The Role of "Preliminary Hearings" in the
California Criminal Court Process

In California, after a prosecutor files a felony complaint with the court, California criminal law requires the judge to hold a preliminary hearing (oftentimes referred to as a "prelim" or probable cause hearing).

The purpose of the preliminary hearing is to determine if there is enough evidence to justify holding the defendant to answer for the alleged charge(s), which includes any misdemeanors that are charged along with the felonies.1

It's our job to try to convince the judge that there is not. And as a criminal defense law firm comprised of former prosecutors and cops, we know the most effective ways to do this.

Below, our California criminal defense attorneys2 explain the following:

1. What is a Preliminary Hearing?
2. Your Rights
3. The Judge's Role in a California
Preliminary Hearing
4. Miscellaneous Important Factors

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. 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.3

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."4

As Oakland criminal defense attorney Jim Hammer5 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."

Similarly, the prosecutor must establish probable cause for any

that make up elements of the crime(s).7 However, if the prior conviction is not an element of the offense...but is instead, simply a sentencing does not need to be proven up at the preliminary examination. Instead it may be proven at the time of trial.8

If the judge finds probable cause, he/she will "hold you to answer for the charges", and the case will be transferred to the trial court for further "pretrial" proceedings within 15 days.9 If the judge does not believe that probable cause exists, he/she will either

  1. dismiss your case, or
  2. dismiss specific charges.
2. Your Rights

Just like with most other California criminal proceedings, you are entitled to exercise a variety of rights prior to and during a preliminary hearing. Some of the most noteworthy include (but are not limited to):

  • the right to be represented by an attorney10 (which includes the right to a court-appointed public defender if you cannot afford to hire a private lawyer),11
  • the right to be present at the preliminary hearing (although the judge may proceed in your absence if...after you've initially fail to return for the remaining proceedings, or behave in a disruptive way),12
  • the right to the "corpus delicti" rule (that is, that the prosecutor must establish probable cause using evidence other than solely your out-of-court admissions),13
  • the right to confront and cross-examine prosecution witnesses,14
  • the right to produce defense witnesses (as long as the offered testimony would be reasonably likely to establish an affirmative defense, to negate an element of the crime, or to impeach another witness),15
  • the right to be free from physical restraints (unless there is a specific need to keep the defendant restrained),16 and
  • the right to discovery, which includes all evidence relevant to guilt or innocence17 (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).18

One discovery motion that your California defense lawyer may want to raise is a Pitchess motion.19 If you believe that you were a victim of police misconduct, a Pitchess motion is a request to discover information concerning complaints about the officer's prior use of excessive force or bias.

If such complaints exist, it may be possible to call the complainants as witnesses and thus undermine the officers' credibility.

3. The Judge's Role in a California
Preliminary Hearing

During a California preliminary hearing, the judge

  • analyzes evidence,
  • weighs the credibility of witnesses, and
  • resolves factual conflicts.

He/she essentially performs the same role as a judge in a trial, except that here, instead of deciding whether you are guilty or innocent, the judge must only evaluate whether there is "some rational ground" for assuming the possibility that an offense has been committed and that you are guilty of committing it.20

And if the evidence at the preliminary hearing is subject to two interpretations...that is, one pointing to possible guilt and one pointing to possible innocence...the trial court must accept the judge's ruling and cannot grant a California Penal Code 995 motion to dismiss based on a lack of probable cause.

This is because of the critical philosophy that defines the preliminary hearing: the court conducting a preliminary examination "must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and consciously entertain a strong suspicion of, the guilt of the accused; evidence that will justify a prosecution need not be sufficient to support a conviction".21

The effect of the judge's ruling

That said, there are times when the judge's ruling from the preliminary hearing seems almost irrelevant. This is because...depending on the circumstances...the prosecutor may still be able to charge you with an offense that the judge dismissed.

As the California Supreme Court states, "It has long been the rule in this state that a magistrate's dismissal of criminal charges following a preliminary examination does not bar the People from either re-filing the same charges before another magistrate or seeking an indictment based upon those charges."22

One of the controlling issues on this point is whether the judge's findings were factual or legal.

Factual vs. legal findings

"Factual" findings are binding on the prosecution. This means that if the court makes a factual finding when dismissing a charge, the prosecution may not include that charge in the trial court's information (that is, the new complaint).23 However, the prosecution may be able to re-file another complaint or to file a motion to reinstate the dismissed count(s).24

The most common example of a factual finding is a ruling on the credibility of a witness. For example, "Mr. Smith's testimony that he saw the defendant stab the victim is unbelievable because of the lighting, distance, and crowd of people standing between them."

"Legal" findings, by contrast, are not binding on the prosecution. This means that even if your California preliminary hearing judge dismisses a count...based on a legal finding...the prosecution is still free to re-file the discharged count in the trial court...although the defense is similarly still free to raise a Penal Code 995 PC "motion to dismiss".25

An example of a legal finding takes place when the judge determines that certain undisputed facts do or do not constitute a crime.

The judge's ability to reduce a felony to a misdemeanor

Some good news for the defense is that California criminal law authorizes a judge presiding at a preliminary hearing to reduce afelony to a misdemeanor. However, this is only the case with respect to wobblers. "Wobblers" are crimes that may be filed as either felonies or misdemeanors, based primarily on

    1. the seriousness of the offense, and
  1. your criminal history.26

Reducing a felony to a misdemeanor...or simply stating that the charge will be prosecuted as a something that the judge may do on his/her own motion or at the request of the defense. The prosecutor's consent isn't necessary.27

And once the judge declares a wobbler a misdemeanor, the prosecutor may not re-file the charge as a felony without the judge's approval.28 Also important to note is the fact that the judge has the discretion to reduce felonies even in cases subject to California three strikes law.29

And with respect to other offenses...

California's preliminary hearing laws also empower the judge with the discretion to hold a defendant to answer for uncharged offenses when they are supported by the evidence.30

And likewise, as long as the judge "holds the defendant to answer", the law allows the prosecutor to file charges and enhancements in the trial court that were not included in the preliminary hearing complaint but that were discovered during the prelim proceedings.31

Example: Tony is charged 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 Tony wasn't charged with the California street gang enhancement, the judge binds him over on both the shooting charge and the gang enhancement, based on the evidence discovered at the prelim.
4. Miscellaneous Important Factors

There are a few final points to note about California's preliminary hearing law.

995 Motions the conclusion of the preliminary hearing...the court holds you to answer for crimes that were not supported by probable cause, you are entitled to seek a dismissal from the trial court via a California Penal Code 995 PC motion to dismiss.

A California Penal Code 995 motion to dismiss is another challenge to probable cause. In order prevail on a 995 motion, the prosecutor must offer sufficient proof as to the existence of each element of the allegation.

If the prosecutor is unable to do this, the judge grants your motion and dismisses some or all of the complaint against you.

California Penal Code 1538.5 PC motion to suppress evidence

Your California criminal defense attorney has the option of requesting a Penal Code 1538.5 PC "motion to suppress evidence" hearing at either the prelim or in a trial court. You are only entitled to raise one Penal Code 1538.5 motion during the life of a criminal case, which means that when to request it is a matter of strategy that must be determined on a case-by-case basis.

A 1538.5 PC motion to suppress evidence is exactly what it sounds like...a motion to suppress any evidence that was obtained pursuant to an illegal search and/or seizure. If the court grants the motion and suppresses the evidence, this often results in the charges being reduced or dismissed altogether.


If you win your California 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 the case 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.32

If the prosecutor re-files more than 15 days after the complaint is dismissed, 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 you were released on your own recognizance (more commonly referred to as an "O.R. release") on the original complaint, you are entitled to remain free on your own recognizance unless there are changed circumstances that require bail.33

Grand jury

In rare cases, instead of holding a preliminary hearing, the prosecutor might decide to pursue charges through a grand jury proceeding.34

In a grand jury proceeding, the prosecutor goes before a group of people chosen from the trial jury pool and makes the case that a suspect should be charged with a crime. If a specified number of the grand jury members believe that charges are justified, then the grand jury issues an "indictment" against the suspect.

The suspect is not present at the grand jury proceeding--and does not even know that charges against him/her are being considered until the indictment is issued.35

Call us for help...
Img call for help

If you or loved one is in need of help with preliminary hearings and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.36

To learn about Nevada preliminary hearings, to go our page on Nevada preliminary hearings.

Legal References:

1California Penal Code 872 PC -- California preliminary hearings; order holding defendant to answer; probable cause; basis of finding. ("(a) If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or indorse on the complaint an order, signed by him or her, to the following effect: "It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe that the within named A.B. is guilty, I order that he or she be held to answer to the same."")

See also People v. Thiecke (1985) 167 Cal.App.3d 1015, 1017-1018. ("The People appeal. (Pen. Code, � 1238, subd. (a)(1).) They contend that a defendant is not entitled to a preliminary examination on misdemeanor charges as a condition to their prosecution in the superior court jointly with felonies charged in an information. However, the statute does not expressly preclude a preliminary hearing on misdemeanor charges. To the contrary, it contemplates that a [California] preliminary hearing will be held in circumstances such as these. Therefore, we shall affirm. As a general rule, the superior court has no jurisdiction over misdemeanor offenses. ( In re McKinney (1968) 70 Cal.2d 8, 13 [73 Cal.Rptr. 580, 447 P.2d 972].) These lesser crimes are prosecuted in inferior courts by verified written complaint. (Pen. Code, � 740.) An exception applies where misdemeanor and felony offenses are "connected together in their commission." (Pen. Code, � 954.) In such circumstances Penal Code section 954 permits joinder and the superior court then has jurisdiction to try both classes of offenses in a single prosecution. ( Kellett v. Superior Court (1966) 63 Cal.2d 822, 826 [48 Cal.Rptr. 366, 409 P.2d 206]; see also Burris v. Superior Court (1974) 43 Cal.App.3d 530, 537-538 [117 Cal.Rptr. 898]; People v. Clark (1971) 17 Cal.App.3d 890, 895-896 [95 Cal.Rptr. 411]; In re McKinney, supra., 70 Cal.2d at p. 13.) No contention is made here that the misdemeanor and felony charges against defendant could not properly be joined in an accusatory pleading. Penal Code section 737 provides that all "public offenses" triable in superior court must be prosecuted by indictment or information. Before an information can be filed, there must be a preliminary examination of the evidence against the defendant and an order holding him to answer for trial. (Pen. Code, �� 738, 739, 872.) Public offenses include both misdemeanors and felonies. (Pen. Code, �� 15, 16.) Penal Code section 860 contemplates a preliminary examination where the public offense is "Not a felony, but within the jurisdiction of the superior court,..." (Subd. 1.) A misdemeanor connected in its commission and jointly charged with a felony is within the jurisdiction of the superior court ( Kellett, supra., at p. 826).")

2Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

3California Penal Code 859b -- Felony to which defendant has not pleaded guilty; setting time for examination; issuance of subpoenas; California preliminary examination; dismissal of complaint. ("At the time the defendant appears before the magistrate for arraignment, if the public offense is a felony to which the defendant has not pleaded guilty in accordance with Section 859a, the magistrate, immediately upon the appearance of counsel, or if none appears, after waiting a reasonable time therefore as provided in Section 859, shall set a time for the examination of the case and shall allow not less than two days, excluding Sundays and holidays, for the district attorney and the defendant to prepare for the examination. The magistrate shall also issue subpoenas, duly subscribed, for witnesses within the state, required either by the prosecution or the defense. Both the defendant and the people have the right to a preliminary examination at the earliest possible time, and unless both waive that right or good cause for a continuance is found as provided for in Section 1050, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later, or within 10 court days of the date criminal proceedings are reinstated pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2. Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either of the following occur: (a) The defendant personally waives his or her right to preliminary examination within the 10 court days. (b) The prosecution establishes good cause for a continuance beyond the 10-court-day period. For purposes of this subdivision, "good cause" includes, but is not limited to, those cases involving allegations that a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or in Section 11165.6 has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. Any continuance under this paragraph shall be limited to a maximum of three additional court days. If the preliminary examination is set or continued beyond the 10-court-day period, the defendant shall be released pursuant to Section 1318 unless: (1) The defendant requests the setting of continuance of the California preliminary examination beyond the 10-court-day period. (2) The defendant is charged with a capital offense in a cause where the proof is evident and the presumption great. (3) A witness necessary for the preliminary examination is unavailable due to the actions of the defendant. (4) The illness of counsel. (5) The unexpected engagement of counsel in a jury trial. (6) Unforeseen conflicts of interest which require appointment of new counsel. The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, unless the defendant personally waives his or her right to a preliminary examination within the 60 days.")

4People v. Ingle (1960) 53 Cal.2d 407, 412.

5Oakland criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients throughout the Bay Area, including San Francisco, Berkeley, Marin County, San Jose, and Oakland.

6Penal Code sections 12022 and 12022.5 PC California's "personal use of a firearm" laws are examples of the types of enhancements that must be proven during a California preliminary hearing if they are elements of the offense(s) charged.

7People v Superior Court (Mendella) (1983) 33 C3d 754; Panos v Superior Court (1984) 156 CA3d 626; Ghent v Superior Court (1979) 90 CA3d 944.

8People v. Robinson (2004) 122 Cal.App.4th 275, 281-282. ("Thus evidence supporting the existence of the prior convictions need not be adduced at the preliminary hearing (see Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 150-151, 110 Cal.Rptr.2d 89; Miranda v. Superior Court (1995) 38 Cal.App.4th 902, 906-907, 45 Cal.Rptr.2d 498), and section 666 need not be specifically pleaded in the information or indictment. ( People v. Tardy, supra, 112 Cal.App.4th at pp. 786-787, 6 Cal.Rptr.3d 24.)")

9California Penal Code 739 PC -- Offenses triable in superior court; information; filing; permissible charges; form. ("When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney.")

10California Penal Code 858 PC -- Informing defendant of charge and right to counsel; minors; members of armed forces. ("When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.")

11California Penal Code 987 PC -- Right to counsel. ("(a) In a noncapital case, if the defendant appears for arraignment without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being arraigned, and shall be asked if he or she desires the assistance of counsel. If he or she desires and is unable to employ counsel the court shall assign counsel to defend him or her. (b) In a capital case, if the defendant appears for arraignment without counsel, the court shall inform him or her that he or she shall be represented by counsel at all stages of the California preliminary and trial proceedings and that the representation is at his or her expense if he or she is able to employ counsel or at public expense if he or she is unable to employ counsel, inquire of him or her whether he or she is able to employ counsel and, if so, whether he or she desires to employ counsel of his or her choice or to have counsel assigned, and allow him or her a reasonable time to send for his or her chosen or assigned counsel. If the defendant is unable to employ counsel, the court shall assign counsel to defend him or her. If the defendant is able to employ counsel and either refuses to employ counsel or appears without counsel after having had a reasonable time to employ counsel, the court shall assign counsel.")

12California Penal Code 1043.5 PC -- Absence of defendant at preliminary hearing; grounds for continuance. ("(a) Except as otherwise provided in this section, the defendant in a preliminary hearing shall be personally present. (b) The absence of the defendant in a preliminary hearing after the hearing has commenced in his presence shall not prevent continuing the hearing to, and including, holding to answer, filing an information, or discharging the defendant in any of the following cases: (1) Any case in which the defendant, after he has been warned by the judge that he will be removed if he continued his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the hearing cannot be carried on with him in the courtroom. (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent. (c) Any defendant who is absent from a preliminary hearing pursuant to paragraph (1) of subdivision (b) may reclaim his right to be present at the hearing as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. (d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977.")

13People v. Herrera (2006) 136 Cal.App.4th 1191, 1202. ("The Rayyis court was also careful to note, however, the Supreme Court "has not endorsed the numerous decisions ... applying the rule to [preliminary] hearings." ( Rayyis, supra, 133 Cal.App.4th at p. 149, 35 Cal.Rptr.3d 12.) "However, until the Supreme Court decides that the corpus delicti rule should not apply to California preliminary hearings, we are not willing to turn our backs on a long and unbroken line of cases that have applied the rule to preliminary hearings." ( Ibid.)")

14California Penal Code 865 PC -- Examination of witnesses in presence of defendant; cross-examination. ("EXAMINATION OF WITNESSES TO BE IN PRESENCE OF DEFENDANT, ETC. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.")

15California Penal Code 866 PC -- Examination of defendant's witnesses; offer of proof of expected testimony. ("(a) When the examination of witnesses on the part of the people is closed, any witness the defendant may produce shall be sworn and examined. Upon the request of the prosecuting attorney, the magistrate shall require an offer of proof from the defense as to the testimony expected from the witness. The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her sound discretion, that the testimony of that witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.")

16People v. Fierro (1991) 1 Cal.4th 173, 220. ("Accordingly, we hold that, as at trial, shackling should not be employed at a preliminary hearing absent some showing of necessity for their use. Nevertheless, while the dangers of unwarranted shackling at the preliminary hearing are real, they are not as substantial as those presented during trial. Therefore, a lesser showing than that required at trial is appropriate.")

17Brady v Maryland (1963) 373 US 83; U.S. v Bagley (1985) 473 US 667; In re Brown (1998) 17 C4th 873, 879; and Izazaga v Superior Court (1991) 54 C3d 356.

18California Penal Code 1054.5 PC -- Criminal cases; discovery orders. ("(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.")

19Pitchess v. Superior Court (1974) 11 Cal.3d 531 is the California case that establishes Pitchess motions and their relationship to police misconduct.

20People v. Slaughter (1984) 35 Cal.3d 629, 637-638. ("'Within the framework of his limited role, ... the magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses. [Citation.] In other words, in assisting him in his determination of 'sufficient cause,' the magistrate is entitled to perform adjudicatory functions akin to the functions of a trial judge. Yet the proceeding is not a trial, and if the magistrate forms a personal opinion regarding the guilt or innocence of the accused, that opinion is of no legal significance whatever in view of the limited nature of the proceedings.' ( People v. Uhlemann, supra, 9 Cal.3d 662, 667, fn. omitted.) In short, the magistrate is not a trier of fact. He does not decide whether defendant committed the crime, but only whether there is ''some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.'' ( People v. Orin (1975) 13 Cal.3d 937, 947 [120 Cal.Rptr. 65, 533 P.2d 193].) If the record shows strong and credible evidence of defendant's guilt, the magistrate may reasonably assume the possibility of his guilt. Thus in many cases he will not find it necessary to resolve all conflicts in the evidence, in order to find probable cause to hold the defendant for trial. The magistrate's power to decide factual disputes exists to assist him in his determination of sufficient cause (People v. Uhlemann, supra, 9 Cal.3d 662, 667); if he can determine that issue without resolving factual conflicts, he may do so.")

21People v. Superior Court (Bolden) (1989) 209 Cal.App.3d 1109.

22People v. Uhlemann (1973) 9 Cal.3d 662, 664.

23Walker v. Superior Court (1980) 107 Cal.App.3d 884, 888-889. ("The purpose of the California preliminary hearing before a committing magistrate is to determine whether there is sufficient or probable cause to believe the defendant guilty of a public offense (People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657, 511 P.2d 609]), and "to weed out groundless or unsupported charges of grave offenses, ..." ( People v. Elliott (1960) 54 Cal.2d 498, 504 [6 Cal.Rptr. 753, 354 P.2d 225].) In performing this adjudicatory function, it is the magistrate's duty to weigh the evidence, resolve any conflicts and to determine the credibility of witnesses. ( Jones v. Superior Court, supra., 4 Cal.3d at p. 667.) (2)On review, such factual determinations where supported by the evidence may not be disturbed. (See Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464-465 [93 Cal.Rptr. 587, 482 P.2d 211]; People v. Hall (1971) 3 Cal.3d 992, 996 [92 Cal.Rptr. 304, 479 P.2d 664]; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197]; Birt v. Superior Court (1973) 34 Cal.App.3d 934, 938 [110 Cal.Rptr. 321].)")

24California Penal Code sections 1387-1387.1 PC. See also California Penal Code 871.5 PC.

25People v. Farley (1971) 19 Cal.App.3d 215, 221. ("From the foregoing rationale we perceive the practical rule to be that in cases where the magistrate makes factual findings which are fatal to the asserted conclusion that a particular offense was committed, the district attorney may not recharge that offense in the information. A clear example of this would be where the magistrate expresses disbelief of a witness whose testimony is essential to the establishment of some element of the corpus delicti. Where, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches an ultimate legal conclusion therefrom - i.e., whether or not such evidence adds up to reasonable cause that the offense had been committed - such conclusion is open to challenge by inclusion in the information which action is thereafter subject to attack in the superior court under Penal Code section 995, and ultimately to appellate review").

26California Penal Code 17 PC -- Felony; misdemeanor; infraction; classification of offenses. ("(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances...(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.")

27People v. Manning (1982) 133 Cal.App.3d 159, 166. ("At the time of Esteybar, Penal Code section 17, subdivision (b)(5) required the prosecutor's consent before the magistrate could determine that a charged hybrid offense was to be tried as a misdemeanor. (Stats. 1969, ch. 1144, � 1, p. 2214.) The Supreme Court ruled the section unconstitutional as violating the separation of powers doctrine. (Cal. Const., then art. III, � 1.) The exercise of judicial discretion should not depend on the "pleasure of the executive." ( Esteybar v. Municipal Court, supra., 5 Cal.3d at pp. 126-128.)")

28Malone v. Superior Court (1975) 47 Cal.App.3d 313, 318-319. ("When the court is asked to dismiss a prosecution after having fixed the offense as a misdemeanor under section 17, subdivision (b)(5), the court may reconsider that determination and consent to a new felony prosecution by an appropriate finding or declaration in the minute order which declares its reasons for dismissal. (See People v. Orin, supra, 13 Cal.3d at pp. 943-944.)")

29People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968. ("The court held that prior three strikes convictions do not preclude a trial court from reducing a current wobbler offense originally charged as a felony either by imposing a misdemeanor sentence (Pen. Code, � 17, subd. (b)(1)), or by declaring it a misdemeanor upon a grant of probation (Pen. Code, � 17, subd. (b)(3)). Both versions of the three strikes law specifically acknowledge that wobblers classified as misdemeanors at the time of the initial sentencing do not trigger increased penalties (Pen. Code, �� 667, subd. (d)(1), 1170.12, subd. (b)(1)).") Although this case applies to California's three strikes law and its relationship to sentencing, it is analogous to California preliminary hearings as well.

30California Penal Code 872 PC -- Order holding defendant to answer; probable cause; basis of finding. ("(a) If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or indorse on the complaint an order, signed by him or her, to the following effect: "It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof [italics added]), has been committed, and that there is sufficient cause to believe that the within named A.B. is guilty, I order that he or she be held to answer to the same."")

31California Penal Code 739 PC -- Offenses triable in superior court; information; filing; permissible charges; form. ("When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney.")

See also People v. Dominguez (2008) 166 Cal.App.4th 858, 866. ("It is the rule that "a defendant may not be prosecuted for an offense not shown by the evidence at the California preliminary hearing or arising out of the transaction upon which the commitment was based." ( People v. Burnett (1999) 71 Cal.App.4th 151, 165-166, 83 Cal.Rptr.2d 629 ( Burnett ).)")

32California Penal Code 1303 PC -- Dismissal of proceeding; time for exoneration; application of bail to public offense. ("If an action or proceeding against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. If, within such period, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. If an undertaking of bail is on file, the clerk of the court shall promptly mail notice to the surety on the bond and the bail agent who posted the bond whenever the bail is applied to a public offense pursuant to this section.")

33California Penal Code 1388 PC -- Refiling after dismissal of felony with release on own recognizance; notice; sending; failure to appear; warrant for arrest; release on own recognizance. ("(a) In any case where an order for the dismissal of a felony action is made, as provided in this chapter, and where the defendant had been released on his own recognizance for that action, if the prosecutor files another accusatory pleading against the same defendant for the same offense, unless the defendant is present in court at the time of refiling, the district attorney shall send a letter to the defendant at his last known place of residence, and shall send a copy to the attorney of record, stating that the case has been re-filed, and setting forth the date, time and place for rearraignment. (b) If the defendant fails to appear for arraignment as stated, or at such time, date, and place as has been subsequently agreed to by defendant's counsel and the district attorney, then the court shall issue and have delivered for execution a warrant for his arrest within 20 days after his failure to appear. (c) If the defendant was released on his own recognizance on the original charge, he shall, if he appears as provided in subdivisions (a) and (b), be released on his own recognizance on the re-filed charge unless it is shown that changed conditions require a different disposition, in which case bail shall be set at the discretion of the judge.")

34California Penal Code 682 PC -- Prosecution by indictment or information; exceptions.

35See About Grand Juries, California Grand Jurors' Association Website.

36Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.




Free attorney consultations...

Our attorneys want to hear your side of the story. Contact us 24/7 to schedule a FREE consultation with a criminal defense lawyer. We may be able to get your charges reduced or even dismissed altogether. And if necessary, we will champion your case all the way to trial.

Regain peace of mind...

Our defense attorneys understand that being accused of a crime is one of the most difficult times of your life. Rely on us to zealously and discreetly protect your rights and to fight for the most favorable resolution possible.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

To contact us, please select your state:

Call us 24/7 (855) 396-0370