Fleming v. Superior Court

In Fleming v. Superior Court (2010) 191 Cal.App.4th 73, the petitioner filed his section 995 motion more than two years after his arraignment. (Fleming, supra, 191 Cal.App.4th at p. 103.) The court explained that the "unawareness" exception can apply where there is "ineffective assistance in not timely bringing a meritorious section 995 motion." (Id. at p. 104.) In that case, the petitioner's former counsel was ineffective for not bringing an earlier challenge to the indictment because "the prosecution's legal theories were untenable." (Ibid.) In addition, the "'no opportunity' exception" applied (id. at p. 105) because the grand jury transcripts were lengthy, consisting of five volumes plus another two volumes of exhibits (id. at p. 104). "Those volumes would necessarily have had to be read and digested by Fleming's counsel to present a section 995 motion. Particularly given the voluminous record and the delay in the actual preparation of the transcripts and forwarding to counsel (even if the record was technically finalized prior to the arraignment), it is unlikely all the reading could have been completed, much less a proper motion prepared, in 60 days. ." (Id. at pp. 104-105.)