2009 California Penal Code - Section 995-999a :: Chapter 2. Setting Aside The Indictment Or Information

SECTION 995-999a

995.  (a) Subject to subdivision (b) of Section 995a, the indictment
or information shall be set aside by the court in which the
defendant is arraigned, upon his or her motion, in either of the
following cases:
   (1) If it is an indictment:
   (A) Where it is not found, endorsed, and presented as prescribed
in this code.
   (B) That the defendant has been indicted without reasonable or
probable cause.
   (2) If it is an information:
   (A) That before the filing thereof the defendant had not been
legally committed by a magistrate.
   (B) That the defendant had been committed without reasonable or
probable cause.
   (b) In cases in which the procedure set out in subdivision (b) of
Section 995a is utilized, the court shall reserve a final ruling on
the motion until those procedures have been completed.

995a.  (a) If the names of the witnesses examined before the grand
jury are not inserted at the foot of the indictment or indorsed
thereon, the court shall order them to be so inserted or indorsed;
and if the information be not subscribed by the district attorney,
the court may order it to be so subscribed.
   (b) (1) Without setting aside the information, the court may, upon
motion of the prosecuting attorney, order further proceedings to
correct errors alleged by the defendant if the court finds that such
errors are minor errors of omission, ambiguity, or technical defect
which can be expeditiously cured or corrected without a rehearing of
a substantial portion of the evidence. The court may remand the cause
to the committing magistrate for further proceedings, or if the
parties and the court agree, the court may itself sit as a magistrate
and conduct further proceedings. When remanding the cause to the
committing magistrate, the court shall state in its remand order
which minor errors it finds could be expeditiously cured or
   (2) Any further proceedings conducted pursuant to this subdivision
may include the taking of testimony and shall be deemed to be a part
of the preliminary examination.
   (3) The procedure specified in this subdivision may be utilized
only once for each information filed. Any further proceedings
conducted pursuant to this subdivision shall not be deemed to extend
the time within which a defendant must be brought to trial under
Section 1382.

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.

997.  The motion must be heard at the time it is made, unless for
cause the court postpones the hearing to another time. The court may
entertain such motion prior to trial whether or not a plea has been
entered and such plea need not be set aside in order to consider the
motion. If the motion is denied, and the accused has not previously
answered the indictment or information, either by demurring or
pleading thereto, he shall immediately do so. If the motion is
granted, the court must order that the defendant, if in custody, be
discharged therefrom; or, if admitted to bail, that his bail be
exonerated; or, if he has deposited money, or if money has been
deposited by another or others instead of bail for his appearance,
that the same be refunded to him or to the person or persons found by
the court to have deposited said money on behalf of said defendant,
unless it directs that the case be resubmitted to the same or another
grand jury, or that an information be filed by the district
attorney; provided, that after such order of resubmission the
defendant may be examined before a magistrate, and discharged or
committed by him, as in other cases, if before indictment or
information filed he has not been examined and committed by a

998.  If the court directs the case to be resubmitted, or an
information to be filed, the defendant, if already in custody, shall
remain, unless he or she is admitted to bail; or, if already admitted
to bail, or money has been deposited instead thereof, the bail or
money is answerable for the appearance of the defendant to answer a
new indictment or information; and, unless a new indictment is found
or information filed before the next grand jury of the county is
discharged, the court shall, on the discharge of such grand jury,
make the order prescribed by Section 997.

999.  An order to set aside an indictment or information, as
provided in this chapter, is no bar to a future prosecution for the
same offense.

999a.  A petition for a writ of prohibition, predicated upon the
ground that the indictment was found without reasonable or probable
cause or that the defendant had been committed on an information
without reasonable or probable cause, or that the court abused its
discretion in utilizing the procedure set out in subdivision (b) of
Section 995a, must be filed in the appellate court within 15 days
after a motion made under Section 995 to set aside the indictment on
the ground that the defendant has been indicted without reasonable or
probable cause or that the defendant had been committed on an
information without reasonable or probable cause, has been denied by
the trial court. A copy of such petition shall be served upon the
district attorney of the county in which the indictment is returned
or the information is filed. The alternative writ shall not issue
until five days after the service of notice upon the district
attorney and until he has had an opportunity to appear before the
appellate court and to indicate to the court the particulars in which
the evidence is sufficient to sustain the indictment or commitment.

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