(a) The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it. The postponement shall not be for more than 10 court days, unless either of the following occur:

(1) The defendant personally waives his or her right to a continuous preliminary examination.

Terms Used In California Penal Code 861

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Continuance: Putting off of a hearing ot trial until a later time.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • magistrate: signifies any one of the officers mentioned in Section 808. See California Penal Code 7

(2) The prosecution establishes good cause for a postponement beyond the 10-court-day period. If the magistrate postpones the preliminary examination beyond the 10-court-day period, and the defendant is in custody, the defendant shall be released pursuant to subdivision (b) of Section 859b.

(b) The preliminary examination shall not be postponed beyond 60 days from the date the motion to postpone the examination is granted, unless by consent or on motion of the defendant.

(c) Nothing in this section shall preclude the magistrate from interrupting the preliminary examination to conduct brief court matters so long as a substantial majority of the court’s time is devoted to the preliminary examination.

(d) A request for a continuance of the preliminary examination that is made by the defendant or his or her attorney of record for the purpose of filing a motion pursuant to paragraph (2) of subdivision (f) of Section 1538.5 shall be deemed a personal waiver of the defendant’s right to a continuous preliminary examination.

(Amended by Stats. 1997, Ch. 279, Sec. 2. Effective January 1, 1998.)

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