California Penal Code Section 995 Motion to Set Aside an Information

To prevail on a California Penal Code section 995 motion to set aside an information, the defendant must establish that he has been committed without "reasonable or probable cause." ( 995, subd. (a)(2)(B).) To establish probable cause sufficient to overcome a section 995 motion, "the People must make some showing as to the existence of each element of the charged offense." (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148.) The requisite showing may be based on out-of-court declarants' hearsay statements "related by a police officer with certain qualifications and experience." (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070; see also 872, subd. (b).) Evidence justifying prosecution "'need not be sufficient to support a conviction'"; probable cause exists "'"'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.'"'" (People v. Chapple (2006) 138 Cal.App.4th 540, 545.) "The showing required at a preliminary hearing is exceedingly low." (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.) An information should be set aside "only when there is a total absence of evidence to support a necessary element of the offense charged." (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226 (Jurado).) The requisite showing may be established by circumstantial evidence. (Ibid.) On review of an order granting a section 995 motion, we examine the record to determine if there is some evidence to support the offense charged in the information. (Jurado, supra, 4 Cal.App.4th at p. 1225.) Neither the judge hearing the section 995 motion nor the appellate court "may reweigh the evidence or determine the credibility of witnesses." (Jurado, at p. 1226) If some evidence supports the offense charged in the information, "the reviewing court will not inquire into its sufficiency." (Ibid.) The prosecution of the charge will not be prohibited "''''if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.'"'We review the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial court's ruling was reasonable. " (Ibid.)