(a) Except as otherwise provided by this Section and § 45.45, in every case where a preliminary examination is required by §§ 1.15 and 1.17, such examination shall be held within the time set by the court pursuant to Subsection (b) to determine whether there is probable cause to believe that an offense has been committed and that the defendant has committed it. (b) The date for the preliminary examination shall be fixed by the court at the first appearance of the defendant. Such examination shall be held within a reasonable time following the first appearance, but in any event not later than: (1) the tenth day following the date of the first appearance of the defendant before such court if the defendant is held in custody without any provision for release, or is held in custody for failure to meet the conditions of release imposed, or is released from custody only during specified hours of the day; or (2) the twentieth day following the date of the first appearance if the defendant is released from custody under any condition other than a condition described in Subsection (b)(1). (c) Notwithstanding Subsection (b), with the consent of the defendant, the date fixed by the court for the preliminary examination may be a date later than that prescribed by Subsection (b), or may be continued one or more times to a date subsequent to the date initially fixed therefor. In the absence of such consent the date fixed for the preliminary examination may be a date later than that prescribed by Subsection (b), or may be continued to a date subsequent to the date initially fixed therefor, only upon the order of the court after a finding the extraordinary circumstances exist, and that the delay of the preliminary examination is indispensable to the interest of justice. (d) Except as provided by Subsections (e) and (f), a defendant who has not been accorded the preliminary examination required by Subsection (a) within the period of time fixed by the court in compliance with Subsections (b) and (c), shall be discharged from custody or from the requirement of bail or any other condition of release, without prejudice, however, to the institution of further criminal proceedings against him upon the charge upon which he was arrested. (e) No preliminary examination in compliance with Subsection (a) shall be required to be accorded a defendant, nor shall such defendant be discharged from custody or from the requirement of bail or any other condition or release pursuant to Subsection (d), if at any time prior to the first appearance of such person before the court or subsequent to the first appearance but prior to the date fixed for the preliminary examination pursuant to Subsections (b) and (c) an indictment is returned against him. (f) The defendant may waive the preliminary examination at any time after he has been advised of his rights pursuant to § 45.30 and upon such waiver the court shall hold the defendant to answer, and shall order the prosecuting attorney to file, within fifteen days after entry of the order, an information in the court charging the defendant with the offense charged by the complaint. 2025 NOTE: Reference to “Paragraph (1)” modified to “Subsection (b)(1)” pursuant to the authority of 1 GCA § 1606. NOTE: Section 45.50 is based on 18 U.S.C.A. § 3060 (1974). See also the second paragraph of Rule 5(c) of the Federal Rules of Criminal Procedure (as revised in 1972) and portions of former Rule 5 and former §§ 860, 861 and 872. See generally 8 Moore, Federal Practice § 5.03 (2d ed. 1974). It should be noted, however, that under the procedures
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provided by this Code, in felony cases only the return of an indictment, not the filing of an information, obviates the need for a preliminary examination. See B. Witkin, California Criminal Procedure Proceedings Before Trial § 132 (1963, Supp. 1973). An indictment may, of course, be returned before the defendant even makes his first appearance in which case, no right to a preliminary examination exists and one will never be scheduled. See Subsection (e). Subsection (f) is based on Subdivision (D) of former § 860. See also former § 872. It should be noted, however, that where a preliminary examination is waived, there is no provision in this section or elsewhere for holding an examination despite the waiver. For dismissal for failure to file within the time prescribed, see § 80.60.