What Is a Preliminary Hearing in California?
Updated: Sep 6
A preliminary hearing in California is a hearing held in felony cases where a judge decides whether the prosecution has enough evidence to hold the defendant to answer for the charges and send the case toward trial. It is not a trial, no jury is present, and the standard is probable cause rather than proof beyond a reasonable doubt. Under Penal Code section 859b, a defendant has the right to a preliminary hearing within 10 court days of arraignment or plea, and an in-custody defendant who is not held to answer within that time is generally entitled to release. Misdemeanor cases do not have preliminary hearings at all. Here is why this hearing matters far more than its low standard suggests.
Why do only felony cases get a preliminary hearing?
California felony prosecutions begin with a complaint filed by the district attorney. Before the case can proceed to trial on an information, which is the charging document used in superior court after a preliminary hearing, a magistrate must find that a felony was committed and that there is sufficient cause to believe the defendant committed it. That finding is the holding order under Penal Code section 872. The preliminary hearing exists as a check on the prosecutor's charging decision: a neutral judge looks at actual evidence, under oath, before a person is forced to face a felony trial.
Misdemeanor cases skip this step because the stakes are lower. A misdemeanor defendant is arraigned on the complaint and the case proceeds to pretrial conferences and trial. Felony defendants in Riverside County and San Bernardino County go through the preliminary hearing in the same courthouse where they were arraigned, whether that is the Hall of Justice in Riverside, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the San Bernardino Justice Center, or the courthouses in Rancho Cucamonga, Victorville, Fontana, or Joshua Tree. Cases charged by grand jury indictment bypass the preliminary hearing, but indictments are uncommon in ordinary Inland Empire felony cases.
When must a preliminary hearing be held?
Penal Code section 859b sets two clocks. The first is the 10 court day rule. Once a defendant is arraigned and enters a not guilty plea, the preliminary hearing must be held within 10 court days unless the defendant personally waives that right or the court finds good cause to continue. If the defendant is in custody and the hearing is not held within the 10 court days, the defendant must be released from custody on the charge, with narrow exceptions. The second is the 60 day rule. The hearing must be held within 60 days of arraignment or plea unless the defendant personally waives that limit, and if it is not, the complaint must be dismissed.
Whether to keep or waive time is one of the first strategic decisions in a felony case. Keeping time forces the prosecution to produce its witnesses quickly, which can be an advantage when the case was hastily charged, when a key witness is reluctant, or when the defendant is in custody and cannot post bail. Waiving time allows the defense to obtain discovery, investigate, retain experts, and negotiate before the hearing, and it is the more common choice in complex cases.
What is the standard of proof at a preliminary hearing?
The magistrate must find that there is sufficient cause to believe the defendant committed the charged felony. California courts describe sufficient cause as a state of facts that would lead a person of ordinary caution to entertain a strong suspicion of the defendant's guilt. That is essentially probable cause. The judge does not weigh whether the prosecution will win at trial and does not resolve credibility contests the way a jury would. If the evidence, taken in the light most favorable to the prosecution, supports a strong suspicion, the defendant is held to answer.
Because the standard is low, most preliminary hearings end in a holding order. That does not make the hearing a formality. The judge can refuse to hold the defendant on some counts while holding on others, can reduce a charge, can decline to find a special allegation or enhancement, and in appropriate cases can reduce a wobbler to a misdemeanor under Penal Code section 17. The judge can also hear a motion to suppress evidence at the same time, discussed below. Each of those outcomes changes the case that goes forward.
What evidence can the prosecution use at a prelim?
Since Proposition 115 in 1990, Penal Code section 872 allows the prosecution to establish probable cause through hearsay testimony from a qualified law enforcement officer. The officer must have either five years of law enforcement experience or completed a specified training course on investigation and testimony. In practice, this means the investigating officer takes the stand and relates what the victim, the witnesses, and other officers told him, without those people appearing. The California Supreme Court upheld this procedure in Whitman v. Superior Court (1991) 54 Cal.3d 1063, while noting that the officer must have some personal knowledge or connection to the investigation and cannot simply read a report written by someone else about statements made to a third officer.
The result is that a typical Inland Empire preliminary hearing on an assault, theft, or drug case involves one or two officers testifying for 20 to 40 minutes. The prosecution calls live witnesses only when necessary, such as when a victim's account is complicated, when the defense has subpoenaed the witness, or when the prosecutor wants to lock in testimony for later use if the witness becomes unavailable. Prelim testimony can be used at trial if the witness later becomes unavailable, another reason to take the hearing seriously.
Can the defense call witnesses at a preliminary hearing?
Yes, under Penal Code section 866 the defendant has the right to call witnesses, but the court can require an offer of proof and may exclude witnesses whose testimony would not tend to establish a defense, negate an element of the offense, or impeach a prosecution witness. Judges apply this rule strictly and will not allow the defense to use the hearing as a general deposition. Calling a defense witness is uncommon and usually reserved for situations where the testimony could defeat probable cause outright, such as an alibi witness with documentation, or where locking in a witness's account is valuable for trial.
What is a holding order and what happens after it?
If the magistrate finds sufficient cause, the defendant is held to answer and the prosecution has 15 days under Penal Code section 739 to file an information in superior court. The defendant is then arraigned on the information, enters a plea again, and the case moves toward trial with a new set of statutory deadlines. The information can charge the offenses shown by the evidence at the preliminary hearing, including offenses that were not in the original complaint, as long as they arose from the same transaction and were supported by the testimony.
If the magistrate finds that the evidence does not establish probable cause on a charge, the charge is dismissed under Penal Code section 871. The prosecution can refile a felony complaint once after a dismissal at the preliminary hearing, subject to the limits in Penal Code section 1387, and the case starts over with a new preliminary hearing. Dismissals typically reflect a real problem, such as an element no witness addressed.
Penal Code 995 motion after the prelim
The holding order can be challenged in superior court through a motion under Penal Code section 995 to set aside the information. The motion argues that the defendant was held to answer without reasonable or probable cause, or was denied a substantial right at the preliminary hearing. The superior court judge reviews the transcript, not new evidence. A 995 motion succeeds when the preliminary hearing record is missing an element, when the magistrate relied on inadmissible evidence, when the hearsay came from an officer who did not meet the section 872 requirements, or when the defense was wrongly prevented from cross-examining or presenting a witness. Even a partial win, dismissing one count or an enhancement, can change the plea negotiation significantly.
How does the preliminary hearing shape defense strategy?
For a former public defender, the preliminary hearing is the most valuable event in a felony case before trial. It is the first time a prosecution witness testifies under oath and is subject to cross-examination. Every answer becomes part of a transcript that can be used to impeach the witness at trial if the story changes. Officers who testify from reports sometimes reveal that the report was written days later, that a field identification was suggestive, that a search happened before the consent was obtained, or that a statement attributed to the defendant was never recorded. Those admissions are gold at trial and in negotiation.
The hearing also serves as informal discovery. Even with the discovery obligations in Penal Code section 1054.1, police reports rarely tell the whole story. Cross-examining the investigating officer about what was not done, which witnesses were not interviewed, what video was not collected, and what tests were not run reveals the gaps in the investigation. A skilled cross-examination at the prelim is not designed to win a dismissal, which is rare, but to learn the case and set up defenses for later.
Suppression motions at the preliminary hearing
Penal Code section 1538.5 allows a motion to suppress evidence obtained by an unlawful search or seizure to be made at the preliminary hearing in a felony case. When the evidence at issue is the product of a traffic stop, a warrantless search, or a detention, litigating the suppression motion at the prelim has real advantages. The officer must testify in detail about the basis for the stop and the search, the defense gets a transcript, and if the magistrate suppresses the evidence the case may be dismissed on the spot. If the motion is denied at the prelim, it can be renewed in superior court before trial. Some attorneys save the motion for superior court to avoid educating the prosecution, but an early sworn record is usually worth more.
Should you waive the preliminary hearing?
Defendants sometimes waive the preliminary hearing as part of a negotiated resolution or because the prosecution offers something in exchange, such as not adding charges, agreeing to a bail reduction, or keeping an offer open. Waiving can make sense when the evidence is overwhelming, when the hearing would expose the defendant to additional charges supported by the testimony, when a victim's testimony would be harmful to lock in, or when the plea offer is good and holding the hearing would withdraw it. It rarely makes sense to waive the hearing simply to move the case along. Once waived, the chance to cross-examine officers under oath before trial is gone, and a 995 motion is unavailable because there is no record to review.
Frequently Asked Questions
How long does a preliminary hearing take?
Most preliminary hearings in Riverside and San Bernardino felony cases take less than an hour because the prosecution relies on one or two officers testifying to hearsay under Penal Code section 872. Cases with multiple victims, sexual assault allegations, homicide charges, or a suppression motion can take a full day or more. The hearing is often set on a calendar with several other cases, so waiting time can exceed the hearing itself.
Can charges be dropped at a preliminary hearing?
Yes. If the magistrate finds that the evidence does not establish probable cause for a charge, the charge is dismissed under Penal Code section 871. The judge can also reduce a charge, decline to hold the defendant on an enhancement, or reduce a wobbler to a misdemeanor. Dismissals are uncommon because the probable cause standard is low, but they happen when the prosecution's witness cannot establish a necessary element.
Does a defendant testify at a preliminary hearing?
Almost never. The defendant has the right to testify, but doing so would create a sworn statement the prosecution can use at trial, and it rarely changes the probable cause finding. Defense counsel typically advises against it. The defense presents its case through cross-examination and, in limited circumstances, defense witnesses under Penal Code section 866.
What is the difference between a preliminary hearing and a trial?
A trial decides guilt beyond a reasonable doubt, usually before a jury, with full rules of evidence and no hearsay from officers standing in for witnesses. A preliminary hearing decides only whether there is probable cause, before a judge alone, with relaxed hearsay rules under Penal Code section 872. Being held to answer at a preliminary hearing is not a conviction and says nothing about how a jury will view the case.
Gramling Law Group handles felony defense, including preliminary hearings, suppression motions, and 995 motions, throughout Riverside County, San Bernardino County, and the Inland Empire, with flat-fee and limited-scope options. Call (909) 654-4575 or contact us through this website to schedule a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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