This is more than “common rumor or report, or even strong reason to suspect.” People v. In other words, at the preliminary examination "the burden is on the prosecution to produce evidence that there is a reasonable probability, enough to induce a strong suspicion in the mind of a man of ordinary caution or prudence, that a crime has been committed, and that defendant is guilty." Garabedian v. The term "reasonable or probable cause" has been defined as "such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of guilt of the accused." People v. The standard of proof is reasonable or probable cause, not proof beyond a reasonable doubt. To issue a holding order, meaning that the case continues beyond the preliminary hearing, the judge does not need to hear sufficient proof to sustain a conviction. In other words, the police report cannot be cited. The motion is based upon the transcript from the preliminary hearing transcript (or grand jury transcript).
If this were the sole purpose of the motion, without a good faith argument that certain one or more charges or enhancements should be dismissed, the court may regard the motion as frivolous, hurting the client’s credibility and our credibility, too. However, this should never be the sole purpose of the motion. Secondly, the motion can educate the new judge about the case facts, the weakness of the evidence and issues that are dispositive.
When a judge in the court handling the preliminary hearing truly made a mistake in denying a motion to dismiss, a 995 motion seeks to correct that error under the court’s inherent power under Penal Code § 1385 in the furtherance of justice. Superior Court (1996) 44 Cal.App.4th 1261).įrom our experience, we think filing such a motion serves a practical purpose in two ways, but must be done carefully. Superior Court (1983) 33 Cal.3d 754 Huynh v.
Superior Court (1979) 90 Cal.App.3d 944) as well as most penalty enhancements ( People v. It is also available to challenge special circumstance allegations ( Ghent v. Superior Court (1985) 166 Cal.App.3d 290, 292-295), charges added by the judge at the preliminary hearing or those added by the district attorney after the preliminary hearing. The motion can also be used to weed out felonies to misdemeanors ( People v.
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