6. Set Aside the Information

The following sample motion to set aside the information must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.

A Motion to Set Aside the Information is based only on the Information and the Preliminary Hearing transcript. The motion argues that the evidence presented at the preliminary hearing was not sufficient to support the Information. The motion cannot argue matters beyond the preliminary hearing. Even if the defendant has a perfect alibi, it cannot be argued in a Motion to Set Aside unless the evidence concerning the alibi was presented at the preliminary hearing. If the police reports show that defendant is completely innocent of the charged offense, the issue still cannot be raised in a Motion to Set Aside. A Motion to Set Aside is limited to matters found in the preliminary hearing.

The authority for the motion is found in Penal Code §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.

A Motion to Set Aside must refer to the transcript of the preliminary hearing. A common annotation used for this is RT, which stands for Reporter’s Transcript. RT 4/19 refers to the Reporter’s Transcript of the preliminary hearing, page 4 at line 19. RT 10-12 refers to pages 10 through 12 of the preliminary hearing transcript. The preliminary hearing transcript may also be referred to by other terms, such as TX. Thus, TX pg. 8, ln. 9, would refer to the Transcript of the preliminary hearing at page 8, line 9.

A motion brought pursuant to Penal Code §995 is based solely on the charging document (known as the Information) and the transcript of the preliminary hearing. Your attorney can’t argue anything else.

Often, a defendant will know that the witnesses lied during the preliminary hearing, and he will have proof that they lied. A defendant may also have evidence establishing a strong alibi, or evidence proving that it was someone else who committed the crime, but none of these things can be brought up in a Section 995 motion. Neither can a defendant show that the police reports, 911 calls, or witness statements contradict the preliminary hearing testimony. The defendant is restricted to the transcript of the preliminary hearing and is barred from pointing out evidence that would contradict it, no matter how obvious the evidence proving the defendant’s innocence.

There will be a time to raise an alibi defense. There will be a time to show that the witnesses lied. There will be a time to implicate another person for the crime. That time is most often during trial, but the time is not during the hearing of a Section 995 motion, unless the issues were raised during the preliminary hearing and are shown in the transcript of that hearing.



TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move the Court under Penal Code §995 to set aside the Information, alleging violations of:

1. Penal Code §459.5 – Shoplifting at Walgreens
2. Penal Code §459.5 – Shoplifting at Rite Aid
3. Penal Code §460(b)/664 – Attempted Burglary at Rite Aid
4. Penal Code §186.22 – Gang

The motion will be based on this Notice of Motion, on the attached memorandum of points and authorities and filed herewith and such supplemental memorandum of points and authorities that may be hereafter filed with the court or stated orally at the conclusion of the hearing, on all papers and records on file in this action and on such oral and documentary evidence as may be presented at the time of the motion.


By David Faulkner,
Attorney for Douglass Duhan


Commitment without reasonable or probable cause within the meaning of Penal Code §995 occurs if there is insufficient proof to establish a reasonable belief that an offense has been committed and the defendant is guilty of the offense charged. (Caughlin v. Superior Court of San Diego County (1971) 4 Cal 3rd 461; People v. Hernandez (1978) 90 Cal App 3rd 309).

“Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” (Bompensiero v. Superior Court of San Diego County (1955) 44 Cal 2nd 178; see also People v. Teale (1965) 63 Cal 2nd 178; People v. Shirley (1978) 78 Cal App 3rd 424; and Malleck v. Superior Court of San Francisco (1956) 142 Cal App 2nd 396)

“Although the prosecution is not put to proof beyond a reasonable doubt in order to establish reasonable and probable cause before the magistrate, nevertheless 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. Superior Court (1963) 59 Cal. 2nd 124)

There must be some evidence to support each and every element of an offense, or the finding must fall. (Panos v. Superior Court (1984) 156 Cal. App. 3rd 626; People v. Superior Court (Mendella) (1983) 33 Cal. 3rd 754; People v. Shirley (1978) 78 Cal. App. 3rd 424).

Count One Should be Dismissed

Jane Smith testified that she saw three men enter Walgreens (RT 21-23), make some noise down one of the isles, and then leave. After they left, Ms. Smith found packaging materials from electronics. Detective John Luke later identified Defendant from the surveillance videos (RT 128). Ms. Smith identified the person on the video as being the person who she saw earlier in the store (RT 133).

A pretrial identification procedure that is unnecessarily suggestive and conducive to mistaken identification constitutes a denial of due process. As stated by the United States Supreme Court in Foster v. California (1969) 394 U.S. 440, 442:

“[J]udged by the “totality of the circumstances,” the conduct of identification procedures may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law.”

A due process violation occurs when a pretrial identification procedure is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. (People v. Blair (1979) 25 Cal. 3rd 640, 659). The application of this rule depends on the circumstances of each case (Simmons v. U.S. (1968) 390 U.S. 377, 384-385), including whether the suggestiveness made the defendant “stand out” from the others in the lineup (People v. Carpenter (1997) 15 Cal. 4th 312, 367) and whether the identification procedure was unnecessary (People v. Carter (2005) 36 Cal. 4th 1114, 1162-1163, cert. denied, 547 U.S. 1099).

The defendant bears the burden of showing unfairness as a “demonstrable reality, not just speculation.” The issue of constitutional reliability depends on whether the identification procedure was unduly suggestive and unnecessary (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107). If the court determines such constitutional infirmity, the prosecution must demonstrate the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of any prior description of the suspect, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Without “clear and convincing” evidence of this reliability, the identification evidence is inadmissible. (People v. Phan (1993) 14 Cal. App. 4th 1453, 1461; People v. DeSantis (1992) 2 Cal. 4th 1198, 1222).

In the instant case, the identifications fail for two reasons. The first identification, by the officer, is without foundation and is improper expert testimony. The second identification, by the store worker, is also improper in that it is not an identification of the Defendant, but rather is simply the worker identifying the still photo from the video.

Even if there were sufficient evidence to indicate that Defendant committed an offense, that offense would be shoplifting, a misdemeanor, but there is insufficient evidence to indicate any felony offense. In passing Proposition 47, it was clearly the legislative intent that conduct, such as that alleged, should be charged as a misdemeanor.

Count Two Should be Dismissed

Mary Lamb testified that Kathryn Janeway reported that a subject entered Rite Aid. The subject placed items in a basket, later identified from video surveillance as being bottles of alcohol, and the suspect fled the store through an emergency exit (RT 72). Detective John Jones later viewed video recordings from Rite Aid and identified Defendant as the perpetrator (RT 138-139), and showed a lineup to Ms. Janeway, who identified the person on the video as being the person who she saw earlier in the store (RT 139).

The identification in this count fails for the same reasons discussed in Count One, the clerk did not identify Defendant, but rather only identified the person from the video as being the person who entered the store. The error in this identification process is obvious – no one has identified Defendant. One person simply identified the person shown in the video as the perpetrator, which may or may not have been Defendant.

Further, in this count as in Count One, even if there were sufficient evidence to indicate that Defendant committed an offense, that offense would be shoplifting, a misdemeanor, but there is insufficient evidence to indicate any felony offense. In passing Proposition 47, it was clearly the legislative intent that conduct, such as that alleged, should be charged as a misdemeanor.

Count Three Should be Dismissed

The prosecution did not produce evidence to indicate that any offense was committed as alleged in Count Three. The count should, therefore, be dismissed. Further, as with Counts One and Two, the offense level should be misdemeanor.

Count Four Should be Dismissed

Officer Bo Peep appeared as a gang expert and explained that the North Side Boys wear the color orange, have multiple subsets, and use hand signs to identify one another (RT 188). The officer theorized that several of Defendant’s prior contacts with police indicate gang membership (RT 202). Officer Peep opined that if gang members committed a series of commercial burglaries (RT 230) that the burglaries would be for the benefit of the gang so that the merchandise (such as alcohol in the instant case) could be sold to purchase things such as guns for the purpose of committing murder (RT 233). The connection to the gang is “Obtaining items that can be sold for cash and obtaining cash” (RT 242).

Count Four alleges a violation Penal Code §186.22(a) (Criminal Street Gang). Penal Code §186.22(a) holds:

Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.

There is insufficient evidence to believe that the conduct benefitted a gang or was anything other than for personal gain.

Based on the foregoing, Defendant respectfully requests that his motion be granted and the Information be set aside.