Felony Process in California


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Dealing with a felony charge in California can be a complicated, overwhelming, frightening experience. California is currently a capital punishment state. In addition, many criminal offenses can be prosecuted as a misdemeanor or a felony, depending upon the circumstances and the prosecuting attorney’s application of the statutes.

A felony is a crime which can be punishable by death or imprisonment for sixteen months or more in the state prison. Felony cases begin in lower courts and can then be bound over to Superior Court. Misdemeanors are every other crime or public offense, with the exception of infractions. They are usually handled in lower courts and never go to Superior Court.

Felonies are judged to be more serious crimes against the state than misdemeanors. They include murder, rape, burglary, arson, and robbery. In California, some misdemeanors can be elevated to felonies. These types of crimes are known as “wobblers”. They are generally treated as lesser felonies that allows for fines or jail time as an alternative to a state prison sentence. Wobblers include participating in criminal street gang activity, assault, battery, domestic violence, hit and run, embezzlement, certain drug offenses, criminal threats, fraud, vandalism, second degree burglary, bigamy, forging a prescription, and a long list of other offenses. There are also felony DUI offenses.

Moreover, California has a Three Strikes Law. California Penal section 667, the “Three Strikes and You’re Out” felony law, requires that repeat offenders face increasingly elevated punishment with each ensuing felony conviction. With a second offense, a convicted felon faces a doubled prison sentence and with his/her third conviction, the defendant is automatically sentenced to 25 years to life in prison without possibility of parole. The Three Strikes Law can also affect a defendant who has been convicted of a prior misdemeanor theft and then faces a felony theft-related crime.

In light of the complexity of California felony laws and the severe consequences that can result from a felony conviction, if you or a loved one is facing a felony charge, it is strongly advisable to seek the counsel of an experienced criminal attorney. A defendant can retain an attorney at any stage of their case, whether it is during the investigation or the night before court dates.

The following information is meant to provide you with a broad overview of the felony process and general information about the steps that your particular case can and may take.

When a felony crime has been committed, a pre-arrest investigation may be performed. Law enforcement contacts the suspect, but charges have not yet been filed and the suspect has not been arrested. If you retain an attorney at this stage, he/she may be able to prevent the filing of charges; reduce charges; assist with surrender, which avoids arrest; or, if the situation warrants, divert allegations into an informal resolution.

During this stage a search warrant may be obtained and the suspect’s home, office and/or personal property may be searched. However, in some instances, a search warrant may not be required. Perhaps you are apprehended in a vehicle, or when law enforcement comes to question you, there is evidence of the crime in plain view. Also, if you consent to a search of your person or property, a warrant is not necessary.

With a felony charge, law enforcement must have probable cause to make an arrest. Additionally, much is made of Miranda Warnings. However, law enforcement officers are not required to read Miranda Warnings to everyone they arrest. Although, if certain conditions are not met, this failure to read the Miranda Warnings, may be grounds to suppress certain statements or confessions. If the law enforcement officer finds any evidence that provides a reasonable belief that you have committed a crime during the search, he/she can arrest you.

There are other ways that you can be arrested for a crime in California. If the law officer actually witnesses you committing the crime, he has the legal right to arrest you. If the officer did not witness the crime but has reason to suspect you, he must obtain an arrest warrant. Again, he/she must have probable cause. When there is a reasonable suspicion that you committed the crime, law enforcement will meet with the District Attorney (DA) to present the evidence. The DA will then request an arrest warrant from a judge. If the judge approves and signs the arrest warrant, law enforcement may then arrest you and take you into police custody.

Once you have been arrested, you will be taken to a law enforcement station, fingerprinted, searched, and possibly questioned. It is not always required that you be charged at this point. Sometimes law enforcement will engage in further investigation after the arrest, before charges are filed. Charges can be filed by a county attorney or a city attorney, but not by the police.

You must be brought before a judge or hearing officer for an initial appearance, or arraignment, in a lower court, within 24 hours of your arrest. The judge will determine at this hearing whether there is sufficient evidence or probable cause to support the charge against you. Although, the standard of proof is very low at this hearing, and most defendants are bound over for trial. At this time you will be informed of the charges against you and read your rights. During this initial arraignment you have the opportunity to enter your plea.

The judge may set bail at this time as well. This is at the discretion of the judge and dependent upon the statutes that govern the charges you face. Bail is meant to insure that you will return for future court dates. The amount of bail, if any, is determined by the seriousness of the crime, whether you are a risk to the community, and whether you are a flight risk. No money may be required for bail if you are released on your own recognizance (O.R. bond).

If you are bound over for a felony trial by the lower court, you will be bound over to Superior Court, for a felony arraignment, where you can once again enter a plea. If you plead not guilty, the court must also set a date for your trial. Your bail may be reviewed at this time, and could be increased or decreased. If you have an attorney, he/she may petition the court to lower your bail.

The court will usually set a pre-trial conference about two to three weeks after your arraignment, during which the prosecution will likely offer you a plea bargain. In exchange for your guilty plea to your alleged crime, or a lesser charge, the prosecution may offer you a reduction in your charges, a lower sentencing recommendation, or both.

If you choose not to enter into a plea agreement, it may be a long time before you actually proceed to trial. Statute dictates that you must be brought to trial within 60 days of your arrest. However, many defendants waive this right, because it is often advantageous to their case.

Attorneys for the defense and the prosecution may enter several and varied pre-trial motions. These can be motions to continue the case if they need more time to prepare, as well as evidentiary motions to request that the court rule on evidence before the trial. Common motions include: Motion to Suppress Evidence; Motion to Dismiss Information; Motion for a Speedy Trial; Motion to Sever Counts and Motion to Compel Discovery. It is important to note, that if you have not retained counsel at this time, it would be extremely advisable to do so in order to avail yourself of the legal expertise necessary to determine which motions to file to achieve the most advantageous outcome. In addition, the filing of pre-trial motions is time-limited.

After arraignment and prior to trial, there is a discovery phase, where the defense and prosecution exchange evidence regarding your case. This exchange of evidence must be reciprocal. Neither party may hide evidence, and then attempt to present it later, at trial.

Within one to 14 days before trial there may be a readiness conference where some judges will attempt to dispose of a case and others will simply determine whether the attorneys are ready to proceed. Either before or at this readiness conference, except for good cause, the court should hear and decide on any pre-trial motions.

If your case proceeds to trial, there are set guidelines governing the process; although the length may vary greatly. You may opt for either a jury trial or a bench trial. In a bench trial the judge weighs the evidence and determines whether you are guilty. Both attorneys make opening statement at the onset of your trial. They then both take turns presenting evidence and questioning witnesses. After all of the evidence has been presented, the attorneys each make closing arguments. If, as is most common, you have opted for a jury trial, before turning the case over to the jury, the judge must give the jury instructions regarding application of the law regarding your alleged crime. The jury then enters deliberations. Their decision must be unanimous. If the jury is able to reach a unanimous decision, the judge will enter a verdict.

If you are found guilty of the charge(s) against you, all that remains is the sentencing phase. A hearing will be held where the judge determines your punishment. Your lawyer will usually argue for the lowest prison term, or in special cases, for life imprisonment rather than the death penalty. The court also often orders a report from the probation department to aid in this decision. The judge has the final say.

If convicted of a felony, you have 60 days to file an appeal, unless you have been given a death sentence, which automatically triggers an appeal.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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