A man is testifying in court while pointing, with another man holding a gavel seated beside him.
What is a Preliminary Hearing?

In the state of California, a preliminary hearing is a crucial phase in a felony case. It occurs when the prosecution and defense fail to reach a plea bargain, necessitating the progression of the case towards a Jury Trial. Essentially, a preliminary hearing serves as a condensed trial with distinct differences. Find out more about the significance and process of preliminary hearings in California’s felony cases.

What happens at a Preliminary Hearing?

During your Preliminary Hearing, the officers have the responsibility to present the factual details of your case that were conveyed to them. This is a distinct provision elucidated in Proposition 115, allowing officers to testify to hearsay statements made by another individual during the preliminary hearing. This provision was designed to minimize potential trauma by eliminating the need for victims to testify multiple times in court.

Under Proposition 115, an Officer can testify in court regarding their investigation and the information shared with them. However, officers are restricted to testifying only to one level of hearsay, meaning they cannot testify to information that a person heard from another person unless certain exceptions apply. During trial, witnesses and victims are required to appear in court and testify against you in order to establish your guilt.

It’s important to note that the general rules of evidence still apply, and your defense attorney can present arguments to exclude evidence, except for this specific exception regarding the hearsay rule. Typically, you do not testify at your preliminary hearing.

When does my Preliminary Happen?

During your initial Court Date, also known as the Arraignment, you have the right to have your Preliminary Hearing within 10 Court (business) days and conclude no later than 60 calendar days after that first Court Date. However, you can choose to waive this right if, for example, you are not in custody and your attorney is waiting for additional evidence to defend your case. In such instances, you must agree to waive this right before the Judge, allowing them to set a new hearing date. It is also important to note that a preliminary hearing may be postponed for valid reasons, such as the Prosecutor not providing necessary evidence. In such cases, your hearing can be rescheduled for a later date.

Once the first waiver is given, the preliminary hearing must occur within 60 calendar days of the subsequent Court Date. The 10-day requirement is no longer applicable once the waiver is made. Additionally, if there is a co-defendant involved, a preliminary hearing can be continued if there is good cause to do so. This applies to all individuals charged in the same case.

What does a Preliminary Hearing look like?

During a preliminary hearing, a judge assesses whether there is enough evidence to establish possible guilt for a crime. This standard is comparatively lower than at a jury trial, where guilt beyond a reasonable doubt must be proven. Consequently, if the prosecutor, with the testimony of their officer witness, demonstrates sufficient evidence of your guilt, the judge will “hold you to answer,” and you will be “bound over” to an arraignment on the information. At this stage, you can enter a not guilty plea, and your case progresses towards trial.

What can my attorney do at the Preliminary Hearing?

During a preliminary hearing, it is important to understand that the standard is relatively low. Consequently, it is unlikely that your entire case will be dismissed at this stage. The primary objective for the prosecutor is to establish sufficient evidence to move forward with the trial. This means that the evidence presented during the preliminary hearing is typically the bare minimum.

However, if you are facing wobbler offenses, which are charges that can potentially be reduced to misdemeanors, your attorney can argue for a reduction under PC 17(b) after the preliminary hearing. Your attorney would provide reasons based on the hearing to support this request.

Typically, no evidence is presented from the defense side during the preliminary hearing to avoid prematurely revealing your strategy. However, if the prosecutor fails to establish the required elements for a charge, your attorney can argue that there is insufficient evidence to proceed, potentially leading to the dismissal of the charges. It is worth noting that while not all charges can be dropped, it is common for some charges to either be dropped or reduced to misdemeanors under PC 17(b).

Given that the preliminary hearing primarily serves the prosecutor’s interests, one advantage for the defense is that your attorney can secure specific testimony from the officers, which cannot be contradicted or changed later. It is not necessary to directly challenge an officer’s statements during the preliminary hearing since it is not in front of a jury. It is more effective to reserve substantial arguments for the trial, allowing for a stronger confrontation. By doing so, you avoid giving the prosecutor and officer the opportunity to “fix” or explain any problematic testimonies or statements.

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 Rejecting plea bargains in a criminal case poses risks and potential consequences. While a well-performed Preliminary Hearing may encourage a Prosecutor to offer a better plea bargain either immediately after the hearing or during the Arraignment on the Information, it’s important to note that plea bargains may not always be presented on the day of the hearing. If you decline a plea bargain, there is a possibility that future offers may improve, but there is also a risk that they may become less favorable. As such, it’s crucial to assess the risks and consult with your Ontario Criminal Defense Attorney before rejecting any offers and proceeding to Trial.

What happens if my charges are dismissed at the Preliminary Hearing?

If the judge dismisses your charges at the end of the preliminary hearing, the District Attorney often refiles the criminal charges. However, there is a limit to the number of dismissals before the charges are ordered to be dismissed with prejudice, meaning they cannot be refiled. Therefore, the District Attorney does not approach a preliminary hearing as an unlimited opportunity to prosecute your case. Preliminary hearings are meticulously and strategically prosecuted by attorneys to establish the elements of the crime against you. That’s why it’s crucial to have an experienced criminal defense attorney by your side during this critical process.


If you are facing a felony charge, it is crucial to enlist the expertise of an experienced criminal defense attorney who can skillfully cross-examine the officer, present compelling arguments and objections, and preserve valuable impeachment information for use during Trial.

For assistance with felony cases, please contact Inland Empire Criminal Defense at 909-281-0465. Our office is conveniently located in Ontario.