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 me 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. But if you’re facing criminal charges, knowing more about what’s coming can help you better prepare and feel less anxious about the process. While your attorney can answer any questions you may have about your case and what you should expect, here’s an overview of the criminal process.
Better Understanding The Criminal Process in California
The Initial Detention
Police can detain you if they have a reasonable suspicion that you have committed a crime 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, 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 attorney.
The Actual Arrest
This is the first step of the criminal process for many suspects. If probable cause connects you to a crime, 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 of 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.
If you are booked in a county jail, you can be bailed out based on the local bail schedule, which will stay the same until your arraignment. If you have been bailed out, 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 criminal process.
In some cases, you will not be arrested immediately but the police will refer the case to the District Attorney to decide whether to charge you with a crime. You should immediately contact an attorney who can try to persuade the prosecutors not to file or limit the charges against you.
The Criminal Arraignment
If charges are filed, 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 court appearance. 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.
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, the arraignment will generally be scheduled within a week of the arrest for felonies and after a month for misdemeanors.
At the arraignment, the charges against you will be officially presented. In many cases, these official charges 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 the case of murder charges, charges can be brought up at any time as there are no statute of limitations in these situations. If you are in custody and the prosecutor chooses not to file charges, you must be released.
You should always contact a skilled lawyer after you have been arrested, whether you are placed in custody or not. Your criminal lawyer can argue with the district attorney before your arraignment to have your charges lowered or dropped. If you remain in custody, he can also negotiate for your bail to be reduced or for you to be released on your own recognizance. In most misdemeanor cases, except domestic violence, your lawyer can appear at the arraignment without you. In cases involving domestic violence or felony charges, you must appear in person.
At the end of the procedure, a date will be set for your readiness conference and if you are facing felony charges, your preliminary hearing date will be scheduled as well. In some cases, the judge may consider changing your bail or releasing you, based on whether or not you are a “flight risk” or a public safety concern.
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 the readiness conference, your lawyer can present the District Attorney 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, 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 process is a preliminary hearing. After hearing testimony from the police, witnesses and alleged victims, the judge will decide if there is enough evidence to hold you on the charges or if your felony case should be reduced to a misdemeanor.
At the hearing, the prosecution will not be expected to prove the charges beyond a reasonable doubt, but just to show that there is enough suspicion on you for you to be charged. Your criminal attorney 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 and your lawyer may opt to waive your right to a preliminary hearing if you choose to.
The Post Preliminary Hearing Arraignment and Pretrial Conference
At the preliminary hearing, the prosecutor will file information detailing the charges the judge has held you to answer. The post preliminary hearing arraignment will generally take place immediately after the hearing and will involve your attorney 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 trial itself.
Up until the trial, your criminal lawyer should be working to negotiate with the prosecutors and judges at pretrial conferences in order to help resolve your case before the trial. In some cases, this will involve your being charged with a less serious crime, in others, 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.
The Criminal Trial
If your case is not settled before the trial date, your lawyer will need to appear in court. 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 cases involving domestic violence require the defendant to appear in person.
Realistically, most people are willing to waive their right to a speedy trial so their attorney can better prepare for their court hearings and trial.
The first step of the trial 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 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.
If the jury cannot make a unanimous decision, a mistrial or hung jury may be declared. In these cases, your charges 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 process.
The Sentencing Hearing
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.
In felony cases, the sentencing hearing is scheduled approximately 30 days after the trial or case settlement so the probation department can prepare a report to provide a recommendation to the judge. At the hearing, your criminal attorney will argue for the lowest possible punishment while the prosecution will generally argue for a higher sentence. If you plead guilty, then your maximum sentence may already be agreed upon by the prosecution 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.
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 cannot be appealed 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. Criminal trials, however, are rarely reversed and 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, your attorney can request the judge to modify your probation. In some cases, the judge may even be willing to terminate your probation. Your lawyer 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.
Your Choice of Attorney Matters
While this process can seem lengthy and intimidating, having the right lawyer at your side can make all the difference in making it go as quickly and easily as possible so you can get back to your ordinary life as soon as possible. If you have been charged with a crime, please call my office at any time to schedule a free initial consultation at my office located conveniently just off the 78 highway, directly across the street from the Vista courthouse and jail.
How to Contact Attorney Peter Liss
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