A preliminary hearing is the most important pretrial proceeding in any California felony case. It is the point at which the prosecution must show — for the first time, on the record, in open court — that it has enough evidence to require the defendant to face trial. It is also one of the few opportunities the defense has to test the prosecution’s evidence before trial, lock in witness testimony, and create the record that supports later motions and ultimately the defense at trial. For a defendant in custody, the preliminary hearing happens within 10 days of arraignment. For a defendant out of custody, generally within 60 days. The Law Office of Nic Cocis represents felony defendants at preliminary hearings throughout Murrieta, Temecula, Menifee, Lake Elsinore, Wildomar, Winchester, Canyon Lake, and French Valley — at the Southwest Justice Center in Murrieta.
When a Preliminary Hearing Happens — and When It Doesn’t
A preliminary hearing is required only in felony cases. Misdemeanor cases proceed from arraignment directly to pretrial conferences and trial without a preliminary hearing. If you are charged with a misdemeanor — DUI, simple battery, petty theft, or any other misdemeanor — there is no preliminary hearing on the way to trial.
For felony cases, the preliminary hearing occurs after the arraignment, where the defendant is formally advised of the charges and enters an initial plea. The court then schedules the preliminary hearing.
The 10-Day Rule Under Penal Code § 859b
California Penal Code § 859b sets the timing of the preliminary hearing. The rules are different depending on whether the defendant is in custody:
In-custody defendants have an absolute right to a preliminary hearing within 10 court days of arraignment. The 10-day right is among the strongest procedural protections in California criminal law. A defendant who is in custody and does not have a preliminary hearing within 10 days of arraignment is generally entitled to dismissal of the charges (subject to specific exceptions in the statute).
Out-of-custody defendants generally must have a preliminary hearing within 60 days of arraignment, but the 10-day rule still applies if the defendant demands it. A defendant who has been released on bail can choose to invoke the 10-day right or to waive time and allow more preparation.
In practice, many defendants — even those in custody — waive the 10-day right to allow the defense more time to review discovery, file motions, and prepare. Waiving time is a strategic decision, not an automatic one, and should not be made without an attorney’s advice. Waiving time can be the right call when the defense needs more preparation. It can be the wrong call when the prosecution’s case is weak and time pressure could result in dismissal.
The Probable Cause Standard
The single most important thing to understand about a preliminary hearing is the standard of proof. It is not “beyond a reasonable doubt.” That standard applies at trial, not at the preliminary hearing.
At the preliminary hearing, the magistrate (the judge presiding) decides whether there is “sufficient cause” — a standard generally described as a “reasonable likelihood” or “strong suspicion” — to believe that a crime was committed and that the defendant committed it. This standard is substantially lower than the trial standard. Evidence that would not convince a jury at trial can be sufficient to bind a defendant over at preliminary hearing.
Many defendants arrive at the preliminary hearing expecting a mini-trial and are surprised when the magistrate finds probable cause despite what they perceive as weak evidence. The preliminary hearing is not the place to win the case in most circumstances. It is the place to learn the prosecution’s case, lock in witness testimony, and prepare for later motions and trial.
Proposition 115 Hearsay — Why Most Witnesses Don’t Show Up
Before California voters passed Proposition 115 in 1990, preliminary hearings often featured live testimony from every prosecution witness — the alleged victim, eyewitnesses, forensic experts, and the investigating officers. Defense counsel could cross-examine all of them. Prop 115 substantially changed that.
Under Prop 115 and its implementing legislation, a qualified law enforcement officer can testify at the preliminary hearing about what witnesses told the officer. The actual witnesses — including the alleged victim — typically do not appear. The officer summarizes their statements as hearsay testimony, and the defense cross-examines the officer rather than the underlying witnesses.
This shapes preliminary hearing strategy in several ways:
- Cross-examination is of the officer’s report and recollection, not of the witness’s own credibility, demeanor, or memory
- Inconsistencies between the officer’s testimony and the underlying reports can be exposed
- Witness preparation issues that would emerge at trial are not typically tested at the preliminary hearing
- The defense gets a preview of the prosecution’s case without seeing the actual witnesses
There are limits. The qualified officer must have personal knowledge of the investigation. Pure hearsay-on-hearsay is not always admissible. And the defense retains the right to call witnesses, including the actual witnesses where their testimony is necessary. But the default in most California preliminary hearings is officer hearsay testimony, not live witnesses.
What Happens During the Hearing
The preliminary hearing follows a structured format under Penal Code § 866 and related sections:
1. The prosecution presents its evidence. Typically a law enforcement officer testifies under the Prop 115 framework, summarizing the investigation and the statements of relevant witnesses. Documentary evidence — police reports, photographs, video, recovered items — is introduced. In specialized cases, forensic experts (DUI breath/blood test analysts, sexual assault nurse examiners, computer forensic examiners) may testify directly.
2. The defense cross-examines. The scope of cross-examination at a preliminary hearing is more limited than at trial — questions must be relevant to the probable cause determination, not to issues that will be tried later. Within that limit, effective cross-examination can:
- Expose inconsistencies in the officer’s testimony
- Lock in the officer’s account so it cannot change at trial
- Identify weaknesses for trial impeachment
- Surface chain-of-custody and search-and-seizure issues that may support pretrial motions
3. The defense may present evidence. The defense has the right to call witnesses and introduce evidence, but typically does not. Doing so can preview the trial strategy to the prosecution, lock in defense witness testimony before adequate preparation, and waive procedural protections. The decision whether to present any defense evidence at the preliminary hearing is one of the more important strategic calls in a case.
4. The defendant has the right to testify. Almost always, defendants do not. Testifying at the preliminary hearing risks creating sworn statements that can be used for impeachment at trial. The right exists; exercising it requires careful consideration.
5. The magistrate decides. After the evidence is presented, the magistrate makes findings on each charge and announces the result.
The Three Possible Outcomes
Held to answer — Penal Code § 872. The most common outcome. The magistrate finds probable cause and orders the defendant to answer the charges in superior court. The case proceeds toward trial.
Dismissal — Penal Code § 871. The magistrate finds insufficient evidence on one or more charges and dismisses them. Dismissal at preliminary hearing is meaningful but does not always end the case — the prosecution can refile in certain circumstances, particularly where the dismissal was based on a missing element rather than factual insufficiency.
Reduction — Penal Code § 866.5 or PC § 17(b)(5). The magistrate finds probable cause but only as to a lesser offense. A felony charge can be reduced to a misdemeanor at preliminary hearing under PC § 17(b)(5) when the underlying offense is a wobbler and the evidence supports only misdemeanor exposure. This is one of the most valuable possible outcomes for a defense — a felony exposure is eliminated without trial.
The Post-Prelim Motion: Penal Code § 995
After the preliminary hearing, if the defendant has been held to answer, the defense has the option to file a motion under Penal Code § 995 to set aside the information. This motion asks the superior court (not the magistrate who presided at the prelim) to review the preliminary hearing record and determine whether the magistrate’s holding order was supported by sufficient evidence.
A successful § 995 motion can result in dismissal of one or more charges. The motion is heard on the existing record of the preliminary hearing — no new evidence is presented. This makes the quality of the defense work at the preliminary hearing itself critical: a focused, well-prepared preliminary hearing that exposes evidentiary weaknesses creates the record on which a § 995 motion can succeed. A perfunctory preliminary hearing creates a perfunctory record.
The § 995 motion is one of the most important defense tools in California felony practice, and it is directly tied to how the preliminary hearing is handled.
Strategic Decisions at the Preliminary Hearing
The decisions a defense attorney makes leading into and during a preliminary hearing shape the entire trajectory of a felony case. The most important include:
- Whether to “take the prelim” or waive it. In some cases, the prosecution offers favorable resolutions in exchange for waiving the preliminary hearing. Whether to accept depends on the strength of the evidence, the plea offer, and the realistic trial exposure.
- Whether to waive time. Pressing for the 10-day prelim can create pressure on a prosecution that is not ready. Waiving time can be the right call when the defense needs more preparation.
- Cross-examination strategy. Whether to keep questioning narrow (preserving surprise for trial) or broad (locking in testimony and creating impeachment material).
- Pretrial motion practice. Some motions — particularly Penal Code § 1538.5 motions to suppress evidence — are often heard alongside or in conjunction with the preliminary hearing.
- Plea negotiation. Many cases resolve in the days immediately before or after the preliminary hearing, when both sides have a clearer picture of the evidence.
These decisions are not formulaic. They depend on the specific case, the specific evidence, and the specific judge.
How Preliminary Hearings Work at the Southwest Justice Center
Felony preliminary hearings for cases arising in Southwest Riverside County are held at the Southwest Justice Center at 30755-D Auld Road in Murrieta. Cases originating with arrests by the Murrieta Police Department, Temecula Police Department, or the Riverside County Sheriff’s stations serving Lake Elsinore, Wildomar, Canyon Lake, Menifee, Winchester, or French Valley all route through the same courthouse.
The Riverside County District Attorney’s Office assigns deputy district attorneys to specific case types — sex crimes, gang cases, white-collar matters — and the prosecutor who appears at the preliminary hearing is often the prosecutor who will try the case. This means the preliminary hearing is the defense’s first direct look at the actual trial prosecutor’s approach, witness handling, and case theory. It is information that has substantial value through the rest of the case.
Talk With a Riverside County Defense Attorney
If you are facing a felony charge in Murrieta, Temecula, Menifee, Lake Elsinore, Wildomar, Winchester, Canyon Lake, or French Valley, the preliminary hearing is not a procedural formality. It is the point where the defense’s strategic decisions begin to determine the outcome of the case. The quality of representation at the preliminary hearing shapes everything that comes after — pretrial motions, plea negotiations, and trial.
Learn more about attorney Nic Cocis and his 25+ years of trial experience defending Riverside County criminal cases.
Initial consultations are free and confidential. Call (951) 400-4357 today, or use the contact form below to schedule a consultation directly with attorney Nic Cocis.
