What is motion to set aside an Information?

A motion to set aside the Information is brought after the preliminary hearing or grand jury indictment. In the motion, the attorney argues that there was insufficient evidence adduced at the preliminary hearing or grand jury as a matter of law. It is a difficult motion to win because the reviewing court will give all inferences in favor of the Information or indictment.

“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: … (2) If it is an information: … (B) That the defendant had been committed without reasonable or probable cause.” (Pen. Code, § 995.)

“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. [citations omitted]”

(Birt v. Superior Court (1973) 34 Cal.App.3d 934, 937 [110 Cal.Rptr. 321] [brackets added].)

“Neither the trial court in a section 995 proceeding, nor an appellate court on review thereof, may substitute its judgment as to the weight of the evidence for that of the committing magistrate ( People v. Hall, supra, 3 Cal.3d at p. 996); but it is the duty of all three tribunals to discard — as unreasonable — inferences which derive their substance from guesswork, speculation, or conjecture [citation omitted]”

(Birt v. Superior Court, supra, 34 Cal.App.3d at 938 [brackets added].)