Motion to Dismiss (Criminal) - California

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Statement of Facts
4. Grounds for Dismissal
5. Legal Argument
6. Prayer for Relief
7. Certificate of Service

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [________________________________]

DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Defendant, [DEFENDANT FULL LEGAL NAME], by and through counsel, [ATTORNEY NAME], of [LAW FIRM NAME], moves to set aside the Information / Indictment under California Penal Code § 995 and, if applicable, to dismiss under Penal Code § 1382. Defendant also requests that the Court consider exercising its own authority under Penal Code § 1385(a), where legally available. This motion is based on the grounds below, the accompanying memorandum, the attached declaration(s), and the record.

II. STATEMENT OF FACTS

On or about [__/__/____], Defendant was charged by way of ☐ Complaint / ☐ Information / ☐ Indictment with the following offense(s):

[Provide a concise factual summary of the relevant procedural history and facts giving rise to this motion.]

[________________________________]

III. GROUNDS FOR DISMISSAL

Defendant seeks dismissal on the following grounds (check all that apply):

☐ A. Set Aside Indictment / Information (Penal Code § 995)

Select the ground that matches the charging instrument:

• ☐ Indictment: It was not found, endorsed, and presented as prescribed by law.
• ☐ Indictment: Defendant was indicted without reasonable or probable cause.
• ☐ Information: Before filing, Defendant was not legally committed by a magistrate.
• ☐ Information: Defendant was committed without reasonable or probable cause.

☐ B. Speedy Trial Violation (Penal Code § 1382)
Absent good cause, waiver, consent, or another statutory exception, the People failed to bring Defendant to trial within the time prescribed by Penal Code § 1382:

• ☐ Felony: 60 days after arraignment on the indictment or information.
• ☐ Misdemeanor / infraction: 30 days after arraignment or plea, whichever is later, when Defendant was in custody at that time.
• ☐ Misdemeanor / infraction: 45 days after arraignment or plea, whichever is later, in other cases.

☐ C. Statute of Limitations (Penal Code §§ 799-805)
After accounting for the charged offense, commencement rule, tolling, and any offense-specific extension, the prosecution was commenced beyond the applicable limitations period of [________________________________].

☐ D. Prior Conviction, Acquittal, or Jeopardy (U.S. Const. Amend. V; Cal. Const. Art. I, § 15; Penal Code § 1016(4)-(5))
Defendant has entered or will enter the separate plea of ☐ former conviction ☐ former acquittal ☐ once in jeopardy under Penal Code §§ 1016-1017. This motion's discussion supports that plea but does not replace it. The prior proceeding concluded on [__/__/____] in Case No. [________________________________] before the [________________________________] Court.

☐ E. Court-Initiated Dismissal in Furtherance of Justice (Penal Code § 1385(a))
Defendant requests that the Court consider acting on its own motion under § 1385(a). Defendant identifies the following circumstances for the Court's consideration: [________________________________].

Important: Section 1385(a) authorizes dismissal on the Court's own motion or on the prosecutor's application. This filing should request consideration of that authority, not characterize § 1385 as an ordinary defendant-initiated dismissal motion.

IV. LEGAL ARGUMENT

A. Motion Under Penal Code § 995

California Penal Code § 995 separately identifies the grounds for setting aside an indictment and an information. The record establishes the selected ground because:

[________________________________]

B. Speedy Trial Under Penal Code § 1382

California Penal Code § 1382 requires dismissal when its applicable deadline expires unless good cause or a stated statutory exception applies. Article I, § 15 of the California Constitution and the Sixth Amendment also guarantee a speedy public trial.

[________________________________]

C. Statute of Limitations

California Penal Code §§ 799-805 contain different periods, commencement rules, tolling provisions, and offense-specific extensions. The applicable calculation is:

[________________________________]

D. Double Jeopardy

The Fifth Amendment and Article I, § 15 of the California Constitution prohibit placing a person twice in jeopardy for the same offense. Defendant relies on the separate plea under Penal Code § 1016(4) or (5), which must be entered under § 1017; this motion alone does not enter that plea. The prior proceeding bars this prosecution because:

[________________________________]

E. Additional Grounds

[________________________________]

V. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. Set aside the challenged Information / Indictment or count(s) under Penal Code § 995;
2. Dismiss the action under Penal Code § 1382 if the statutory conditions are met;
3. Alternatively, consider dismissal on the Court's own motion under Penal Code § 1385(a), if legally available; and
4. Grant such other lawful relief as the Court deems proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[ATTORNEY NAME], State Bar No. [________________________________]
[LAW FIRM NAME]
[ADDRESS]
[CITY], California [ZIP CODE]
Telephone: [________________________________]
Email: [________________________________]

Attorney for Defendant [DEFENDANT FULL LEGAL NAME]

VI. CERTIFICATE OF SERVICE

I, [________________________________], declare that on [__/__/____], I served a true and correct copy of the foregoing DEFENDANT'S MOTION TO DISMISS on the following parties by the method indicated:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

Office of the District Attorney
County of [________________________________]
[ADDRESS]
[CITY], California [ZIP CODE]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: [__/__/____]

________________________________________
[NAME OF DECLARANT]

CALIFORNIA-SPECIFIC NOTES

• Penal Code § 995: Uses different statutory grounds for an indictment and an information; select only the ground that matches the charging instrument.
• Penal Code § 1382: Includes good-cause, waiver, consent, retrial, and other provisions that must be checked against the case history.
• Penal Code § 1385: Subdivision (a) concerns a court-initiated dismissal or a prosecutor's application. Subdivision (c)'s mitigating factors govern enhancements, not general dismissal of charges.
• Penal Code §§ 799-805: The limitations analysis is offense-specific and may turn on commencement, discovery, tolling, and statutory extensions.
• Pretrial motion timing (Cal. Rules of Court, rule 4.111(a)): Unless the court orders otherwise or law specifically provides otherwise, serve and file a pretrial motion with a memorandum at least 10 court days before the hearing, opposition at least five court days before, and reply papers at least two court days before. File proof of service of the moving papers no later than five court days before the hearing.

SOURCES AND REFERENCES

• California Penal Code § 995
• California Penal Code § 1382
• California Penal Code § 1385
• California Penal Code §§ 799-805
• California Rules of Court, rule 4.111
• California Constitution, Article I
• U.S. Constitution, Fifth Amendment
• U.S. Constitution, Sixth Amendment

This template is provided by ezel.ai for informational purposes only. It does not constitute legal advice. Consult a licensed California attorney before use.