A California preliminary hearing is a pretrial proceeding where prosecutors have the burden to prove that there is probable cause you committed the felony crimes alleged. If the judge finds probable cause, your case will be bound over from superior court to district court for trial; otherwise, your charges will be dismissed.
Five key things to know about preliminary hearings (“prelims”) in California are:
- The only purpose of preliminary hearings (“prelims”) is to check whether the state has sufficient evidence to continue prosecuting you. They do not determine guilt or innocence.
- Prelims are hard for defendants to win because “probable cause” is such a low burden of proof for prosecutors to meet, much lower than the “beyond a reasonable doubt” standard in criminal trials.
- During the prelim, the prosecution and defense can both introduce evidence and witnesses, who can then be cross-examined. This is a good opportunity to assess the strength of the state’s case.
- In order to avoid the time and trouble of a prelim, prosecutors may offer you a favorable plea deal in exchange for you waiving the prelim.
- You may not have a prelim if a grand jury indicted you. This is because the grand jury already accomplished the prelim’s purpose of finding probable cause.
As a criminal defense law firm comprised of former prosecutors and cops, we know 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 are preliminary hearings in California?
- 2. Does everyone get one?
- 3. When do they occur, and what are they like?
- 4. What are my rights during my preliminary hearing?
- 5. If I win, can the D.A. refile the same charges in a different case?
- 6. Can my case be “bound over” on charges that were not in my criminal complaint?
- 7. What happens to my bail if I win the preliminary hearing?
1. What are preliminary hearings 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
2. Does everyone get one?
You can only get a preliminary hearing in California if:
- you are facing felony charges, and
- 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 elect to waive your right to a preliminary hearing, which many people do if the D.A. offers a favorable plea deal upfront.
3. When do they occur, and what are they like?
Preliminary hearings in California typically take place within ten 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:
- Preliminary hearings are usually short, sometimes only a half hour.
- There is no jury, and the rules of evidence are more relaxed.
- 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 defined as:
“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.
4. What are my rights during my preliminary hearing?
Ten important rights you have during California preliminary hearings are:
- The right to have an attorney represent you8, including a public defender if you cannot afford private counsel.9
- The right to be present at your preliminary hearing (unless, for example, you behave in a disruptive way or fail to come back after showing up at first).10
- The right to the “corpus delicti” rule, which means the prosecutor must establish probable cause using evidence other than solely your out-of-court admissions.11
- The right to confront and cross-examine prosecution witnesses.12
- 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.13
- The right to be free from physical restraints unless there is a specific need to keep you restrained.14
- The right to discovery, which includes all evidence relevant to your guilt or innocence.15 (Note that you have 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).16
- The right to file a California Penal Code 995 PC motion to dismiss in the event you lose the preliminary hearing (though these are rarely granted).17
- The right to request a Penal Code 1538.5 PC motion to suppress evidence hearing to ask the judge to suppress any evidence found through an illegal and seizure. (Though you may have only one PC 1538.5 motion per criminal case, so your attorney may choose to wait until before the trial.)18
- The right to raise a Pitchess motion requesting discovery about prior complaints of police misconduct by the officers in your case.19
5. If I win, can the D.A. refile the same charges in a different case?
In most cases, yes. 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
In practice, 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. Can my case be “bound over” on charges that were not in my criminal complaint?
Yes. If evidence presented during the preliminary hearing shows probable cause that you committed an additional offense that you were not charged with, the judge can add that charge to your case.21
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.
7. What happens to my bail if I win the preliminary hearing?
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, 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.23
Call for help…
If you or a 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 consultation in the 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.
To learn about Nevada preliminary hearings, to go our page on Nevada preliminary hearings.
- California Penal Code 872 PC.
- California Penal Code 739 PC.
- California Penal Code 17 PC. People v. Manning (1982) 133 Cal.App.3d 159, 166. Malone v. Superior Court (1975) 47 Cal.App.3d 313, 318-319.
- See note 1.
- California Penal Code 859b PC.
- See note 1.
- People v. Ingle (1960) 53 Cal.2d 407, 412.
- California Penal Code 858 PC.
- California Penal Code 987 PC.
- California Penal Code 1043.5 PC.
- People v. Herrera (2006) 136 Cal.App.4th 1191, 1202.
- California Penal Code 865 PC.
- California Penal Code 866 PC.
- People v. Fierro (1991) 1 Cal.4th 173, 220.
- Brady 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.
- California Penal Code 1054.5 PC.
- California Penal Code 995 PC.
- California Penal Code 1538.5 PC.
- Pitchess v. Superior Court (1974) 11 Cal.3d 531.
- Fifth Amendment. See also California Penal Code sections 1387–1387.1 PC; California Penal Code 871.5 PC; People v. Farley (1971) 19 Cal.App.3d 215, 221.
- See notes 1 and 2.
- See also People v. Dominguez (2008) 166 Cal.App.4th 858, 866.
- California Penal Code 1303 PC.