Why Would a Preliminary Hearing Be Continued

Preliminary Hearings in CA Criminal Cases

In California, after a prosecutor files a felony complaint with the court, California criminal law requires the judge to hold a preliminary hearing (oftentimes referred to as a "prelim" or probable cause hearing).

The purpose of the preliminary hearing is to determine if there is enough evidence to justify holding the defendant to answer for the alleged charge(s), which includes any misdemeanors that are charged along with the felonies.¹

It's our job to try to convince the judge that there is not. And as a criminal defense law firm comprised of former prosecutors and cops, we know the most effective ways to do this.

Below, our California criminal defense attorneys² explain the following:

• 1. What is a Preliminary Hearing?
• 2. Your Rights
• 3. The Judge's Role in a California Preliminary Hearing
• 4. Miscellaneous Important Factors

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

The purpose of the preliminary hearing is to determine if there is enough evidence to justify holding the defendant to answer for the alleged charge(s).

1. What is a California Preliminary Hearing?

A preliminary hearing is one of the earliest stages in California's pretrial criminal court process. It is a special proceeding, held before a judge or magistrate, to determine if there is enough evidence to "hold you to answer" for a trial as to the charges. The prosecutor presents live witnesses and evidence, subject to cross-examination by the defense.

The judge usually schedules this hearing at your California arraignment after you enter a "not guilty" plea. Unless you waive your right to a timely preliminary hearing…or the court finds good cause to continue the proceeding…the prelim must take place within ten court days of the arraignment or plea, whichever is later.³

During the prelim…which, on average lasts somewhere between 30 minutes to several hours…the judge must answer two questions:

1. is there enough probable cause to believe that a crime was committed, and
2. if so, is there enough probable cause to believe that the defendant is the person who committed that crime?

Preliminary hearings are only available in felony cases. However, there is a similar but less formal process in misdemeanor cases called a Penal Code 991 Motion.

The prosecutor's burden of proof

The burden of proof at a preliminary hearing is much less than that of a California criminal jury trial. In order to convict you at the conclusion of a jury trial, the prosecutor must prove to a moral certainty…that is, beyond a reasonable doubt…that you are guilty of the offense(s) as charged.

However, the burden of proof in a California preliminary hearing is only probable cause. "Probable cause" is "a state of facts as would lean a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime."⁴

As Oakland criminal defense attorney Jim Hammer⁵ explains, "In order to meet this burden, the prosecutor must establish probable cause for each element of each crime. An 'element of the crime' is a fact that must be established before the prosecutor can prove that the offense was committed."

Similarly, the prosecutor must establish probable cause for any

• prior convictions,
• enhancements (such as California's "personal use of a firearm" law⁶), or
• special circumstance allegations,

that make up elements of the crime(s).⁷ However, if the prior conviction is not an element of the offense…but is instead, simply a sentencing enhancement…it does not need to be proven up at the preliminary examination. Instead, it may be proven at the time of trial.⁸

If the judge finds probable cause, he/she will "hold you to answer for the charges", and the case will be transferred to the trial court for further "pretrial" proceedings within 15 days.⁹ If the judge does not believe that probable cause exists, he/she will either

1. dismiss your case, or
2. dismiss specific charges.

2. Your Rights

Just like with most other California criminal proceedings, you are entitled to exercise a variety of rights prior to and during a preliminary hearing. Some of the most noteworthy include (but are not limited to):

• the right to be represented by an attorney¹⁰ (which includes the right to a court-appointed public defender if you cannot afford to hire a private lawyer),¹¹
• the right to be present at the preliminary hearing (although the judge may proceed in your absence if…after you've initially appeared…you fail to return for the remaining proceedings, or behave in a disruptive way),¹²
• the right to the "corpus delicti" rule (that is, that the prosecutor must establish probable cause using evidence other than solely your out-of-court admissions),¹³
• the right to confront and cross-examine prosecution witnesses,¹⁴
• the right to produce defense witnesses (as long as the offered testimony would be reasonably likely to establish an affirmative defense, to negate an element of the crime, or to impeach another witness),¹⁵
• the right to be free from physical restraints (unless there is a specific need to keep the defendant restrained),¹⁶ and
• the right to discovery, which includes all evidence relevant to guilt or innocence¹⁷ (however, there is no statutory right to obtain or produce discovery before the preliminary hearing unless the hearing is more than 15 days after either party has made a formal discovery request).¹⁸

One discovery motion that your California defense lawyer may want to raise is a Pitchess motion.¹⁹ If you believe that you were a victim of police misconduct, a Pitchess motion is a request to discover information concerning complaints about the officer's prior use of excessive force or bias.

If such complaints exist, it may be possible to call the complainants as witnesses and thus undermine the officers' credibility.

3. The Judge's Role in a California Preliminary Hearing

During a California preliminary hearing, the judge

• analyzes evidence,
• weighs the credibility of witnesses, and
• resolves factual conflicts.

He/she essentially performs the same role as a judge in a trial, except that here, instead of deciding whether you are guilty or innocent, the judge must only evaluate whether there is "some rational ground" for assuming the possibility that an offense has been committed and that you are guilty of committing it.²⁰

And if the evidence at the preliminary hearing is subject to two interpretations…that is, one pointing to possible guilt and one pointing to possible innocence…the trial court must accept the judge's ruling and cannot grant a California Penal Code 995 motion to dismiss based on a lack of probable cause.

This is because of the critical philosophy that defines the preliminary hearing: the court conducting a preliminary examination "must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and consciously entertain a strong suspicion of, the guilt of the accused; evidence that will justify a prosecution need not be sufficient to support a conviction".²¹

The effect of the judge's ruling

That said, there are times when the judge's ruling from the preliminary hearing seems almost irrelevant. This is because…depending on the circumstances…the prosecutor may still be able to charge you with an offense that the judge dismissed.

As the California Supreme Court states, "It has long been the rule in this state that a magistrate's dismissal of criminal charges following a preliminary examination does not bar the People from either re-filing the same charges before another magistrate or seeking an indictment based upon those charges."²²

One of the controlling issues on this point is whether the judge's findings were factual or legal.

Factual vs. legal findings

"Factual" findings are binding on the prosecution. This means that if the court makes a factual finding when dismissing a charge, the prosecution may not include that charge in the trial court's information (that is, the new complaint).²³ However, the prosecution may be able to re-file another complaint or to file a motion to reinstate the dismissed count(s).²⁴

The most common example of a factual finding is a ruling on the credibility of a witness. For example, "Mr. Smith's testimony that he saw the defendant stab the victim is unbelievable because of the lighting, distance, and crowd of people standing between them."

"Legal" findings, by contrast, are not binding on the prosecution. This means that even if your California preliminary hearing judge dismisses a count…based on a legal finding…the prosecution is still free to re-file the discharged count in the trial court…although the defense is similarly still free to raise a Penal Code 995 PC "motion to dismiss".²⁵

An example of a legal finding takes place when the judge determines that certain undisputed facts do or do not constitute a crime.

The judge's ability to reduce a felony to a misdemeanor

Some good news for the defense is that California criminal law authorizes a judge presiding at a preliminary hearing to reduce a felony to a misdemeanor. However, this is only the case with respect to wobblers. "Wobblers" are crimes that may be filed as either felonies or misdemeanors, based primarily on

1. the seriousness of the offense, and
2. your criminal history.²⁶

Reducing a felony to a misdemeanor…or simply stating that the charge will be prosecuted as a misdemeanor…is something that the judge may do on his/her own motion or at the request of the defense. The prosecutor's consent isn't necessary.²⁷

And once the judge declares a wobbler a misdemeanor, the prosecutor may not re-file the charge as a felony without the judge's approval.²⁸ Also important to note is the fact that the judge has the discretion to reduce felonies even in cases subject to California three strikes law.²⁹

And with respect to other offenses…

California's preliminary hearing laws also empower the judge with the discretion to hold a defendant to answer for uncharged offenses when they are supported by the evidence.³⁰

And likewise, as long as the judge "holds the defendant to answer", the law allows the prosecutor to file charges and enhancements in the trial court that were not included in the preliminary hearing complaint but that were discovered during the prelim proceedings.³¹

Example: Tony is charged with Penal Code 246: Shooting at an Inhabited Dwelling. At the preliminary hearing, evidence comes out that Tony is a Mara Salvatrucha gang member and committed the shooting to benefit the gang. Even though Tony wasn't charged with the California street gang enhancement, the judge binds him over on both the shooting charge and the gang enhancement, based on the evidence discovered at the prelim.

4. Miscellaneous Important Factors

There are a few final points to note about California's preliminary hearing law.

995 Motions

If…at the conclusion of the preliminary hearing…the court holds you to answer for crimes that were not supported by probable cause, you are entitled to seek a dismissal from the trial court via a California Penal Code 995 PC motion to dismiss.

A California Penal Code 995 motion to dismiss is another challenge to probable cause. In order prevail on a 995 motion, the prosecutor must offer sufficient proof as to the existence of each element of the allegation.

If the prosecutor is unable to do this, the judge grants your motion and dismisses some or all of the complaint against you.

California Penal Code 1538.5 PC motion to suppress evidence

Your California criminal defense attorney has the option of requesting a Penal Code 1538.5 PC "motion to suppress evidence" hearing at either the prelim or in a trial court. You are only entitled to raise one Penal Code 1538.5 motion during the life of a criminal case, which means that when to request it is a matter of strategy that must be determined on a case-by-case basis.

A 1538.5 PC motion to suppress evidence is exactly what it sounds like…a motion to suppress any evidence that was obtained pursuant to an illegal search and/or seizure. If the court grants the motion and suppresses the evidence, this often results in the charges being reduced or dismissed altogether.

Bail

If you win your California preliminary hearing…and the prosecutor chooses to file a new complaint as a result…California bail laws entitle you to apply the bail that you posted from the original case. This is the case as long as the prosecutor files the new complaint within 15 days of the dismissal of the old and you are rearrested on the new complaint within that period.³²

If the prosecutor re-files more than 15 days after the complaint is dismissed, your original bail will be exonerated and your bail will likely be set by the local county bail schedule. Depending on the circumstances at that point, you or your attorney may want to request a California bail hearing to reduce the newly set bail.

If you were released on your own recognizance (more commonly referred to as an "O.R. release") on the original complaint, you are entitled to remain free on your own recognizance unless there are changed circumstances that require bail.³³

Grand jury

In rare cases, instead of holding a preliminary hearing, the prosecutor might decide to pursue charges through a grand jury proceeding.³⁴

In a grand jury proceeding, the prosecutor goes before a group of people chosen from the trial jury pool and makes the case that a suspect should be charged with a crime. If a specified number of the grand jury members believe that charges are justified, then the grand jury issues an "indictment" against the suspect.

The suspect is not present at the grand jury proceeding--and does not even know that charges against him/her are being considered until the indictment is issued.³⁵

Call us for help…

If you or a loved one is in need of help with preliminary hearings and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.³⁶

To learn about Nevada preliminary hearings, to go our page on Nevada preliminary hearings.

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Source: https://www.shouselaw.com/ca/defense/process/preliminary-hearing/

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