What is a California Preliminary Hearing?

A preliminary hearing is one of the earliest stages in California’s pretrial criminal court process. It is a special proceeding, held before a judge or magistrate, to determine if there is enough evidence to “hold you to answer” for a trial as to the charges. The prosecutor presents live witnesses and evidence, subject to cross-examination by the defense.

The judge usually schedules this hearing at your California arraignment after you enter a “not guilty” plea. Unless you waive your right to a timely preliminary examination, or the court finds good cause to continue the proceeding, the prelim must take place within ten court days of the arraignment or plea, whichever is later.

During the prelim, which, on average lasts somewhere between 30 minutes to several hours, the judge must answer two questions:

  1. is there enough probable cause to believe that a crime was committed, and
  2. if so, is there enough probable cause to believe that the defendant is the person who committed that crime?

The prosecutor’s burden of proof

The burden of proof at a preliminary hearing is much less than that of a California criminal jury trial. In order to convict you at the conclusion of a jury trial, the prosecutor must prove to a moral certainty; that is, beyond a reasonable doubt, that you are guilty of the offense(s) as charged.

However, the burden of proof in a California preliminary hearing is only probable cause. “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.”

As Oakland criminal defense attorney Jim Hammer explains, “In order to meet this burden, the prosecutor must establish probable cause for each element of each crime. An ‘element of the crime’ is a fact that must be established before the prosecutor can prove that the offense was committed.”

Your Rights

The right to discovery, which includes all evidence relevant to guilt or innocence; (however, there is no statutory right to obtain or produce discovery before the preliminary hearing unless the hearing is more than 15 days after either party has made a formal discovery request.

The Universal Declaration of Human Rights

UDHR is a declaration adopted by the United Nations General Assembly on 10 December 1948. Article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”.


In my 18 months of following this case I have seen a lot of evidence that has been presented, and interestingly enough a lot that has not. In this commentary are mostly focused on only the judge’s ruling and mainly the ruling directed at Walter Wells.

As I have said before coming in to follow this case, I did not know anyone involved, I did not know any of the defendants, I did not know any of the people in the gallery except for one person and that one person had asked me to sit in and observe. I got hooked very quickly.

Being former law enforcement, I have a little bit of insight into some of these things that have been going on, in fact I was a bailiff in the courts for six years and got to follow many high-profile cases in the past. That was beginning when they started prop 115 testimony by police officers. In the Frank Carson et al. preliminary hearing is where I saw the problems that come into play with prop 115 testimony.

Knowing full well this is all that the judge has to work with and it is a probable cause hearing, she did state numerous times in her final ruling of what the witnesses testified to. But they did not actually testify but officers testified for them, numerous times officers were not prepared for their testimony, and even the judge noted in her final ruling they had to refer to their notes extensively due to the length of time that had passed. I honestly believed previously if the judge had seen some of these witnesses she may have felt different about the testimony that she referred to. But evaluating her final ruling I do not believe that to be true now.

Other than Beverly Woody, the judge gave credibility to a group of drug abusers, drug dealers, home invaders, embezzlers, all looking for favors as they had pending charges, pending cases, or pending sentencings. The group of people that lived in the Mike Cooley house had admittedly gone online and read the Ramey warrant prior to their testimony and obviously had discussed their testimony with each other, because I’m familiar with those types of people and yes that’s what they do, the judge took their testimony as consistent.

I do not feel that anyone of these defendants should have been held on any charge, but I was not totally surprised at the rulings handed down against Frank Carson and the Atwahl brothers, don’t get me wrong, I do not feel that they should been held to answer in those charges. The judge stated that Robert Woody was credible and consistent in what he said on the stand thus given him an air of believability, even with all the different stories that he has told. Even the judge mentioned that there was no weapon used at the scene because there is a lot of confusion on Robert Woody’s part. But still held them to answer. The believability of the whole turn of events and lack of forensic evidence make this very difficult of even becoming up to the probable cause standard.

But the biggest concern I had was two things:

  1. The judge held Walter Wells as an accessory and obstruction charge, stating that she did have testimony of Walter and Korey Kauffman’s phone in the same sector at the same time. To be honest with you my phone was probably in that same sector at the same time as was probably 100,000 other people. Jim Cook, the cell phone salesman, who had declared himself an expert at reading a billing records, had been effectively cross-examined by Walter Wells attorney where it showed she was relying on faulty information provided by the investigators.

    Jim Cook, did not do a sanitary record search of the cell phones, but did a report on the investigation that he was briefed into which included autopsy reports of Walter Wells dad.

    The judge admitted having a hard time ruling on Walter Wells, and stated that she had spent the most time looking at his situation. I noticed on the bench she was still having that conflict of her ruling. She had stopped and paused several times and she was referring to Walter Wells and deciding what she was going to do as she was still not sure.

    If somebody is that conflicted in a ruling of this magnitude, there is something fundamentally wrong with what they are doing. That indicates to me that it probably did not rise to the level of probable cause, but the judge ruled that she be held anyway.

    Again remember, where it states above the UDHR that gives a presumption of innocence until proven guilty, we seem to have lost that presumption in this case and in the justice system.

  2. In the 18 months that I followed this case I never saw or heard any evidence that Walter Wells had any interaction with Kory Kaufman dead or alive. Robert Woody testified that Walter Wells showed up back at pop and cork but his cell phone records show differently. But even if he did show up at pop and cork, again there is no testimony that he had knowledge or any idea of what it happened with Korey Kauffman and how he would have obtained his cell phone. There was also a large amount of phone calls made to the victim’s cell phone by someone using Eula Keyes’s phone, and Eula Keyes’s phone only called the victim’s phone when it was turned on, it never called when the phone was off.

    To me that raises to a higher level of probable cause that Mike Cooley or Eula Keyes had the phone than Walter Wells.

    Also of note the judge had made a comment that “Frank Carson had started this whole thing,” again apparently giving drug addicts, drug dealers, home invaders, embezzlers, credibility over what is in my mind obviously tainted testimony.

    Mme. district attorney also had referred to Robert Woody as a master manipulator and manipulated all these investigators through all these interviews. That does not speak well of the abilities of those investigators, and to be honest I think these investigators are little smarter than she gives them credit for. After all they have been doing this stuff for a long time, or she didn’t really believe what she said, which would be misrepresentation to the court.

    One last note I wanted to make, and I really thought this was substantial and kind of gave me some insight to this judge. The District Attorney’s Office had asked for the defendants be remanded into custody again, and the judge of course said no, in addition she denied a motion for ankle bracelets.

    This led to some conversation about the defendants being released on December 22, and I remember at the time the judge stated that she was releasing them to “save the integrity of the process.” But on Monday the judge made it very interesting, it’s on the record, that she had released those defendants from custody to save the District Attorney’s Office from losing this case.

    Thinking about that comment, and it is resonating with me for some time, I am aghast that a Superior Court judge, who has been on the bench for a long period of time, would think that she has the responsibility of saving the district attorney’s case for them. I personally do not feel that is her job. Her job is to be an unbiased arbitrator of the facts of the case, and that thought process is in part why this preliminary hearing took 18 months to complete.

    Judge Zuniga, A former prosecuter, bent over backwards for this District Attorney’s Office in this case repeatedly, even at times helping Marlisa Ferreira with her questioning of witnesses, and the proper way to ask a question. It also appears that setting deadlines for discovery is an effort of futility as four-year-old interviews cannot be discovered until everybody has rested their case. There have been no sanctions, there have been continually missed discovery dates, and it’s an ongoing issue throughout the court system at least in Stanislaus County, for some time.

    Defendants have a right to a speedy trial, they have a right to hear the evidence that’s going to be used against them, and they did not appear at least in this case that they were given their due process rights with all the delays, while they were still in custody, and the lack of information that was discovered by the District Attorney’s Office.

    18-month preliminary hearing is uncalled for, most preliminary hearings last an hour or maybe four hours on the outside. O.J. Simpson preliminary hearing in the murder of his wife Nicole took about 10 calendar days.

    So, what does this all mean? There are some people that are making a lot of money off this case, there are numerous police officers making a lot of overtime on this case, some are in court on a daily basis as if they don’t have a real job that they need to go do, namely a polygraph examiner who works for California Department of Corrections and rehabilitation who has been in court daily for the last six months when there’s been no information pertaining to him or polygraphs and discussed, he’s not even there dressed in proper courtroom attire. In addition, he feels that it’s appropriate to glare and trying to intimidate people in the audience especially bloggers.

    As a note, there also has been a brief filed in this case where the District Attorney’s Office stated that the bloggers exercising their First Amendment rights are uncharged co-conspirators in this case because of their activities. Does that mean they accuse Rosalio Ahumada when he’s doing his Modesto bee reports? Of course not he’s one of their puppets.

    Not quite understanding all the rulings this judge made, and yes, I know I don’t know everything, but there is an appearance that possibly someone wanted this to go to trial beyond the probable cause aspect for personal gain. Some of these rulings do not make sense to me and apparently, the judge does not really have a good grasp of the street culture in Turlock, but understands finances very well.

    Okay now all you haters can start it again I’m used to it…….


  1. At the next hearing the defense will have to decide whether to elect a bench trial (a trial by Judge Zuniga alone) or a trial by jury (who will decide credibility of witnesses and guilt or innocence). I think the Defense should elect a trial by jury.
    Just saying.

  2. Marty you are correct. This Judge needs to be sanctioned herself. In my opinion she is one sided in this case and she should not be. This Judge should have been replaced along time ago. To give lying, druggies, thieves credibility is a joke. To let a so called witness remain on the stand because she is amused at him (Patrick Hampton) time after time is sick. As you stated she was a formal prosecuter before and it appears from the start she has been on their side. To make the comment she did something to save their case right there is grounds for a sanction. If she was having such a hard time making a decision on Walter Wells she should have dropped everything on him ( reasonable doubt). She retired for a reason and should have remained so. Their have been numerous comments on cases from people in her County that if she doesn’t like a person for a certain reason that case is doomed. What about the sanctions to be imposed on the DA’s Office where does that stand?

  3. What bothered me allot was when the DA kept insisting that they go back into custody because of being a flight risk. Its like she tried her best to place and keep some labels on Carson as if he is the kind of person who would be ready and poised to flee. “Ya Right”! And the behavior of these so called professionals. Its just like what is happening in politics. The popular people are getting away with their unethical behavior and don’t care if the public sees this or not. Thanks Dawg. Hopefully the trial will show the truth and Frank will be free of this. How ironic if he runs for DA against her and wins by a land slide.

  4. Civil Litigation – Private
    Comment #: CA5838
    Judge Zuniga is one of the most dishonest judges I have ever been privy to watching. She has literally operated a courtroom designed to operate how she chooses. This more often then not is unlawful and disparaging. When this judge favors a party the other better watch out because depending on their abilities will surely loose a good and honest case against straight crooks. My advice to all who been victimized by this judge is to be vocal on the internet, put up a website just to hear and register complaints against her. It may seem useless but after seeing the magnitude of her dishonesty something will form. I urge everyone affected to stand up against this crook who has sent folks to spend their entire lives in a prison while she remains free and able to recommit without fail. May peace be unto you.
    View Detail Send e-mail to this poster 9/23/2014 12:07:27 PM

    Civil Litigation – Private
    Comment #: CA2813
    Very nasty. Threw a book at a female DA one time. Likes men better than women. A real piece o work.
    View Detail Send e-mail to this poster 9/19/2012 11:57:41 AM

    Criminal Defense Lawyer
    Comment #: CA1304
    Dishonest, plays favorites. On one case, the judge invented a non-existent document to avoid reversing herself. At last count I found eight published reversals of her decisions by the Court of Appeal.
    View Detail Send e-mail to this poster 12/4/2010 8:33:39 PM

    Civil Litigation – Private
    Comment #: CA1282
    Palpable, blatant bias combined with overt hostility to disfavored parties and counsel preclude litigants from a fair trial from this judge. Refuses to rule on admissibility of evidence for days on end during trial.
    View Detail Send e-mail to this poster 12/1/2010 8:03:02 PM

    civil Litigation – Private
    Comment #: CA429
    A truly awful judge. Rude, plays favorites, and will intentionally violate the law in her rulings. Not particularly smart, but stubborn. Won’t change her mind even if she is proven wrong. Can’t imagine that she’d be any better in criminal cases.
    View Detail Send e-mail to this poster 12/16/2008 4:57:03 PM

    Civil Litigation – Private
    Comment #: CA7971
    I brought a case before Judge Zuniga. The entire case was predicated upon a 9-0 Supreme Court opinion that was directly on-point. Judge Zuniga never even mentioned that case. When I pointed this out to her in my Objection to her Statement of Decision, she again never mentioned the Supreme Court case.
    View Detail Send e-mail to this poster 11/20/2015 2:19:56 AM

  5. Hon. Barbara Ann Zúñiga
    Superior Court
    Contra Costa County

    Rate a judge
    Attorney Average Rating: 3.6 – 11 rating(s)
    Non-Attorney Average Rating: 1.0 – 3 rating(s)

    General Rating Criteria
    * Temp. Temperament (1=Awful,10=Excellent)
    * Sch. Scholarship (1=Awful,10=Excellent)
    * Indu. Industriousness (1=Not at all industrious,10=Highly industrious)
    * Comp. Ability to Handle Complex Litigation (1=Awful,10=Excellent)
    * Punct. Punctuality (1=Chronically Late,10=Always on Time)
    * Ab-Pr. General Ability to Handle Pre-Trial Matters (1=Not all Able, 10=Extremely Able)
    * Ab-Tr. General Ability as a Trial Judge (1=Not all Able, 10=Extremely Able)
    Flex Flexibility In Scheduling (1=Completely Inflexible,10=Very Flexible)

    Criminal Case Rating Criteria (if applicable)
    * Ev-Cr. Evenhandedness in Criminal Litigation (1=Demonstrates Bias,10=Entirely Evenhanded)
    Bail General Inclination Regarding Bail (1=Pro-Defense,10=Pro-Government)
    Plea Involvement in Plea Discussions (1=Not at all Involved, 10=Very Involved)
    Inc.-Pr. General Inclination in Criminal Cases Pretrial Stage (1=Pro-prosecution,10=Pro-defense)
    Inc.-Tr. General Inclination in Criminal Cases Trial Stage (1=Pro-prosecution,10=Pro-defense)
    Inc.-S. General Inclination in Criminal Cases Sentencing Stage (1=Pro-prosecution,10=Pro-defense)

    Civil Case Rating Criteria (if applicable)
    * Ev-Cv. Evenhandedness in Civil Litigation (1=Not at all Evenhanded,10=Entirely Evenhanded)
    Settle Involvement in Settlement Discussions (1=Not at all Involved,10=Very Involved)
    Inc. General Inclination (1=Pro-defendant, 10=Pro-plaintiff)

    General Rating Criteria
    Criminal Case Rating Criteria
    (if applicable)
    Civil Case Rating Criteria
    (if applicable)
    Evaluator ID Date *Temp. *Sch. *Indu. *Comp. *Punct. *Ab-Pr. *Ab-Tr. Flex
    Civil Litigation – Private 45484 09/22/2016 2 5 1 5 1 1 1 3
    Civil Litigation – Private 39012 11/20/2015 5 1 4 7 1 1
    Civil Litigation – Private 34770 05/14/2015 5 9 9 10 5 9 2
    Civil Litigation – Private 29643 09/23/2014 1 1 1 1 1 1 1 1
    Civil Litigation – Private 17558 09/19/2012 2 2 2 1 1 5 2 6
    Criminal Defense Lawyer 9510 12/04/2010 1 1 1
    Civil Litigation – Private 9461 12/02/2010 2 2 1 2 2 2 2 1
    Civil Litigation – Private 9449 12/01/2010 3 2 5 2 3 3 3 3
    Civil Litigation – Private 5536 07/23/2009 8 8 10 8 9 8
    Civil Litigation – Private 3949 12/16/2008 1 1 3 1
    Criminal Defense Lawyer 2305 07/13/2008 8 8 8 10 6 8 8 5
    Category Average 3.5 3.6 4.1 4.4 3.8 4.0 2.6 3.6

    ID *Ev-Cr. Bail Plea Inc.-Pr. Inc.-Tr. Inc.-S.
    45484 1 10 1
    29643 1 1 10 1 1 1
    17558 1 7 1 10
    2305 7 4 4 1
    2.5 6.0 10.0 2.0 2.0 4.0
    ID *Ev-Cv. Settle Inc. Average
    45484 1 2.0
    39012 1 2 2.9
    34770 9 6 8.0
    29643 1 10 1 1.0
    17558 1 6 10 1.9
    9510 1 1.0
    9461 2 2 1.9
    9449 1 8 2 2.8
    5536 8 10 10 8.5
    3949 1 1.4
    2305 7.9
    2.6 7.2 5.2 3.6
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    Only items marked with (*) are averaged into the displayed overall rating.

    Non-attorney Rating
    (if applicable)
    Evaluator ID Date JudgeID Ovr. Average ReadComment
    Other 48742 04/10/2017 2375 1 1.0 Read Comment
    Other 45642 10/01/2016 2375 1 1.0 Read Comment
    Other 45506 09/23/2016 2375 1 1.0 Read Comment
    Category Average 1.0 1.0

  6. Defense must remove judge on many obvious reasons! Just one example is making the comment of a ruling to save the prosecutions case? What kind of idiot judge is this? Defense better get rid of her fast…..

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