The Pretrial Process under California Criminal Law

If you have been arrested for a California crime -- and have entered a "not guilty" plea -- you will proceed to the pretrial conference phrase of the California criminal court process.

The "pretrial" process refers to

  • court appearances (which includes a California preliminary hearing in felony cases),
  • motions (such as a Penal Code 995 PC "motion to set aside the complaint" or a Penal Code 1538.5 PC "motion to suppress evidence"),
  • discovery issues (ensuring that your criminal defense attorney and the prosecution are exchanging all relevant evidence and witness information), and
  • any plea bargains or negotiations

    that take place before a criminal trial.

Because most California criminal cases get resolved during the pretrial phase, it is critical that your lawyer understands how to make the most of this process.  And because we're a criminal defense law firm comprised of former prosecutors and cops, we understand how to use pretrial conferences to your advantage.

Below, our California criminal defense attorneys1 explain California's pretrial laws by addressing the following:

1. Understanding the Basics about  California's Pretrial Process
2. Examples of Common Pretrial Motions
3. The Importance of Plea Bargaining

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

1. Understanding the Basics about California's Pretrial Process

Depending on the circumstances of each individual case, the pretrial process may only last a short while (if you reach a settlement) or can continue for months and sometimes even years.  In either event, the general purpose of a pretrial is to ensure that the prosecution and defense have an opportunity to discuss

  • the strengths and weaknesses of the case,
  • intangible factors of the case (such as your character and past history), and
  • plea bargain possibilities.

One of the ways to ensure that these objectives are satisfied in a fair and just manner is through the discovery process.

California's discovery process

"Discovery" refers to the process of obtaining evidence.  California's discovery rules run both ways, which means that both the prosecution and the defense are responsible for providing each other with evidence that they intend to use to establish their cases at trial.

Discovery takes place throughout the California pretrial process.  As long as both sides comply, this process is informal.  If, however, either side doesn't feel as though the other is abiding by the rules, they can ask the court to take over.  If this request is granted, the informal discovery process turns into a formal one.2

California discovery laws are primarily regulated by the Penal Code.3 Examples of some discovery requirements include (but are not limited to):

  • both sides supplying the other with witness information (which includes names and any statements and/or reports),
  • both sides supplying the other with "real" evidence (that is, physical evidence, as opposed to statements),
  • the prosecutor turning over any "exculpatory" evidence (that is, evidence that is favorable to the defense),
  • the prosecutor informing the defense of any felony convictions that any witnesses have which can impeach their credibility, and
  • the prosecutor supplying the defense with any other "relevant" recorded or written statements.4

It goes without saying that a word like "relevant" is open to interpretation.  It often happens that what the defense considers relevant is something that the prosecutor would consider irrelevant.

As Orange County criminal defense attorney Zachary McCready5 explains, "This is simply one reason why it is critical to consult with a criminal defense attorney who has vast experience handling cases in the pretrial phase of the California criminal court process.  Skilled attorneys know how to ensure that they are receiving the information that will help favorably resolve the case for their client."

And along these same lines, if you have an inexperienced (or unscrupulous) attorney who doesn't strictly adhere to discovery requirements, you will be prejudiced, as the court has the power to impose sanctions for noncompliance.6

2. Examples of Common Pretrial Motions

One of the primary purposes of this state's pretrial process is to resolve as many evidentiary issues as possible before proceeding to a California jury trial.  These issues are generally resolved through motions.

Simply put, a "motion" is a request for a judge to do something.  Motions may be made orally or in writing, depending on the specific motion.  They must usually adhere to very strict procedural requirements as well.7

Some of the most common pretrial motions include (but are not limited to):

Penal Code 995 PC motion to dismiss

Your attorney may raise a California Penal Code 995 PC "motion to dismiss" if he/she believes that one or more of the charges has not been legally filed.8 Usually, this motion is filed if the defense believes that the evidence presented at the preliminary hearing fails to provide probable cause for the charges that the prosecutor subsequently files in the information.9

"Reasonable or 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."10

If the judge rules in your favor, he/she will dismiss some or all of the charge(s).

Penal Code 1538.5 PC motion to suppress

Another popular pretrial motion is a California Penal Code 1538.5 PC "motion to suppress" evidence because of illegal search and seizure.  This California pretrial motion is filed for a number of reasons.  These can range from

  • an honest belief that evidence was obtained pursuant to an illegal search and/or seizure, to
  • a desire to simply have a pretrial opportunity to question the officers in an attempt to either
    • reveal weaknesses in the prosecution's case, or
    • elicit testimony that may be used to impeach the witness during a jury trial.

If granted, the wrongfully-obtained evidence will be suppressed, which means that it will be excluded from evidence.  Prevailing on this motion generally means that the case against you will be weakened or dismissed.

A Pitchess motion

A California "Pitchess" motion is a request for information contained in the arresting officer's personnel file.11 You typically run this motion if you believe that you were the victim of police misconduct such as excessive force, planting of evidence, or racial profiling.

If the judge decides you are entitled to know about past similar complaints against the officer, the judge will examine the personnel file outside the presence of the attorneys.  Even when incriminating information is found, only certain details will be divulged to the defense.12

If it turns out that the named officer has a history of complaints or police misconduct, this may be used to attack the officer's credibility...and sometimes will convince the prosecutor to dismiss the case altogether.

A Serna motion

A Serna motion--also known as a "speedy trial motion"--is a motion to dismiss the charges against you because you were denied your constitutional right to a speedy trial.13

If there is a long delay between your arrest and your trial--or between the filing of a complaint or indictment/information against you and your trial--you may be able to argue that the delay was unconstitutional.

You are especially likely to succeed at this if the prosecution caused the delay deliberately or through negligence, or if the delay affects your ability to mount an effective defense.14

3. The Importance of Plea Bargaining

The fact is that most California criminal cases do not result in jury trials.  They are instead resolved during plea bargain negotiations that take place at pretrial conference proceedings.          Plea bargain negotiations begin almost immediately after you secure an attorney.  Usually the first negotiation takes place at arraignment, which is the first formal court appearance following your arrest.

The California arraignment process presents your attorney with his/her first opportunity to meet the prosecutor to discuss the facts of your case.  Most people who are represented by attorneys do not enter a guilty or "no contest" plea during this phase, since little if any discovery has been exchanged by this time.

From the arraignment forward, every time the attorneys meet, they typically engage in plea bargaining discussions.  Plea bargains are useful tools for both sides.  They allow the prosecution to obtain a conviction, but allow the defense to plead guilty or "no contest" to a reduced plea and/or lesser sentence than he/she would likely face if convicted on the original charge(s).

Your attorney's role

Because this is where the majority of cases are resolved, it is critical that you consult with a California criminal defense lawyer who has solid relationships with the local prosecutors and judges.  This type of attorney has a much better chance of securing a real "bargain" than an attorney who has little or no credibility with the state.

Equally important is making sure that you consult with an attorney who knows how to "think outside the box".  This type of creativity can result in a plea bargain that otherwise may not have been that really leaves both parties satisfied with the result.

Examples of common plea bargains

What you end up pleading guilty or "no contest" to depends on the charges initially filed.  However, there are definitely some charges that are sought by defense attorneys, either because

  • they are somewhat related to the original offense.and are just considered less serious offenses., or
  • because they carry lesser sentences and lesser social stigmas on your criminal record.

Common California DUI plea bargains that are negotiated during pretrial proceedings include (but are not limited to):

And two of the most commonly sought criminal plea bargains during the pretrial process are Penal Code 602 PC California's trespassing law and Penal Code 415 PC California's disturbing the peace law.

Penal Code 602 PC California's trespassing law and Penal Code 415 PC California's disturbing the peace law can both be filed as either misdemeanors or infractions and do not subject you to mandatory jail sentences or fines.  In addition, neither charge is particularly "stigmatizing" so they will not subject you to the same scrutiny on a criminal record as many other offenses.

Call us for help.

Img call for help

If you or a loved one is in need of help with the pretrial process 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 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.16

For information about the Nevada pretrial process, go to our page on the Nevada pretrial process.

Legal References:

1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2California Penal Code 1054.5 PC -- Criminal cases; discovery orders; informal request.  ("(b) Before a party may seek court enforcement of any of the disclosures required by this chapter [during the California pretrial process], the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.")

See also California Penal Code 1054 PC - Purpose of discovery.  ("This chapter shall be interpreted to give effect to all of the following purposes.(b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.")

3California Penal Code sections 1054-1054.10 PC.

4California Penal Code 1054.1 PC -- Prosecuting attorney; disclosure of materials to defendant.  ("The prosecuting attorney shall disclose to the defendant or his or her attorney [during the California pretrial process] all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. (b) Statements of all defendants. (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. (e) Any exculpatory evidence. (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.")

See also Penal Code 1054.3 PC -- Defense counsel; disclosure of information to prosecution; criminal defendants or minors alleged to be wards of court in juvenile proceedings; mental state placed in issue and mental health expert examinations.  ("(a) The defendant and his or her attorney shall disclose to the prosecuting attorney [during California pretrial proceedings]: (1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. (2) Any real evidence which the defendant intends to offer in evidence at the trial. (b)(1) Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action or a minor in a juvenile proceeding brought pursuant to a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Code places in issue his or her mental state at any phase of the criminal action or juvenile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant or juvenile submit to examination by a prosecution-retained mental health expert. (A) The prosecution shall bear the cost of any such mental health expert's fees for examination and testimony at a criminal trial or juvenile court proceeding. (B) The prosecuting attorney shall submit a list of tests proposed to be administered by the prosecution expert to the defendant in a criminal action or a minor in a juvenile proceeding. At the request of the defendant in a criminal action or a minor in a juvenile proceeding, a hearing shall be held to consider any objections raised to the proposed tests before any test is administered. Before ordering that the defendant submit to the examination, the trial court must make a threshold determination that the proposed tests bear some reasonable relation to the mental state placed in issue by the defendant in a criminal action or a minor in a juvenile proceeding. For the purposes of this subdivision, the term "tests" shall include any and all assessment techniques such as a clinical interview or a mental status examination.")

5Orange County criminal defense attorney Zachary McCready defends clients throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.

6See California Penal Code 1054.5 PC -- Criminal cases; discovery orders; informal request, subsection "b", endnote 2, above.

See also same, subdivision "c".  ("(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.")

7California pretrial motions are generally regulated by the California Code of Civil Procedure, California Rules of Court, and by the California Evidence Code.

8California Penal Code 995 PC -- Grounds; motion to set aside; delay in final ruling.  ("(a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside [during California pretrial proceedings] by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: (1) If it is an indictment: (A) Where it is not found, endorsed, and presented as prescribed in this code. (B) That the defendant has been indicted without reasonable or probable cause. (2) If it is an information: (A) That before the filing thereof the defendant had not been legally committed by a magistrate. (B) That the defendant had been committed without reasonable or probable cause. (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.")

9See same.

10People v. Ingle (1960) 53 Cal.2d 407, 412.

11Pitchess v. Superior Court (1974) 11 Cal.3d 531.

12California Evidence Code sections 1043-1047 and Penal Codes 832.7-832.8 PC set forth the parameters of a California Pitchess motion.

13U.S. Const., amend. VI; Cal. Const., art. I, sec. 15.

14See, e.g., People v. Martinez (2000) 22 Cal.4th 750, 755. 

15Vehicle Code 23103 per 23103.5 VC a California "wet reckless", Vehicle Code 23103 VC California's reckless driving charge, and Vehicle Code 23109(c) VC California's "exhibition of speed" or "speed ex" law are all considered less serious offenses than a DUI charge.  While they still carry significant insurance repercussions, they have several advantages over a DUI, which is why they are common California DUI plea bargaining charges.

16Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to pretrial issues involved in Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.


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