The Felony Process

Steps in the Felony ProcessFelonies - such as homicide, arson, grand theft, felony DUI, aggravated assault, and drug possession for sale - are punished more severely than are misdemeanors. Penalties can include jail or state prison terms, substantial fines, probation, restitution, counseling, and/or work project. Extreme cases - such as first degree murder with special circumstances - carry the possibility of the death penalty.

Given the more severe nature of the alleged crime and the harsher potential penalties, the path that a felony follows through the criminal court system is more elaborate than that for a misdemeanor. In general, felonies in California follow these steps:

ArrestAn arrest is made after the police have determined that sufficient evidence of a crime exists. In some instances, an arrest is made in the field after an officer observes a crime taking place. In other instances, an arrest warrant is issued after an investigation has brought to light sufficient evidence. Each arrest must reference one or more specific sections of California law. For example, a robbery is charged as a violation of Penal Code section 211. After the arrest, the police incident reports are handed over to the district attorney's office for the filing of a criminal "complaint".

First ArraignmentThe defendant appears before a judge to hear the "complaint" - the charges - and to enter a guilty or not-guilty plea. If the defendant is silent, that lack of response is interpreted as a plea of not guilty. The judge makes sure that the defendant is aware of his/her constitutional rights - such as the right to be represented by an attorney and the right to trial by jury - and sets bail.

Preliminary HearingThe preliminary hearing, or "prelim", must take place within 10 court days of the first arraignment, except in instances when "time is waived" by the defense. (See the Waiving Time explanation below.) At the preliminary hearing, the judge decides whether enough evidence exists to support the criminal charges filed by the district attorney's office in the complaint. The standard that the judge uses at this juncture is probable cause, which is less stringent than the standard of guilt beyond a reasonable doubt that guides jurors at trial. At this stage the judge merely has to be persuaded that a crime took place and that evidence exists that the defendant was involved. There is no jury at a prelim. The judge reviews evidence presented by the district attorney and listens to arguments from both the prosecution and the defense, and then decides whether the case should move forward as charged, be reclassified as a misdemeanor, or be dismissed altogether.

Waiving time: In many instances the defense will "waive time" between the arraignment and the preliminary hearing. This allows the prelim to be scheduled at a later date, giving the defense more time to gather information and negotiate with the district attorney's office.

Second ArraignmentAfter the preliminary hearing, the prosecution files an "Information", taking into account any aspect of the judge's preliminary hearing ruling. Once again, the defendant appears before the judge to be arraigned on the Information, hear the charges, and enter a guilt or not guilty plea.

Pre-Trial Conferences and MotionsThe defendant's lawyer meets with the prosecutor and sometimes the judge to go over the case. The D.A.'s office must provide the defendant and his lawyer with all available evidence, called discovery documents. Relevant motions - such as to keep out testimony or evidence from trial - are submitted to the judge for review. The work of the defense lawyer is critical at this time since this is when many cases are settled.

TrialOur Constitution guarantees us the right to trial by a jury of our peers. In our "adversarial" criminal court system, the prosecution seeks to prove the defendant's guilt beyond a reasonable doubt, while the defense presents the defendant's version of events and argues for acquittal. The defense attorney is the defendant's advocate, protecting his/her constitutional rights and ensuring that the evidence presented is relevant and accurate. The jury presumes that the defendant is innocent and brings back a guilty verdict only if they are convinced beyond a reasonable doubt that the defendant committed the crime. A conviction requires all twelve jurors to vote "guilty". An acquittal requires all twelve to vote "not guilty". A split vote results in a hung jury.

SentencingIf the jury comes back with a not-guilty verdict, the defendant is free to go. If, however, the jury finds the defendant guilty, then the duty of sentencing falls on the judge. (Note that in almost all cases the jury is not involved in sentencing; their service ends after they deliver their verdict.) After going over the facts of the case, recommendations from the probation department, sentencing guidelines of relevant California law, and in some cases hearing testimony from victims, the judge imposes a sentence.

The Importance of Quality Legal RepresentationIf you're facing felony charges, you need an experienced, quality criminal defense lawyer to defend your rights and interests. Contact me at (916) 442-1200 for a free and confidential consultation to discuss your case.