California Penal Code §995 Motions to Set Aside the Information

Challenging Defective Felony Prosecutions After the Preliminary Hearing

A Penal Code §995 motion (commonly called a “995 motion”) is one of the most powerful pretrial tools available to the defense in a California felony case. It allows a defendant to challenge the legal sufficiency of the evidence presented at the preliminary hearing and to seek dismissal of all or part of the charges before trial.

In essence, a 995 motion asks the superior court to set aside (or “dismiss”) the information or indictment on the ground that the defendant was “committed without reasonable or probable cause” or that the committing magistrate lacked jurisdiction. When successful, a 995 motion can completely terminate a felony prosecution or at least narrow the charges heading into trial.

The Purpose of a 995 Motion

Under California Penal Code §995(a)(2), a defendant who has been “held to answer” at the preliminary hearing may move to set aside the information if:

  1. The magistrate did not have legal jurisdiction to conduct the proceeding, or
  2. The defendant was committed without reasonable or probable cause.

This motion is not a retrial of the evidence—it’s a legal review of what occurred at the preliminary hearing. The superior court judge acts as a reviewing court, determining whether the evidence presented was sufficient to justify holding the defendant for trial. A 995 motion is often used strategically to attack weak or overcharged cases, especially where the prosecution has overextended a lesser incident into multiple felony counts. Unfortunately, many judges don’t take their responsibility seriously when it comes to these motions because the standard at the preliminary hearing is so low and it’s very costly to appeal their decisions.

The test for a 995 motion is whether there was sufficient evidence to support a reasonable suspicion that the defendant committed the charged offenses. This standard is lower than “proof beyond a reasonable doubt,” but there must still be some rational basis for each element of the charge.

Importantly, the reviewing court must consider the evidence in the light most favorable to the prosecution, resolving factual conflicts in the prosecution’s favor. However, the court does not defer to errors of law, such as admission of inadmissible evidence, misapplication of a statute, or violation of the defendant’s constitutional rights at the preliminary hearing.

If the magistrate’s ruling was based on inadmissible evidence (for example, evidence obtained from an unconstitutional search that should have been excluded under a 1538.5 motion), the superior court can and should set aside the information.

Common Grounds for a 995 Motion

A 995 motion can be filed on several legal or evidentiary bases, including:

  1. Lack of Probable Cause:
    The evidence at the preliminary hearing failed to establish probable cause for one or more charges.
  2. Illegal Commitment:
    The defendant was held to answer based on evidence that was unlawfully obtained or should have been excluded.
  3. Insufficient Evidence on a Particular Element:
    The prosecution failed to produce even slight evidence on an essential element of the offense.
  4. Procedural Errors at the Preliminary Hearing:
    Irregularities such as denial of the right to cross-examine witnesses or introduction of inadmissible hearsay not permitted under Evidence Code §872(b).
  5. Overcharging or Duplicative Counts:
    Multiple charges arising from the same conduct that legally constitute a single offense.

Timing and Procedure

A 995 motion must be filed before trial, after the information or indictment has been filed in superior court.

  • Deadline: Generally, within 60 days of arraignment on the information, though best practice is to file early, often alongside other pretrial motions.
  • Record: The court will review the transcript of the preliminary hearing; no new evidence or witnesses are presented unless the issue involves a legal defect not apparent from the transcript.
  • Hearing: The motion is argued before a superior court judge, not a jury. If the judge grants the motion, the charge (or entire case) is dismissed.

If granted, the prosecution may refile the dismissed charge in some circumstances, though practical or evidentiary issues often prevent this.

Relationship to Other Motions

A 995 motion often follows or incorporates other pretrial motions, particularly a motion to suppress evidence under Penal Code §1538.5. If the preliminary hearing judge denied a suppression motion, that issue can be renewed in a 995 motion before the trial court.

Likewise, a motion to traverse or quash a warrant can form part of the factual basis for a 995 if the commitment relied on unlawfully obtained evidence. Defense attorneys often use the 995 motion to preserve these issues for appellate review in case of an adverse ruling.

Practical Importance

A well-crafted 995 motion can dramatically alter the trajectory of a case:

  • Charges can be dismissed entirely if the prosecution failed to establish probable cause.
  • Felonies can be reduced to misdemeanors if the evidence supports only a lesser offense.
  • Overbroad or duplicative counts can be eliminated, narrowing the case before trial.

Even when denied, a 995 motion often clarifies the court’s reasoning and can set the stage for a later writ of mandate or appeal.

Strategic Considerations

Effective use of a 995 motion requires:

  • A meticulous review of the preliminary hearing transcript to identify evidentiary or procedural weaknesses.
  • Close coordination with any pending suppression or discovery motions.
  • A strong understanding of local judicial tendencies, since discretion and interpretation play a major role in these rulings.

Because the standard for probable cause is low, persuasive legal argumentation—framing errors of law and due process violations rather than mere factual disputes—is essential.

In Summary

A Penal Code §995 motion is one of the most important post-preliminary-hearing remedies in California criminal defense. It serves as a constitutional checkpoint—ensuring that felony prosecutions proceed only when supported by legally sufficient and lawfully obtained evidence.

For defendants facing serious charges, this motion can be the difference between trial and dismissal.

Consult Experienced Defense Attorneys

If you or a loved one is facing felony charges and have already had a preliminary hearing, it is critical to have your case reviewed by attorneys experienced in Penal Code §995 motions and pretrial litigation. The attorneys at Radford & Rome, LLP—both former prosecutors—routinely litigate complex 995 and 1538.5 motions across Southern California courts. Our strategic analysis and courtroom experience can identify the precise legal weaknesses that can make or break a felony case. Contact Radford & Rome today for a confidential consultation to determine whether a motion to set aside the information could lead to the dismissal or reduction of charges in your case.