From the Bench: Practice Tips from Hon. Joseph Brandolino (Ret.) (Criminal Defense)

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By Hon. Joseph Brandolino (Ret.)

Question from a new criminal defense lawyer:

Hi Judge Brandolino,

I am new to criminal law and just took on a case that is set for preliminary hearing in the Van Nuys West courthouse. I often read in the news about criminal cases where a defendant has been “held to answer” or “ordered to stand trial” at a preliminary hearing. Could you provide some basic information that would be helpful for an attorney in handling such a hearing?

Judge Brandolino’s response: 

A preliminary hearing (often referred to as a “prelim”) is a hearing required after arraignment and before a defendant can be tried in a trial court on felony charges in a criminal case. At a prelim the prosecutor (“the People”) must present evidence establishing sufficient cause, or probable cause, to believe that a crime has been committed and the defendant committed it. The prelim court judge acts as a magistrate and trier of fact for the purpose of determining whether “the facts lead a person of ordinary caution or prudence to believe and consciously entertain a strong suspicion of the guilt of the accused.” If the court finds that the People have met their burden, the judge “holds the defendant to answer” and orders an arraignment in the trial court. This will require the People to file in the trial court a new charging document, referred to as an Information, within 15 days.

A prelim is required only in felony cases initiated by a complaint, as opposed to those cases initiated by a grand jury indictment. Almost all cases prosecuted by the district attorney in Los Angeles County are initiated by complaint (unlike, for example, federal criminal cases prosecuted by the United States Attorney of the Central District of California, which are virtually all initiated by indictment).

Since most felony cases settle before trial, the prelim gives the defense an opportunity to demonstrate why a particular settlement may be justified, especially in cases where the testimony of prosecution witnesses demonstrates issues of proof that would arise at trial when the burden of proof (beyond a reasonable doubt) is much higher. The prelim may also present an opportunity for the defense to impeach and lock in witness testimony before trial. However, a prelim may not be in the best interest of a defendant in all cases. The right to a prelim may be personally waived by the defendant if that waiver is accepted by the court.

A large number of cases settle in the prelim court prior to the hearing. There are numerous reasons for this. For example, the People often make discounted plea offers which might not be made in the trial court, or the prelim court judge may accept an open plea and impose a sentence that is lesser than that which the trial court might be willing to impose.

A defendant has a right to discovery prior to the prelim, although it is more limited than the right to discovery at trial. The People must turn over all evidence that is exculpatory and material to guilt or punishment. In practice, the prosecutors in Los Angeles County also usually provide witness statements, reports and tangible evidence under Penal Code Section 1054. The prosecution may also be required to provide evidence related to properly noticed motions that are allowed at a prelim, including motions to suppress evidence, motions for discovery of information regarding police officer misconduct, and motions to disclose the identity of an informant, among others.

There are unique rules regarding the timing of prelims of which all counsel should be aware. The first is the 10-day rule. If a defendant has not waived time prior to the prelim, the case may be dismissed if the prelim is set beyond 10 court days from arraignment. If the defendant is in custody solely on the complaint, the case must be dismissed absent a finding of good cause by the court. If the court continues the case based on a good cause finding, the defendant must be released from custody unless an exception under Penal Code Section 859(b) applies (e.g., the court finds good cause to continue the case, the defendant is charged with a capital offense, counsel is ill, counsel is unexpectedly engaged in a jury trial, a properly joined co-defendant waives time, etc.). Defendants out of custody may obtain a dismissal only upon a showing that actual prejudice resulted from the delay.

The stricter rule is the 60-day rule.  Absent a waiver by the defendant or certain situations where a delay is attributable to the defense, a case must be dismissed if the prelim is set beyond 60 calendar days from arraignment. This rule applies to defendants both in and out of custody, and there is no good cause exception to this rule.  

A prelim must be completed in one continuous session, although interruptions for the court to conduct brief matters are acceptable. This right may be waived by a defendant or overcome by a court finding of good cause.

Confrontation rights are trial rights and do not fully apply at prelims. The rules of evidence at prelims differ from trial in certain respects. The most significant difference is that qualified law enforcement officers (officers who have a minimum of 5 years of experience, or who have completed a POST training course that includes training in the investigation and reporting of cases and testifying at prelims) may testify to one level of hearsay. This allows the People to present evidence of the statements of witnesses through the testimony of qualified officers who have personal knowledge about the case, without the necessity of the witnesses appearing in person.

Presenting evidence in this manner may make sense in situations where witnesses may be subject to traumatization, expense and/or inconvenience if required to appear in person, or simply to expedite the proceedings. In contrast, the People may wish to present the testimony of a witness at prelim to memorialize their testimony in case they become unavailable or change their testimony at trial. Under certain circumstances, the prelim testimony of a witness who is unavailable at trial may be presented as evidence at trial, and that evidence does not violate the defendant’s Confrontation Clause rights if the defendant had the opportunity to cross-examine the witness at the prelim.   

The defense may cross-examine, or present evidence, for purposes of raising an affirmative defense, negating an element of an offense, or impeaching a witness. Cross-examination for purposes of discovery is not permitted. Evidence is rarely presented by the defense at a prelim given the low burden of the prosecution and the fact that such evidence is often merely discovery to the prosecution. Defense attorneys usually don’t present evidence unless that evidence truly establishes an affirmative defense or negates the elements of a charged offense at the exceedingly low burden required of the prosecution.

The court’s ultimate ruling does not include every allegation in the complaint. For example, the court need not make a finding as to the degree of a murder charge (although the court must make findings as to premeditation/deliberation allegations and special circumstances). The court also need not make findings as to prior conviction allegations if those allegations are not an element of the charged offenses. Once the prelim court issues a holding order or dismisses the charges, it loses jurisdiction except for any motion as to bail.

Attorneys should consult CALCRIM jury instructions to determine the elements of each charged crime as well as any enhancements alleged. This will inform you as to what must be proven by the People, what to focus on in cross examination and what may be argued to the court after evidence is presented. As to procedure, California Criminal Law – Practice and Procedure (CEB), Chapter 8, is an excellent reference.

Judge Joseph Brandolino (Ret.) was a judge of the Los Angeles Superior Court for over 25 years, presiding over a criminal trial court in the Van Nuys West courthouse for 17 of those years. He is currently a member of the temporary assigned judges program.