A Penal Code 995 motion to dismiss is a California pretrial request asking the superior court to set aside a criminal charge because the evidence or the process behind it was legally insufficient. Named after Penal Code Section 995, the motion targets the charging document itself, either an indictment returned by a grand jury or an information filed after a preliminary hearing, and asks a judge to throw it out before trial begins.1California Legislative Information. California Penal Code 995 – Indictment or Information If you were held to answer on thin evidence or through a flawed proceeding, this is the main tool for challenging that result.
Grounds You Can Raise
The statute gives you different arguments depending on how the case got to superior court. Which path your case took matters, because the specific challenges available differ.
If the Case Came Through a Grand Jury Indictment
Two grounds apply. The indictment was not properly found, endorsed, or presented under the procedures California law requires. Or the defendant was indicted without reasonable or probable cause, meaning the evidence heard by the grand jury was too thin to justify the charge.1California Legislative Information. California Penal Code 995 – Indictment or Information
If the Case Came Through a Preliminary Hearing and Information
Again, two parallel grounds. First, the defendant was never legally committed by a magistrate. This covers situations like a procedurally defective preliminary hearing or a magistrate who lacked jurisdiction. Second, the commitment happened without reasonable or probable cause. That second ground is the one most often argued, and it covers cases where the preliminary hearing evidence simply did not add up to a strong suspicion that a crime occurred and that the defendant committed it.
What “Probable Cause” Actually Requires
Winning on insufficient evidence is harder than most defendants expect. The probable cause bar at a preliminary hearing is deliberately low. It takes only enough evidence that a reasonable person would entertain a strong suspicion of the defendant’s guilt. That is far less than what proof beyond a reasonable doubt demands at trial.
When a superior court judge reviews the motion, every reasonable inference from the evidence is drawn in favor of upholding the commitment. If two legitimate inferences exist and the magistrate picked the one supporting probable cause, the reviewing judge generally will not second-guess that call. The realistic path to success is showing there was essentially no evidence, direct or circumstantial, on a necessary element of the charged offense. Where the transcript reveals a total gap in the prosecution’s proof, these motions gain traction. Where the evidence was merely weak, they rarely do.
Deadline and How to File
The motion must be filed after arraignment in the superior court but before trial begins. The defense typically has 60 days from the arraignment on the information or indictment, though local rules can shift the window. Missing that window can forfeit the challenge, so acting soon after arraignment matters.
The motion is submitted in writing and must identify the specific charges being challenged and the legal basis for each. Defense attorneys usually attach the preliminary hearing or grand jury transcript and walk the court through the evidence, or the absence of it, count by count. A boilerplate filing that just asserts “insufficient probable cause” without pinpointing the evidentiary gap will not persuade the court.
What Happens at the Hearing
The judge hears no new testimony and considers no new evidence. The entire review runs on the existing record: the preliminary hearing or grand jury transcript and the legal arguments from both sides. The judge is not deciding guilt. The question is only whether the prior proceeding produced enough to justify moving forward.
Both sides present oral argument, and the judge may ask about specific portions of the transcript. The ruling then addresses each challenged charge individually. A motion can succeed on some counts and fail on others, so parts of a case may survive while other charges are dismissed.
If the Motion Is Granted
When the judge grants the motion, the affected charges are set aside. That sounds like a permanent win, but often it is not. The prosecution has options. It can appeal the ruling and, while the appeal is pending, request a continuance on any surviving charges or proceed to trial on counts that were not dismissed. Or it can skip the appeal and refile the dismissed charges in a new complaint, restarting the preliminary hearing process.
Limits on Refiling
California caps how many times a case can be restarted. Under Penal Code Section 1387, if a felony charge has already been terminated once under Section 995 or a related dismissal statute, a second termination generally bars the prosecution from filing that same charge again.2California Legislative Information. California Penal Code PEN 1387 For a misdemeanor not charged alongside a felony, a single 995 dismissal bars refiling.
There are narrow exceptions. A judge can allow refiling even after two dismissals if the prosecution discovers substantial new evidence that could not have been found through reasonable diligence before the earlier termination, or if the prior dismissal resulted from direct intimidation of a material witness. Additional exceptions apply in certain domestic violence cases where the complaining witness failed to appear after being personally subpoenaed. Outside those situations, the two-dismissal rule is a hard stop.
Bail and Custody
If charges are set aside and the prosecution does not immediately refile, bail obligations dissolve. Under Penal Code Section 1305, bail is released when the case is dismissed.3California Legislative Information. California Penal Code 1305 A defendant in custody on the dismissed charges is entitled to release. Other holds or charges keep the defendant in custody on those separate matters.
If the Motion Is Denied
Denial sends the case toward trial on the original charges, but review is still available. California provides a specific route: a petition for a writ of prohibition filed in the appellate court. The petition must be filed within 15 days after the trial court denies the 995 motion.4California Legislative Information. California Penal Code PEN 999a A copy must be served on the district attorney, and the appellate court will not issue a preliminary writ until at least five days after service, giving the prosecution time to respond. The timeline is tight, and preparation should begin as soon as the trial court rules.
Writ review is discretionary. The appellate court can decline to hear the petition, and the standard of review remains deferential to the probable cause finding, so these petitions are difficult to win. Where the trial court clearly erred, though, writ relief is the proper remedy. A direct appeal is not available at this stage because a denial is not a final judgment.
How It Differs From a Demurrer or a Section 871 Motion
A demurrer under Penal Code Section 1004 challenges the face of the charging document, arguing, for example, that the facts alleged do not describe a crime or that offenses were improperly joined in one count.5California Legislative Information. California Penal Code 1004 A demurrer looks only at what the document says. A 995 motion looks at the evidence behind it.
A motion to dismiss during the preliminary hearing itself, tied to Penal Code Section 871, happens earlier: the defense argues at or near the close of the preliminary hearing that probable cause has not been met. If that fails and the defendant is held to answer, the 995 motion becomes the next checkpoint for the same evidentiary challenge in superior court.6California Legislative Information. California Penal Code PEN 871.5
When Filing Makes Strategic Sense
Because the probable cause standard is so low, motions built on “the evidence was weak” fail far more often than they succeed. The motion is most effective when the transcript reveals a concrete gap: a missing element the prosecution offered no evidence on, a witness never called to establish an essential link, or a magistrate who committed the defendant on a charge that was never actually addressed during testimony. Procedural defects, like a magistrate acting outside their jurisdiction, also provide strong grounds but arise less often.
Even where the odds of winning are slim, the motion can serve secondary purposes. It forces the prosecution to engage with evidentiary weaknesses on the record, can preview how the case will be framed at trial, and sometimes prompts a better plea offer. Whether those benefits justify the preparation depends on the record you have to work with.