![]() It merits mention that when a complaint is dismissed on territorial jurisdiction grounds, the two-dismissal rule of Penal Code § 1387 would not apply. Also, the crimes may have occurred outside the territorial jurisdiction of the court. Another example, more common, is that the statute of limitations to charge such an offense had run. 515, the court sustained a demurrer on grounds that the constitutionality of Penal Code § 647(d) had been adjudicated as unconstitutional (back then). The first allowed ground for a demurrer is simply that the court has no jurisdiction over the offense charged. If defendant does intend to file a demurrer, it can challenge specific counts and enhancement allegations. ![]() This way, the prosecutor cannot fix the error and refile. Instead, the smart thing may be to raise it for the first time on appeal, even if no objection was made to the pleading in the trial court. This is because the first dismissal is not final (the “two dismissal rule” for felony complaints, per Penal Code § 1387). However, it is wise to understand that just as in a civil case where a demurrer is sustained with leave to amend (the plaintiff can fix the problem), the prosecutor in a felony case can also fix the defect and refile. These grounds are considered exclusive, meaning there are no other legal grounds for a demurrer in a criminal case. Section 1004 lists the five grounds on which a demurrer may be filed. Like its civil counterpart, a criminal demurrer is used to challenge defects that appear on the face of the complaint or information. ![]() In a criminal court, a demurrer is rare, but also can be helpful in narrowing down the scope of charges or even in having the case dismissed. However, a diligent criminal defense attorney should be aware that this is possible. However, a demurrer may be effective when the judge sustains it to one or more causes of action without leave to amend.Ībout This Article Briefly: It is rare to have legal grounds to file a successful demurrer to a complaint in a criminal case and even more rare for a judge to sustain it without leave to amend. Many defense attorneys file such pleadings to financially grind down the plaintiff, while accumulating billable hours for their firm. The purpose is to test the legal sufficiency of a complaint. ![]() If one has any significant experience in civil litigation, he or she may be familiar with a demurrer. ![]()
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