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What is a Preliminary Hearing in California?

Posted by Alan Eisner | Jun 27, 2018

What is a Preliminary Hearing in California?
A preliminary hearing is where a prosecutor must show there is sufficient evidence to support allegations that a crime has been committed.

In a felony criminal case in Los Angeles County, you have a constitutional right to a preliminary hearing, where the prosecutor has to show the judge there is sufficient evidence to support allegations that a crime has been committed.

In other words, the primary purpose of a preliminary hearing is for the court to determine whether there is enough evidence to justify holding you to answer for the alleged felony offense.

The preliminary hearing is commonly known as a “probable cause hearing” or a “prelim." At a preliminary hearing, the Los Angeles County prosecutor has the burden to establish that based on the preponderance of the evidence, you committed the felony crime that has been alleged against you.

In basic terms, a preliminary hearing is designed to prove to the judge the prosecutor has not filed frivolously charges against you.

They must be able to show there is at least some type of evidence to support your guilt. It should be noted that the evidentiary standard is low and the prosecutor could use just one witness in order to establish the burden of proof. Typically, preliminary hearings don't take long, sometimes only lasting about 15 minutes.

In others, a preliminary hearing can last much longer. In some cases, your criminal defense attorney will put forth an affirmative defense against the allegations against you.

However, this strategy is not always used because if you lose the preliminary hearing, the Los Angeles County prosecutor will become aware of your defense plan and will prepare accordingly.

Affirmative defenses are fairly common in domestic violence cases where you were acting in self-defense.

It should be noted that in a criminal matter where you were indicted before a grand jury, no preliminary hearing is held. We can help you decide whether to accept a plea bargain in your case.

If you have been accused of a crime, contact the Los Angeles criminal defense lawyers at Eisner Gorin LLP immediately.

Our law firm has a track record of success defending our client at the preliminary hearing. Now that we have covered a general overview of preliminary hearings in California, let's take a closer look below.

Description of California Preliminary Hearings 

In all Los Angeles County criminal courts, a preliminary hearing is one of the first stages in a pretrial criminal court process. The judge will schedule your preliminary hearing at your felony arraignment after you enter a "not guilty" plea in court.

Unless you waive your legal right to a timely hearing, your preliminary hearing must take place within 10 days of your arraignment. The preliminary hearing is a legal proceeding that is heard by a judge or magistrate in order for them to determine if enough evidence exists to hold you to answer at a trial for the criminal charges.

The Los Angeles County prosecutor will present evidence and use witnesses that can be cross examined by your criminal defense lawyer.

During the short hearing, which is held before a judge only, there are two main issues they have to determine: 

  • Is there probable cause a crime was committed?
  • Is there sufficient probable cause to believe you committed that crime? 

The Los Angeles County prosecutor has to burden of proof of establishing probable cause. However it's important to note in order to establish probable cause, the evidence only has to show there are enough facts to convince a reasonable person a crime occurred and you are the person who committed it.

Again, one of the purposes of a preliminary hearing is to show the judge there is at least some evidence to show your guilt.

Under California law, probable cause is described as "a state of facts that would cause a man of ordinary care to believe and entertain a strong suspicion that the person is guilty of a crime." It's also important to note that the standard of proof at a preliminary hearing is a lot less than that of a criminal jury trial, where the prosecutor has to prove every element of the crime, beyond any reasonable doubt.

As stated above, the judge ONLY has to determine if there is a rational basis for finding that probable cause does exist. It's not required that the evidence presented at a preliminary hearing by the prosecutor be strong enough to obtain a conviction.

In fact, many Los Angeles county prosecutors will purposely not present all the evidence available to them at the preliminary hearing as they don't want tip their hand to the criminal defense lawyer.

However, it does provide the defense team a good opportunity to cross examine any witnesses and to learn what specific evidence the prosecutor has to use against you. You also have the option of waiving the preliminary hearing and proceed directly to trial.

If you need additional information about a preliminary hearing, call a Los Angeles criminal defense lawyer at our office. 

Your Legal Rights at a Preliminary Hearing

In all criminal proceeding in California, you are legally entitled to certain rights before and during a preliminary hearing. These include: 

  • Your legal right to be represented by an attorney, which includes a public defender or a private lawyer;
  • Your right to be present at the preliminary hearing;
  • Your right to confront and cross-examine witnesses;
  • Your right to produce witnesses on your behalf;
  • Your right to discovery, including evidence relevant to guilt or innocence;
  • Your right to be free of physical restraints, unless there is a specific need.

It should be noted you don't have the right to discovery of all evidence, incriminating and exculpatory, that the Los Angeles County prosecutor has at this time, unless the hearing is held more than 15 days after your criminal attorney made a formal request for discovery. 

Potential Motions at a Preliminary Hearing 

At the preliminary hearing, your criminal defense lawyer can file certain pretrial motions on your behalf. These include:

Pitchess Motion - If you have reason to believe you are a victim of misconduct by the police, a Pitchess motion is essentially a request to obtain information about prior complaint's about the police officers conduct. Common examples include excessive force and racial profiling.

In other words, your allegations are that the arresting officer engaged in improper conduct and the motion forces the Los Angeles County prosecutor to hand over the officer's personnel file and any evidence of relevant prior acts of misconduct.

If the motion is granted, the judge can either suppress some evidence such prior acts of misconduct by the subject officer. If relevant complaints exist, it might be possible to use witnesses in order to challenge the credibility of the police officer.  

Motion to Suppress Evidence - Under California Penal Code Section 1538.5, a motion to suppress can be submitted one time. If the court grants the motion, it will typically result in an important key piece of incriminating evidence from being used against you, commonly known as “suppressed.” In many cases, the prosecutor will have no choice but to dismiss the charges.  

At the end of the preliminary hearing, your criminal defense attorney will typically make a motion to dismiss the case based on insufficient evidence. This means your lawyer is saying there is not enough evidence to support the criminal charges and they should be dismissed.

Potential Outcomes of a Preliminary Hearing

In the vast majority of preliminary hearings in Los Angeles County, the judge will find probable cause to charge you. This means you will be “held to answer” for the criminal charges and your case will be transferred to another court within 15 days for all future proceedings.

The other potential rare outcomes include: 

  • No probable cause is found and charges are dismissed. At this point, you can seek a California Penal Code Section 995 motion to dismiss;
  • Some charges could be dismissed for lack of probable cause, but others remain;
  • Evidence is discovered that you committed other crimes and charges are added;
  • The judge could reduce your felony case to a misdemeanor, but the case must be a “wobbler” offense.

It's important to note that any reduction to a misdemeanor is typically based on the lack of severity of the crime and that you have no prior convictions.

A “wobbler” offense is a crime that could have been filed by the Los Angeles County prosecutor as either a misdemeanor or felony case.

After a judge grants a wobbler to a misdemeanor, the prosecutor can't re-file the criminal charge as a felony offense without the court's approval. The judge also has the authority and discretion to reduce felony cases even where they fall under California three strikes law

Contact our Criminal Defense Law Firm

If you have been charged with a crime, your next step should be to call the Los Angeles criminal defense lawyers at Eisner Gorin LLP. We will need to review your case in order to determine if the was sufficient probable case. It's critical to note that the level of proof required at a preliminary hearing is low.

Our lawyers understand this fact is frustrating for any defendant as it appears the procedures at a preliminary hearing are designed to favor the prosecutor.

Therefore, having a skilled and experienced law firm on your side can be critical to the outcome of your case. Contact us at 877-781-1570. Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 310-328-3776

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About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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