Penal Code section 859b sets the deadline for a felony preliminary hearing, normally within 10 court days of arraignment, after at least two days to prepare. It does not govern video arraignment. Section 859 covers the felony arraignment itself, including the right to counsel. The authority to appear by video instead comes from a separate law, Penal Code section 977, whose current version runs until January 1, 2032.
What Penal Code 859 covers at a felony arraignment
Penal Code section 859 applies when a defendant is charged with a felony by a written complaint. At that first appearance, the magistrate must give the defendant a copy of the complaint, explain the right to counsel, ask whether the defendant wants a lawyer, and allow reasonable time to get one, and if the defendant wants a lawyer but cannot afford one, the court must assign counsel. This is the statute behind the counsel-and-rights part of a felony arraignment described in the firm's broader arraignment overview. Section 859 itself does not set the preliminary hearing deadline. That comes from section 859b.
What Penal Code 859b actually requires
Penal Code section 859b picks up once the defendant has appeared and not pleaded guilty. The magistrate sets a time for the preliminary examination and must allow the district attorney and the defense "not less than two days, excluding Sundays and holidays," to prepare. Both sides have a right to that hearing "at the earliest possible time," and unless both waive the right, or the court finds good cause for a continuance, the hearing must be held "within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later." What happens if that deadline passes depends on whether you are in custody, as explained below.
Where the video arraignment authority actually comes from
Neither section 859 nor section 859b mentions remote or video appearances. That authority is in Penal Code section 977, a separate statute covering a defendant's presence throughout a criminal case. For a misdemeanor, the defendant may appear through counsel, and if the defendant agrees, the arraignment, plea, and other proceedings except trials may be conducted remotely. The statute does require a defendant charged with a misdemeanor involving domestic violence to be present for arraignment and sentencing, and in a misdemeanor DUI case the court may order the defendant to be present for arraignment, plea, or sentencing.
For a felony, the defendant must be physically present at the arraignment, the plea, the preliminary hearing, the evidence portions of a trial, and sentencing, unless the defendant waives the right to be physically present. With that waiver, criminal proceedings may be conducted remotely, except that a defendant generally may not appear remotely for a jury or court trial, and a felony defendant generally may not appear remotely at sentencing. The court must find on the record that any waiver is knowing, voluntary, and intelligent, may still order a defendant to appear in person, and must require an in-person appearance when technology or audio problems prevent the hearing from being conducted properly and cannot be resolved in a reasonable time. Defense counsel does not have to be in the same place as the defendant if the technology allows private communication between them.
The current version of section 977 remains in effect until January 1, 2032. On that date a later version takes effect, and it still allows the initial appearance and arraignment of a defendant held in custody in the county, other than one indicted by a grand jury, to be conducted by two way audio and video communication. Confirm the current rules for remote appearances with the specific court before relying on one.
What happens if the deadline is missed
Section 859b treats custody differently. If you are in custody, the magistrate must dismiss the complaint when the hearing is set or continued beyond 10 court days and you have stayed in custody 10 or more court days solely on that complaint, unless you personally waived the time within those 10 court days or the prosecution shows good cause for a continuance, which is limited to three more court days. If the hearing is set beyond 10 court days, you must generally be released unless one of the exceptions listed in section 859b applies, such as your own request for the later date. Whether or not you are in custody, the complaint must be dismissed if the hearing is set or continued more than 60 days after the arraignment or plea, unless you personally waived that limit. A dismissal on this ground does not necessarily end the case for good. Prosecutors can often refile the same charge, subject to the limits in Penal Code section 1387, so a missed deadline is usually a procedural win rather than a final one.
Waiving the hearing versus waiving the deadline
Agreeing to move the hearing date is not the same as giving up the preliminary hearing itself. A time waiver under section 859b gives up the right to have the hearing within 10 court days, and a personal waiver can also take it past the 60 day outer limit, so the hearing still happens, just later. Giving up the hearing entirely, discussed in the companion answer Waiving a California Preliminary Hearing: What You Give Up, gives up the probable cause examination altogether, including the chance to cross examine witnesses at that stage. Read any proposed waiver form with your attorney before signing it, and ask specifically which of the two it actually covers.
What to do before your hearing date
Note the exact date the magistrate set, and whether you personally agreed to move it, since that record matters if the hearing later runs past 10 court days without a valid reason on file. If your citation or notice mentions a remote or video appearance, confirm with the clerk whether that option is offered under section 977 and whether it applies to your specific hearing type, since the rules differ by hearing and the current version of the statute changes on January 1, 2032. Bring any paperwork that shows the arraignment date, the plea entered, and the date set for the preliminary hearing, since the clock in section 859b runs from those exact dates. The Law Offices of David S. Chesley can review your case timeline with you.