The Criminal Process In California
I am criminal attorney Peter M. Liss and I have defended hundreds of clients just like you fight all types of criminal charges. While criminal lawyers like myself are well versed in the criminal justice system, I understand that the average person has no reason to know the ins and outs of the criminal process, meaning how the court system works in California. But if you have been accused of a crime, knowing more about the court process coming can help you better prepare and feel less anxious about the your criminal case. While your lawyer can answer any questions you may have about your case and what you should expect, here’s a basic overview of the California criminal court process.
The Investigation and Initiation
The criminal process starts out with the police discovering that a crime occurred and investigating the incident. In some cases, this may occur when they witness a crime, while other situations require them to uncover evidence and identify suspects for an incident that already occurred.
The Initial Detention
Police can detain you if they have a reasonable suspicion that you have broken a law in their presence, but they cannot stop you for longer than is necessary. The police may also speak to you at length if you consent, but you are free to leave. This is called a consensual encounter and doesn’t require the police to have any legal cause to contact you.
The Criminal Investigation
When police investigate you for a reported crime, you and your loved ones are not required to participate or cooperate in the investigation. Police may incorporate techniques such as audio surveillance, wiretaps, video surveillance and interviews to obtain evidence against you. They can call you on the phone, show up at your business or home or meet you in a public place. Before answering any questions, tell them you are invoking your constitutional right to remain silent and call your defense attorney.
The Actual Arrest
This is the first step of the California criminal process for many suspects. If probable cause connects you to one or more crimes, you may be arrested and taken to the police station. When you are arrested, the officer will usually read you your Miranda rights and then ask if you will be willing to talk to the police now that you have been informed of your rights. In these situations, always say “no” and insist on speaking to your lawyer. It is worth mentioning that if the police arrest you and do not question you, they do not need to read you your rights.
What to Know About Paying Bail
If you are booked in a county jail, you can be bailed out based on the local bail schedule, which is based on the state penal code and these bail amounts will stay the same until your arraignment, though for lower level offenses most people will be released without bail. When you have been released, immediately contact your lawyer so he can begin investigating your case, preparing for your arraignment and working to help you through the rest of the California criminal process.
Since the California Supreme Court ruled courts should look to alternatives to cash bail, expect most people facing charges for lower level offenses to pay zero bail and to see more individuals released at their arraignment on their own recognizance.
Not Everyone Investigated is Arrested
In some situations, suspects are not be arrested immediately but the police will refer the criminal cases to the District Attorney to decide whether to file charges. This is why anyone under investigation for a crime should contact a lawyer who may be able to persuade the prosecutors not to file or limit the charges against them while also protecting the rights of the accused during this critical investigation period.
The Criminal Arraignment
If charges are filed and you are out of custody, you may receive a notify letter telling you to appear in court for an arraignment. This is the first step of the criminal process that involves the suspect or his or her attorney needing to appear in court. In some cases, the District Attorney will obtain an arrest warrant rather than sending a notify letter. If you fail to appear at the appointed arraignment time, a bench warrant will be issued for your arrest.
When is the Arraignment?
If you are in custody, your arraignment will occur within three days, excluding weekends and holidays. If you were bailed out or not put in custody, this procedure will generally be scheduled within a week of the arrest for felonies and after a month for misdemeanors.
Do You Need Attend the Arraignment?
In most misdemeanor cases, except domestic violence, your lawyer can appear without you. If your criminal case involves involving domestic violence or felony-level crimes, you must appear in person.
Formal Presentation of Charges
At the arraignment, the charges against you will be officially presented. In many cases, these will be different than the ones you were originally arrested for. In fact, the prosecutor can choose not to file charges at all at the arraignment and wait up to a year to file them for a misdemeanor or three years for a felony. In criminal cases involving murder, the case can be formally filed at any time as there are no statute of limitations for this crime. If you are in custody and the prosecutor chooses not to file at this time, you must be released.
Entering of the Plea
During the arraignment, you will be asked to enter a plea and state if you are guilty or not guilty. In some cases involving minor crimes, when the defendant pleads his guilt at the arraignment, the judge decides on his sentence right then and there or his attorney may make a sentencing agreement with the prosecution. When these happen, the criminal court process will be dramatically sped up to the point where the case is essentially closed.
Making Bail Adjustments
If you remain in custody, your defense attorney can negotiate for your bail to be reduced or for you to be released on your own recognizance. Alternatively, the prosecutor may argue that your bail may need to be increased. The judge will make these decisions based on whether or not she believes you are a “flight risk” or a public safety concern.
Scheduling Future Proceedings
At the end of the procedure, a date will be set for your readiness conference and if you have been charged with a felony, your preliminary hearing date will be scheduled as well.
The Readiness Conference
At this stage of the proceedings, your attorney will negotiate with the prosecutor and judge regarding reducing the charges, dismissing the case and lowering the sentence. Essentially, the conference is a plea bargaining hearing. At a readiness hearing in California, your lawyer will present the prosecution and judge with information for them to consider in your case. Everything from evidence proving your innocence to letters confirming your character can be important at this stage. If things are not settled at this stage and you are facing felony charges, you will have a preliminary hearing.
The Preliminary Hearing
If a felony case is not settled at a readiness conference, the next stage of the criminal court process is a preliminary hearing. After listening to testimony from the police, witnesses and alleged victims, the judge will decide if there is enough evidence to hold you for the crimes you have been charged with or if your felony case should be reduced to a misdemeanor. This option is only possible if the felony charge is what’s known as a “wobbler,” meaning it can be charged as either a felony or misdemeanor.
This hearing is NOT a trial and the prosecution will not be expected to prove the case beyond a reasonable doubt, but just to show that there is enough suspicion on you for you to be charged. Your criminal lawyer will be able to present witnesses on your behalf and cross examine the prosecution’s witnesses to prove that there is not enough evidence for you to be charged. You may opt to waive your right to a preliminary hearing if you choose to.
The Post-Preliminary Hearing Arraignment and Pretrial Conferences
At this point in a felony-level case, the prosecutor will file information detailing the criminal offenses the judge has held you to answer. This will generally take place immediately after the preliminary hearing and will involve your entering your plea on the charges the judge found probable cause to hold you on. Dates will be scheduled for further readiness conferences, motion cutoffs and the jury trial itself.
Plea Bargains and Negotiations
Up until the trial, your attorney should be working to negotiate with the prosecutors and judge at pretrial meetings in order to help resolve your case before the trial. Sometimes this will involve your being charged with a less serious crime, other times, it will mean a less severe punishment. In certain situations, your criminal attorney may even be able to get some of the charges against you dismissed.
This is also when your lawyer will likely file pre-trial motions to help you and your case. These can include anything from a motion to dismiss to motions to change venue or motions to withhold evidence from the case.
The Grand Jury Proceedings
In some situations where someone has been accused of felony-level crimes, the defendant will not go through will not go through a preliminary hearing but instead will be indicted by a grand jury. When this happens, the prosecutor will convene a grand jury and present the evidence they have against the suspect of a crime (as well as any evidence they have indicating the person is innocent). It will then be up to the grand jury to determine if there is enough evidence to warrant an arrest.
After the defendant has been charged by indictment from a grand jury, the court will still set an arraignment, readiness conference, pre-trial motions and a jury trial. Basically the grand jury indictment replaces having a preliminary hearing magistrate find sufficient evidence to warrant a trial.
It is important to recognize that grand jury proceedings are NOT trials. In fact, in most cases, the defendants in these proceedings have no idea they are being charged with a crime and even if they are aware, they cannot represent themselves in front of the grand jury. These proceedings are held in secret and not open to the public. Also, the grand jury does not need to vote unanimously, instead, 12 of the 19 jurors must vote for indictment.If the grand jury agrees that an indictment is warranted, only then will the defendant be arrested and formally charged with a crime.
Grand jury proceedings are particularly rare in San Diego, though they do still occur on occasion.
The Criminal Jury Trial
If your case is not settled before the trial date, your lawyer will need to appear in court. While you have the right to a speedy trial, realistically most people are willing to waive this right so they can better prepare for their court hearings and trial.
When are Trials Scheduled?
In misdemeanor cases, if you do not waive your right to a speedy trial, the trial will generally occur within 30 days of the arrest for those in custody and 45 days for those who aren’t. Although your attorney can appear at trial without you on non-domestic violence misdemeanors unless required by the judge, most defendants want the jury to see them participating and present for their own trial.
In felony cases, if you do not waive your right to a speedy trial, the trial will generally be scheduled within 60 days of the post-preliminary hearing arraignment. All felony cases and misdemeanor cases involving domestic violence require the defendant to appear in person.
What Happens in a Criminal Jury Trial?
The first trial procedures will involve the selection of a jury by the prosecutors and your criminal attorneys. Local residents will make up a jury pool and it is up to your lawyer and the prosecutor to select twelve impartial jurors from the pool. Once this is complete, the trial will take anywhere from one day to whole months before the jury reaches a verdict depending on the specific case and its complexity.
Most trials will involve pretrial motions, opening statements, the introduction of evidence, presentation of witnesses and expert testimony, cross examination of the witnesses and experts and closing arguments. Remember that it is up to the prosecution to prove your guilt beyond a reasonable doubt to all twelve jurors. If they cannot meet this burden, you will be found not guilty.
What Happens When the Jury Doesn’t Agree?
If the jury cannot make a unanimous decision, a mistrial or hung jury may be declared. When this happens, you case may be dropped or settled more easily. The prosecution does have the option of retrying the case if an agreement cannot be reached, restarting this step of the criminal court process.
If you plead guilty or the jury convicts you, you will then be sentenced for the crime. In misdemeanor cases, this usually occurs at the time your case is settled or at the trial. You may be placed on probation, sentenced to jail time and/or be ordered to pay a fine.
The Sentencing Hearing
In felony cases, the sentencing hearing is scheduled approximately 30 days after the trial or case settlement date so the probation department can prepare a report to provide a recommendation to the judge.
How are Sentences Decided?
At the hearing, your attorney will argue for the lowest possible punishment while the prosecution will generally argue for a higher sentence. When a plea bargain was made between the defense and the prosecution, then the maximum sentence may already be agreed upon by the prosecutor or judge.
In some cases, the exact sentence may already be agreed upon as a condition of the plea bargain. This is known as a stipulated sentence. If you were found guilty at the trial, then no plea agreement has been put in place and you could receive the maximum sentence for the crime you have been convicted of.
Common Sentencing Options in California
Felony punishments can range from formal probation to jail time to a stay in state prison. Occasionally, you may receive a sentencing alternative such as a residential drug treatment program, counseling, work furlough or community service. These programs often require an extra push from your lawyer. The judge has a wide variety of options when it comes to sentencing and in most cases, the sentence is not subject to appeals unless it is considered unreasonable when compared with the severity of the crime.
Post-Conviction Appeals and Motions for New Trials
If you plead guilty, it is very difficult to either appeal or withdraw your plea. You waive your right to appeal most issues when you plead guilty and judges rarely allow withdrawal of pleas with the exception of getting inadequate information about the consequences of a guilty plea. After a trial, a defendant may appeal any legal error by the lawyers or judges during a trial. Appeals in criminal trials, however, are rarely successful, and verdicts are rarely reversed, usually because of arcane sentencing rules.
Modifications and Reductions
If you have complied with your probation for a lengthy period of time and then become unable to fulfill a condition of the sentence due to a change in your circumstance, you can request the judge to modify your probation. In some cases, the judge may even be willing to terminate your probation. You may also be able to petition the judge to reduce your felony conviction to a misdemeanor if you have completed your probation.
If you have already completed your probation, you may qualify for an expungement, which will allow you to have the criminal offense removed from your record. This can be particularly helpful for those seeking employment or housing, as persons performing a background check on you will no longer know you were convicted of a crime.
In rare circumstances, a judge may even be willing to terminate your probation early and expunge your conviction.