Misdemeanors

In misdemeanor cases, when the defendant is in custody at the time of arraignment and pleads not guilty, he or she may challenge a lack of probable cause for arrest by means of a hearing under Penal Code § 991. This procedure is also known as a Walters hearing. Misdemeanor defendants in custody must receive notice of their right to the hearing.2 The hearing need not be noticed, and the motion may be made orally. In a Walters hearing, the magistrate, on motion of the defendant or counsel for the defendant, must determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty of it.3 The court may also rule on the legality of the detention or arrest.4 The probable cause determination must be made immediately unless the court grants a continuance for good cause, not to exceed three days.5 In determining the existence of probable cause, the magistrate must consider any warrant of arrest, supporting affidavits, and the sworn complaint, together with any documents or reports incorporated by reference.6 If the magistrate determines that probable cause exists, he or she must set the matter for trial. If no probable cause exists, the magistrate must dismiss the complaint and discharge the defendant.7 However, if there is probable cause for some charges and not for others, the court may dismiss individual charges from the complaint.8 The prosecution may also refile the complaint within 15 days of its dismissal under these provisions, but a second dismissal bars any other prosecution for the same offense.9 Comment: A motion to suppress evidence for an alleged Fourth Amendment violation cannot be raised at a Penal Code § 991 hearing.10 To secure such a determination, the defendant must use a motion under Penal Code § 1538.5.

In re Walters, 15 Cal. 3d 738, 126 Cal. Rptr. 239, 543 P.2d 607 (1975). 2 In re Walters, 15 Cal. 3d 738, 750, 126 Cal. Rptr. 239, 543 P.2d 607 (1975). 3 Penal Code § 991(a). 4 People v. Ward, 188 Cal. App. 3d Supp. 11, 235 Cal. Rptr. 287 (App. Dep't Super. Ct. 1986). 5 Penal Code § 991(b). 6 Penal Code § 991(c). 7 Penal Code § 991(d). 8 People v. McGowan, 242 Cal. App. 4th 377, 195 Cal. Rptr. 3d 312 (2d Dist. 2015). 9 Penal Code § 991(e). 10 Barajas v. Appellate Division of Superior Court, 40 Cal. App. 5th 944, 253 Cal. Rptr. 3d 641 (2d Dist. 2019), review denied, (Jan. 22, 2020).