The Pretrial Process under California Criminal Law

The pretrial process in California is when your defense team and prosecutors work to resolve your criminal charges while also preparing for trial. Five key things to know about California pretrials are:

1. The pretrial process starts as soon as you have been arrested and have entered a “not guilty” plea at your arraignment.
2. In addition to negotiating a plea bargain, pretrials are a time for discovery (exchanging evidence) and filing motions asking for the court to make pretrial rulings (such as excluding irrelevant evidence).
3.  The pretrial process can last anywhere from days to a year or more depending on the charges and the parties’ willingness to settle.
4. Pretrial conferences between prosecutors and the defense can be held in person (usually at the court or the D.A.’s office), or they can occur over the phone or internet.
5. Plea deals can be struck as early in the pretrial process as the arraignment or as late as the trial (but before a jury deliberates).

Because most California criminal cases resolve during the pretrial phase, it is critical that your lawyer understands how to make the most of this process. Because we are a criminal defense law firm comprised of former prosecutors and cops, we understand from experience how to use pretrial conferences to your advantage.

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

• 1. What is the purpose of pretrial conferences in California?
• 2. How long is the pretrial process?
• 3. How does discovery work?
• 4. What are pretrial motions?
• 5. How does plea bargaining work?

1. What is the purpose of pretrial conferences in California?

The general purpose of a pretrial is to ensure that the prosecution and your defense attorney have an opportunity to discuss and negotiate plea bargain possibilities. Neither side wants the time and expense of trial, so pretrials are a time to try to find common ground to avoid extensive litigation.

Sometimes both sides meet in person at court or the D.A.’s office for a formal conference. Other times the parties negotiate over the phone or email.

2. How long is the pretrial process?

It depends. In some cases, the pretrial process lasts a few days. In others, it can drag out for more than a year – especially in serious felony cases that proceed to a California preliminary hearing and do not settle.

3. How does discovery work?

“Discovery” refers to the process of obtaining evidence. In California, 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 does not feel as though the other is abiding by the rules, they can ask the court to take over and make formal rulings.¹

Discovery requirements

California discovery laws are primarily regulated by the Penal Code.² Examples of some discovery requirements include:

• both sides supplying the other with witness information and physical evidence,
• the prosecutor turning over any “exculpatory” evidence (evidence that is favorable to you),
• the prosecutor informing you of any felony convictions that any witnesses have which can impeach their credibility, and
• the prosecutor supplying you with any other “relevant” recorded or written statements.³

“Relevant” is open to interpretation, and the prosecution will always try to introduce irrelevant evidence in an effort to prejudice you. That is why it is so important to have experienced attorneys fight to keep all irrelevant evidence out and to move for court sanctions when the D.A. violates the discovery requirements.⁴

4. What are pretrial motions?

When you make a pretrial motion to the court, you are asking the judge to rule on an issue related to your case (such as the admissibility of evidence should your case go to trial).

Motions may be made orally or in writing, depending on the specific motion. Some of the most common pretrial motions include the following:

• A California Penal Code 995 PC “motion to dismiss” asks the court to dismiss your charges. Usually, we file this motion if we believe that the evidence presented at your preliminary hearing fails to provide probable cause for your charges.⁵
• A California Penal Code 1538.5 PC “motion to suppress” evidence because of illegal search and seizure asks the court to disregard any evidence that the police found through unlawful means. If the judge grants this motion, the D.A.’s case against you may be severely weakened.⁶
• A California “Pitchess” motion is a request for information contained in your arresting officer’s personnel file. If it turns out that the named officer has a history of complaints or police misconduct, we can use it to attack the officer’s credibility and sometimes convince the prosecutor to dismiss the case altogether.⁷
• A Serna motion (“speedy trial motion”) is a motion to dismiss the charges against you because you were denied your constitutional right to a speedy trial. 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.⁸

5. How does plea bargaining work?

Plea bargain negotiations begin almost immediately after you secure an attorney. Usually, the first negotiation with prosecutors takes place at your California arraignment, which is the first formal pretrial court appearance following your arrest.

Sometimes an agreement can be reached right away. Though negotiations can drag on for months, even during the trial (then once the trial is over, you are no longer able to take a plea).

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 materialized – one that really leaves both parties happy with the result.

Examples of common plea bargains

Typical California DUI plea bargains that are negotiated during pretrial proceedings include charge reductions to:

• Vehicle 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.

For non-DUI cases, probably the two most sought criminal plea bargains are where charges reduce to either:

• Penal Code 602 PC California’s trespassing or
• Penal Code 415 PC California’s disturbing the peace

Both these charges can both be either misdemeanors or infractions and do not carry 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.

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