Preliminary Hearing Information

Learn about your rights, the process and what to expect during your preliminary hearing
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What you need to know about Preliminary Hearings in Southern California

In Los Angeles, a preliminary hearing must take place whenever a person has been charged with a felony, unless that person has been indicted by a Grand Jury.  Grand Jury indictments in Los Angeles County and in virtually all other counties are rare and are usually reserved for complex cases, cases with political ramifications or extremely high profile cases. Unlike preliminary hearings, which are held in public, Grand Jury proceedings are held in secret and the results are not revealed in Los Angeles County until they are concluded and an indictment is issued. 

In all other cases in Los Angeles and in all other counties, the facts of the case are presented to a judge, sitting without a jury in a preliminary hearing.  Sometimes the judicial officer or Judge in a preliminary hearing is referred to as a magistrate; the technical name of a preliminary hearing is the preliminary examination.  Like the defendant, the public has a constitutional right to be present, with certain rare exceptions at all preliminary hearings.

In a preliminary hearing in Los Angeles and in all other counties, an accused is entitled to be present, to have a lawyer present and, with certain exceptions to cross examine the witnesses who testify against him or her at the preliminary hearing.  


In some limited situations, the accused is entitled to present witnesses and to put on an affirmative defense at a preliminary hearing in Los Angeles and all other counties.

Example One: For instance at a preliminary hearing a person charged with possession of a drug could present evidence that he had a prescription for the drug and could ask that the case be dismissed at the preliminary hearing upon proof of that fact. 

Example Two: A person charged with domestic violence could present witnesses that he or she acted in self defense and that the case should be dismissed at the preliminary hearing.

The right to present an affirmative defense or to negate an element of the charge or to impeach a prosecution witness are critical rights possessed by a defendant at the preliminary hearing.  

Many times however, the defense will not present witness at the preliminary hearing simply because the magistrate may say, “well I don’t know who is telling the truth here but I have a suspicion that the defendant committed the crime.”  Given those facts, the case will not be dismissed at the preliminary hearing and the defense will have needlessly disclosed  his or her defense prematurely.

Do you have questions? Please contact us for a free consultation at (213) 617-2307. We will respond to you right away.

When must the Preliminary Hearing take place?

A person accused of a felony in Los Angeles and in all other counties is entitled to a preliminary hearing within 10 court days of his or her arraignment.  The arraignment is usually held on the first day a person is brought to court when the formal charges are read and bail is set.  In Los Angeles if the District Attorney is unable to commence the preliminary Hearing within 10 court days, the defendant is entitled to be released without posting bail.  In Los Angeles County and all other counties this type of a release is referred to as an Own Recognizance or O.R. release where the defendant gives his promise to appear and bail is not required at the preliminary hearing. You may contact us for a free consultation by phone or in person.

What is the purpose of a Preliminary Hearing?

One of the purposes of the preliminary hearing is to weed out groundless or baseless cases and to eliminate the need for a person falsely charged to go through the expense and embarrassment of a criminal trial after the preliminary hearing.

In a preliminary hearing in Los Angeles County, the burden of proof rests exclusively with the prosecution.  The defense at a preliminary hearing has no burden of proof.  At the preliminary hearing the District Attorney must present evidence that establishes some evidence that a crime was committed and some evidence that the accused committed that crime.  The judge or magistrate at a preliminary hearing need only entertain a “suspicion”  that the defendant committed the crime and if he or she makes that finding of probable cause at the preliminary hearing then the defendant is “held to answer” at a later trial where the burden of proof is “beyond a reasonable doubt.”  Probable cause to be held to answer in non-legal language means that at the preliminary hearing the prosecutor has presented “sufficient facts to believe a crime may have been committed and that the defendant may have committed that crime.”  This preliminary hearing burden of proof is a far cry from a trial where the prosecution must prove the guilt of a person accused of a crime beyond a reasonable doubt.

Contact us for an absolutely free consultation by phone or in person. Just call us at (213) 617-2307 and we will answer all of your questions.

What are my rights at the Preliminary Hearing?

 At a preliminary hearing in Los Angeles and all other counties the defendant has a limited right to cross-examine the witnesses.  Sometimes however, at a preliminary hearing the prosecution might not be able to secure the attendance of a witnesses and if that is the case the prosecutor will be allowed to proceed with a so-called “Prop 115” preliminary hearing.  In a Proposition 115 preliminary hearing the District Attorney may call a qualified law enforcement officer to testify as to what a missing witness said outside the courtroom.  For instance, the victim of an armed robbery may be in a coma and therefore be unable to testify at the preliminary hearing.  In that case the investigating officer who interviewed the victim may testify at the preliminary hearing that the victim identified the defendant at a photo line up (a six pack of photos) as the culprit and told the officer that the person identified was the person that robbed him or her.  This is of course hearsay which is normally inadmissible because the actual witness cannot be cross examined in Court.  Nonetheless, this type of hearsay is admissible at a preliminary hearing if the police officer has been on the force for a sufficient amount of time and has successfully completed certain police department administered legal courses about testifying at a preliminary hearing. 

You may contact us for a free consultation by phone or in person. Just call (213) 617-2307 and you can speak with a lawyer right away.

What happens after the Preliminary Hearing?

At the conclusion of the preliminary hearing in Los Angeles County and all other counties the judge may dismiss the case or some of the charges or in some cases he may reduce the charge to a misdemeanor. 

Example One: An example might be a theft which is charged as a felony (grand theft) prior to the preliminary hearing.  If at the preliminary hearing, the District Attorney is unable to prove that the property stolen was worth more than $950 then the magistrate must dismiss the felony charge.  The prosecutor may of course proceed with a misdemeanor case but unless he can establish the value of the loss at more than $950 at the preliminary hearing the felony charges must be dismissed. 

Example Two: Another example would be a felony vandalism case (damages in excess of $400).  If the prosecutor cannot prove the damages are in excess of $400, the felony charges must be dismissed, but of course the prosecutor may proceed with a misdemeanor case.   

Example Three: Another example might be a possession of drugs  for sale case. If at the preliminary hearing, the prosecutor cannot prove that the defendant harbored a specific intent to sell the drugs, the charges would again have to be dropped although the prosecutor could proceed with a simple misdemeanor possession case which of course does not require a preliminary hearing.

What if I was unlawfully searched?

A person accused of a crime may contest the constitutionality of a search at the preliminary hearing in what is called a P.C. 1538.5.  This special hearing, the purpose of which is to suppress the evidence may be held during the preliminary hearing. 

Example: For instance an officer may claim in his police report that the defendant ran a stop sign and that when he approached the car to issue a ticket he saw a gun in the car that it was in plain sight – the officer didn’t even have to search for it.  We know based upon the report that the officer will testify at the preliminary hearing that the defendant ran a stop sign which gave him a legal justification to stop the car and issue a citation.  But the three passengers in the defendant’s car could testify at the preliminary hearing 1538.5 motion that the defendant did not run a stop sign and thus the stop was illegal and the evidence seized at the stop would have to be suppressed on constitutional grounds at the preliminary hearing.  Without the evidence the case would have to be dismissed at the preliminary hearing.

All of the testimony given at a preliminary hearing in Los Angeles and in all other counties in California are taken down by a court reporter.  If the defendant is held to answer after a preliminary hearing the reporter transcribes all of the testimony and court proceedings in a booklet called a preliminary hearing transcript.  The transcript of the preliminary hearing is a valuable tool at trial because the prosecution witnesses are committed to the version of the facts they testified to at the preliminary hearing and if they give contrary testimony at trial their truthfulness can become a major issue at trial.  A preliminary hearing is not, as argued by some, a technical and meaningless formality.  

The preliminary hearing is extremely important and is the only evidentiary hearing held in virtually all felony filings in Los Angeles and all other counties in California.  Moreover an aggressive presentation at a preliminary hearing may provoke a settlement offer that may be sought by the defense. 

If you or a loved one needs help or has questions with a preliminary hearing, call us for a free legal consultation in office or by phone.

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Vincent Oliver Law
Southern California Defense Lawyers
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Los Angeles, CA 90012

California Penal Code P.C. 1538.5 (PC 1538.5)

California Penal Code Section 1538.5

(a)

(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:

(A) The search or seizure without a warrant was unreasonable.

(B) The search or seizure with a warrant was unreasonable because any of the following apply:

(i) The warrant is insufficient on its face.   

(ii) The property or evidence obtained is not that described in the warrant.   

(iii) There was not probable cause for the issuance of the warrant.   

(iv) The method of execution of the warrant violated federal or state constitutional standards.   

(v) There was any other violation of federal or state constitutional standards.   

(2) A motion pursuant to paragraph (1) shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted.    

(b) When consistent with the procedures set forth in this section and subject to the provisions of Sections 170 to 170.6, inclusive, of the Code of Civil Procedure, the motion should first be heard by the magistrate who issued the search warrant if there is a warrant.

(c)

(1) Whenever a search or seizure motion is made in the superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion.   

(2) While a witness is under examination during a hearing pursuant to a search or seizure motion, the judge or magistrate shall, upon motion of either party, do any of the following:   

(A) Exclude all potential and actual witnesses who have not been examined.   

(B) Order the witnesses not to converse with each other until they are all examined.   

(C) Order, where feasible, that the witnesses be kept separated from each other until they are all examined.   

(D) Hold a hearing, on the record, to determine if the person sought to be excluded is, in fact, a person excludable under this section.   

(3) Either party may challenge the exclusion of any person under paragraph (2).    (4) Paragraph (2) does not apply to the investigating officer or the investigator for the defendant, nor does it apply to officers having custody of persons brought before the court.  

(d) If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, 1238, or 1466 are utilized by the people.

(e) If a search or seizure motion is granted at a trial, the property shall be returned upon order of the court unless it is otherwise subject to lawful detention. If the motion is granted at a special hearing, the property shall be returned upon order of the court only if, after the conclusion of any further proceedings authorized by this section, Section 1238 or 1466, the property is not subject to lawful detention or if the time for initiating the proceedings has expired, whichever occurs last. If the motion is granted at a preliminary hearing, the property shall be returned upon order of the court after 10 days unless the property is otherwise subject to lawful detention or unless, within that time, further proceedings authorized by this section, Section 871.5 or 1238 are utilized; if they are utilized, the property shall be returned only if, after the conclusion of the proceedings, the property is no longer subject to lawful detention.   

(f)

(1) If the property or evidence relates to a felony offense initiated by a complaint, the motion shall be made only upon filing of an information, except that the defendant may make the motion at the preliminary hearing, but the motion shall be restricted to evidence sought to be introduced by the people at the preliminary hearing.   

(2) The motion may be made at the preliminary examination only if, at least five court days before the date set for the preliminary examination, the defendant has filed and personally served on the people a written motion accompanied by a memorandum of points and authorities as required by paragraph (2) of subdivision (a). At the preliminary examination, the magistrate may grant the defendant a continuance for the purpose of filing the motion and serving the motion upon the people, at least five court days before resumption of the examination, upon a showing that the defendant or his or her attorney of record was not aware of the evidence or was not aware of the grounds for suppression before the preliminary examination.   

(3) Any written response by the people to the motion described in paragraph (2) shall be filed with the court and personally served on the defendant or his or her attorney of record at least two court days prior to the hearing at which the motion is to be made.   

(g) If the property or evidence relates to a misdemeanor complaint, the motion shall be made before trial and heard prior to trial at a special hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemeanor filed together with a felony, the procedure provided for a felony in this section and Sections 1238 and 1539 shall be applicable.   

(h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial.   

(i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time. Any written response by the people to the motion shall be filed with the court and personally served on the defendant or his or her attorney of record at least two court days prior to the hearing, unless the defendant is willing to waive a portion of this time. If the offense was initiated by indictment or if the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing. If the people object to the presentation of evidence at the special hearing on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determine that issue. The court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the court as to evidence or property not affected by evidence presented at the special hearing. After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.  

(j) If the property or evidence relates to a felony offense initiated by complaint and the defendant's motion for the return of the property or suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint or seek an indictment after the preliminary hearing, and the ruling at the prior hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). In the alternative, the people may move to reinstate the complaint, or those parts of the complaint for which the defendant was not held to answer, pursuant to Section 871.5. If the property or evidence relates to a felony offense initiated by complaint and the defendant's motion for the return or suppression of the property or evidence at the preliminary hearing is granted, and if the defendant is held to answer at the preliminary hearing, the ruling at the preliminary hearing shall be binding upon the people unless, upon notice to the defendant and the court in which the preliminary hearing was held and upon the filing of an information, the people, within 15 days after the preliminary hearing, request a special hearing, in which case the validity of the search or seizure shall be relitigated de novo on the basis of the evidence presented at the special hearing, and the defendant shall be entitled, as a matter of right, to a continuance of the special hearing for a period of time up to 30 days. The people may not request relitigation of the motion at a special hearing if the defendant's motion has been granted twice. If the defendant's motion is granted at a special hearing, the people, if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good cause at the trial why the evidence was not presented at the special hearing and why the prior ruling at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (o), unless the court, prior to the time the review is sought, has dismissed the case pursuant to Section 1385. If the case has been dismissed pursuant to Section 1385, either on the court's own motion or the motion of the people after the special hearing, the people may file a new complaint or seek an indictment after the special hearing, and the ruling at the special hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). If the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the superior court prior to trial, both the people and defendant shall have the right to appeal any decision of that court relating to that motion to the appellate division, in accordance with the California Rules of Court provisions governing appeals to the appellate division in criminal cases. If the people prosecute review by appeal or writ to decision, or any review thereof, in a felony or misdemeanor case, it shall be binding upon them.   

(k) If the defendant's motion to return property or suppress evidence is granted and the case is dismissed pursuant to Section 1385, or the people appeal in a misdemeanor case pursuant to subdivision (j), the defendant shall be released pursuant to Section 1318 if he or she is in custody and not returned to custody unless the proceedings are resumed in the trial court and he or she is lawfully ordered by the court to be returned to custody.    If the defendant's motion to return property or suppress evidence is granted and the people file a petition for writ of mandate or prohibition pursuant to subdivision (o) or a notice of intention to file a petition, the defendant shall be released pursuant to Section 1318, unless (1) he or she is charged with a capital offense in a case where the proof is evident and the presumption great, or (2) he or she is charged with a noncapital offense defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1, and the court orders that the defendant be discharged from actual custody upon bail.   

(l) If the defendant's motion to return property or suppress evidence is granted, the trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of this state of the proceedings provided for in this section, Section 871.5, 1238, or 1466 and, except upon stipulation of the parties, pending the time for the initiation of these proceedings. Upon the termination of these proceedings, the defendant shall be brought to trial as provided by Section 1382, and, subject to the provisions of Section 1382, whenever the people have sought and been denied appellate review pursuant to subdivision (o), the defendant shall be entitled to have the action dismissed if he or she is not brought to trial within 30 days of the date of the order that is the last denial of the petition. Nothing contained in this subdivision shall prohibit a court, at the same time as it rules upon the search and seizure motion, from dismissing a case pursuant to Section 1385 when the dismissal is upon the court's own motion and is based upon an order at the special hearing granting the defendant's motion to return property or suppress evidence. In a misdemeanor case, the defendant shall be entitled to a continuance of up to 30 days if he or she intends to file a motion to return property or suppress evidence and needs this time to prepare for the special hearing on the motion. In case of an appeal by the defendant in a misdemeanor case from the denial of the motion, he or she shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318. In the case of an appeal by the defendant in a misdemeanor case from the denial of the motion, the trial court may, in its discretion, order or deny a stay of further proceedings pending disposition of the appeal.   

(m) The proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.   

(n) This section establishes only the procedure for suppression of evidence and return of property, and does not establish or alter any substantive ground for suppression of evidence or return of property. Nothing contained in this section shall prohibit a person from making a motion, otherwise permitted by law, to return property, brought on the ground that the property obtained is protected by the free speech and press provisions of the United States and California Constitutions. Nothing in this section shall be construed as altering

(1) the law of standing to raise the issue of an unreasonable search or seizure;

(2) the law relating to the status of the person conducting the search or seizure;

(3) the law relating to the burden of proof regarding the search or seizure;

(4) the law relating to the reasonableness of a search or seizure regardless of any warrant that may have been utilized; or

(5) the procedure and law relating to a motion made pursuant to Section 871.5 or 995, or the procedures that may be initiated after the granting or denial of a motion.   

(o) Within 30 days after a defendant's motion is granted at a special hearing in a felony case, the people may file a petition for writ of mandate or prohibition in the court of appeal, seeking appellate review of the ruling regarding the search or seizure motion. If the trial of a criminal case is set for a date that is less than 30 days from the granting of a defendant's motion at a special hearing in a felony case, the people, if they have not filed a petition and wish to preserve their right to file a petition, shall file in the superior court on or before the trial date or within 10 days after the special hearing, whichever occurs last, a notice of intention to file a petition and shall serve a copy of the notice upon the defendant.   

(p) If a defendant's motion to return property or suppress evidence in a felony matter has been granted twice, the people may not file a new complaint or seek an indictment in order to relitigate the motion or relitigate the matter de novo at a special hearing as otherwise provided by subdivision (j), unless the people discover additional evidence relating to the motion that was not reasonably discoverable at the time of the second suppression hearing. Relitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.   

(q) The amendments to this section enacted in the 1997 portion of the 1997-98 Regular Session of the Legislature shall apply to all criminal proceedings conducted on or after January 1, 1998.
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