What Is a 995 Motion in California? Penal Code 995 Explained
The short answer: a 995 motion is a request, made under Penal Code section 995, that a superior court judge set aside all or part of a felony information because the evidence at the preliminary hearing did not establish reasonable or probable cause, or because the defendant was not legally committed by the magistrate. It is the defense's chance to have a second judge review the preliminary hearing transcript with fresh eyes. When it succeeds, the charge is dismissed, and while the prosecution can often refile, a dismissal frequently produces a reduced charge, a better offer, or the end of the case. This guide explains how the motion works in practice at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, and the Clara Shortridge Foltz Criminal Justice Center, and when Gramling Law Group files one.
Where the 995 Motion Fits in a Felony Case
It comes after the preliminary hearing. A California felony begins with a complaint. The defendant is arraigned, and then a magistrate holds a preliminary hearing at which the prosecution must present enough evidence to hold the defendant to answer under Penal Code section 872. If the magistrate finds sufficient cause, the District Attorney files an information within 15 days under Penal Code section 739, and the defendant is arraigned again in the trial court. The 995 motion is filed after that second arraignment and before trial. Our articles What Actually Happens at a Preliminary Hearing and What Is a Preliminary Hearing in California describe the hearing itself.
It is a review of the record, not a new hearing. The judge hearing the 995 motion reads the preliminary hearing transcript and the exhibits and decides whether that record supports the charges. No new witnesses testify, and the defense cannot add evidence it did not present to the magistrate. That is why the preliminary hearing must be conducted with the 995 motion in mind: cross-examination that pins down what the officer did not see, or that establishes the absence of an element, builds the record the motion will rely on.
It is different from a 1538.5 motion. A motion under Penal Code section 1538.5 challenges the legality of a search or seizure and asks the court to suppress evidence. A 995 motion challenges the sufficiency of the evidence that was admitted. The two are often filed together: if a suppression motion at the preliminary hearing was wrongly denied, a 995 motion can argue that without the suppressed evidence the holding order fails. See What Is a 1538.5 Motion.
The Two Grounds for a 995 Motion
Ground one: the defendant was not legally committed. Penal Code section 995, subdivision (a)(2)(A), allows dismissal when the defendant was not legally committed by a magistrate. This covers procedural denials of substantial rights at the preliminary hearing, such as refusing to allow the defense to call a witness permitted by Penal Code section 866, excluding the defendant or counsel, denying a continuance needed to secure essential evidence, or holding the hearing without the defendant's valid waiver of the 10-court-day right under Penal Code section 859b.
Ground two: no reasonable or probable cause. Subdivision (a)(2)(B) allows dismissal when the defendant was committed without reasonable or probable cause. This is the ground most motions rely on. It asks whether the evidence at the preliminary hearing, taken as a whole, would lead a person of ordinary caution to entertain a strong suspicion that the defendant committed the charged offense. The standard was explained by the California Supreme Court in Rideout v. Superior Court (1967) 67 Cal.2d 471, and it is deliberately low; the question is not whether the defendant is guilty but whether there is enough to require a trial.
Partial dismissals are common. The motion can target individual counts, enhancements, or special allegations rather than the whole information. Knocking out a gang enhancement, a great bodily injury allegation, or a strike-eligible count while the lesser counts remain is often the realistic goal, and it changes the sentencing exposure and the plea negotiation. Our article on how to get criminal charges dismissed discusses where the 995 motion fits among the other tools.
The Standard the Judge Applies
Every inference goes to the prosecution. On a 995 motion, the superior court does not reweigh the evidence or judge credibility. The court draws every legitimate inference in favor of the information and asks only whether there is some rational ground for assuming the possibility that an offense was committed and the defendant is guilty of it. The California Supreme Court described the review in People v. Slaughter (1984) 35 Cal.3d 629, which also held that a magistrate's express factual findings bind the reviewing court if they are supported by substantial evidence.
Factual findings versus legal conclusions. If the magistrate heard conflicting testimony and chose to believe the officer, the 995 court cannot second-guess that choice. If the magistrate accepted the facts but drew a legal conclusion from them, for example that a certain act constitutes a criminal threat or that a given quantity of drugs shows intent to sell, the 995 court reviews that conclusion independently. The strongest 995 motions therefore argue that an element is missing as a matter of law on the undisputed facts.
Hearsay at the preliminary hearing counts. Since Proposition 115, Penal Code section 872, subdivision (b), allows a qualified officer to relate the hearsay statements of witnesses at the preliminary hearing, and the California Supreme Court upheld that practice in Whitman v. Superior Court (1991) 54 Cal.3d 1063, subject to limits on multiple levels of hearsay and on readers who lack the required experience. A 995 motion can argue that the holding order rested on hearsay the statute does not permit, such as an officer summarizing another officer's summary of a witness.
The information must match the evidence. The District Attorney may charge in the information any offense shown by the preliminary hearing evidence to have been committed, even one not in the complaint, as long as it is transactionally related to the offense for which the defendant was held to answer, under Jones v. Superior Court (1971) 4 Cal.3d 660. A count added without evidentiary support at the preliminary hearing is a classic target for a 995 motion.
Deadlines and Procedure for Filing
File promptly after arraignment on the information. Penal Code section 1510 provides that the denial of a 995 motion may be reviewed before trial by writ only if the motion was made within 60 days after arraignment on the information, unless the defendant was unaware of the grounds or could not have raised them earlier. Judges in Riverside and San Bernardino County routinely set a motion deadline at the post-preliminary-hearing arraignment, and local practice typically calls for written notice, points and authorities, and the transcript, with the hearing set on the court's law and motion calendar; the court's website describes the current local rules.
Waiting too long forfeits the issue. Under Penal Code section 996, a defendant who does not move to set aside the information is precluded from raising those objections later. Irregularities at the preliminary hearing that are not raised by a 995 motion are generally waived, so the decision not to file must be deliberate.
The transcript drives the timeline. The motion cannot be drafted until the preliminary hearing transcript is prepared by the court reporter, and the motion is served on the District Attorney with the notice period required by the court. Where the prosecution opposes, the deputy files a response citing the pages of the transcript that support each element, and the defense replies. The hearing is argument only.
The prosecution can cure minor defects. Penal Code section 995a, subdivision (b), allows the court, where the motion is based on minor errors of omission, ambiguity, or technical defect that can be expeditiously cured, to send the case back to the magistrate to correct them rather than dismissing. Prosecutors invoke this provision to rescue a holding order where a single foundational question was skipped, so the strongest motions focus on substantive gaps rather than technical ones.
What Happens If the 995 Motion Is Granted
Dismissal is usually not the end. Under Penal Code section 999, an order setting aside an information is not a bar to a future prosecution for the same offense. The District Attorney can refile the complaint and conduct a new preliminary hearing, this time with the gap filled. Penal Code section 1387 generally limits the prosecution to two dismissals of a felony, with exceptions for certain violent offenses and situations where the earlier dismissal resulted from excusable neglect or newly discovered evidence, so a second 995 dismissal is ordinarily final.
The prosecution may appeal or seek a writ. The District Attorney may appeal an order granting a 995 motion under Penal Code section 1238. In practice, prosecutors more often refile than appeal unless the issue is a recurring legal question.
Granted motions change the negotiation. Even when the prosecution can refile, a dismissal of the lead count or an enhancement is leverage. Offices in Riverside, San Bernardino, and Los Angeles County often respond to a granted 995 motion with a misdemeanor offer, a plea to the surviving counts, or a decision not to refile, particularly where the missing evidence depends on a reluctant witness. Our guide Should You Take a Plea Deal in California covers how to evaluate the offer that follows.
What Happens If the 995 Motion Is Denied
Writ review is available within 15 days. Under Penal Code section 999a, the defendant may petition the Court of Appeal for a writ of prohibition within 15 days after the denial of a 995 motion, provided the motion was timely under Penal Code section 1510. Writ petitions are granted sparingly, but they are the only way to obtain appellate review of the probable cause question before trial, because after a conviction the question becomes whether the trial evidence was sufficient.
The case proceeds to trial setting. A denied motion does not harm the defense at trial; the jury never learns of it. The record built for the motion, including the pinned-down testimony of the prosecution's witnesses, becomes impeachment material if those witnesses testify differently at trial. See How Does a Criminal Jury Trial Work in California.
When Filing a 995 Motion Makes Sense
Missing elements on undisputed facts. The best candidates are cases where the prosecution's own witness established facts that do not add up to the charged crime: a burglary count where the entry was with consent, a possession for sale count resting on quantity alone with no indicia of sales, a criminal threats count where the statement was not unequivocal or immediate, or an assault with a deadly weapon count where the object was never shown to be used in a manner capable of producing great bodily injury. Our elements guides, including Is Burglary a Felony in California, What Is Possession for Sale in California, and What Counts as Criminal Threats in California, identify the elements that most often go unproven.
Enhancements proven by assumption. Gang allegations, great bodily injury allegations, and prior conviction allegations require their own evidence at the preliminary hearing. Prosecutors sometimes rely on a conclusory question to the investigating officer. A 995 motion directed at the enhancement alone can remove years of exposure without the risk of refiling the underlying count.
Wobblers held as felonies. Where the evidence supports only a misdemeanor theory, for example a theft with no proof the value exceeded $950, the motion can argue that the felony count must be set aside, which pushes the case toward a misdemeanor resolution. The same result is sometimes available through a motion to reduce under Penal Code section 17, subdivision (b), as explained in How to Reduce a Felony to a Misdemeanor in California.
When not to file. A 995 motion that merely reargues credibility will be denied and may educate the prosecutor about the weaknesses the defense intends to exploit at trial. Where the gap can be cured by refiling and the current holding order is otherwise favorable, for example because a key witness has since become unavailable, a motion can backfire. An experienced defense attorney weighs those risks, as described in What Makes a Criminal Case Weak in California.
995 Motions in Southern California Courts
Inland Empire practice. In Riverside County, felony cases from Riverside, Moreno Valley, and Corona are heard at the Riverside Hall of Justice, cases from Temecula and Murrieta at the Southwest Justice Center, and cases from Palm Springs and Indio at the Larson Justice Center. In San Bernardino County, cases from San Bernardino, Fontana, and Redlands are heard at the San Bernardino Justice Center, cases from Ontario and Rancho Cucamonga at the Rancho Cucamonga courthouse, and High Desert cases from Victorville, Hesperia, Apple Valley, and Barstow at the Victorville or Barstow courthouses, where our Hesperia criminal defense practice regularly appears. Each courthouse has its own law and motion calendar, and the court's website lists current scheduling rules.
Los Angeles and Orange County practice. Felony motions in downtown Los Angeles are heard at the Clara Shortridge Foltz Criminal Justice Center, with branch courthouses in Van Nuys, Pomona, Long Beach, and Pasadena hearing their own cases. Orange County felonies are concentrated at the Central Justice Center in Santa Ana. The written-motion practice is the same statewide, but the amount of time judges allow for argument and the willingness of prosecutors to refile varies by office.
Frequently Asked Questions
What is the deadline to file a 995 motion in California?
Within 60 days of arraignment on the information to preserve writ review. Penal Code section 1510 conditions pretrial writ review on a motion made within 60 days after arraignment on the information, and Penal Code section 996 treats objections not raised by motion as waived. Many courts set a specific motion deadline at the arraignment, so the practical deadline is often sooner.
Can a 995 motion get my whole case dismissed?
Yes, but the prosecution can usually refile once. If the superior court sets aside every count, the information is dismissed and the defendant is released from any custody or bail on that case. Under Penal Code section 999, the District Attorney may file a new complaint and hold a new preliminary hearing, and Penal Code section 1387 generally bars a third filing after two dismissals.
Does the judge hear new evidence on a 995 motion?
No. The motion is decided on the preliminary hearing transcript and exhibits. The reviewing judge draws all reasonable inferences in favor of the prosecution and defers to the magistrate's factual findings, as explained in People v. Slaughter (1984) 35 Cal.3d 629. New evidence belongs at trial or in a renewed suppression motion under Penal Code section 1538.5.
What is the difference between a 995 motion and a 1538.5 motion?
One attacks sufficiency, the other attacks a search. A 995 motion argues that the evidence at the preliminary hearing did not establish probable cause or that the commitment was illegal. A Penal Code section 1538.5 motion argues that evidence was obtained through an unlawful search or seizure and must be suppressed. They are frequently filed together when suppressing the challenged evidence would leave the holding order without support.
Can a 995 motion be used in a misdemeanor case?
No. The motion applies to felony informations and indictments, because only those cases involve a preliminary hearing or grand jury proceeding to review. Misdemeanor defendants use other tools, including demurrers, suppression motions, and diversion requests, which are described in Do I Need a Lawyer for a Misdemeanor in California.
What happens if the 995 motion is denied?
The case proceeds toward trial, and writ review is available within 15 days. Penal Code section 999a allows a petition for writ of prohibition in the Court of Appeal within 15 days of the denial if the motion was timely. The denial is not evidence and is never mentioned to the jury, and the transcript testimony remains available to impeach the witnesses at trial.
Talk to a Felony Defense Lawyer About a 995 Motion
Gramling Law Group litigates preliminary hearings and 995 motions at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Victorville courthouse, the Clara Shortridge Foltz Criminal Justice Center, and the Central Justice Center in Santa Ana, serving the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options, including limited-scope representation for a preliminary hearing or a single motion. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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