What Is a Felony Preliminary Hearing Setting Conference?
More importantly, the prosecutor and the defense attorney may negotiate, or attempt to negotiate, a plea bargain that would resolve the case (also referred to as “reaching a disposition”). When such a plea bargain is reached, or the parties can report to the judge that the two sides are nearing a plea bargain, a judge may welcome such progress. In response, the judge may allow the parties more time to negotiate and therefore, the preliminary hearing date may be delayed.About This Article Briefly: A preliminary hearing setting conference (only for felony cases) is a hearing where the judge will set or adjust the date for a preliminary hearing, perhaps rule on requests for experts or independent testing and the prosecutor and defense counsel will discuss resolution of the case.
Defendant should also be happy with such progress, as once a preliminary hearing takes place, the offer, or terms of a proposed plea bargain, from the prosecution may get worse. This is so because a prosecution witness testifies with more credibility than expected or testifies to facts that compel the prosecution to add charges against defendant. In addition, after the preliminary hearing, a case is often transferred to a new prosecutor with whom the defense attorney must develop rapport. The new prosecutor may also be unfamiliar with the case facts and mitigating circumstances, so his or her offer may be higher than the offer before the preliminary hearing.
One of the factors that can help a case reach a disposition is the recommendation in the “Pre-Plea” report, also known as the probation officer’s report. In Los Angeles County, at the arraignment, the defense attorney usually will ask the judge to order the probation department to prepare a “Pre-Plea” report. In other counties, such as Ventura County, such a report is only prepared after a plea is taken, which in this author’s opinion seems to contradict the “pre” description of the report. Such a report will contain a recommendation of whether defendant is a suitable candidate for probation, given his prior history, age and the factors of crime, both in mitigation and aggravation.
Not all cases are eligible for probation. Murder and certain sex offenses are not eligible for probation. In sex offenses, however, defendant can ask for a Static 99R report, which will evaluate the likelihood that defendant will re-offend. A good score on such a report can help the defense negotiate a better disposition with plea bargain terms more to defendant’s liking.
The hearing may also be an opportunity to resolve discovery issues before the preliminary hearing is conducted. For example, there may be video or audio recordings that the police report references, but the prosecutor does not provide such recordings. The prudent defense attorney would want to request such recordings (and review them) prior to the preliminary hearing.
Defendant may also want to file a “Pitchess” motion in certain cases. Such a motion is a request for the judge to order a police department to produce a police officer’s personnel record, to reveal a history of false arrests, coercing confessions, planting evidence, excessive force, or racial profiling. This type of motion is often filed in cases involving resisting arrest (Penal Code § 69 or § 148(a)(2)) or battery upon a police officer to lend credibility to a self-defense claim by defendant.
There are many other motions, but the above motions are some of the more commonly filed motions.
For more information about issues related to a Preliminary Hearing and issues common to just being in court, click on the following articles:
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