CASE PROCESS (FELONY)

FELONIES

A felony is a criminal offense punishable by death or by incarceration in a state or federal confinement facility for a period of which the lower limit is prescribed, by stature in a given jurisdiction, typically one year or more.

There are eight basic parts to the felony process.
1. Arraignment
2. Bail Review
3. First Readiness / Prelim Setting / Disposition Conference
4. Preliminary Hearing
5. Arraignment in Trial Court
6. Pretrial Readiness Conference
7. Motion Hearings
8. Trial

Arraignment This is the very first court appearance you will have and it is the process by which a person is brought before a court to hear and answer criminal charges against him or her. Your personal presence is required. If you are out of custody be on time no matter what. Six things occur at arraignment:

1.) Defendant is advised of his or her constitutional rights,
2.) Counsel is appointed,
3.) The charges are read to defendant, and a copy of the complaint is provided,
4.) Defendant is invited to enter a plea to the charges,
5.) Bail is determined, which may be different than the presumptive bail amount, or defendant may be released on his or her own recognizance.
6.) A date for the defendant's next court appearance is set. As discussed more in depth below, that next date may be a preliminary hearing if at least one of the charges is a felony, or a pretrial hearing if the charge if charges are misdemeanors only.

Bail Review / O.R. (Release on "Own Recognizance")

The second step is the bail review. The accused is entitled to bail review within three days of the arraignment. Bail is money that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. The Eighth Amendment to the U. S. Constitution requires that bail not be excessive.

Released "on their own recognizance," or "O.R.". If the accused has strong ties to a community, has little or no past criminal record, a job, and is not a danger to the community or a flight risk a judge may be convinced to grant an O.R. release. Simply put, the accused released O.R. must simply sign a promise to show up in court and doesn't have to post bail. If the judge denies O.R. release, then a lower bail amount will be requested by your attorney.

First Readiness / Prelim Setting / Disposition Conference

The third step is the first readiness-conference or in some courts called a settlement conference or a prelim setting. It is set before the preliminary hearing and is a good opportunity to try and resolve the case through a plea bargain. These conferences also provide an opportunity for your lawyer to obtain from law enforcement and the prosecutor necessary information called discovery for your defense.

Preliminary Examination - The Preliminary Hearing / Pretrial Hearing

The fourth step is the preliminary hearing. If the defendant is charged with a felony, he or she is entitled to a preliminary hearing before a judicial officer within 10 court days of arraignment. (Persons charged with only misdemeanors are not entitled to a preliminary hearing.) The purpose of the preliminary hearing is to weed out weak or unmeritorious charges. Usually it is in your best interest to get this out as far as possible to allow your attorney time to attempt to settle and get prepared for the preliminary hearing. At the preliminary hearing (commonly known as "prelim"), which is relatively informal and held before a magistrate (a judge, or a commissioner sitting as a judge pro-tem) without a jury, the prosecutor must show that there is a strong suspicion that a crime has been committed and that the defendant is probably guilty. This evidentiary standard is relatively easy to meet, and is far less that the "beyond a reasonable doubt" evidentiary standard used at trial. This means that a defendant may be held to answer upon evidence that would be insufficient to sustain a conviction at trial. Most preliminary hearings are fairly short. Most are less than one hour long, although in complex cases they can last longer, and some even go on for several days.
If the prosecutor makes the required evidentiary showing at the preliminary hearing, the defendant is said to be "held to answer". That is, he or she must stand trial on the charges. (This is sometimes referred to as being "bound over" for trial.) Occasionally, the magistrate is not satisfied that the prosecutor has met the required evidentiary standard and dismisses some or all of the charges. If all charges are dismissed, the defendant is discharged and, if in custody, immediately released. The prosecutor may, however, immediately re-file the charges, in which case the defendant may be rearrested and a new preliminary hearing held within 10 court days. If the charges are again dismissed by the judicial officer, the defendant is again discharged. In that case, the prosecutor may not, with a couple exceptions, re-file the charges a third time. If only some charges are dismissed, the defendant is "held to answer" on the remaining charges.

If the charge is one that can be charged as either a felony or a misdemeanor, the magistrate may reduce the charge to a misdemeanor An example would be unlawful possession of methamphetamine, a violation of Health and Safety Code section 11377(a). If, after hearing the evidence at the felony preliminary hearing, the amount of methamphetamine is, for example, quite small and the defendant had no other criminal record or a fairly minor record, the magistrate might choose to reduce the charge to a misdemeanor. If so, the case then proceeds along the misdemeanor track.

Arraignment in Trial Court

The fifth step is the second arraignment or the arraignment on information. If the felony charges are not dropped at the preliminary hearing, you will be arraigned in superior court where your trial later will be held. This is the arraignment after you have been bound for trial at the preliminary hearing and the next settlement conference date is set at this time along with a trial date. This is also an opportunity for your attorney to file motions and demand further discovery.

When the defendant is held to answer to a felony charge, the case is transferred to the trial division, where the prosecutor files a new document called an information, which contains the offenses the defendant is accused of committing. The defendant must be arraigned on the information within 15 days of being held to answer. At the arraignment on the information, all of the procedures that occurred at the initial trial arraignment occur again. At arraignment, the judge will set a pretrial hearing, as well as a trial date. The trial must commence within 60 days of the arraignment on the information, unless the defendant requests or agrees to a longer time. At this arraignment, the defendant again enters a plea, and if it's "not guilty", the case is set for trial. Again, the prosecutor may offer the defendant a "deal" to resolve the case without a trial. If the defendant accepts, then a guilty plea is taken, and the matter is put over for two to four weeks to obtain a probation and sentencing report from the county Probation Department, which will include a sentencing recommendation.

In the trial division, the defendant may challenge the magistrate's holding order by filing a 995 motion (named after the Penal Code section permitting such motions). On the motion, the trial judge reviews the transcript of the preliminary hearing to see if there was sufficient evidence to support the holding order. If there was, the motion is denied, and the case proceeds to trial. If not, the motion is granted and the information or part of it is dismissed.

Pretrial Readiness Conference

The sixth step is the second readiness conference this is set up to see if your case can settle. If you cannot settle your case at this readiness conference, you will probably go to trial. Usually the readiness conference is set out thirty to forty-five days past the second arraignment. Trial usually follows with in a few weeks.

At the pretrial hearing (which occurs in both felony and misdemeanor cases), the parties may again discuss settlement of the case, discuss possible discovery issues, and make other motions, such as a 995, 1538.5. In every criminal case the prosecutor to disclose to the defense who the witnesses will be and what documentary and other physical evidence will be introduced at trial. The initial discovery occurs at arraignment, where the defense is given a copy of the complaint or information, the police report, any statements made to the police by the defendant, any scientific reports (such as breath alcohol test results in a DUI case) and a list of the prosecution's witnesses. (Penal Code section 1054)

At the pretrial hearing, the defendant may file a suppression motion, also called a 1538.5 motion (also named after the Penal Code section that permits such motions). In the motion, the defendant typically claims that he was stopped, arrested or searched in violation of his or her constitutional rights; that is, that the police did not have a warrant and otherwise lacked probable cause for the stop, arrest or search.
If the case is not resolved at the pretrial hearing, the court may set additional pretrial hearings. Eventually, a final pretrial hearing is set, called a readiness conference. At the readiness conference, the parties will make an attempt to resolve the case without a trial, and discuss any issues pertaining to readiness for trial, such as witness availability. If the case cannot be resolved, it proceeds to trial.

Motion Hearings

The seventh step is the pretrial motion hearings. This allows your lawyer the opportunity to challenge evidence that the prosecutor may try to introduce at trial.