Criminal Procedure in California:
1. Commission of the Crime
- is a crime punishable by one year or more in State Prison. Felony cases begin in lower courts and then can be bound over to Superior Court if the judge determines that probable cause exists that the defendant being accused has committed the crime in question.
- is a crime punishable by up to a year in county jail. Misdemeanors are usually handled in
lower courts and never go to Superior Court.
2. Retaining a Criminal Defense Attorney
A defendant may retain a criminal defense attorney at any stage of their case, whether it is during the investigation or the night before court dates.
Criminal defendants have the right to an attorney and will be appointed one (Public Defender) if they cannot afford one. However, criminal defendants may be responsible for paying the costs of the Public Defender if it is later determined that they had enough money to pay for a criminal defense attorney.
3. Pre-Arrest Investigations
Pre-arrest investigations are done after the defendant has been contacted by a law enforcement agency, however charges have not been filed yet and the defendant has not been arrested.
This is the best time to hire a criminal defense attorney to take control of the case.
During this stage, your attorney can attempt to do the following:
- Criminal Defense
- Personal Injury
- Real Property Litigation
- Prevent filing of charges
- Reduce charges
- Assist with surrender and avoid arrest
- Divert allegations into an informal resolution
- Police must have probable cause to make an arrest, which may be conceptualized as a "good reason" to arrest.
- Arrests can only be made for crimes that occurred while in the presence of the arresting person or with a warrant.
- Police do not have to read Miranda Warnings to everyone that is arrested. Failure to read the Miranda Warnings does not make the arrest illegal, but may be grounds to suppress certain statements or confessions.
When a suspect is booked the following occurs:
- The suspect is taken to the law enforcement station.
- They are asked a series of routine questions.
- They are lawfully searched with or without consent.
- The suspect is fingerprinted and photographed.
All felony defendants and most misdemeanor defendants will be required to go to the station for booking.
Getting booking information:
- Call the jail or prison hotline for booking information.
- You will need the inmate's booking number or their date of birth and full name.
- The jail or prison will release information on the charges, the court date, the arresting agency and the bail amount.
6. Post-Arrest Investigations
Post-arrest investigations are done after the arrest, but before charges have been filed by the prosecutor.
It is not required that the arresting agency release the police report before the defendant goes to court. However, sometimes your criminal defense attorney can talk the police into releasing the report. To retain a criminal defense attorney in the Bay Area, call RLG today.
7. Decision to Charge
The following individuals can file charges:
- County Attorney
- The County Attorney files charges against an individual if they believe there is sufficient evidence to convict the suspect.
- City Attorney
- Some cities have a City Attorney's office that handles most misdemeanor cases and determines if there is sufficient evidence to convict the suspect.
In Juvenile cases, the probation department is instrumental in deciding whether or not to charge the defendant.
The following individuals cannot file charges:
Police do not file charges. They only make recommendations to the prosecuting attorney if charges should be filed.
8. Filing the Complaint
The prosecuting attorney files a document with the court to show that charges are being filed.
9. Arraignment / First Appearance
The police are permitted to hold a suspect for up to 48 hours, excluding Sunday and holidays, after the arrest before seeing a judge or hearing officer at an initial appearance.
At the arraignment, the defendant will be read his rights and the charges against him. BAIL is set during the initial appearance. Bail is an "insurance policy" that the defendant will appear before the court again. The amount of bail is determined by the seriousness of the offense and by the judge. Bail can be $0 if the person is released "own recognizance (O.R.)", but it can be increased if the judge feels that there is a chance that the defendant will not appear in court again. However, bail is supposed to be reasonable and serves only to insure defendant answers to the allegations against him or her. If the person fails to appear before the court, a warrant will be issued for their arrest.
During a later proceeding in front of the court, your RLG attorney can bring a motion to reduce bail. At that time, the judge will decide whether to reduce bail and will consider whether a defendant has significant ties to the community, whether a defendant poses a danger to society, and whether there is a risk of flight and danger to the public. In a felony case, if your RLG attorney asks for an O.R. release, the court will most likely set the matter over for another hearing and order a pre-trial services report. This process usually takes a week.
Discovery is given to the criminal defense attorney after arraignment. Discovery includes, but is not limited to: police reports, medical records, probation reports, photographs, diagrams and viewing of physical evidence. Discovery in criminal cases must be reciprocal, which means that the prosecution must provide the defense with the evidence they are using in the case. Neither the prosecution nor the defense may "hide" evidence and later introduce it during the trial.
To learn more about bail and discovery for your case, schedule a free consultation with a criminal defense attorney at RLG.
10. Preliminary Hearing
Preliminary hearings only occur in felony offenses.
In California, a preliminary hearing is necessary for the judge to determine whether or not there is sufficient evidence or probable cause to support the charges against a defendant and bind the case over to Superior Court for trial.
11. Filing of the Information or Indictment
If the prosecuting attorney believes there is enough evidence, they will file a document with the Superior Court, which notifies that the State is "charging" the defendant with a particular crime.
12. Arraignment on the Complaint or Indictment
A defendant is taken before the Superior Court and informed of their charges. At that time, the defendant will answer to the charges by pleading not guilty, guilty or no contest. At the Superior Court arraignment, the amount of bail may be reviewed, which may be increased or decreased at the court's discretion.
13. Pre-Trial Conference
At the pre-trial conference, the criminal defense attorney negotiates with the prosecuting attorney, in order to obtain the best possible "deal" or plea for their client.
A "plea deal" might include:
- The prosecution charges the defendant with a lesser charge.
- The prosecution agrees to a lesser punishment for the same charge.
- The number of counts may be dropped.
- Alternative sentencing.
Criminal defense attorneys may also file Pre-Trial Motions, which may assist in dismissing charges or changing the prosecution's position.
Some common motions are:
- Motion to Suppress Evidence
- Motion to Dismiss the Information
- Motion for a Speedy Trial
- Motion to Sever Counts
- Motion to Compel Discovery
During a jury trial and after the jury is selected, both the criminal defense attorney and the prosecuting attorney complete the following process:
- Opening statements.
- Direct examinations of their witnesses.
- Cross examinations of the opposing witnesses.
- Closing arguments.
During the deliberation of the case, the jury decides the guilt or innocence of the defendant, but the judge will determine the appropriate sentence if the defendant is found guilty. Upon a guilty verdict, a motion for New Trial might be filed with the court.
Sentencing is a court hearing where the judge determines punishment. A defendant may be sentenced to Probation instead of prison. However, he or she may be ordered to do some local custody time as a term of his or her probation. If a person violates their probation, they may be incarcerated up to length of the original sentence.
Informal or summary probation is unsupervised.
Formal probation is when an individual is supervised by a probation officer.
If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the low term, midterm, and high term. Although Lawyers argue about the proper term based on the facts of the particular case the final word is within the judge's broad discretion.
Some sentencing alternatives to jail that might be negotiated are:
- Electronic Home Monitoring
- Detoxification Programs
- Residential Treatment Centers
- Weekend Work Programs
* Disclaimer: The criminal process may vary slightly depending on your charge and jurisdiction. Please ask your attorney to thoroughly explain the process.
RLG attorneys are experienced in all aspects of criminal law. If you have been arrested, a criminal defense attorney at RLG will fight to protect your rights. We serve the entire Bay Area.
For outstanding legal representation, please contact RLG for a free consultation: (415) 877-4486
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