section 995 information in California

1969The rule is stated in Perry v. Superior Court, 57 Cal.2d 276, 283-284 [ 19 Cal.Rptr. 1 , 368 P.2d 529 ] : “It is axiomatic that in considering the propriety of a motion to set aside an information pursuant to section 995 of the Penal Code, the reviewing court may not substitute its judgment as to the weight of the evidence for that of the committing magistrate And if there is some evidence in support of the information, the court will not inquire into the sufficiency thereof. [Citations.] “Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or

1969The rule is stated in Perry v. Superior Court, 57 Cal.2d 276, 283-284 [ 19 Cal.Rptr. 1 , 368 P.2d 529 ] : “It is axiomatic that in considering the propriety of a motion to set aside an information pursuant to section 995 of the Penal Code, the reviewing court may not substitute its judgment as to the weight of the evidence for that of the committing magistrate And if there is some evidence in support of the information, the court will not inquire into the sufficiency thereof. [Citations.] “Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or

2018In the related context of setting aside an information under section 995, we have explained that " '[a]n information ... will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination. [Citation.] But where it appears that, during the course of the preliminary examination, the defendant has been denied a substantial right , the commitment is unlawful within the meaning of section 995, and it must be set aside upon timely motion.' " ( Jennings v. Superior Court (1967) 66 Cal.2d 867 , 874, 59 Cal.Rptr. 440 , 428 P.2d 304 .) Becaus

2018In the related context of setting aside an information under section 995, we have explained that " '[a]n information ... will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination. [Citation.] But where it appears that, during the course of the preliminary examination, the defendant has been denied a substantial right , the commitment is unlawful within the meaning of section 995, and it must be set aside upon timely motion.' " ( Jennings v. Superior Court (1967) 66 Cal.2d 867 , 874, 59 Cal.Rptr. 440 , 428 P.2d 304 .) Becaus

2024(Reyes, supra, 56 Cal.App.5th at p. 984, fn. 7.) Although the prosecution also presented a theory the statute applied because of Olivas’s ongoing abuse of his mother (id., at p. 984), the trial court granted the defendant’s motion to set aside the information pursuant to section 995 and agreed with his position “the language of [section 136.1, subdivision (b)(1)] requires that the defendant attempt to dissuade the reporting of a past crime.” (Reyes, at p. 980, italics added.) On appeal, the First District, Division Four, affirmed the trial court’s dismissal of the section 136.1, subdivision (b

2024(Reyes, supra, 56 Cal.App.5th at p. 984, fn. 7.) Although the prosecution also presented a theory the statute applied because of Olivas’s ongoing abuse of his mother (id., at p. 984), the trial court granted the defendant’s motion to set aside the information pursuant to section 995 and agreed with his position “the language of [section 136.1, subdivision (b)(1)] requires that the defendant attempt to dissuade the reporting of a past crime.” (Reyes, at p. 980, italics added.) On appeal, the First District, Division Four, affirmed the trial court’s dismissal of the section 136.1, subdivision (b

1983(Cf. People v. Superior Court (Kusano) (1969) 276 Cal.App.2d 581, 586, fn. 4 [ 81 Cal.Rptr. 42 ] (dictum).) Further, this device may cause the court new problems, as it runs counter to an appellate opinion declaring that when the superior court suppresses evidence under section 1538.5 it lacks jurisdiction to set aside the information under section 995 immediately thereafter.

1983(Cf. People v. Superior Court (Kusano) (1969) 276 Cal.App.2d 581, 586, fn. 4 [ 81 Cal.Rptr. 42 ] (dictum).) Further, this device may cause the court new problems, as it runs counter to an appellate opinion declaring that when the superior court suppresses evidence under section 1538.5 it lacks jurisdiction to set aside the information under section 995 immediately thereafter.

1962(People v. Jackson, 146 Cal.App.2d 553, 555 [ 303 P.2d 767 ].) (See also People v. McRae, 31 Cal.2d 184, 187 [ 187 P.2d 741 ]; Rogers v. Superior Court, 46 Cal.2d 3, 7-8 [ 291 P.2d 929 ]; People v. Tracy, 199 Cal.App.2d 163, 167, 168 [ 18 Cal.Rptr. 487 ].) In Perry v. Superior Court, 57 Cal.2d 276, 283 [ 19 Cal.Rptr. 1 , 368 P.2d 529 ], the court said: “It is axiomatic that in considering the propriety of a motion to set aside an information pursuant to section 995 of the Penal Code, the reviewing court may not substitute its judgment as to the weight of the evidence for that of the committing

1962(People v. Jackson, 146 Cal.App.2d 553, 555 [ 303 P.2d 767 ].) (See also People v. McRae, 31 Cal.2d 184, 187 [ 187 P.2d 741 ]; Rogers v. Superior Court, 46 Cal.2d 3, 7-8 [ 291 P.2d 929 ]; People v. Tracy, 199 Cal.App.2d 163, 167, 168 [ 18 Cal.Rptr. 487 ].) In Perry v. Superior Court, 57 Cal.2d 276, 283 [ 19 Cal.Rptr. 1 , 368 P.2d 529 ], the court said: “It is axiomatic that in considering the propriety of a motion to set aside an information pursuant to section 995 of the Penal Code, the reviewing court may not substitute its judgment as to the weight of the evidence for that of the committing

1985(See In re Hochberg (1970) 2 Cal.3d 870, 878-879 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ]; People v. Chacon (1968) 69 Cal.2d 765 , 11A [ 73 Cal.Rptr. 10 , 447 P.2d 106 , 34 A.L.R.3d 454 ]; In re Johnson (1965) 62 Cal.2d 325, 334-335 [ 42 Cal.Rptr. 228 , 398 P.2d 420 ]; People v. Angulo (1978) 85 Cal.App.3d 514, 518-519 [ 148 Cal.Rptr. 517 ]; see also United States v. Garcia (5th Cir. 1975) 517 F.2d 272, 278 [requiring advice as to dangers of conflict and a narrative response by defendant].) However, defendant’s failure to move to set aside the information under section 995, after his substitution mot

1985(See In re Hochberg (1970) 2 Cal.3d 870, 878-879 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ]; People v. Chacon (1968) 69 Cal.2d 765 , 11A [ 73 Cal.Rptr. 10 , 447 P.2d 106 , 34 A.L.R.3d 454 ]; In re Johnson (1965) 62 Cal.2d 325, 334-335 [ 42 Cal.Rptr. 228 , 398 P.2d 420 ]; People v. Angulo (1978) 85 Cal.App.3d 514, 518-519 [ 148 Cal.Rptr. 517 ]; see also United States v. Garcia (5th Cir. 1975) 517 F.2d 272, 278 [requiring advice as to dangers of conflict and a narrative response by defendant].) However, defendant’s failure to move to set aside the information under section 995, after his substitution mot

1985(See In re Hochberg (1970) 2 Cal.3d 870, 878-879 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ]; People v. Chacon (1968) 69 Cal.2d 765 , 11A [ 73 Cal.Rptr. 10 , 447 P.2d 106 , 34 A.L.R.3d 454 ]; In re Johnson (1965) 62 Cal.2d 325, 334-335 [ 42 Cal.Rptr. 228 , 398 P.2d 420 ]; People v. Angulo (1978) 85 Cal.App.3d 514, 518-519 [ 148 Cal.Rptr. 517 ]; see also United States v. Garcia (5th Cir. 1975) 517 F.2d 272, 278 [requiring advice as to dangers of conflict and a narrative response by defendant].) However, defendant’s failure to move to set aside the information under section 995, after his substitution mot

1985(See In re Hochberg (1970) 2 Cal.3d 870, 878-879 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ]; People v. Chacon (1968) 69 Cal.2d 765 , 11A [ 73 Cal.Rptr. 10 , 447 P.2d 106 , 34 A.L.R.3d 454 ]; In re Johnson (1965) 62 Cal.2d 325, 334-335 [ 42 Cal.Rptr. 228 , 398 P.2d 420 ]; People v. Angulo (1978) 85 Cal.App.3d 514, 518-519 [ 148 Cal.Rptr. 517 ]; see also United States v. Garcia (5th Cir. 1975) 517 F.2d 272, 278 [requiring advice as to dangers of conflict and a narrative response by defendant].) However, defendant’s failure to move to set aside the information under section 995, after his substitution mot

1986Henderson filed a motion to set aside the information pursuant to Penal Code section 995 contending that the magistrate made factual findings fatal to the murder charge which precluded its refiling in superior court under the authority of Jones v. Superior Court, supra, 4 Cal.3d 660, and Walker v. Superior Court (1980) 107 Cal.App.3d 884 [ 166 Cal.Rptr. 209 ].

1979(See Jones v. Superior Court, 4 Cal.3d 660, 668 [ 94 Cal.Rptr. 289 , 483 P.2d 1241 ]; Jennings v. Superior Court, 66 Cal.2d 867, 880 [ 59 Cal.Rptr. 440 , 428 P.2d 304 ].) If a defendant charged with welfare fraud elects to present evidence at the preliminaiy hearing that no demand for restitution was made upon him or her and the issue is tried at the preliminary hearing, it may well be that the issue could properly be presented by a motion to set aside the information pursuant to Penal Code section 995. 4 Even under those circumstances, however, the nonstatutory motion procedure would still ap

2019A defendant seeking to avoid the use of evidence obtained by an unreasonable search and seizure may therefore "move to set aside an indictment or information under section 995... or he may move to suppress the evidence by a motion under section 1538.5... [o]r he may, as here, use both methods of attack." ( Smith v. Superior Court (1978) 76 Cal.App.3d 731 , 733, 143 Cal.Rptr. 109 ; accord Magee, supra , 194 Cal.App.4th at p. 182 , 123 Cal.Rptr.3d 689 [" 'If the defendant is unsuccessful [on a section 1538.5 motion] at the preliminary hearing, he or she may raise *18 the search and seizure matte

2019A defendant seeking to avoid the use of evidence obtained by an unreasonable search and seizure may therefore "move to set aside an indictment or information under section 995... or he may move to suppress the evidence by a motion under section 1538.5... [o]r he may, as here, use both methods of attack." ( Smith v. Superior Court (1978) 76 Cal.App.3d 731 , 733, 143 Cal.Rptr. 109 ; accord Magee, supra , 194 Cal.App.4th at p. 182 , 123 Cal.Rptr.3d 689 [" 'If the defendant is unsuccessful [on a section 1538.5 motion] at the preliminary hearing, he or she may raise *18 the search and seizure matte

1979It would seem to me there was invasion of rights pursuant to the Fourth and Fifth Amendments. [|] The defendant, Mr. Gilboe, should have been advised of what was going on, and as I understand it from the transcript of the indictment proceedings, he was never advised, at least clearly, of what was happening at the particular time, nor was he presented with a search warrant.” (Italics added.) We note the case of People v. Wright, 2 Cal.App.3d 732, 735 [ 82 Cal.Rptr. 859 ], which appears to indicate that if all of the facts necessary to establish prejudicial prosecutorial delay were developed at

1979It would seem to me there was invasion of rights pursuant to the Fourth and Fifth Amendments. [|] The defendant, Mr. Gilboe, should have been advised of what was going on, and as I understand it from the transcript of the indictment proceedings, he was never advised, at least clearly, of what was happening at the particular time, nor was he presented with a search warrant.” (Italics added.) We note the case of People v. Wright, 2 Cal.App.3d 732, 735 [ 82 Cal.Rptr. 859 ], which appears to indicate that if all of the facts necessary to establish prejudicial prosecutorial delay were developed at

1962The question presented to us is whether the evidence of the facts we have just related was sufficient to hold petitioners for the offenses charged. “ ‘Sufficient cause’ and ‘reasonable and probable cause’ mean such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” (Rogers v. Superior Court, 46 Cal.2d 3, 7-8 [ 291 P.2d 929 ].) Reasonable and probable cause may exist although there may be some room for doubt, and “in considering the propriety of a motion to set aside an information pursua

1962The question presented to us is whether the evidence of the facts we have just related was sufficient to hold petitioners for the offenses charged. “ ‘Sufficient cause’ and ‘reasonable and probable cause’ mean such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” (Rogers v. Superior Court, 46 Cal.2d 3, 7-8 [ 291 P.2d 929 ].) Reasonable and probable cause may exist although there may be some room for doubt, and “in considering the propriety of a motion to set aside an information pursua

2023The failure to raise a claim in the trial court forfeits the claim on appeal. ( Hawkins, supra, 211 Cal.App.4th at pp. 203-204; see People v. Du Bose (1970) 10 Cal.App.3d 544, 550-551 [although defendant moved to set aside the information under section 995 on one ground, he forfeited any contention that the information should be set aside based on a contention not raised before the trial court].) 4Defendant challenged the search of the Hyundai in his motion to suppress before the magistrate. 18 III.

2012(See People v. Du Bose (1970) 10 Cal.App.3d 544, 550-551 [ 89 Cal.Rptr. 134 ] [although defendant moved to set aside the information under § 995 on one ground, he forfeited any contention that the information should be set aside based on a contention not raised before the trial court].) Defendant filed with the trial court a motion to dismiss pursuant to section 995 concerning the validity of the search and seizure.

2019A defendant seeking to avoid the use of evidence obtained by an unreasonable search and seizure may therefore "move to set aside an indictment or information under section 995... or he may move to suppress the evidence by a motion under section 1538.5... [o]r he may, as here, use both methods of attack." ( Smith v. Superior Court (1978) 76 Cal.App.3d 731 , 733, 143 Cal.Rptr. 109 ; accord Magee, supra , 194 Cal.App.4th at p. 182 , 123 Cal.Rptr.3d 689 [" 'If the defendant is unsuccessful [on a section 1538.5 motion] at the preliminary hearing, he or she may raise *18 the search and seizure matte

2019A defendant seeking to avoid the use of evidence obtained by an unreasonable search and seizure may therefore "move to set aside an indictment or information under section 995... or he may move to suppress the evidence by a motion under section 1538.5... [o]r he may, as here, use both methods of attack." ( Smith v. Superior Court (1978) 76 Cal.App.3d 731 , 733, 143 Cal.Rptr. 109 ; accord Magee, supra , 194 Cal.App.4th at p. 182 , 123 Cal.Rptr.3d 689 [" 'If the defendant is unsuccessful [on a section 1538.5 motion] at the preliminary hearing, he or she may raise *18 the search and seizure matte

2013(In re Berry (1955) 43 Cal.2d 838, 844 .) Failure to move to set aside the information pursuant to section 995 forfeits any subsequent challenge to the sufficiency of the evidence presented at the preliminary hearing. (§ 996 [“If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in Section 995.”]; In re Wells (1967) 67 Cal.2d 873, 875 [failure to move to set aside information under section 995 “waive[s]” defendant‟s right to question the legality of his commitment].) Here, the trial court found there wa

1970(People v. Rebolledo (1949) 93 Cal.App.2d 261, 264 [ 209 P.2d 16 ]; cf. People v. Harris (1967) 67 Cal.2d 866, 868 [ 64 Cal.Rptr. 313 , 434 P.2d 609 ]; In re Wells (1967) 67 Cal.2d 873, 875 [ 64 Cal.Rptr. 317 , 434 P.2d 613 ].)

1979Code, § 1538.5, subd. (f)), that the magistrate’s ruling on the suppression motion may be reviewed on a motion to set aside the information pursuant to Penal Code section 995 (see Smith v. Superior Court, 76 Cal.App.3d 731, 733 [ 143 Cal.Rptr. 109 ]; People v. Sanchez, 24 Cal.App.3d 664, 690, fn. 15 [ 101 Cal.Rptr. 193 ] [disapproved on another point in People v. Martin, 9 Cal.3d 687, 695, fn. 8 ( 108 Cal.Rptr. 809 , 511 P.2d 1161 )]) and that upon such review the superior court is bound by the factual determinations of the magistrate if they are supported by substantial evidence (see People v

1979Code, § 1538.5, subd. (f)), that the magistrate’s ruling on the suppression motion may be reviewed on a motion to set aside the information pursuant to Penal Code section 995 (see Smith v. Superior Court, 76 Cal.App.3d 731, 733 [ 143 Cal.Rptr. 109 ]; People v. Sanchez, 24 Cal.App.3d 664, 690, fn. 15 [ 101 Cal.Rptr. 193 ] [disapproved on another point in People v. Martin, 9 Cal.3d 687, 695, fn. 8 ( 108 Cal.Rptr. 809 , 511 P.2d 1161 )]) and that upon such review the superior court is bound by the factual determinations of the magistrate if they are supported by substantial evidence (see People v

2021In that case, our Supreme Court held that to preserve an appellate challenge to a magistrate’s denial of a motion to suppress at a preliminary hearing, defendant must first raise the issue in the superior court, either in a renewed motion to suppress or a motion to set aside the information under section 995. ( Lilienthal, supra, 22 Cal.3d at pp. 896–897; 4 People v. Richardson (2007) 156 Cal.App.4th 574, 583 (Richardson).) This rule applies even if the magistrate is a superior court judge who, after denying the motion to suppress, accepts the defendant’s plea and pronounces judgment.

2007(People v. Lilienthal, supra, 22 Cal.3d at p. 895 .) “In the superior court, defendant moved to dismiss the information pursuant to section 995 on the ground that the only substantial evidence supporting the commitment was obtained in violation of the Fourth Amendment.[ 3 ] The motion was denied.” {Ibid.) The defendant then pled guilty to one charge, the remaining charges were dismissed on the People’s motion, and the court granted the defendant probation after imposing, but suspending execution of, a prison term. {Lilienthal, at p. 895.) On appeal, the defendant sought review of the search an

2023(People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717 .) In that case, “all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court’s express or implied findings if they are supported by substantial evidence.” (Laiwa, supra, 34 Cal.3d at p. 718 .) Here, the record shows Hsu intended to file, and did in fact file, a motion to set aside the information under section 995.

2004On independent review (see, e.g., People v. Jones (1998) 17 Cal.4th 279, 301 [ 70 Cal.Rptr.2d 793 , 949 P.2d 890 ]; People v. Laiwa (1983) 34 Cal.3d 711, 718 [ 195 Cal.Rptr. 503 , 669 P.2d 1278 ])—and in view of the apparently *1026 unusual circumstances here disclosed, in which the magistrate expressed a strong desire to dismiss the complaint in furtherance of justice under section 1385 in light of the particular facts of the case—we conclude that Judge Wellington properly set aside the information under section 995.

2019A defendant seeking to avoid the use of evidence obtained by an unreasonable search and seizure may therefore "move to set aside an indictment or information under section 995... or he may move to suppress the evidence by a motion under section 1538.5... [o]r he may, as here, use both methods of attack." ( Smith v. Superior Court (1978) 76 Cal.App.3d 731 , 733, 143 Cal.Rptr. 109 ; accord Magee, supra , 194 Cal.App.4th at p. 182 , 123 Cal.Rptr.3d 689 [" 'If the defendant is unsuccessful [on a section 1538.5 motion] at the preliminary hearing, he or she may raise *18 the search and seizure matte

2019A defendant seeking to avoid the use of evidence obtained by an unreasonable search and seizure may therefore "move to set aside an indictment or information under section 995... or he may move to suppress the evidence by a motion under section 1538.5... [o]r he may, as here, use both methods of attack." ( Smith v. Superior Court (1978) 76 Cal.App.3d 731 , 733, 143 Cal.Rptr. 109 ; accord Magee, supra , 194 Cal.App.4th at p. 182 , 123 Cal.Rptr.3d 689 [" 'If the defendant is unsuccessful [on a section 1538.5 motion] at the preliminary hearing, he or she may raise *18 the search and seizure matte

2024The Appeal Must be Dismissed “A defendant can obtain appellate review of a search and seizure issue only if ‘at some stage of the proceedings prior to conviction he or she has 4 moved for the return of property or the suppression of the evidence.’ ” (People v. Richardson (2007) 156 Cal.App.4th 574 , 582–583 (Richardson); § 1538.5, subd. (m).) But where a defendant moves to suppress evidence at (or as here before) the preliminary hearing, an appeal cannot be taken unless the search and seizure issue is raised before the superior court either by a renewed motion to suppress or a motion to set as

2021In that case, our Supreme Court held that to preserve an appellate challenge to a magistrate’s denial of a motion to suppress at a preliminary hearing, defendant must first raise the issue in the superior court, either in a renewed motion to suppress or a motion to set aside the information under section 995. ( Lilienthal, supra, 22 Cal.3d at pp. 896–897; 4 People v. Richardson (2007) 156 Cal.App.4th 574, 583 (Richardson).) This rule applies even if the magistrate is a superior court judge who, after denying the motion to suppress, accepts the defendant’s plea and pronounces judgment.

2023On that basis, the court denied defendant’s motion to suppress evidence. 3 Miranda v. Arizona (1966) 384 U.S. 436 . 4 On January 12, 2018, defendant renewed his motion to suppress and moved to set aside the information pursuant to section 995.

1983Our conclusion does not rely on a lack of “talismanic incantation.” Rather, we hold that appellant did not receive an “effective and express explanation” of an indigent’s right to appointed counsel. ( Miranda, supra, 384 U.S. 436, 473 [ 16 L.Ed.2d 694, 723 ].) As the Prysock court noted, the warnings set forth in Miranda must be given “in the absence of a fully effective equivalent . . . .” (Prysock, supra, 453 U.S. at p. 360 [ 69 L.Ed.2d at p. 701 , 101 S.Ct. at p. 2809 ].) Here, the alternative formulation of the warning was simply insufficient. 10 n Appellant made a timely motion to set asi

1981(People v. Rogers (1978) 21 Cal.3d 542, 547 [ 146 Cal.Rptr. 732 , 579 P.2d 1048 ]; Cal. Rules of Court, rule 976(d).) Hearing was granted in Guerrero on August 15, 1980, and Guerrero was dismissed as moot on September 11,1980. 5 As we noted in Johnson, an order to set aside an information pursuant to section 995 is no bar to a future prosecution for the same offense. (§ 999; Johnson v. Superior Court, supra, 97 Cal.App.3d 682, 686, fn. 5 ; see also Simmons v. Municipal Court, supra, 109 Cal.App.3d 15, 24, fn. 5 .)

1980On July 31, 1979, the superior court, relying upon People v. Peters (1978) 21 Cal.3d 749 [ 147 Cal.Rptr. 646 , 581 P.2d 651 ] denied the motion. 3 Granting the writ, the Court of Appeal held that one who has not waived his right to a speedy trial under section 859b “is not legally committed within the meaning of Penal Code section 995 when he is denied the right to have his preliminary examination held within the mandatory time limits of Penal Code section 859b. [Citations.]” (Johnson v. Superior Court, supra, 97 Cal.App.3d 682, 686 .) A clear implication of Johnson is that the court viewed se

1980On or about January 30 petitioner filed motions for change of venue, to set aside the information pursuant to Penal Code section 995, 3 to set aside the indictment because of the alleged failure of the district attorney to present to the grand jury exculpatory evidence (Johnson v. Superior Court, supra, 15 Cal. 3d 248 ), and for a preliminary hearing pursuant to the dictates of Hawkins v. Superior Court, supra, 22 Cal.3d 584 .

1979(Johnson v. Superior Court (1975) 15 Cal.3d 248, 255 [ 124 Cal.Rptr. 32 , 539 P.2d 792 ]; People v. Uhlemann (1973) 9 Cal.3d 662, 666 [ 108 Cal.Rptr. 657 , 511 P.2d 609 ]; Pen.