At the time the defendant appears before the magistrate for arraignment, if the public offense is a felony to which the defendant has not pleaded guilty in accordance with Section 859a, the magistrate, immediately upon the appearance of counsel, or if none appears, after waiting a reasonable time therefor as provided in Section 859, shall set a time for the examination of the case and shall allow not less than two days, excluding Sundays and holidays, for the district attorney and the defendant to prepare for the examination. The magistrate shall also issue subpoenas, duly subscribed, for witnesses within the state, required either by the prosecution or the defense.
Both the defendant and the people have the right to a preliminary examination at the earliest possible time, and unless both waive that right or good cause for a continuance is found as provided for in Section 1050, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later, or within 10 court days of the date criminal proceedings are reinstated pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2.
Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either of the following occur:
(a)The defendant personally waives his or her right to preliminary examination within the 10 court days.
(b)The prosecution establishes good cause for a continuance beyond the 10-court-day period.
For purposes of this subdivision, “good cause” includes, but is not limited to, those cases involving allegations that a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or in Section 11165.6 has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. Any continuance under this paragraph shall be limited to a maximum of three additional court days.
If the preliminary examination is set or continued beyond the 10-court-day period, the defendant shall be released pursuant to Section 1318 unless:
(1)The defendant requests the setting of continuance of the preliminary examination beyond the 10-court-day period.
(2)The defendant is charged with a capital offense in a cause where the proof is evident and the presumption great.
(3)A witness necessary for the preliminary examination is unavailable due to the actions of the defendant.
(4)The illness of counsel.
(5)The unexpected engagement of counsel in a jury trial.
(6)Unforeseen conflicts of interest which require appointment of new counsel.
The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, unless the defendant personally waives his or her right to a preliminary examination within the 60 days.
Notes of Decisions
Galindo v. Superior Court of Los Angeles Cnty., 235 P.3d 1 (Cal. 2010).
· cites it 4× “" (Pen. Code, § 859b, 2d par.) The purpose of the preliminary hearing is to determine whether there is probable cause to conclude that the defendant has committed the offense charged.”
Ng v. Superior Court, 840 P.2d 961 (Cal. 1992).
· cites it 2× “) Penal Code section 859b grants to a defendant "in custody" the right to a preliminary hearing within 10 court days.”
Simon v. City & Cnty. of San Francisco, 135 F.4th 784 (9th Cir. 2025).
“For example, in Standish, there was no discussion of the convenience or functionality of Cal. Penal Code § 859b’s requirement that cases be dismissed, or own recognizance granted, after a defendant remained in custody for ten days without preliminary examination.”
People v. Figueroa, 11 Cal. App. 5th 665 (Cal. Ct. App. 2017).
“” (Pen. Code, § 859b.) 1 And as part of the statutory scheme ensuring a defendant’s constitutional right to a speedy trial, “[t]he magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment, plea,…”
Stroud v. Superior Court, 4 P.3d 933 (Cal. 2000).
· cites it 2× “I, §§ 14 [arraignment without unnecessary delay], 15 [speedy trial]; Pen.Code, §§ 859b [preliminary examination within specified time after arraignment], 1050 [limit on postponement or continuance of criminal proceedings], 1382 [speedy trial].”
Ramos v. Superior Court, 2007 Cal. Daily Op. Serv. 387 (Cal. Ct. App. 2007).
“Penal Code section 859b 1 requires the magistrate to dismiss a felony complaint if a defendant’s preliminary hearing is not held within 60 days of the date of the arraignment, plea or reinstatement of criminal proceedings unless the defendant personally waives his or her right…”
Blake v. Superior Court, 108 Cal. App. 3d 244 (Cal. Ct. App. 1980).
· cites it 2× “Penal Code section 859b 1 has been held to provide an absolute right in favor of persons in custody charged with felonies to have a preliminary examination commenced within 10 court days after they have been arraigned.”
San Jose Mercury-News v. Mun. Court, 638 P.2d 655 (Cal. 1982).
“(Pen. Code, § 859b.) Often, therefore, it is impossible for defendant to make a showing that in his case prejudice is likely and closure justified.”
People v. Smith, 245 Cal. App. 4th 869 (Cal. Ct. App. 2016).
“) Smith was arraigned September 18, 2013, and some months later, after failing to meet the conditions of diversion, entered a plea of not guilty February 24, 2014, invoking his right to a preliminary hearing “at the earliest possible time” (Pen. Code, § 859b). To comply with…”
Simmons v. Mun. Court, 109 Cal. App. 3d 15 (Cal. Ct. App. 1980).
· cites it 2× “cessive proceedings after "discharge" or "dismissal" by the magistrate, does the 10-day requirement of Penal Code section 859 relate back to the first arraignment? Penal Code section 859b provides as follows: "At the time the defendant appears before the magistrate for…”
Moore v. Chrones, 687 F. Supp. 2d 1005 (C.D. Cal. 2010).
“) Thus, even if Petitioner’s factual allegations are accepted, he has not shown that any state law error occurred based on the prosecution’s re-filing of Counts 2 and 3, and the prosecution of those counts in Petitioner’s criminal proceeding.”
Cramer v. Gillermina R., 125 Cal. App. 3d 380 (Cal. Ct. App. 1981).
“Appellants contend that only an adversarial preliminary hearing akin to criminal proceedings (Pen. Code, § 859b) will deter erroneous decision making.”
— Cal. Penal Code § 859b(b) — 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.