Preliminary Hearings In Felony Cases

If you are charged with a felony offense in California, you are entitled to a preliminary hearing, which may also be referred to as a probable cause hearing.

Although probable cause is routinely found at these hearings and defendants bound over for trial on the charges, they can offer a prepared defendant in certain cases the opportunity to have charges dropped or dismissed or to at least learn what evidence the state has to support the criminal complaint.

When Are Preliminary Hearings Held?

When the prosecution files a felony complaint against you, an arraignment is scheduled either within 48 hours after your arrest if you are in custody or at a later time if you met bail or filed a bond.

If you entered a not guilty plea at the arraignment, the court under California Penal Code Section 859b must schedule a preliminary hearing within 10 days of the arraignment although most defendants, through their attorneys, can and will waive this time or the court may do so for good cause1.

In matters where you were indicted before a grand jury, no preliminary hearing is held. At a grand jury proceeding2, the prosecution need only present the evidence it chooses to indicate that a crime occurred and that you committed it. There are no defense attorneys present at these proceedings and no challenges to the evidence offered. In nearly every case, the grand jury will agree to whatever charges the prosecutor seeks.

What Happens At A Preliminary Hearing?

The preliminary hearing is held before a judge only.

There are only two issues that a judge considers at the hearing:

  1. Is there probable cause that a crime was committed?
  2. Is there enough probable cause to believe that you committed it?

Probable cause is a term of art. To establish probable cause, the evidence must only show that there are enough facts to convince a reasonable person that the crime occurred and that you are the culprit3. In California, it is defined as “ a state of facts that would lean a man of ordinary care and prudence to believe and consciously entertain an honest and strong suspicion that the person is guilty of a crime.”

The standard of proof in a preliminary hearing is not as high as at a criminal trial where the state must prove each element of the offense beyond a reasonable doubt or to a moral certainty. All the judge must discern is whether there is a rational basis for finding probable cause on all the elements of the offense. In other words, the evidence presented at the hearing need not be strong enough to sustain a conviction4. For this reason, some prosecutors may not present all the evidence on hand. Still, it gives the defense an opportunity to cross-examine witnesses and to use the hearing as a discovery tool to learn what evidence the state does possess, to observe the demeanor of witnesses and challenge their testimony.

All criminal offenses contain elements or what constitutes the crime and the prosecution must establish probable cause for each one. Some felony offenses may require proof of prior convictions, the use of a firearm in the commission of a crime or that special circumstances exist (police officer or public official was a victim). If probable cause is lacking on any of these particular elements, the court can reduce the offense to a misdemeanor.

You do have certain rights at a preliminary hearing:

  1. Right to be represented by a lawyer5.
  2. Right to be present at the preliminary hearing6
  3. Right to confront and cross-examine witnesses7
  4. Prosecution must present evidence other than your alleged out-of-court confession, if applicable
  5. Right to present witnesses in your own behalf8. (your witness’testimony must either support an affirmative defense, challenge an element of the crime or impeach the testimony of a state witness)

You do not have the right to discovery of evidence, incriminating and exculpatory, that the prosecutor has at this time unless the hearing is held more than 15 days after your attorney or the prosecution made a formal request for discovery from the other9.

Your attorney can also present certain motions at this hearing, including:

A Pitchess Motion is based on your allegations that the arresting police officer engaged in misconduct by using excessive force, fabricated evidence or performed some other illegal acts. Racial profiling is another example. This motion forces the prosecution to turn over the officer’s personnel file and evidence of such prior acts of misconduct by the subject officer. If granted, the court could either suppress certain evidence or dismiss the complaint.

The 1538.5 motion to suppress may only be submitted one time. Of course, if it is submitted and granted, then a key piece of incriminating evidence may be suppressed and the prosecution might have to drop the charges.

Can You Waive The Preliminary Hearing

You are permitted to waive the preliminary hearing and proceed directly to trial. There are strategic reasons why you or your attorney might consider such a tactic:

  • Fear of charges being added on or enhancments being disclosed at the hearing
  • Precluding the use of a transcript of a witness who will only be available to testify at the preliminary hearing.
  • Possibility that witnesses who testify at the hearing will not agree to be interviewed by the defense

Possible Outcomes Of The Preliminary Hearing

The most prevalent outcome of a preliminary hearing is that the judge finds probable cause to charge you. If so, then you will be held to answer for the charges and the matter is transferred within the next 15 days to trial court for all further proceedings10.

Other possible outcomes are:

  1. No probable cause is found and the court dismisses the charges. This could be on the court’s own findings and ruling or on your defense attorney’s Motion to Dismiss for lack of probable cause pursuant to PC 995.11
  2. Some of the charges might be dismissed for lack of probable cause but others might stand and you will be held to answer on the remaining ones.
  3. Evidence comes out during the hearing in which you are found to have committed other offenses for which you have not been charged or special circumstances or enhancing factors are uncovered. If so, the court can add those charges to the complaint or the prosecutor can do so.
  4. The judge could reduce any felony charges to a misdemeanor based on the lack of severity of the offense or absence of prior convictions by the defendant or other factors12. If it is a “wobbler” offense, or one that could have been charged as either a misdemeanor or a felony, that was reduced then the state may not re-file the charges as a felony without the court’s consent13.

What Happens After The Preliminary Hearing

Of course, if the court rules that there is no probable cause to charge you, then the charges are dismissed.

Should there be any remaining charges that are found to be supported by probable cause, then you are directed to the trial court for all future proceedings. If the court imposes additional charges based on evidence disclosed at the hearing, you will have to appear at an arraignment on those charges as well as on any remaining ones from the original complaint.

There are circumstances where the prosecution can elect to re-file the charges, usually on the basis of newly discovered evidence or evidence that was not presented at the preliminary hearing. A prosecutor may not re-file charges, however, if the court made a factual finding regarding a certain count as opposed to a legal one.

For instance, if the court found that a prosecution witness lacked credibility and the testimony was rejected, then that particular charge or count based on that testimony may not be re-filed. However, if the court ruled that the facts as presented were undisputed and did not constitute a crime, the state is not bound by the ruling and may elect to re-file.

In any event, the state can re-file the charges that were dismissed based on disputed facts or other evidence or on a motion to re-file the dismissed counts14. Double jeopardy is not a defense at this stage of the criminal process, which would prevent the state from charging you again for the same offense. It only applies when a jury has been empanelled or chosen. If a court trial, it applies when the first witness is sworn.

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  1. California Penal Code § 859b []
  2. California Penal Code § 682 []
  3. People v. Fischer, 49 Cal.2d 442, 446 [317 P.2d 967]. [“Reasonable cause has been generally defined to be such a state of facts as would lead 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.] “The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. []
  4. California Penal Code 872 -(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.” []
  5. California Penal Code 858(a) – When the defendant first appears for arraignment on a charge of having committed a public offense, the magistrate shall immediately inform the defendant of the charge against him or her, and of his or her right to the aid of counsel in every stage of the proceedings.” []
  6. California Penal Code 1043.5(a) – Except as otherwise provided in this section, the defendant in a preliminary hearing shall be personally present. []
  7. California Penal Code 865 – The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf. []
  8. California Penal Code 866(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. []
  9. California Penal Code 1054.5 []
  10. California Penal Code 739 []
  11. People v. Farley (1971) 19 Cal.App.3d 215, 221. []
  12. People v. Manning (1982) 133 Cal.App.3d 159, 166 []
  13. Malone v. Superior Court (1975) 47 Cal.App.3d 313, 318-319. []
  14. People v. Uhlemann (1973) 9 Cal.3d 662, 664.[” 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 refiling the same charges before another magistrate or seeking an indictment based upon those charges.”] []

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