Frivolous Prosecution Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/frivolous-prosecution/ Christian, Political, ‎‏‏‎Social & Legal Free Speech News | Ⓒ2024 Good News Media LLC | Shepherd for the Herd! God 1st Programming Thu, 06 Feb 2025 22:24:00 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.1 https://goodshepherdmedia.net/wp-content/uploads/2023/08/Good-Shepherd-News-Logo-150x150.png Frivolous Prosecution Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/frivolous-prosecution/ 32 32 Frivolous, Meritless or Malicious Prosecution https://goodshepherdmedia.net/frivolous-meritless-or-malicious-prosecution/ Sun, 02 Feb 2025 20:13:53 +0000 https://goodshepherdmedia.net/?p=1881 Frivolous, Meritless or Malicious Prosecution

An attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”5

Do persecutors need to be honest?

Absolutely

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well

  • 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery v. State Bar, 62 Cal.2d 194, 196 (1964);
  • Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969);
  • Coulello v. State of California, 45 Cal.2d 57 (1955);
  • Hallinan v. State Bar of California, 33 Cal.2d 246 (1948).Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel.
  • 4 Cal. Rules Prof. Conduct, Rule 3-200; Cal. Bus. & Prof. Code § 6068(c).The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, burden, delay or violate legal rights.
  • 5 Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

 

you can learn all about being truthful and candid as an attorney here The Lying Client & Ethics Team you can read all the Supreme Court Rulings that clearly demonstrate, on a deeper level than this short article snippet, the requirements and duties of all attorneys even the prosecutor.

Malicious prosecution is a serious problems it affects many DA’s not All DA’s in several District Attorney’s offices that are more focused on how they appear than solving crimes. Learn more about Malicious prosecution here

Often it is this behavior that causes many in the prosecutors office to leave for the defense side. Dishonesty is a problem and should never be tolerated. Misrepresentation of the truth whether for your client or as a prosecutor is a definite NO NO.

or visit the cited source https://static1.squarespace.com/static/54beb2e8e4b052059c7ec632/t/551b3a45e4b0f74d74c389ac/1427847749781/5+The+Lying+Client+and+Ethics+Team+5.pdf

 

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

 

 

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. 
it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal 
charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has 
a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction 
wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the 
other party. Such a relation ordinarily arises when a confidence is reposed by one person in the 
integrity of another, and in such a relation the party in whom the confidence is reposed, if 
he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from 
his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”
An attorney may not seek, accept or continue employment where it is not substantiated by probable cause,
 thus an attorney may not prosecute any case that is not well
- 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964);
Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); 
see also Coulello v. State of California, 45 Cal.2d 57 (1955); 
Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). 
Clearly, this duty applies not only with reference to the client but also with regard to the court, 
opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code
  • 6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal
system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, bur den, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

new-supreme-court-ruling-makes-it-easier-to-sue-police/

 

 

 

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

 

To Learn More…. Read MORE Below and click the links Below 

Abuse & Neglect – The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN:
Click Here Officers and DA’s  for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below
]]> CACI No. 1501. Wrongful Use of Civil Proceedings https://goodshepherdmedia.net/caci-no-1501-wrongful-use-of-civil-proceedings/ Mon, 20 Jun 2022 08:45:18 +0000 https://goodshepherdmedia.net/?p=3114

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

1501.Wrongful Use of Civil Proceedings

[Name of plaintiff] claims that [name of defendant] wrongfully brought a lawsuit against [him/her/nonbinary pronoun/it]. To establish this claim, [name of plaintiff] must prove all of the following:

 

  1. That [name of defendant] was actively involved in bringing [or continuing] the lawsuit;
  2. That the lawsuit ended in [name of plaintiff]’s favor;]
  3. That no reasonable person in [name of defendant]’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against [name of plaintiff];]
  4. That [name of defendant] acted primarily for a purpose other than succeeding on the merits of the claim;
  5. That [name of plaintiff] was harmed; and
  6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm. [The law requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 2 above, whether the earlier lawsuit ended in [his/her/nonbinary pronoun/its] favor. But before I can do so, you must decide whether [name of plaintiff] has proven the following:
    [List all factual disputes that must be resolved by the jury.]
  • The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].] [The law [also] requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 3 above, whether [name of defendant] had reasonable grounds for bringing the earlier lawsuit against [him/her/nonbinary pronoun/it]. But before I can do so, you must decide whether [name of plaintiff] has proven the following:
    • [List all factual disputes that must be resolved by the jury.] The special [verdict/interrogatory] form will ask for your finding on
    • [this/these] issue[s].] New September 2003; Revised April 2008, October 2008

Directions for Use

Malicious prosecution requires that the proceeding have ended in the plaintiff’s favor (element 2) and that the defendant did not reasonably believe that there were any grounds (probable cause) to initiate the proceeding (element 3). Probable cause is to be decided by the court as a matter of law. However, the jury may be required to find some preliminary facts before the court can make its legal determination, including facts regarding what the defendant knew or did not know at the time. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part of the instruction that refers to element of favorable termination is handled in much the same way. If a proceeding is terminated other than on the merits, there may be disputed facts that the jury must find in order to determine whether there has been a favorable termination. (See Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so, include element 2 and also the bracketed part of the instruction that refers to element once these facts are determined, the jury does not then make a second determination as to whether there has been a favorable termination. The matter is determined by the court based on the resolution of the disputed facts. (See Sierra Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726] [element of favorable termination is for court to decide].) Either or both of the elements of probable cause and favorable termination should be omitted if there are no disputed facts regarding that element for the jury to decide.

Element 4 expresses the malice requirement.

Sources and Authority
  • Public Employee Immunity. Government Code section 821.6.
  •  “Although the tort is usually called ‘malicious prosecution,’ the word ‘prosecution’ is not a particularly apt description of the underlying civil action. The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486, internal citations omitted.)
  •  “To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
  • “The remedy of a malicious prosecution action lies to recompense the defendant who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records.” (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
  •  “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83], internal citation omitted.)
  • “[The litigation privilege of Civil Code section 47] has been interpreted to apply to virtually all torts exceptmalicious prosecution.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
  •  “Liability for malicious prosecution is not limited to one who initiates an action. A person who did not file a complaint may be liable for malicious prosecution if he or she ‘instigated’ the suit or ‘participated in it at a later time.’ ” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 873 [193 Cal.Rptr.3d 912].)
  •  “[A] cause of action for malicious prosecution lies when predicated on a claim for affirmative relief asserted in a cross-pleading even though intimately related to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
  • “A claim for malicious prosecution need not be addressed to an entire lawsuit; it may . . . be based upon only some of the causes of action alleged in the underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
  •  “[F]avorable termination requires favorable resolution of the underlying action in its entirety, not merely a single cause of action. ‘[I]f the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.’ ” (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th 117, 128 [277 Cal.Rptr.3d 501], internal citation omitted.)
  •  “[A] lawyer is not immune from liability for malicious prosecution simply because the general area of law at issue is complex and there is no case law with the same facts that establishes that the underlying claim was untenable. Lawyers are charged with the responsibility of acquiring a reasonable understanding of the law governing the claim to be alleged. That achieving such an understanding may be more difficult in a specialized field is no defense to alleging an objectively untenable claim.” (Franklin Mint Co.,supra, 184 Cal.App.4th at p. 346.)
  •  “Our repeated references in Bertero to the types of harm suffered by an ‘individual’ who is forced to defend against a baseline suit do not indicate . . . that a malicious prosecution action can be brought only by an individual. On the contrary, there are valid policies which would be furthered by allowing nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on remand from United States Supreme Court at 33 Cal.3d 727 [but holding that public entity cannot sue for malicious prosecution].)“[T]he courts have refused to permit malicious prosecution claims when they are based on a prior proceeding that is
  1.  less formal or unlike the process in the superior court (i.e., a small claims hearing, an investigation or application not resulting in a formal proceeding),
  2. purely defensive in nature, or
  3. (3) a continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p. 60.)
  • “[I]t is not enough that the present plaintiff (former defendant) prevailed in the action. The termination must ‘ “reflect on the merits,” ’ and be such that it ‘tended to indicate [the former defendant’s] innocence of or lack of responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
  • “ ‘The entry of summary judgment for the defense on an underlying claim on grounds of insufficient evidence does not establish as a matter of law that the litigant necessarily can “state[] and substantiate[]” . . . a subsequent malicious prosecution claim.’ ” (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1120 [248 Cal.Rptr.3d 200].)
  •  “ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim. . . .’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
  • “[Code of Civil Procedure] Section 581c, subdivision (c) provides that where a motion for judgment of nonsuit is granted, ‘unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.’ . . . [¶] We acknowledge that not every judgment of nonsuit should be grounds for a subsequent malicious prosecution action. Some will be purely technical or procedural and will not reflect the merits of the action. In such cases, trial courts should exercise their discretion to specify that the judgment of nonsuit shall not operate as an adjudication upon the merits.” (Nunez, supra, 241 Cal.App.4th at p. 874.)
  • “ ‘ “[T]hat a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause [citation] does not alter the rule there must first be a favorable termination of the entire action.” ’ Thus, if the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 64 [228 Cal.Rptr.3d 605], internal citation omitted.)
  • “ ‘ “A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. [Citations.] ‘It is not enough, however, merely to show that the proceeding was dismissed.’ [Citation.] The reasons for the dismissal of the action must be examined to determine whether the termination reflected on the merits.”  [Citations.]’ Whether that dismissal is a favorable termination for purposes of a malicious prosecution claim depends on whether the dismissal of the [earlier] Lawsuit is considered to be on the merits reflecting [plaintiff’s ‘innocence’ of the misconduct alleged.” (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 [141 Cal.Rptr.3d 338], internal citations omitted.)
  • “If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations omitted.)
  •  “[W]hen a dismissal results from negotiation, settlement, or consent, a favorable termination is normally not recognized. Under these latter circumstances, the dismissal reflects ambiguously on the merits of the action.” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 184-185 [156 Cal.Rptr. 745], internal citations omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at p. 882.)
  • “Not every case in which a terminating sanctions motion is granted necessarily results in a ‘favorable termination.’ But where the record from the underlying action is devoid of any attempt during discovery to substantiate allegations in the complaint, and the court’s dismissal is justified by the plaintiff’s lack of evidence to submit the case to a jury at trial, a prima facie showing of facts sufficient to satisfy the ‘favorable termination’ element of a malicious prosecution claim is established . . . .” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 219 [105 Cal.Rptr.3d 683].)
  • “[T]he existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury . . . . [¶] [It] requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors . . . .” (Sheldon Appel Co., supra, 47 Cal.3d at p. 875.)
  • “When there is a dispute as to the state of the defendant’s knowledge and the existence of probable cause turns on resolution of that dispute, . . . the jury must resolve the threshold question of the defendant’s factual knowledge or belief. Thus, when . . . there is evidence that the defendant may have known that the factual allegations on which his action depended were untrue, the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause to institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 881, internal citations omitted.)
  • “Whereas the malice element is directly concerned with the subjective mental state of the defendant in instituting the prior action, the probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 878,.)
  • “ ‘The benchmark for legal tenability is whether any reasonable attorney would have thought the claim was tenable. [Citation.]’ ” (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 114 [151 Cal.Rptr.3d 117], internal citation omitted.)
  • “ ‘The facts to be analyzed for probable cause are those known to the defendant [in the malicious prosecution action] at the time the underlying action was filed.’ ” (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264 [245 Cal.Rptr. 888], internal citations omitted.)
  • “A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Soukup v. Law Offıces of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638, 139 P.3d 30].)
  • “[W]e reject their contention that unpled hidden theories of liability are sufficient to create probable cause.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542 [161 Cal.Rptr.3d 700].)
  • “California courts have held that victory at trial, though reversed on appeal, conclusively establishes probable cause.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383 [90 Cal.Rptr.2d 408], original italics.)
  • “California courts have long embraced the so-called interim adverse judgment rule, under which ‘a trial court judgment or verdict in favor of the plaintiff or prosecutor in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court.’ This rule reflects a recognition that ‘[c]laims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.’ That is to say, if a claim succeeds at a hearing on the merits, then, unless that success has been procured by certain improper means, the claim cannot be ‘totally and completely without merit.’ Although the rule arose from cases that had been resolved after trial, the rule has also been applied to the ‘denial of defense summary judgment motions, directed verdict motions, and similar efforts at pretrial termination of the underlying case.’ ” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776-777 [221 Cal.Rptr.3d 432, 400 P.3d 1], internal citations omitted.)
  • “[T]he fraud exception requires ‘ “knowing use of false and perjured testimony.” ’ ” (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 452 [117 Cal.Rptr.3d 3].)
  • “Probable cause may be present even where a suit lacks merit. . . . Suits which all reasonable lawyers agree totally lack merit – that is, those which lack probable cause – are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.” (Roberts, supra, 76 Cal.App.4th at p. 382.)
  • “[A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 970 [12 Cal.Rptr.3d 54, 87 P.3d 802].)
  • “Although attorneys may rely on their clients’ allegations at the outset of a case, they may not continue to do so if the evidence developed through discovery indicates the allegations are unfounded or unreliable.“ (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1121.)
  • “[W]here several claims are advanced in the underlying action, each must be based on probable cause.” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 459 [197 Cal.Rptr.3d 227].)
  • “As an element of the tort of malicious prosecution, malice at its core refers to an improper motive for bringing the prior action. As an element of liability it reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement. Thus the cases speak of malice as being present when a suit is actuated by hostility or ill will, or for some purpose other than to secure relief. It is also said that a plaintiff acts with malice when he asserts a claim with knowledge of its falsity, because one who seeks to establish such a claim ‘can only be motivated by an improper purpose.’ A lack of probable cause will therefore support an inference of malice.” (Drummond, supra, 176 Cal.App.4th at pp. 451-452, internal citations omitted.)
  • A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence.” (Silas v. Arden (2013) 213 Cal.App.4th 75, 90 [152 Cal.Rptr.3d 255].)
  • “Because malice concerns the former plaintiff’s actual mental state, it necessarily presents a question of fact.” (Drummond, supra, 176 Cal.App.4th at p. 452.)
  • “ ‘Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.’ ‘[M]alice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause.’ ” (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1122,.)
  • “Negligence does not equate with malice. Nor does the negligent filing of a case necessarily constitute the malicious prosecution of that case.” (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1468 [242 Cal.Rptr. 562].)
  • “The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose.” (Downey Venture v. LMI Insurance Co. (1998) 66 Cal.App.4th 478, 494 [78 Cal.Rptr.2d 142], internal citations omitted.)

 

 

To Learn More…. Read MORE Below and click the links

Abuse & Neglect – The Reporters  (Police, D.A & Medical & the Bad Actors)

If You Would Like to Learn More About: The California Mandated Reporting Law Click Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect – California Penal Code 11164-11166

Child Abuse and Neglect Reporting Act Article 2.5. (CANRA) Click Here

 Mandated Reporter form  click link Mandated Reporter FORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS

INFORMATION BULLETIN click here Officers and DA’s  for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have theClear and Present Danger Test – 1st Amendment

We also have theGravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene….

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

We also have theBrayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have thePublius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

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]]> Penal Code 995 Motion to Dismiss in California https://goodshepherdmedia.net/penal-code-995-motion-to-dismiss-in-california/ Fri, 18 Jun 2021 21:38:49 +0000 https://goodshepherdmedia.net/?p=4483

PC 995 Motion: Request to Dismiss a Felony after Preliminary Hearing

 

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.

What is a Preliminary Hearing?

A quick not about preliminary hearings: A preliminary hearing is similar to a mini-trial where the prosecutor must demonstrate to a criminal court judge that there is probable cause to believe that the defendant committed the alleged offense(s). Probable cause is a much lower burden than proof beyond a reasonable doubt (see below). The district attorney usually calls the arresting officers to testify at the preliminary hearing, but alleged victim’s can also be called to testify. The preliminary hearing has more relaxed evidentiary rules than a trial and there is no jury present at a preliminary hearing. If the district attorney is successful, the court will “hold the defendant to answer (for trial).” If the district attorney is not successful at the preliminary hearing the criminal charges will be dismissed without further request to the court.

Note: Sometimes, a defendant can be ‘held to answer’ on some crimes, but not all crimes alleged. If the defendant is charged with misdemeanor and felony crimes, and only the misdemeanor crimes are sustained at the preliminary hearing, then the defendant is not ‘held to answer’ on those crimes; rather, the case proceeds to trial or pretrial stage (case is usually set for pretrial in the misdemeanor court).

If the defendant is ‘held to answer’ after the preliminary hearing, then the district attorney will file a new criminal charges against the defendant. The new criminal charges are contained in a document called an “information.”

When Do I File a PC 995 Motion

A PC 995 motion is filed by the defendant after the defendant was “held to answer” to criminal charges by the judge at a preliminary hearing. A PC 995 motion must be heard before the start of a trial on the criminal allegations.

Will a Judge Grant My PC 995 Motion

As stated, a PC 995 motion is a request to have a judge reconsider another judge’s decision as to whether there is sufficient evidence to ‘hold the defendant to answer.’ Thus, PC 995 motions are usually difficult motions upon which to succeed. Nevertheless, a PC 995 motion will be granted if the criminal defendant can show that the earlier judge held the defendant to answer without probable cause, or that the defendant was illegal committed.

Probable Cause: Probable cause is defined as reasonable and strong suspicion, based on articulated facts, that demonstrate that the defendant is more likely than not guilty of the alleged offense. In essence, this means that a PC 995 motion asks a subsequent judge to reconsider the balance of evidence offered at the preliminary hearing. A judge is not likely to overturn the preliminary hearing judge’s decision without some articulated reason(s) listed in a PC 995 motion to dismiss.

Note: Probable Cause is not equal to “proof beyond a reasonable doubt.” This means that the defendant can be ‘held to answer’ on a criminal allegation (move forward to trial) without the judge making a determination as to whether the judge believes the defendant is guilty beyond a reasonable doubt. The ‘beyond a reasonable doubt’ language is a ‘burden of proof’ that the district attorney must meet at jury trial (or court trial) on the criminal allegations. For more information, see Insufficient Evidence Defense.

Common PC 995 “Lack of Probable Cause” Claims

A PC 995 motion to dismiss is common where the judge basis her ‘holding order’ decision on unreliable evidence at the preliminary hearing (i.e. clearly unreliable witness statements, use of multi-level hearsay, lack of foundation to introduce prosecution evidence, etc.).

Note: The “probable cause” standard applies to every element of the alleged felony offense. For example, if the defendant is charged with felony vandalism because the amount of the loss to the alleged victim is alleged to be above $950, but the district attorney shows no evidence of the amount of the loss to the alleged victim at the preliminary hearing, then the defendant may file a PC 995 motion to dismiss the felony vandalism allegation.

Illegal Commitment: A defendant is “illegally Committed” when she is denied certain rights at the preliminary hearing. These preliminary hearing rights include:

  • Right to a ‘continuous’ and uninterrupted preliminary hearing (no unreasonable delay once the preliminary hearing starts);
  • No attorney provided to the defendant during the preliminary hearing and/or no warning to the defendant that she has a right to a lawyer for the preliminary hearing;
  • No opportunity given to the defendant to cross-examine witnesses;
  • Due Process violation (i.e. failure of the district attorney to provide known exculpatory evidence before the preliminary hearing, use of illegally obtain evidence, failure to timely file the “information,” etc.), and more.

Note: The district attorney has 15 days from the last day of the preliminary hearing to file the “information” against the defendant. The information is the charging document that starts the case on the road to trial. A defendant will enter a plea as to the allegations in the “information” even though the defendant has already entered a plea at the arraignment stage. For this reason, the process of entering a plea on the “information” is called the “information arraignment.” The reason the defendant enters another plea in these felony cases is that the preliminary hearing will often, but not always, result in different charges than those criminal charges that started the defendant’s criminal case.

Example I: If the defendant was initially charged with one count of lewd and lascivious acts on a minor (PC 288(a)), but the preliminary hearing prosecutor is able to find more instances of PC 288(a) crimes committed by the defendant at the preliminary hearing, then the prosecution will likely add more PC 288(a) charges in the “information.”

Example II: David is arrested on suspicion of a Residential Burglary (PC 459/460). During the drive to the police station the arresting officer asks David questions about the alleged residential burglary. David is not Mirandized or given any warning that his statements could be used against him in a court of law. Later, at the preliminary hearing, the arresting officer testifies at the preliminary hearing as to David’s statements that were made in the police vehicle. Thereafter, the judge holds the defendant to answer (held to answer at trial for the allegations). Subsequently, David’s attorney files a PC 995 motion to dismiss because the defendant was held to answer based on illegally obtained evidence (use of David’s non-Mirandized statements at the preliminary hearing).

Note: If the only evidence used against the defendant at the preliminary hearing is illegally obtained evidence, then the PC 995 motion to dismiss should be granted. On the other hand, if the evidence used at the preliminary hearing was a mix of illegally obtained evidence and legally obtained evidence, and the legally obtained evidence is sufficient to find probable cause without the use of the illegally obtained evidence, then a PC 995 motion to dismiss based on illegal commitment should not be granted.

PC 995 Motion Granted: If the defendant is successful with her PC 995 motion to dismiss, then the charges against the defendant will be dropped. A PC 995 motion can be granted as to some criminal allegations and not granted as to other criminal allegations. This is common in sex crimes offenses such as lewd and lascivious acts against a minor (PC 288(a)), where the alleged victim is certain as to the number of times he was sexually violated according to the police report, but then at the preliminary hearing, the alleged victim changes his story or the officer indicates that the alleged victim was uncertain at the time of reporting the allegations.

Note: If the court reverses the preliminary hearing judge’s hold order, then the court “sets aside” the allegations. Thereafter, the district attorney may refile the allegation (two filing in most felonies is allowed [two felony dismissal rule]), or the district attorney can appeal the “set aside” decision. The district attorney may also elect to not prosecute any criminal allegations dismissed by the criminal defendant’s 995 motion and simply move forward with prosecution on any remaining felonies that were not dismissed pursuant to the same PC 995 motion. Also, there are some exceptions to the “two felony dismissal” rule.

Also, if the judge grants the defendant’s PC 995 motion to dismiss, and there are no pending allegations against the defendant, then the defendant is entitled to have his bail return (if any bail was staked with the court).

PC 995 Motion Denied: If the defendant’s PC 995 motion to dismiss is denied, then the defendant may appeal the court’s decision. There are strict time limitations when it comes to appealing a denied 995 motion. It is important to speak to a criminal defense lawyer at the earliest opportunity if your PC 995 motion is denied.

PC 995 Motion Process in a Nutshell

  • Defendant’s case advances to preliminary hearing (prelim). Keep in mind that many cases are plea bargained before preliminary hearing or are otherwise dismissed for other reasons (motion to dismiss for untimely prosecution, motion to dismiss in the interest of justice after a successful suppression motion, etc.).

  • The preliminary hearing judge finds there is sufficient evidence against the defendant such that the defendant should answer for allegations at the trial court level (i.e. “defendant held to answer” after prelim).

  • The defendant files a written PC 995 motion in the trial court to have the trial judge reconsider the preliminary hearing judge’s decision(s) [i.e. lack of probable cause or illegal commitment issues]. “Oral” PC 995 motion might be allowed, but not suggested.

  • If defendant loses her PC 995 motion the issue usually ends there; however, a defendant may file for a reconsideration of the trial court’s decision to deny her PC 995 motion. Strict time limitation apply to these appeals. If the defendant wins her PC 995 motion then the district attorney may also appeal, or simply move forward with prosecution on any felony that were not dismissed pursuant to the defendant’s 995 motion.

cited https://www.calcriminaldefenselawyers.com/post/pc-995-motion-request-to-dismiss-a-felony-after-preliminary-hearing

Penal Code 995 Law (Abbreviated)

  • PC 995(a) … the 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:
  • PC 995(a)(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.

 

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:

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:

  1. People v. Thiecke (1985) 167 Cal.App.3d 1015.
  2. California Penal Code 872 PC.
  3. People v. Superior Court (Mendella) 33 Cal.3d 754 (quoting People v. Brice (1982) 130 Cal.App.3d 201).
  4. People v. Napthaly (1895) 105 Cal. 641.
  5. People v. Miller (1932) 123 Cal.App. 499.
  6. People v. Bucher (1959) 175 Cal.App.2d 343.
  7. Jennings v. Superior Court of Contra Costa County (1967) 66 Cal.2d 867.
  8. People v. Chapple (2006) 138 Cal.App.4th 540.
  9. People v. Ingle (1960) 53 Cal.3d 407; see also Malleck v. Superior Court (1956) 142 Cal.App.2d 396.
  10. Palm Springs criminal defense attorney Michael Scafiddi uses his insider knowledge as a former police officer to represent clients throughout the Inland Empire, in San Bernardino and Riverside County courthouses, including the Murrieta Southwest Justice Center, Banning, Fontana, Joshua Tree, Barstow and Victorville.
  11. See Garabedian v Superior Court (1963) 59 C2d 124; Barber v Superior Court (1991) 1 CA4th 793.
  12. People v Lilienthal (1978) 22 C3d 891; People v Scoma (1969) 71 C2d 332; People v Sherwin (2000) 82 CA4th 1404.
  13. In re Justin B. (1999) 69 CA4th 879.
  14. People v Upton (1968) 257 CA2d 677).
  15. People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551.
  16. Vukman v Superior Court (1981) 116 CA3d 341, disapproved on other grounds in People v Cuevas (1995) 12 C4th 252.
  17. Brady v. Maryland (1963) 373 U.S. 83.  See also Izazaga v. Superior Court (1991) 54 Cal.3d 356.
  18. California Penal Code 1382 PC.
  19. People v. Ganger (1950) 97 Cal.App.2d 11.
  20. See, for example, People v Thiecke (1985) 167 CA3d 1015 (misdemeanors); Huynh v Superior Court (1996) 45 CA4th 891 (penalty enhancement allegations); People v Ghent (1987) 43 C3d 739 (special circumstance allegations).
  21. People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190. See also California Rules of Court 8.112 and 8.116.
  22. California Penal Code 1387 PC.
  23. California Penal Code 977 PC.
  24. California Penal Code 1303 PC.
  25. California Penal Code 1510 PC.
  26. California Penal Code 999a PC.

cited https://www.shouselaw.com/ca/defense/penal-code/995-motion/

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

 

 

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Rights Help – Click Here

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The PROPOSED Parental Rights Amendment
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.

 

 

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