a jury trial, but also has important differences.

Most obviously, the preliminary hearing is held by a judge with no jury present. The judge is the finder of fact and resolves all credibility issues between witnesses. Second, and perhaps most importantly, the burden of proof, while still on the government, is much lower than at a jury trial.

We are all familiar with the “beyond a reasonable doubt” standard, the highest in the law, which applies at a criminal jury trial. At a preliminary hearing, conversely, the standard is only probable cause.

The preliminary hearing probable cause standard is stated in different ways by various appellate courts through time, but essentially it requires the government to put forth sufficient evidence that a reasonable person would find that the person being charges likely committed the crime.

This is a standard somewhere below 50%, which is known as a preponderance. For that reason, a preliminary hearing court can find that it is more likely than not that the defendant is not guilty, but still hold them to answer for the charge following preliminary hearing where the evidence raises a reasonable inference of guilt.

DEFENDANT COMMITTED WITHOUT PROBABLE CAUSE

The Fourteenth Amendment requires a judge have probable cause in California to try somebody for a crime. In other words, they can only send the case to trial if the allegations are not supported by facts. Again, the facts don’t have to prove defendant’s guilty beyond a reasonable doubt, but they have to be sufficient enough that a reasonable person would have a strong suspicion they are guilty of the crime charged.

A motion under Penal Code Section 995 therefore has to allege that the court could not have found a reasonable inference of guilt based on the evidence presented by the prosecution. While the burden of proof is low, it is still on the government.

Where the government’s case derives solely from information which requires speculation, conjecture, or guess-work in order to infer the defendant’s guilt, a dismissal pursuant to Penal Code Section 995 is proper. The trial court must also appraise the case in light of the whole record, not just isolated bits of evidence selected by the prosecution.

PROCESS FOR A PENAL CODE 995 MOTION

Procedurally, a Penal Code Section 995 motion is almost always brought before a trial court with a judge other than the one who presided over the preliminary hearing. Though this is not legally required, this procedure is preferable over having the same judge hear a Penal Code Section 995 motion as the one who heard the preliminary hearing.

This allows the Section 995 process to function as a check on the preliminary hearing court, with a set of fresh eyes re-evaluating the case to check for obvious errors.

It should be noted, however, that the trial court which hears the Penal Code Section 995 motion to dismiss is not reviewing the record at the preliminary hearing as if it had itself heard the preliminary hearing. All reasonable inferences in favor of the preliminary hearing judge’s determination will be afforded by the trial court.

There are relatively infrequent, though certainly not unheard of, instances however where the trial court will determine that the evidence presented at the preliminary hearing was truly insufficient and the judge erred in holding the defendant to answer.

This determination will take the form of setting aside the Information – the charging document filed post-preliminary hearing against the defendant – and dismissing the case completely.

PC 995 OPPORTUNITY TO DISMISS CRIMINAL CHARGES

Through the Penal Code Section 995 vehicle, therefore, defendants have an opportunity to have their cases dismissed completely by a judge without having to risk a jury trial. This is unique in California criminal procedure – leaving aside the limited circumstances which give rise to a demurrer – as there is no true analogue to a motion to dismiss as exists in civil procedure.

If the trial court grants a 995 motion, the charges will be dismissed. However, the prosecutor can appeal the decision. While their appeal is pending, the prosecutor could proceed with a trial on any remaining charges, or request a continuance of the trial until appeal is resolved. They also have the option to just re-file the charge in a new complaint.

If all charges are dismissed after a 995 motion, the court has to either refund defendant’s bail within 15 days, or apply the bail to the new charges if the prosecutor refiles charges.

CONTACT OUR CRIMINAL ATTORNEYS FOR HELP

If you or a family member has been charged with a felony and has had a preliminary hearing at which the defendant was held to answer and the case bound over to the trial court, you should consult an experienced Los Angeles criminal defense lawyer about the viability of the Penal Code Section 995 motion to dismiss.

Even if such a motion is ultimately denied, the filing of an effective Section 995 motion puts the court and the prosecution on notice of the important issues in the case and, if nothing else, can often inspire a more favorable settlement in the matter.  Effective litigation at the Penal Code Section 995 phase of a felony prosecution is a crucial part of achieving a favorable result in a California felony criminal case.

Eisner Gorin LLP is a nationally recognized criminal defense law firm with a team of highly experienced lawyers. We are located at 1875 Century Park E #705, Los Angeles, CA 90067. We also have an office right next to the Van Nuys Courthouse located at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for a consultation at (310) 328- 3776.

CITED https://www.egattorneys.com/criminal-case-process-california/995-motion-to-dismiss