California Criminal Trial Manual

Preliminary Hearings

Probable Cause // Statutory Deadlines // Testimony (Prop 115) // Enhancements, Priors, Misdemeanors // 17b Motion // Miscellaneous Topics

Probable Cause

Statutory Deadlines

  • 10-Day Rule.
    • PC 859b PH within 10 court days of arraignment or entry of plea, whichever is later
    • 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)
    • Ct may exercise discretion in selecting length of continuance; it need not accede to [moving party’s] preferred date. (People v. Smith (2016) 245 Cal.App.4th 869, 878.)
    • D waives 10-Day Rule & FTAs. PC 859b doesn’t require PH be held w/n 10 court days of D’s reappearance. (People v. Love (2005) 132 Cal.App.4th 276.)
    • Good Overview see People v. Standish (2006) 38 Cal.4th 858.
    • 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.)
  • Time Waiver (never implied)
  • 60-Day Rule.
  • 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.)
  • Continuous Session Rule (PC 861):
    • Rule. In general, a preliminary hearing, once commenced, shall be completed in one session. (PC 861(a); (Stroud v. Superior Court (2000) 23 Cal.4th 952, 968.)
    • 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.
    • At a preliminary hearing “the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted.” (PC 872(b).)
    • Law enforcement officers testifying as to hearsay statements “shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training which includes training in the investigation and reporting of cases and testifying at preliminary hearings.” (PC 872(b).)
    • Law Enforcement Officer includes any officer who:
      • (a) Has 5-years of law enforcement experience or completed a POST-certified training course; AND
      • (b) Whose primary responsibility is the enforcement of any law, the detection and apprehension of persons who have violated any law, or the investigation and preparation for prosecution of cases involving violation of laws. (PC 872(c).)
    • Former Law Enforcement. If honorably retired, can testify as to hearsay statements that were made when s/he was an active law enforcement officer. (PC 872(b).)
  • Have victim testify if crime is violent or serious
  • PC 866: D’s right to call witnesses
    • 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

17b Motion

  • 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).)
  • Only applies to wobblers. (crimes Legislature authorized alternative punishment besides CDCR) (People v. Mauch (2008) 163 Cal.App.4th 669, 674.)
  • 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:
    • Courts may also consider the sentencing objectives set forth in CA rules of Court, rule 4.410. Those include:
      • Protecting society
      • Punishing the D
      • Deterring crime
      • Encouraging the D to lead a law-abiding life, and
      • Preventing the D from committing new crimes.
    • Court can consider Defendant’s prior criminal history when ruling on 17b motion. (People v. Gollardo (2017) 17 Cal.App.5th 547, 562.)
  • PC 18(b) [17(b) for stealth wobblers]. Only applies to felonies punishable by imposition of a fine as an alternative to state prison. (People v. Isaia (1989) 206 Cal.App.3d 1558, 1564.)
    • Examples: PC 107, PC 148.3(b), PC 337b

Miscellaneous Topics

  • PC 977 Appearance. PC 977 does not permit defense attorneys to appear for defendants during preliminary hearings. (PC 977(b)(1) [“[I]n all cases in which a felony is charged, the accused shall be physically present…during the preliminary hearing”].)
  • 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:
  • PC 1170(h): D is ineligible for SCR if:
    • Punishment for one (or more) of the crimes does not specify defendant “shall be punished by imprisonment pursuant to subdivision (h) of section 1170”
    • D has a prior or current serious OR violent felony conviction
    • D is registered sex offender
    • D is convicted of a felony & sentenced w/ an enhancement for aggravated theft (PC 186.11)
  • Controlled Substances without Chemical Test. Prove up identity of controlled substance w/o chemical results, may be established by circumstantial evidence. (People v. Galfund (1968) 267 Cal.App.2d 317; People v. Veamatahau (2020) 9 Cal.5th 16, 36.)
    • TruNarc Alone Insufficient. Held, improperly admitted. TruNarc is based on a new scientific technique and the prosecution failed to show its reliability or general acceptance within the relevant scientific community within the meaning of the Kelly rule. (People v. Rios (2024) 99 Cal.App.5th 1128, 1143.)
  • 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.)