Dismiss, proced. issues (P.C. 995)
Category > Dismiss, proced. issues (P.C. 995)
The suppression issue that was twice denied in section 1538.5 motions was properly raised in a 995 motion. Defendant was twice unsuccessful in having the evidence suppressed on motions brought under Penal Code section 1538, first at the preliminary hearing and then after his arraignment on the information. He raised the issue again in a motion to set aside the information pursuant to section 995, which was heard by a different superior court judge who granted the motion and ordered the evidence suppressed. Contrary to the prosecution’s claim, the suppression issue was properly raised again in the 995 motion.id: 26228
Writ review was proper after an untimely 995 motion due to the voluminous record and the fact that counsel didn’t receive discovery for several weeks. The Attorney General argued the court should deny the defendant’s writ petition following the denial of a Penal Code section 995 motion because the original motion was not filed within 60 days of the arraignment which is a prerequisite for pretrial writ review under section 1510. However, the “no opportunity” and “unaware of the issues” exceptions to section 1510 applied in light of the voluminous grand jury record and the fact that defense counsel didn’t received the discovery for several weeks. id: 23973
Misdemeanors joined with felonies in an information are subject to being set aside under section 995 if not supported by evidence at the preliminary hearing.Defendant was charged with a felony and two misdemeanors. He moved to set aside one misdemeanor count where no evidence supporting that charge was offered at the preliminary hearing. The trial court erred in finding the 1990 addition of Penal Code section 866, subd.(b) (pursuant to Proposition 115) and the 1998 amendment to section 737 to account for court unification, abolished the need to offer proof of misdemeanors included in an information at the preliminary hearing.id: 22239
The superior court may set aside an information under section 995 where the magistrate failed to consider whether to dismiss a complaint in furtherance of justice under section 1385.The superior court may set aside an information under Penal Code section 995 when the magistrate erroneously and prejudicially has failed to consider whether to dismiss the complaint in furtherance of justice under section 1385.id: 17842
Counsel rendered IAC by failing to appeal the denial of a motion to dismiss where the evidence did not show the minor was in the stolen vehicle, and the minor did not waive the right to challenge the denial of the motion by later testifying.Following the denial of the motion to dismiss for insufficient evidence, the juvenile court sustained the petition alleging receiving stolen property. However, the minor was denied the effective assistance of counsel by counsel's failure to file an appeal from the judgment. The IAC was prejudicial as there was insufficient evidence to sustain the petition where the only evidence presented showed that four youths exited and fled from a stolen car. The minor was not identified. Moreover, the minor did not waive the right to challenge the denial of the motion to dismiss by thereafter testifying in his own defense. Even considering the minor's testimony there was insufficient evidence to sustain the petition where the minor said he was a back seat passenger and hardly knew the driver.id: 17818
Court properly dismissed (under section 656) state counts charging conspiracy and insurance fraud which were based on the same "acts" to which defendant pled guilty in a federal case.Defendants were indicted for conspiracy to defraud insurance companies with false claims stemming from eight staged auto accidents. Six of the collisions also formed the basis for a prior federal indictment for conspiracy to commit mail fraud and the commission of mail fraud. Defendants pled guilty to certain federal counts. Thereafter, they argued the state counts should be dismissed under Penal Code section 656. The court granted the motion. The trial court did not err in dismissing the state counts charging conspiracy and insurance fraud which were based on the same "acts" to which defendant pled guilty in the federal actions. But the court erred in dismissing two counts of the indictment which related to two accidents not alleged in the federal indictment and in dismissing conspiracy counts against two defendants who were not convicted of conspiracy in federal court.id: 16763
Trial court abused its discretion in denying the section 995 motion on the ground it could not be used to set aside allegations that the charged attempted murders were premeditated and deliberated.Defendant was charged with three counts of attempted murder. It was further alleged as to each count the crime was premeditated and deliberated within the meaning of Penal Code section 664, subdivision (a). The trial court abused its discretion by denying defendant's Penal Code section 995 motion on the ground it could not be used to set aside allegations the charged attempted murders were premeditated and deliberated.id: 9812
A defendant may use a section 995 motion to challenge the sufficiency of the evidence to support enhancements.The authorities before and since Proposition 115 recognize that a defendant has the right to bring a Penal Code section 995 motion for the purpose of challenging the sufficiency of the evidence to support enhancement allegations. There was no evidence presented at the preliminary hearing to support the gang enhancement, and the trial court erred in denying the section 995 motion on that basis.id: 14979
Updated 2/3/2024The trial court erred in granting defendant’s 995 motion absent a factual finding by the magistrate where the evidence was sufficient to go forward.The trial court erred by concluding the magistrate made a factual finding about the assault and thus erred by granting the defendant’s Penal Code section 995 motion. There were no factual findings, although the magistrate agreed the facts were conflicting. The evidence produced at the preliminary hearing provided a rational ground to support the possibility that defendant committed the offense. id: 27611
995 was properly denied where defendant was indicted for murder under a valid theory even though the grand jury was also instructed on a theory invalidated by SB 1437.Defendant argued in a Penal Code section 995 motion that he was indicted on less than probable because the grand jury heard evidence and received instructions on two theories of murder that were subsequently invalidated under SB 1437. However, the motion was properly denied where the evidence and instructions supported the indictment on a still valid theory of murder.id: 26416
Trial court erred by failing to review the sufficiency of the evidence of the charge the magistrate dismissed.At the preliminary hearing, the magistrate found the evidence was insufficient to hold defendant to answer on the possession for sale charge, but allowed the prosecution to amend the complaint to add a simple possession charge. The prosecution later filed an information including the offenses for which the defendant was bound over, and also the previously dismissed possession for sale charge. The trial court granted defendant’s motion to dismiss the charge believing it was bound by the magistrate’s finding. However, the magistrate’s ruling was not binding on the court and the court should have independently examined the evidence to determine its sufficiency. The Court of Appeal examined the evidence and found it was sufficient to support the charge. id: 23487
Failure to show at the preliminary hearing that the limitations was tolled was a “minor error” for purposes of section 995a. Penal Code section 995a, subd.(b)(1) gives the trial courts discretion to deny a motion to set aside an information under section 995 when the motion is based on minor errors that can be expeditiously cured or corrected without a rehearing of a substantial portion of evidence. The lack of evidence at the preliminary hearing to support the allegation that the three year statute of limitations was tolled while defendant’s prior prosecution for the same charges was pending, was a “minor error” for purposes of section 995a.id: 22360
Defendant was entitled to separate review of the denials of his 995 and suppression motions both of which challenged the stop and search.Defendant pled guilty to various charges. Before the plea, the trial court denied his motion to set aside the information and to suppress the evidence. Both motions challenged the stop of his truck and the search. The court of appeal denied writ review of the denial of the motion to set aside the information under Penal Code section 995. Defendant on appeal was entitled to separate review of the denial of the two motions. id: 21804
Court erred in rejecting the prosecutor's 170.6 challenge because the exception to section 170.6 pertaining to 1538.5 suppression motions does not apply to section 995 motions.In People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, the court found Penal Code section 1538.5, subd.(p) (relitigated motions to suppress must be heard by the same judge, was an implied exception to Code of Civil Procedure section 170.6. However, relitigated motions to set aside an information under Penal Code section 995 are not an implied exception to section 170.6. The prosecution may therefore issue a peremptory challenge in such a situation.id: 17677
The trial court did not err in refusing to hear defendant's 995 motion which was brought on the morning of trial after having been previously made and withdrawn.The trial court did not abuse its discretion in refusing to hear defendant's Penal Code section 995 motion to dismiss, which was raised on the morning of jury selection, after the motion had been earlier made and withdrawn. Defense counsel gave no explanation for the delay in renewing the motion, a jury panel had been ordered, and witnesses likely subpoenaed. Moreover, the motion was not routine and arguments would likely have been time consuming. Even if the court erred in refusing to hear the renewed motion, the defendant failed to show prejudice.id: 17910
The superior court, in ruling on a 995 motion, is authorized to review a prior order compelling the magistrate to reinstate the complaint.In ruling on a motion to set aside an information under Penal Code section 995, the superior court is authorized to review a prior order compelling the magistrate to reinstate the complaint under section 871.5, and may do so without violating the California Constitution.id: 17841
A section 995 motion is the appropriate procedure to challenge the legality of a prosecution.The trial court found that the reverse sting operation employed by the police where they sold narcotics to potential users constituted egregious behavior and could not support a prosecution for narcotics possession. The <i> People</i> argued the Penal Code section 995 motion to dismiss was inappropriate because defendant's substantial rights were not violated. However, a section 995 motion is the appropriate procedure for challenging the legality of the prosecution itself.id: 11981
Notwithstanding defendant's appearance at the scheduled arraignment, issuance of an arrest warrant for failing to appear at a subsequent arraignment was proper.Defendant was arrested for drunk driving. He appeared at the date of his arraignment, but a complaint had not yet been filed. A complaint was subsequently filed and an arrest warrant issued after he failed to appear. Notwithstanding defendant's appearance on the earlier citation, the People were entitled to issue a new complaint and obtain a valid arrest warrant. Moreover, even if the warrant had been improperly issued, dismissal of the case was not the proper remedy.id: 11453
Motion to dismiss in furtherance of justice under section 1385 may be made by the prosecutor or judge, but not the defendant.Finding that defendant would have been amenable to treatment at the California Youth Authority several years earlier at his sentencing, the court granted defendant's Penal Code section 1385 motion to dismiss the case in furtherance of justice. However, that section does not permit a defendant to make such motion, and the minutes did not reflect that the order was made on the court's own motion. On remand the court may either commit defendant to CYA for whatever determination it may see fit to make under the law, as to his future custody or, alternatively, dismiss the action on its own motion pursuant to section 1385.id: 9809
Nolo contendere plea precludes review of a denial of 995 motion unless the motion sought to suppress evidence based on an unlawful search.Appellant argued the battery on a police officer charge should have been dismissed on the ground that the battery occurred when the sheriff's deputies were not lawfully engaged in the performance of their duties. However, a nolo contendere or guilty plea precludes review of a denial of a Penal Code section 995 motion unless the motion sought to suppress evidence based on an unlawful search and seizure.id: 9810
Second judge did not err in ruling on a 995 motion after the original judge was challenged following a tentative ruling on the motion.When considering defendant's Penal Code section 995 motion the trial court issued two tentative and alternative findings, one reflecting his view of the law, and the other reflecting the prosecution's view of the law; that certain discussions constituted overt acts for conspiracy. Rather than pursuing appellate review of the alternative orders, the prosecutor exercised a peremptory challenge of the judge. Defendant argued the subsequent judge's determination that the discussions constituted overt acts was an abuse of discretion. However, the express tentative ruling presented by the original judge was not final. The subsequent judge did not abuse his discretion merely by entering a ruling based on his interpretation of the law.id: 9811
Trial court erred in granting the Penal Code section 995 motion prior to preparation of the preliminary hearing transcript.Defendant moved to set aside the information on the grounds that insufficient evidence was introduced at the preliminary hearing for defendant to be held to answer in superior court. The motion was noticed for hearing the next day and defendant had not been provided with a preliminary hearing transcript. When the court was informed a transcript would not be available for 30 days, the court granted defendant's motion. The court's order was erroneous since the defendant would have been unable to make the required showing of lack of probable cause and since the court dismissed the action prior to the preparation of the transcript.id: 9813
After the superior court determined the magistrate's dismissal of the charges was erroneous as a matter of law, the magistrate was not entitled to render factual findings.At the conclusion of the preliminary hearing, the magistrate stated there was not sufficient cause to believe appellant had committed grand theft and dismissed the charges. The magistrate rejected the prosecutor's request to make findings of fact. The superior court then granted the People's motion to reinstate the complaint and made certain findings of fact. The matter was then returned to the municipal court to hold defendant to answer. At this point, the magistrate did not have the power to render findings of fact, and the superior court was entitled to disregard those findings when reviewing the Penal Code section 995 motion to dismiss.id: 9803
Court erred in dismissing the case where the unavailable assigned prosecutor was expected to be ready later that afternoon.The case was assigned by the master calendar court to an available trial department. The People were not ready to proceed because the assigned deputy district attorney was completing a trial in another department. The defendant was ready to proceed and the motion to dismiss was granted. The dismissal was improper in light of the prosecutor's proposed reasonable alternatives: (1) to trail the case for two days (it was well before the expiration of the statutorily mandated 10-day period), (2) to trail the case to follow the trial being concluded by the assigned prosecutor, or (3) to simply delay starting the trial until the afternoon of the same day when the assigned prosecutor was expected to be available.id: 9804
Defendant could not seek review of 995 denial by way of writ petition when he entered a change of plea after the motion was denied.After defendant's motion to dismiss the information pursuant to Penal Code section 995 was denied, defendant entered a plea of nolo contendere to one count of sale of cocaine. The court then erred in informing defendant that the 995 motion was subject to a writ. The change of plea rendered review of the issue by way of a writ petition unavailable to defendant.id: 9805
Dismissal order made upon the court's own motion was appealable.The trial court granted defendant's motion to suppress the results of a blood sample taken from him. Five days later the court dismissed the matter pursuant to Penal Code section 1385.5. Defendant argued the court's order of dismissal was made in response to the request of the prosecutor and, thus, was not appealable. However, the record clearly revealed that it was the intention of the court to preserve the People's right to appeal, and that the dismissal order was made on the court's own motion. Therefore, the order was appealable.id: 9806
Drunk driving offense was not transactionally related to the robbery and dismissal pursuant to section 1387 was improper.Violations of Vehicle Code section 23153, subdivision (a) or (b) could have been committed without engaging in the conduct alleged in the twice-dismissed robbery and Vehicle Code section 10851 offenses. Neither driving under the influence charge was the same offense within the meaning of Penal Code section 1387 as either of the twice dismissed charges. Dismissal of the two driving under the influence offenses pursuant to section 1387 was erroneous.id: 9807
Following the preliminary hearing, the Superior Court erred in remanding the proceedings to the magistrate for additional testimony.Following defendant's preliminary hearing, he was held to answer on several felony charges. It was then alleged that the prosecutor failed to inform defendant until after the preliminary hearing that the victim of all the charges was himself currently charged with filing a false report. Defendant filed a Penal Code section 995 motion to dismiss as well as a nonstatutory motion to dismiss. The Superior Court judge remanded the case to the municipal court with directions to vacate the hold to answer orders and open the proceedings for further evidence. Because defendant's motion to dismiss was based upon matters outside the preliminary hearing record, the motion could not have been brought under section 995. Moreover, the Superior Court had no authority to remand the proceedings to the magistrate for additional preliminary hearing testimony.id: 9808
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245