A Penal Code 995 motion asks the trial court to set aside a felony information, or an indictment, because you were not legally committed by a magistrate, or were committed or indicted without reasonable or probable cause. It does not decide guilt. The probable cause standard is low, and even a granted motion does not always end the case, because the prosecution can sometimes refile.
The two grounds the motion can raise
Penal Code section 995 requires the court in which you are arraigned to set aside an information, on your motion, in either of two situations: the defendant had not been legally committed by a magistrate before the information was filed, or the defendant had been committed without reasonable or probable cause. The same section covers an indictment, where the grounds are that it was not found, endorsed, and presented as the code requires, or that the defendant was indicted without reasonable or probable cause. Because most 995 motions follow a preliminary hearing rather than a grand jury indictment, this page focuses on that route. The firm's guide to what actually happens after a California felony preliminary hearing covers how a case reaches this point, including the information itself, which Penal Code section 739 requires the district attorney to file within 15 days after you are held to answer.
A 995 motion is also different from a demurrer, which attacks defects that appear on the face of the charging document, and from a motion to suppress evidence obtained through an unreasonable search or seizure. When it follows a preliminary hearing, it asks whether that hearing legally committed you and whether the evidence presented there supports the commitment, so it is filed in the trial court after the information is on file, not at the preliminary hearing itself.
What the court actually reviews
The probable cause question is narrow. The California Supreme Court has said that on a section 995 motion a court asks only whether the evidence is such that "a reasonable person could harbor a strong suspicion of the defendant's guilt," an "exceedingly low" standard well short of proof beyond a reasonable doubt (People v. Superior Court (Sahlolbei) (2017)). Because the motion asks whether you were committed without reasonable or probable cause, it turns on the evidence the magistrate heard at the preliminary hearing, so the preliminary hearing itself, including which witnesses testified and which objections were preserved, tends to decide how strong the eventual 995 motion can be. A preliminary hearing that was waived raises different issues; see the firm's guide to waiving a California preliminary hearing for what that choice gives up.
When it has to be raised
Timing matters. Penal Code section 996 says that if the motion to set aside is not made, the defendant is precluded from later raising the objections that section 995 covers. Entering a plea does not by itself end the chance to file: under Penal Code section 997, the court may hear the motion before trial whether or not a plea has been entered, and the plea need not be set aside. A separate deadline protects review before trial: under Penal Code section 1510, the denial of a 995 motion in a felony case can be reviewed before trial only if the motion was made within 60 days after arraignment on the information or indictment, unless within that time you were unaware of the issue or had no opportunity to raise it. Confirm your arraignment date and the motion calendar with counsel early.
If the motion is granted
Granting a 995 motion sets aside the information. It is not an acquittal: Penal Code section 999 says an order setting aside an information or indictment is no bar to a future prosecution for the same offense, so prosecutors can sometimes refile the charge or seek a new preliminary hearing or grand jury proceeding on the same facts. Penal Code section 1387 limits that: it generally bars another prosecution for the same felony once the action has been terminated twice, and a section 995 order counts as a termination, subject to exceptions such as substantial new evidence the prosecution could not have found earlier with due diligence. Ask counsel how those rules apply to your specific record before assuming a win on a 995 motion ends the case. The ruling can still matter a great deal in the meantime: under Penal Code section 997, the court must discharge a defendant in custody, exonerate bail, or refund a cash deposit, unless it directs that the case be resubmitted to a grand jury or that a new information be filed, in which case section 998 keeps custody or bail in place to answer the new pleading. A felony dismissal can also be appealed by the prosecution in some circumstances, covered in the firm's guide to whether prosecutors can appeal a California felony dismissal.
If the motion is denied: the 15-day writ
If the trial court denies the motion, review does not wait for a conviction. Under Penal Code section 999a, a petition for a writ of prohibition challenging the denial on the ground that there was no reasonable or probable cause must be filed in the appellate court within 15 days after the trial court denies the motion, and a copy must be served on the district attorney of the county where the information was filed. The statute also builds in a short pause for the prosecution to respond: the alternative writ cannot issue until five days after that service and until the district attorney has had an opportunity to appear and point out how the evidence is sufficient. Pretrial review also depends on meeting the 60-day filing condition in section 1510 described above. Missing the 15-day window generally forecloses this particular avenue of pretrial review, so confirm the exact denial date with counsel right away rather than waiting for the next scheduled court date to raise it.
Records to bring to a 995 review
Bring the complaint, the information as filed, the preliminary hearing transcript and any exhibits, the magistrate's holding order, and any prior motions already filed in the case. If the preliminary hearing already produced a ruling on an in-hearing objection, such as a hearsay or evidentiary issue, bring that ruling too, since it can shape what the 995 motion can argue. These records let counsel compare what the magistrate actually heard against what the information charges, which is the central question in a probable cause challenge.
The Law Offices of David S. Chesley's motion to dismiss practice can review your preliminary hearing record and information with you. Call (800) 755-5174.