“Preliminary Hearing” in California – How The Process Works

At a preliminary hearing for a felony charge in California, the prosecutor must show that there is enough evidence to bind the case over for trial. Otherwise, the charges will be dismissed.

Five key things to know about preliminary hearings (“prelims”) in California are:

1. The only purpose of preliminary hearings (“prelims”) is to check whether the state has sufficient evidence to continue prosecuting you.
2. Prelims are hard for defendants to win because “probable cause” is such a low burden of proof for prosecutors to meet.
3. During the healing, both the prosecution and defense can introduce evidence and witnesses, who can then be cross-examined.
4. Prosecutors may offer you a favorable plea deal in exchange for waiving the preliminary hearing.
5. You may not have a prelim if a grand jury indicted you.

As a criminal defense law firm comprised of former prosecutors and cops, we at Shouse Law Group know from experience the most effective ways to lock in valuable testimony at prelims that could help get charges reduced or dismissed outright. In this article, our California criminal defense attorneys discuss:

• 1. What preliminary hearings are
• 2. Who gets one
• 3. Timing and procedure
• 4. Your rights
• 5. If you win
• 6. Prelims leading to new charges
• 7. What happens to your bail
• Additional resources

1. What preliminary hearings are

In California, a preliminary hearing is a court proceeding where the D.A. has the burden to show the judge that there is probable cause you committed the alleged felonies. Preliminary hearings serve as a check to weed out any cases with insufficient “rational grounds” for prosecuting you.¹

If you win the preliminary hearing, then the judge will dismiss your case. If you lose the preliminary hearing, then your case will be “bound over” from Superior Court to District Court for a new arraignment within 15 days and then possibly a jury trial.²

In some cases, the evidence presented at the preliminary hearing will show the judge that you were overcharged. The judge may then:

• dismiss some of your charges and/or
• reduce “wobbler” felonies to misdemeanors.³

Even though the deck is always stacked against defendants during preliminary hearings because the state’s standard of proof is so low, we have achieved many wins by showing how the state violated our clients’ rights. Therefore throughout each prelim, we remain on high alert for any crack in the prosecution’s legal process that could translate into a full dismissal of the charges.

Prelims are difficult for defendants to win because prosecutors have a low burden of proof.

2. Who gets one

You can only get a preliminary hearing in California if:

1. you are facing felony charges, and
2. a grand jury did not indict you.⁴

Note that if you are facing charges of both felonies and misdemeanors, the D.A. has to show probable cause that you committed the misdemeanors as well as the felonies. In cases where you are facing only misdemeanor charges, you may not have a preliminary hearing: Instead, there is a similar but less formal process called a Penal Code 991 Motion.

You can always waive your right to a preliminary hearing, though we do not recommend this unless the D.A. offers a favorable plea deal upfront. In our experience, preliminary hearings are valuable “dry runs” for a trial.

3. Timing and procedure

Preliminary hearings in California typically take place within 10 days of your arraignment unless you agree to postpone it or the court finds good cause to postpone it.⁵

Preliminary hearings appear similar to trials: Both the prosecution and the defense can present evidence and live witnesses subject to cross-examination. Though there are three main differences:

1. Preliminary hearings are usually short, sometimes only a half hour.
2. There is no jury, and the rules of evidence are more relaxed.
3. Prosecutors do not have to prove beyond a reasonable doubt that you are guilty: All the judge needs to determine is if there is enough probable cause to believe that the alleged crimes and crime enhancements occurred and that you committed them.⁶

What is probable cause?

Probable cause – the burden of proof for preliminary hearings – 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.”⁷

Since this standard is so low, prosecutors nearly always win preliminary hearings. However, we know from experience all the ways to optimize preliminary hearings for our clients’ benefit, especially regarding “locking in” exonerating testimony that can be used at trial.

4. Your rights

Ten important rights you have during California preliminary hearings are:

1. To have an attorney,⁸ including a public defender if you cannot afford private counsel.⁹
2. To attend your preliminary hearing (unless, for example, you are disruptive or leave on your own).¹⁰
3. To “corpus delicti,” which means the D.A. must establish probable cause using evidence other than just your out-of-court admissions.¹¹
4. To confront and cross-examine prosecution witnesses.¹²
5. To produce defense witnesses reasonably likely to establish an affirmative defense, negate an element of the crime, or impeach another witness.¹³
6. To be free from physical restraints unless there is a specific need for it.¹⁴
7. To all relevant evidence.¹⁵ (You have no statutory right to discovery before the preliminary hearing unless it occurs more than 15 days after either party made a formal discovery request).¹⁶
8. To file a California PC 995 motion to dismiss if you lose the preliminary hearing.¹⁷
9. To file a PC 1538.5 motion asking the court to suppress illegally-obtained evidence.¹⁸
10. To raise a Pitchess motion asking to see prior complaints of police misconduct by the officers in your case.¹⁹

5. If you win

If you win your preliminary hearing, the D.A. can usually re-file the same charges in a different case. The constitutional protection against “double jeopardy” (duplicate prosecutions) only attaches if you go to trial. You do not get double jeopardy protections merely by winning a preliminary hearing.²⁰

From our experience, the D.A. rarely re-files charges that the court dismissed at a preliminary hearing unless they find new evidence to support probable cause.

6. Prelims leading to new charges

If evidence presented during the preliminary hearing shows probable cause that you committed an additional offense that prosecutors did not originally charge you with, the judge can add that charge to your case.²¹

Example: The D.A. charges Tony with Penal Code 246: Shooting at an Inhabited Dwelling. At the preliminary hearing, evidence comes out that Tony is a Mara Salvatrucha gang member and committed the shooting to benefit the gang.

Even though the D.A. did not charge Tony with the California street gang enhancement, the judge binds him over on both the shooting charge and the gang enhancement.

We find that D.A.s are less willing to offer acceptable plea bargains once cases get bound over. That is why we fight so hard before the prelim ever occurs to convince the D.A. that their case is weak so that they will agree to a favorable resolution as soon as possible.

Even if you win a preliminary hearing, the D.A. can re-file the charges in a separate case.

7. What happens to your bail

If you win your preliminary hearing – and the prosecutor chooses to file a new complaint as a result – California bail laws entitle you to apply the bail that you posted from the original case. This is true as long as:

• the prosecutor files the new complaint within 15 days of the dismissal of the old and
• you are rearrested on the new complaint within that period.²²

If the prosecutor re-files more than 15 days after the complaint is dismissed, then:

• your original bail will be exonerated and
• your bail will likely be set by the local county bail schedule.

Depending on the circumstances at that point, you or your attorney may want to request a California bail hearing to reduce the newly set bail.

If law enforcement releases on your own recognizance (“O.R. release”) on the original complaint, you get to remain free on your own recognizance unless there are changed circumstances that require bail. We have extensive experience convincing judges to grant O.R. release so that our clients do not have to pay a cent.²³

Additional resources

For more in-depth information on preliminary hearings, refer to the following scholarly articles:

• The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations – UCLA Law Review.
• The Availability of a First Appearance and Preliminary Hearing – Now You See Them, Now You Don’t – William & Mary Law School Scholarship Repository.
• Post-Indictment Preliminary Hearings – John Marshall Journal of Practice & Procedure.
• Preliminary Hearings in Homicide Cases: A Hearing Delayed Is a Hearing Denied – Journal of Criminal Law, Criminology and Police Science.
• The Right to Counsel at the Preliminary Hearing – Missouri Law Review.

Legal References