Being arrested and having charges brought against you can be intimidating and overwhelming. Below is some information that can be used to help guide you through that process. Please note: the following information should only be used as information and not legal advice.
California State Cases
Initiation of the Case
There are several ways a criminal case can be initiated in California: the most common are through an arrest, a citation, a letter to appear from the district attorney’s office, or an arrest warrant.
Types of Cases
Infraction: An infraction is the lowest level of crime; it cannot be punished by imprisonment or probation. The maximum fine for an infraction is $250.
Examples: Speeding (Vehicle Code section 22350), possession of less than 28.5 grams of marijuana (Health and Safety Code section 11357(b)).
Misdemeanor: Most misdemeanors are punishable with 6 months in jail, a $1,000 fine, or both; the maximum jail time for a misdemeanor in California is one year.
Examples: Possession of more than 28.5 grams of marijuana (Health and Safety Code section 11357(c)) and driving under the influence (DUI) (Vehicle Code section 23152).
Felony: A felony is a crime that may be punished by imprisonment in state prison or in county jail, a fine, probation, or a combination thereof. In some cases, such as capital murder, felonies may be punished by death.
Examples: Possession of marijuana for sale (Health and Safety Code section 11359) and first degree burglary (Penal Code section 459).
Some crimes can be charged as both misdemeanors and felonies; they are called “wobblers.” The prosecution decides whether to charge the crime as a misdemeanor or a felony.
An interesting aspect of wobblers is that if convicted of a felony, a person may petition the court to reduce the conviction to a misdemeanor after completing his sentence and probation conditions.
An example of a “wobbler” is possession of concentrated cannabis (Health and Safety Code section 11357(a).)
In many cases, the prosecution will ask for bail. In California, bail can be paid through cash or equity.
The idea behind bail is for the court to use that money as collateral to ensure that the defendant comes to court. If the defendant fails to appear, she will lose that money; however, if the defendant makes all her court appearances, she will have the money returned regardless of the outcome of the case.
Often, the bail amount that is set is too high for a defendant to be able to put up the whole sum. In those cases, the defendant can use a bail bondsman. A bail bondsman will put up the whole bail amount to the court, and the defendant will only pay the bail bondsman a percentage of the fee—usually 10%. However, that 10% will not be returned at the end of the case.
Below are the basic steps of criminal cases in California:
First Appearance/Arraignment: Often, the first appearance and the arraignment fall on the same day, however, sometimes a defendant appears prior to arraignment to settle issues such as bail. The arraignment is when charges are read to the defendant and the defendant enters a plea (i.e. not guilty).
Preliminary Hearing (felonies only): The prosecution must put on enough evidence to show the judge that there is probable cause to believe that a crime has been committed and that the defendant was the one who committed the crime. This is usually done through testimony of the police officer. If the judge does not find that there is probable cause, the case will be dismissed.
Arraignment on Information (felonies only): If probable cause is found at the preliminary hearing, the defendant will again be arraigned and a trial date will be set.
Pre-Trial Conference: At this conference, potential plea bargains are discussed and if the case does not settle it is confirmed for trial.
Trial: In a trial by court (in front of the judge) or jury, evidence will be presented by the prosecution. Although, because of the presumption of innocence, the defendant does not have to present evidence, evidence is usually presented on behalf of the defendant as well.
Verdict: At the end of the trial, the judge or jury decides whether the defendant is guilty or not guilty.
Sentencing: If the judge or jury finds the defendant guilty, the judge will pronounce a sentence at the sentencing.
Federal prosecutions tend to be more complex than state prosecutions. Federal prosecutions often begin with a grand jury indictment. A grand jury indictment comes after the U.S. Attorney presents evidence of an alleged crime to a grand jury, and that grand jury decides that there is probable cause to believe that a particular defendant was responsible for that crime.
If a grand jury finds probable cause, after the defendant is brought into court, he will be arraigned, and then the case will move toward trial.
A Couple of Frequently Asked Questions
What are some considerations that a defendant needs to make his or her attorney aware of?
Being convicted of a crime can affect various aspects of one’s life. For example, some convictions can affect a person’s immigration status, or the status of professional state-issued licenses (i.e. for attorneys, doctors, mortgage brokers, etc.) or a commercial driver’s license.
How much does it cost to hire an attorney?
The costs vary depending on the situation. Some factors that are considered would be whether the charge is in state or federal court; is it an infraction, a misdemeanor, or a felony; how many charges there are, and prior criminal history.