PC 866(b): it is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony. The examination shall not be used for purposes of discovery.
Probable Cause for PH: Probable cause is shown if a man (or woman) of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Curry v. Superior Court (2013) 217 Cal.App.4th 580, 588.)
A magistrate’s function at a preliminary hearing is to determine whether there is “sufficient cause” to believe defendant guilty of the charged offense. (PC § 871, PC § 872(a).)
PC 859b PH within 10 court days of arraignment or entry of plea, whichever is later
Amended Complaint. Arraignment on amended complaint constitutes “a triggering event” requiring a preliminary hearing within 10 court days, absent good cause or a waiver. (Garcia v. Superior Court (2020) 47 Cal.App.5th 631, 648.)
If PH is set beyond the 10-day ct period, D shall be released unless very limited exceptions apply (i.e. if D requests it)
Failure to comply with 10-day rule warrants dismissal unless:
(1) D waives 10-Day Rule; or
(2) Prosecution establishes good cause for continuance beyond that period
Where PH continued beyond 10-court-day period without finding of good cause, Ct orders D to be released on the tenth day, but D is not actually released for another three days, Held, PC 859b mandates dismissal. (Benavides v. Superior Court (Dec. 16, 2025) B343477.)
BUT: if P file amended complaint -> D’s right to speedy PH under 859b are renewed (right to PH within 10 Court Days & 60 Calendar Days), even if D previously waived 10 & 60. (Ibid.)
60-Day Rule.
PH must be held within 60 days from the date of arraignment. (PC 859b.)
Reinstatement of Criminal Proceedings after doubt declared under EC 1368 is “a triggering event” requiring a preliminary hearing within 60 days, absent a waiver. (People v. Figueroa (2017) 11 Cal.App.5th 665, 685.)
60-Day Rule Does Not Reset With Filing of Amended Complaint. “Where a defendant does not personally waive the limit when being arraigned or entering a plea on an original complaint, an arraignment or plea that is necessitated by an amended complaint does not restart a new 60-day period for purposes of section 859b.” (Mendoza v. Superior Court (2025) 114 Cal.App.5th 456, 463.)
Limited Waiver of 60-Day Rule:
Section 859b permits a defendant to enter a limited waiver of time beyond the initial 60-day time period by agreeing the preliminary hearing be held by a certain date. Absent a further time waiver by the defendant, the court may not continue the preliminary hearing beyond the agreed-upon date based on a finding of good cause. (People v. Superior Court (Arnold) (2021) 59 Cal.App.5th 923.)
Section 861 gives the accused a right to a continuous preliminary hearing. It states “The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it…” (PC 861(a).)
Purpose: The purpose of section 861 is to ensure that, once commenced, the preliminary examination will proceed continuously onward, and be expeditiously completed, without significant interruptions to which the parties have not consented, and which are not justified by good cause.” (Stroud v. Superior Court (2000) 23 Cal.4th 952, 967.)
Waiver of One-Session Rule: A preliminary examination which has commenced may be postponed for more than 10 court days where (1) good cause for the postponement is shown and (2) the defendant personally waives his right to a continuous preliminary examination. (PC 861(a)(1).)
15-Day Rule: Information must be filed w/n 15 days of PH holding (PC §§ 739, 860)
Information Timing: PC 739 requires an information to be filed within 15 days after a defendant is committed (held to answer) by a magistrate following a preliminary hearing. (see PC § 872.)
Testimony (Prop 115)
Prop 115: hearsay admissible
Have victim testify if crime is violent or serious
At the prosecutor’s option, the defense must make an offer of proof as to the witness’s testimony and the magistrate must exclude the testimony unless it is reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or hearsay declarant. This statute eliminates the defense tactic of calling percipient witnesses simply to learn what they know about the crime to prepare better for trial. A proper offer of proof requires the setting forth of the specific evidence to be presented, the witness who will present it, the purpose for which it is being offered, and its relevancy to the issues in the case (McCleery v. Bakersfield (1985) 170 Cal. App. 3d. 1059, 1074.)
People v. Eid (1994) 31 Cal.App.4th 114: court rejects contention that 866(a) violates Art I., section 28(d). Prop 115 had, in effect, redefined the range of relevant evidence: “the scope of relevant defense evidence at the preliminary hearing has been substantially narrowed. Evidence that falls outside the statutory parameters of section 866, subdivision (a), is irrelevant.”
Enhancements, Prior Convictions, Misdemeanors
Misdemeanor prove-up: “No crime, be it a felony or a misdemeanor, can be included in an information unless it has been supported by a showing of probable cause at the preliminary hearing.” (Griffith v. Superior Court (2011) 196 Cal.App.4th 943, 954.)
Statute invests the trial court with discretion to treat a felony “punishable … by imprisonment in the state prison or by fine or imprisonment in the county jail” as a misdemeanor in certain circumstances.” (PC 17, subd. (b).)
17b analysis: The court’s exercise of discretion to classify a wobbler as a felony or misdemeanor contemplates the imposition of misdemeanor punishment for a wobbler in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon. (People v. Park (2013) 56 Cal.4th 782.)
Factors relevant to the trial court’s decision include:
“the nature & circumstances of the offense,
the defendant’s appreciation of an attitude toward the offense, [and]
Aranda-Burton Rule: where D-A makes incriminating statements that implicate D-B
The Burton rule does not apply to preliminary examinations for two reasons:
(1) There is no jury
(2) Sixth Amendment right to confrontation is basically a trial right and does not bar the admission of hearsay at preliminary hearings. (See People v. Miranda (2000) 23 Cal.4th 340, 349-354.)
Filing Different Charges in Information. Under PC 739 a prosecution may charge in an information “a different but related crime shown by the evidence taken before the magistrate.” (Parks v. Superior Court (1952) 38 Cal.2d 609, 612.)