California’s Demurrer Laws

When the State of California files a criminal complaint, information, or indictment, it must put the accused on clearnotice of every factual element and legal theory it intends to prove. A demurrer is the procedural tool that allowsthe defense to test whether the charging document meets that standard before a plea is ever entered. Unlike a motionthat relies on evidence outside the four corners of the pleading, a demurrer is confined to what appears on the faceof the document and the matters of which the court may take judicial notice. If the paper itself is defective orreveals that prosecution is legally barred, the court must act. An experienced defense lawyer will help you understand California’s demurrer laws and decide if an opportunity to demurr exists.

Understanding the standard at which pleas are held and how demurrers can help fight charges is a crucial aspect ofnavigating the criminal process. A well-timed demurrer can lead to dismissal,force the prosecution to amend fatally flawed allegations, or narrow the case in ways that reshape negotiations andtrial strategy.

California’s demurrer laws are established through a statutory scheme:

• § 1002: defines a demurrer as one of two permissible initial pleadings by the defendant.
• § 1003: requires that a demurrer be in writing and filed before the entry of a plea.
• § 1004: lists the exclusive grounds on which a criminal demurrer may be sustained.
• § 1005: demands that the demurrer “distinctly specify” each ground relied uponand be signed by counsel or the accused.
• § 1006: directs the court to hear argument immediately unless justice requires a shortcontinuance.
• § 1007: states that if the defect can be cured, the court must allow the prosecution areasonable opportunity to amend.
• § 1008-1013: address amendment, re-filing, and procedural consequences when a demurrer issustained or overruled.

Knowing California’s demurrer laws is crucial to understanding the entire statutory landscape, as local judgesin Los Angeles County expect strict adherence to the law. A demurrer that fails to reference the correct subdivisionor that blends factual assertions better suited for a suppression motion invites summary denial.

Section 1004 is the heart of the demurrer regime. It offers five, and only five, legal bases to attack an accusatorypleading:

• Lack of subject-matter jurisdiction. The court sits without power to hear the charge, perhapsbecause the alleged conduct occurred entirely outside the county or the statute invoked has been declaredunconstitutional. Venue defects also fall here; if every element of the offense is alleged to have occurred inanother county, the Los Angeles Superior Court cannot proceed.
• Insufficient notice or uncertainty. The pleading is so vague or ambiguous that the defendantcannot tell what act, intent, or time frame must be defended against. Common in white-collar fraud cases, wheredozens of transactions are lumped into a single count without particulars.
• Misjoinder of offenses or parties. Distinct crimes or defendants are improperly combined in away that prejudices the right to prepare a defense. For example, a felony and a misdemeanor with notransactional connection should not share the same information.
• Failure to state a public offense. Even if every factual allegation is true, those facts do notconstitute a crime under California law. This ground also encompasses defects such as charging a repealedstatute, pleading an enhancement that no longer exists, or alleging conduct that falls outside the statute oflimitations.
• Legal bar or affirmative justification is apparent on the face. The pleading itself reveals acomplete defense, such as self-defense, immunity, double jeopardy, pardon, or statutory privilege, thatforecloses prosecution as a matter of law.

Focusing the court on one of these discrete grounds, as allowed under California demurrer laws,keeps the argument tightly focused on the law and maximizes the chance of a ruling that ends or narrows the casebefore trial.

Filing deadlines can be deceptively short. A defendant “may demur … at any time before the entry of aplea,” which means before arraignment concludes. In practice:

• Defense counsel should calendar the hearing immediately upon receiving the complaint, often within 48-72 hoursof arrest in misdemeanor matters and within ten court days after felony arraignment.
• The demurrer must be served on the prosecuting agency, either the City Attorney or the District Attorney, andlodged with the clerk’s office in the courthouse where the complaint is pending (such as Clara ShortridgeFoltz, Van Nuys, or Airport).
• The Los Angeles Superior Court’s local rules require a separate memorandum of points and authorities; anomitted memorandum is deemed fatal.
• The judge will ordinarily hear the argument the same day or at most within a week, unless good cause forcontinuance is shown.

Because demurrers are considered waived once a plea is entered, defense counsel must decideearly whether to challenge the pleading under California demurrer laws or preserve latitude for later motions. Inmulti-count information, it is common practice to demur to selected counts while entering a not-guilty plea to thebalance, thereby testing sufficiency without surrendering trial rights.

Even when dismissal is unlikely, perhaps because the prosecutor can easily amend, the demurrer wields strategicpower:

• Discovery lever: Forcing amendment obliges the prosecution to commit to specific factualtheories sooner, sharpening discovery demands and undermining later surprises.
• Negotiation edge: A sustained demurrer exposes prosecutorial weaknesses, frequently drivingmore favorable plea offers.
• Public-facing narrative: In high-profile cases, a demurrer record helps shape media coverage byhighlighting constitutional or jurisdictional errors in the State’s rush to charge.
• Cost containment: Narrowing enhancements or duplicate counts reduces potential sentencingexposure and limits the scope of expert testimony the defense must marshal.

A demurrer precedes trial, but its ripple effects reach the jury room:

• Charges must align with CALCRIM instructions that define each element. If the accusatory pleading omits anelement, say, specific intent in an attempted murder charge, the court should sustain the demurrer or requireamendment before the case can ever reach the jury.
• By attacking surplusage or improperly pleaded enhancements, defense counsel can eliminate instructions onpenalty-escalating factors, such as remarkable bodily injury findings or firearm use, thereby simplifying thecharge landscape.
• When a demurrer narrows a criminal episode to a precise timeframe, it prevents the prosecutor from arguingmultiple theories under a single instruction. It protects against non-unanimous verdict issues that may beraised later under CALCRIM 3515.

In other words, litigating a demurrer under California demurrer laws is an early andinfluential way to influence what the jurors will eventually see on the verdict form.

Although a demurrer does not address punishment directly, its success can reshape sentencing in profound ways:

• Invalidated enhancements and special allegations are gone forever if the statute of limitations has run andcannot be re-pleaded.
• Striking priors alleged without adequate factual detail may remove a defendant from California’sThree-Strikes regime, slashing potential exposure from twenty-five to life to a determinate term.
• Narrowing the timeline of an alleged conspiracy may remove overt acts falling within aggravated sentencingranges or mandatory restitution multipliers.
• A sustained demurrer often forces prosecutors to file a new information under § 1007 rather than amend.That reset can reopen plea negotiations, allow renewed bail motions, or trigger additional discovery obligationsfavorable to the defense.

Practitioners sometimes conflate demurrers with Penal Code § 995 motions, but under California demurrer laws,they differ in critical respects.

• A demurrer attacks legal defects on the face of the charging document before plea; a § 995 motion attackslack of probable cause in the evidence presented at preliminary hearing after information is filed.
• The trial judge decides demurrers, while § 995 motions can sometimes be assigned to a different judge,offering a fresh look.
• Specific issues, such as discriminatory charging, outrageous police conduct, or discovery violations, are notsubject to demurrer but are proper grounds for due-process dismissal motions or § 1385 in the interests ofjustice.

Choosing the right procedural vehicle prevents waiver and keeps the case moving toward the defense’s strategicobjectives.

If the court sustains a demurrer without leave to amend, the prosecution may pursue an immediate appeal under PenalCode § 1238(a)(1). Conversely, if the demurrer is overruled, the defense must typically plead and proceed totrial; the issue is preserved for appeal from the final judgment. However, where the demurrer raises purelyjurisdictional questions, such as double jeopardy or unconstitutional statute, defense counsel can seek anextraordinary writ (prohibition or mandate) in the Court of Appeal to halt proceedings before trial. Timely recordcreation is essential:

• File a written demurrer, accompanied by a supporting memorandum and exhibits.
• Request a court reporter for the demurrer hearing.
• Obtain a written ruling or minute order reflecting each ground raised and the court’s reasoning.

These steps ensure a clean record for appellate review and increase the likelihood that an unfavorable ruling will bereversed.

• Failing to demur before pleading guilty: the right is generally waived once a not-guilty pleais entered, unless the court permits withdrawal, which is rare.
• Attacking facts rather than legal sufficiency: save evidentiary disputes for suppressionmotions or trial.
• Neglecting to address the statute of limitations: always verify whether the face of thepleading reveals time-barred conduct; the demurrer is the correct vehicle to raise that issue.
• Overlooking local rules: each Los Angeles courthouse posts filing cutoff times and formattingrequirements; non-compliance can result in rejection by the clerk.
• Under-utilizing judicial notice: attach certified copies of prior orders, transcripts, orlegislative history to demonstrate bars apparent from public records.
• Missing the amendment window: if the court sustains a demurrer with leave to amend, monitor theprosecution’s timeline; a failure to amend within the period set by the judge can be grounds for dismissalwith prejudice.

Demurrers demand meticulous statutory knowledge, quick turnaround, and courtroom credibility. Judges expect crisplegal argument backed by precise citations, and prosecutors know that a sustained demurrer under California demurrerlaws can torpedo a case they believed was trial-ready. A defense attorney who has litigated hundreds of demurrers inthe Los Angeles Superior Court can:

• Evaluate the facial sufficiency of a complaint within hours of review.
• Draft and file a compliant demurrer under tight arraignment timelines.
• Argue persuasively in departments ranging from the Foltz Criminal Justice Center to outlying courts, such asLancaster or Pomona.
• Leverage a favorable ruling into dismissal, superior plea terms, or strategic advantages at trial.

Your liberty and future deserve nothing less. If you are facing charges in Los Angeles or a surrounding county,prompt analysis of a demurrer may be the decisive first step toward clearing your name. Consult an experiencedcriminal defense lawyer immediately. In many cases, the opportunity to demur exists only for a brief window, andonce it closes, it cannot be reopened.

Call (323) 464-6453 or use our secure online contact form for a confidential, 24-hour consultation. Your defense begins the moment you choose experienced counsel committed to protecting your freedom and future.