If you have been charged with a felony in Kern County, the preliminary hearing is the first time anyone outside the DA’s office looks at the evidence against you. It is not a trial. Nobody is found guilty. A judge decides one narrow question: is there enough to make you stand trial on this charge? What happens at a preliminary hearing in California is governed by a handful of Penal Code sections, and most of the surprises people get in that courtroom come from not knowing them. Here they are.
It only happens in felony cases
A preliminary hearing exists to decide whether there is probable cause to believe you committed a felony. Misdemeanor cases skip it entirely and go from arraignment to pretrial conferences and, if needed, trial. If you were charged with a misdemeanor and someone told you a prelim is coming, they are describing the wrong process.
For a felony, the sequence is: arraignment on the complaint, preliminary hearing, and then, if you are held to answer, arraignment again on a new charging document called the information. The difference between a felony and a misdemeanor in California decides whether you ever see this hearing at all.
The 10-day clock
Penal Code 859b sets the deadline, and it is one of the few procedural rules with real teeth.
- If you are in custody, the preliminary hearing must be held within 10 court days of your arraignment or plea. If the court sets it or continues it past that without your waiver, the complaint must be dismissed.
- In or out of custody, the hearing must be held within 60 days of arraignment unless you personally waive that right.
In practice most defendants waive time, because the defense wants discovery, a chance to negotiate, or an investigator’s report before cross-examining anyone. But the right belongs to you, not your lawyer, and in a case where the DA is not ready, insisting on the 10 days is a legitimate move. Discuss it before the arraignment, not after.
What actually happens in the room
Forget the courtroom drama version. A typical Kern County preliminary hearing at the Metropolitan Division on Truxtun Avenue runs like this.
One witness, usually an officer. Since Proposition 115 in 1990, Penal Code 872(b) lets a qualified law enforcement officer testify to what other people told them. The officer needs five years’ experience or a POST-certified course on testifying at prelims. So the victim and the civilian witnesses usually do not appear. An officer reads from the report, relays the statements, and describes the evidence. That is the prosecution’s case, and it can be enough.
Cross-examination. Your attorney gets to question that officer. This is where the hearing earns its keep. Inconsistencies in the report, gaps in what the officer actually saw versus what was relayed, and the basis for the stop or the search all come out here, under oath, months before trial.
Defense witnesses, with a catch. You can call witnesses, but only after your attorney makes an offer of proof and the magistrate agrees, in the court’s discretion, that the testimony would be reasonably likely to establish an affirmative defense, negate an element of the crime, or impeach a prosecution witness. That is Penal Code 866(a). The same section says the hearing “shall not be used for purposes of discovery,” so a judge will not let you call a witness just to find out what they would say. Most defendants call no one.
Argument and a ruling. Both sides argue briefly. The judge rules from the bench, usually within minutes.
There are no opening statements and no jury. Depending on the case, the whole thing takes between twenty minutes and a few hours.
The standard: sufficient cause
The judge is not deciding whether you are guilty. Under Penal Code 872(a), the question is whether a public offense was committed and whether there is “sufficient cause” to believe you committed it. Courts treat that as probable cause: enough to make a reasonable person strongly suspect you are guilty. It is well below beyond a reasonable doubt, and the judge does not weigh credibility the way a jury would.
That is why most prelims end with the defendant held to answer, and why the win at this stage is often not a dismissal but a narrowed charge, a locked-in version of the officer’s story, or a reason for the DA to improve the offer.
The three ways it ends
| Outcome | What it means | What happens next |
|---|---|---|
| Held to answer | The judge finds sufficient cause on some or all charges | Under Penal Code 739 the DA has 15 days to file the information. You are arraigned on it, and the case moves to the trial court |
| Dismissed | The judge finds no sufficient cause (Penal Code 871) | You are discharged. The DA can usually refile a felony once under Penal Code 1387; a second dismissal generally ends it, with limited exceptions |
| Reduced | The judge holds you to answer on a lesser offense, or reduces a wobbler to a misdemeanor | The case continues as a misdemeanor, with no further prelim |
Two details inside that table matter. First, the judge can hold you to answer on an offense different from the one charged if the evidence shows it, and the DA’s information can add any offense the prelim evidence supports. The charges can get worse at this stage, not just better. Second, on a wobbler, a charge the DA could have filed either way, the judge can reduce it to a misdemeanor at the prelim. Since January 1, 2026, Assembly Bill 321 lets that request be made at any point before trial, so a denial at the prelim is not the last word.
Should you waive the preliminary hearing?
Sometimes. A waiver can be part of a plea deal, where the DA offers a reduced charge in exchange for skipping the hearing. It can also make sense when the evidence is strong, the officer is experienced, and the hearing would only produce a clean transcript the DA can use later. The reasons to insist on it are the opposite: a weak case, an officer who did not see much firsthand, a search worth challenging, or a witness whose story has already changed once. The decision is yours, with advice. It is not a formality either way.
After the hearing: the PC 995 motion
If you are held to answer and your attorney believes the judge got it wrong, the remedy is a motion under Penal Code 995 in the trial court to set aside the information. It argues that you were not legally committed, or were committed without reasonable or probable cause. It is decided on the prelim transcript, which is one more reason the cross-examination matters: the record made that day is the only record the 995 judge will read.
Preliminary hearings in Kern County
Felony cases in Bakersfield are heard at the Kern County Superior Court Metropolitan Division, which has handled both felony and misdemeanor courtrooms since January 2022. If you are in custody at the Sheriff’s facility, the 10-court-day rule is counting from your arraignment date. If you are out, expect the hearing to be set within the 60 days unless you waive.
One local reality worth knowing: Kern County’s District Attorney has filed Prop 36 felonies at the highest rate in the state, which means more repeat-theft and drug-possession cases are now going through preliminary hearings than two years ago. In those cases the prelim is often the first place a defense lawyer can test whether the priors were properly pleaded, which is the whole basis for the felony.
A preliminary hearing is also different from the other hearing that lands people back in a felony courtroom, a probation revocation. That one has no prelim, a lower standard, and its own rules, and the two should not be confused if you are facing both at once; the probation violation process runs on a separate track.
Quick answers
Can charges be dropped at a preliminary hearing?
Yes. If the judge finds no sufficient cause, the complaint is dismissed under Penal Code 871. Dismissals are not common because the standard is low, but they happen when the officer cannot connect the defendant to the crime or the search falls apart. A dismissal at the prelim is different from charges being dropped earlier, which is covered in the post on whether charges can be dropped at an arraignment.
Does the victim have to testify at a preliminary hearing?
Usually not. Under Penal Code 872(b) a qualified officer can relay the victim’s statement, and in most Kern County prelims that is what happens.
What happens if the DA is not ready?
If you are in custody and have not waived time, the complaint must be dismissed if the hearing goes past 10 court days. The DA can refile, but you are released in the meantime, and the second filing counts toward the Penal Code 1387 limit.
How long after a preliminary hearing is the trial?
There is no fixed number. The information is filed within 15 days, you are arraigned on it, and the case moves into the trial court’s calendar. Most felony cases that go past the prelim still resolve by plea before a trial date.
Talk to a Bakersfield criminal defense attorney before the prelim
The preliminary hearing is the one chance before trial to put the officer under oath and lock in the story. Whether to waive it, what to ask, and whether to push the 10-day clock are decisions that have to be made before the arraignment. If you are facing felony charges in Kern County, contact the Law Office of David L. Faulkner for a free consultation.
