Right to Preliminary Hearing in California Criminal Cases 

After an arraignment where an accused enters a plea of not guilty, the next critical phase of a felony case is the preliminary hearing. This hearing determines whether the prosecution has enough evidence to proceed to trial on the charges and is often the first real opportunity for the defense to test the strength of the government’s case. 

California law sets strict timelines for this hearing, and the choices made at this stage can shape the entire trajectory of a client’s case. 

This article explains the right to a preliminary hearing, the 10-day and 60-day rules, how continuances work, and the nature of a preliminary hearing. In many Bay Area courts, including San Francisco, San Jose, Palo Alto, San Mateo, and Marin, there may be several court date settings to discuss discovery, possible resolution, and readiness for the preliminary hearing. 

Preliminary Hearing

A preliminary hearing, often called a “prelim,” is a court proceeding in felony cases where a judge determines whether there is sufficient evidence to hold the accused to answer in the superior court on an Information. Pen. Code § 872. The prosecution carries the burden of proof by a probable cause standard, which is a significantly lower burden than at trial where it is beyond a reasonable doubt. Hearsay evidence is also permitted at a preliminary hearing.

At the preliminary hearing:

• The prosecution presents witnesses and evidence. The defense is permitted to present evidence but it is not required. 
• The defense has the right to cross-examine witnesses.
• The judge decides whether probable cause exists for each charge.

If the judge finds insufficient evidence, charges can be reduced or dismissed. If probable cause is found, the accused is “held to answer” and the case proceeds toward trial. In most cases where the charges were dismissed due to insufficient evidence, the prosecution can refile the charges once. 

The 10-Day Rule for Individuals in Custody

If the accused is in custody, California law requires that the preliminary hearing be held within 10 court days of arraignment, unless they personally waives time. Pen. Code § 859b.

Failure to hold the preliminary hearing within this timeframe, absent a valid waiver or good cause, requires the accused’s release from custody. See Benavides v. Sup. Ct. (2025) 117 Cal.App.5th 32 (case dismissed after preliminary hearing was not held within 10 court days.)

The 60-Day Rule for Out-of-Custody Cases

If the accused is out of custody, the preliminary hearing must be held within 60 calendar days of arraignment, unless time is waived. Pen. Code § 859b.

While the accused may not be incarcerated, the timeline still matters. Delay can prejudice the defense, weaken access to witnesses, and prolong uncertainty. Skilled counsel will assess whether to enforce or waive this deadline based on strategic considerations.

Waiving Time for Prelim: Strategic Considerations

You may waive the 10-day or 60-day deadline, and entering such a waiver requires weighing several competing needs, including a discussion with defense counsel relating to needs to:

• Obtain discovery
• Conduct investigation
• Engage in negotiations
• Prepare cross-examination
• Explore early resolution options

However, waiving time is not automatic or harmless. Each waiver extends the prosecution’s runway to further prepare and add charges, and may affect custody status, leverage, and trial strategy. In Bay Area courts, time waivers might seem common, but they should be done in an intentional, informed, and tactical manner. Every case requires a unique assessment by defense counsel to determine the best strategies and whether the benefits of waiving time outweigh drawbacks. 

The Preliminary Hearing as a Strategic Tool

The preliminary hearing is not merely a procedural step. It is often the first substantive testing of the prosecution’s case. A strong defense attorney uses the preliminary hearing to:

• Lock witnesses into sworn testimony
• Expose weaknesses, inconsistencies, and lack of foundation
• Narrow or eliminate charges
• Preserve impeachment material
• Create leverage for negotiation

In some cases, an effective preliminary hearing results in dismissal or significant charge reduction. In others, it becomes the foundation for a trial strategy. Every case is unique and a thoughtful defense approach to the preliminary hearing is of utmost importance. Weighing whether and when to set a matter for preliminary hearing is a critical decision because it also carries risks. It can sometimes lead to additional charges, allegations, or enhancements and some prosecutors are less likely to entertain plea bargaining after a preliminary hearing. 

What Happens After the Preliminary Hearing?

If the accused is “held to answer,” the case proceeds as follows:

1. Filing of the Information – the prosecution must file a formal charging document called an “Information” within 15 days after the accused is held to answer. Pen. Code § 739.
2. Arraignment on the Information – the accused is arraigned on the Information in court, where the formal charges are read, a plea is entered, and trial rights are reaffirmed.
3. Motion Practice – following arraignment on the Information, the defense may file a Penal Code § 995 motion to set aside the Information or certain charges based on lack of probable cause or legal defects from the preliminary hearing. Suppression motions under Penal Code § 1538.5 and Discovery motions, among others, may also be filed. 
4. Trial Setting and Readiness Conferences – the court sets trial dates and conducts readiness conferences to assess motion compliance, resolution efforts, and trial readiness.

If the accused is not “held to answer,” the case may be dismissed in its entirety. Note that the prosecution may refile the case, however, and go through the above process again. Alternatively, in some instances, the prosecution may bypass the preliminary hearing altogether by seeking a grand jury indictment. 

The Relationship Between Bail and the Preliminary Hearing

Custody status and preliminary hearing timing are closely linked. If an accused is in custody and the prosecution cannot proceed within the statutory timeframe, release is required. This creates leverage and can influence charging decisions, negotiation posture, and case strategy.

In Bay Area courts, where prosecutors increasingly seek detention and courts apply heightened scrutiny to bail, preliminary hearing deadlines are often a critical pressure point. See [ARTICLE ON BAIL AND ARRAIGNMENT LINK] (for an overview about bail and arraignment)

Why Early Defense Strategy Matters

The period between arraignment and the preliminary hearing is one of the most important phases of a felony case. Decisions made here affect custody status, trial posture, motion viability, negotiation leverage, and case outcome.

Experienced counsel will enforce statutory timelines where advantageous, use the preliminary hearing strategically rather than perfunctorily, preserve appellate issues, and position the case for advantageous plea terms, dismissal, reduction, or trial success. 

Conclusion
California law provides strong protections for those accused of crimes through strict preliminary hearing timelines and procedural safeguards. The 10-day and 60-day rules are substantive protections designed to prevent prolonged detention and ensure timely judicial oversight.

In San Francisco Bay Area courts, where white collar and other criminal cases are complex and stakes are high, early and strategic advocacy at the preliminary hearing stage can change the entire direction of a case.