Waiving the preliminary hearing gives up the probable-cause examination itself. Waiving time usually means agreeing to hold that examination later. Read the exact proposed waiver with your lawyer and ask what the court will enter; do not assume that a delay waiver gives up the hearing.
At a California felony preliminary hearing, the magistrate considers whether there is sufficient cause to hold the defendant to answer. It is an evidence-screening step, not a trial or a finding of guilt. (Penal Code §872(a); California Courts, Pretrial.) The firm’s preliminary-hearing overview explains the hearing more broadly; this guide focuses on what a particular waiver gives up.
Compare the two kinds of waiver
| What the document or lawyer says | What it generally concerns | What to verify before agreeing |
|---|---|---|
| “Waive time” or “continue the preliminary hearing” | The date for the examination. Penal Code §859b generally calls for the examination within 10 court days after arraignment or plea, whichever is later, unless both sides waive the earliest examination right or good cause supports a different date. A separate 60-day rule applies to setting or continuing the examination beyond that period unless the defendant personally waives that right. | Which deadline is being waived, the new date, whether the waiver is personal, and what the court will record. Ask counsel to check the complaint, custody status, prior waivers, and current minute order. (Penal Code §859b.) |
| “Waive the preliminary hearing” | The examination itself. There may be no preliminary-hearing testimony or probable-cause ruling before the case proceeds to the next charging stage. | Whether the proposal also includes a plea, what the prosecutor has offered, and what steps follow. A hearing waiver alone does not tell you what plea, charge, or later filing the court will accept. |
| “Waive the right to a continuous preliminary examination” after the examination has started | A separate continuous-hearing timing issue under §861. | Whether the hearing has begun and precisely what period or continuation the proposed waiver covers. This is not the same as giving up the entire examination. (Penal Code §861.) |
The timing rules have specific conditions. Section 859b addresses a defendant held solely on the complaint for at least 10 court days, a defendant’s personal waiver of the 10-day right, good cause, and circumstances affecting release. The 60-day provision also has its own trigger and personal-waiver language. Those rules do not mean that refusing a proposed waiver automatically dismisses a case or guarantees release. Counsel should apply the statute to the dates, custody basis, and record in the individual case. (Penal Code §859b.)
Before you sign or say yes
Ask your lawyer to review the proposed wording alongside the complaint, hearing notice, custody status, and any earlier waiver. If the proposal is described only as “waiving time,” ask which deadline and new date it covers. If it waives the hearing, ask what the court will enter and what next proceeding is expected. A guilty or no-contest plea is a separate decision. Penal Code §859a describes a plea route before examination; waiving the hearing does not itself enter that plea. (Penal Code §859a.)
It may also help to ask what evidence and witnesses could be examined at the hearing, what discovery remains, and whether any offer depends on the waiver. These questions help identify the decision in front of you; they do not predict what testimony will be allowed or what the prosecutor or court will do.
After the court acts
Get the minute order or other record of the hearing. Check that it reflects the decision you understood: the hearing waived, a timing waiver, or a continued hearing; the date or next setting; and any separate plea or order. If the record does not match what you understood, raise that promptly with counsel.
The Law Offices of David S. Chesley can review the proposed waiver, hearing notice, and current case record. Call (800) 755-5174.