The Criminal Process In California

The Investigation and Initiation

The criminal process starts with the police discovering that a crime occurred and investigating the incident. In some cases, this may happen 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 reasonably suspect you have broken the 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 Criminal Arraignment

If charges are filed and you are out of custody, you may receive a notification letter telling you to appear in court for an arraignment. The arraignment is the first step of the criminal process that requires the suspect or their attorney to appear in court. In some cases, the District Attorney will obtain an arrest warrant rather than send a notification 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, you should typically be arraigned within a week of your arrest for felonies and after a month for misdemeanors.

Do You Need to Attend the Arraignment?

In most misdemeanor cases, except domestic violence, your lawyer can appear without you. You must appear in person if your criminal case involves domestic violence or a felony-level crime.

Formal Presentation of Charges

At the arraignment, the charges against you will be officially presented. In many cases, these will be different from the ones the police initially arrested you 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, prosecutors can formally file the case at any time as there is no statute of limitations for this crime. You must be released if you are in custody and the prosecutor chooses not to file at this time.

Entering a Plea

During the arraignment, you must 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, or his attorney may make a sentencing agreement with the prosecution. When the judge sentences a defendant or attorneys reach a sentencing agreement, the criminal court process is 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 should 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. If you are charged with a felony, your preliminary hearing date will also be scheduled.

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 allegations against you or if your felony case should be reduced to a misdemeanor. This option is only possible if the felony charge is what is known as a “wobbler,” meaning it could be either a felony or misdemeanor.

This hearing is NOT a trial and the prosecution is not expected to prove the case beyond a reasonable doubt, but to show that there is enough suspicion to charge you. 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 to charge you. You may waive your right to a preliminary hearing if you choose to.

The Grand Jury Proceedings

 In some situations involving felony-level crimes, the defendant will be indicted by a grand jury rather than go through a preliminary hearing. 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 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 is charged through an indictment from a grand jury, the court will still set an arraignment, readiness conference, pre-trial motions and a jury trial. The grand jury indictment replaces having a preliminary hearing magistrate find sufficient evidence to warrant a trial.

Grand jury proceedings are NOT trials. In most cases, the defendants in these proceedings have no idea they are accused of a crime; 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, the defendant will be arrested and formally charged with a crime.

Grand jury proceedings are particularly rare in San Diego, though they still occur occasionally.

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. For plea bargain agreements, the maximum penalty may already be agreed upon by the prosecutor or judge.

In some cases, the exact sentence may be a condition of the plea bargain, which is called 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.

Standard 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. In most cases, the sentence is not subject to appeal unless it is considered unreasonable compared with the severity of the crime.

Modifications and Reductions

If you have complied with your probation for a lengthy period 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. Sometimes, 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.