Legal Question in Criminal Law in California

A Penal Code �995 motion is made to challenge a magistrate's ruling at a preliminary hearing in a felony case. Penal Code �1538.5 controls the procedure for motions to suppress evidence on Fourth Amendment grounds.

You cannot use Penal Code �995 to attack the denial of a motion to suppress evidence unless it was made at the same time as the preliminary hearing.

If the magistrate who hears a preliminary hearing decides there's enough evidence to go forward, a new charging document called an information is filed and the defendant is arraigned again. Penal Code �995 allows the defendant to ask another judge to review the transcript of the preliminary hearing. If it appears the magistrate made an incorrect ruling, the reviewing judge can set aside the information.

It might be possible to bring a 995 motion based on ineffective assistance of counsel, but it would be very hard to win. First, the lawyer's shortcomings would have to be apparent from reading the transcript of the hearing. Second, you would have to show that the outcome would have been different if the lawyer had not made those mistakes. Since the prosecution's burden of proof at at a preliminary hearing is so low, this would be very difficult to prove.

A 995 motion is not a do-it-yourself project, like fixing a leaky faucet, that you can do with a little advice over the Internet. While I have won many of them, they are very fact-specific and take a great deal of legal research.

If you are the defendant in this case and representing yourself, I encourage you to seek the advice of an experienced criminal defense attorney. If you are a lawyer who is asking these questions on LawGuru instead of turning to the many professional resources available, I fear for your clients.