What happens when someone gets arrested in California?
By Attorney Tom Loversky
Getting arrested is a very stressful and challenging time, not only for the person arrested but also for their family, friends and loved ones. I’ve found that one of the most important things to do to calm nerves and soothe anxiety is to get as informed as you can. A good lawyer discusses with and educates his clients on a variety of topics including:
1. The alleged facts.
2. The charges – including a discussion of what must be proven and the sentencing minimums and maximums.
3. The court process. In other words, a short lesson in what is going to happen once court proceedings begin.
Here is a basic look at what happens once you have been arrested:
Booking – The first thing that happens is that an arrestee is taken to the police station or local jail and booked. At booking, the arrestee is photographed and fingerprinted. Then the jailer confirms the arrestee’s identity and checks for warrants or other holds. Finally, based on the crime allegedly committed and the arrestee’s prior record, bail is set per a bail schedule. Once a person is booked, one of three things can occur:
1. The defendant is released if the prosecutor (usually the district attorney or the city attorney) decides not to file charges; or
2. The defendant posts bail (also called a “bond”) or is released based on a promise to appear in court at a later date for arraignment. If either of these happens, the district attorney or police tell the defendant when to come to court for arraignment; or
3. The defendant stays in jail. Law enforcement officers transport the defendant to the court for arraignment.
Bail Enhancement or Deviation – “Bail” is money or property that a defendant puts up as a promise to return for future court dates. Depending on the circumstances, the arresting agency may petition a Judicial Officer for a bail enhancement. Conversely, a person in custody can often make a call for a bail reduction.
Case Filing – After an arrest, the police write a report. This report summarizes the events leading up to the arrest or citation and provides witnesses’ names and other relevant information. Defendants generally do NOT have a right to get a copy of the arrest report, but their lawyers do. The reason for this is to protect the identity of witnesses. Getting the report and acting proactively to mitigate the situation is another reason why it is essential that a defendant charged with a misdemeanor or felony has a lawyer to represent him or her.
The prosecutor then decides whether to file charges and, if so, what charges to file. The first decision that the prosecutor makes is whether to charge the crime as a felony or a misdemeanor. The prosecutor can file charges on all of the crimes for which the police arrested the defendant or can decide to file fewer charges or more charges that are in the arrest report.
Defendants have a right to a speedy trial, so the prosecutor must generally file charges within 48 hours of the arrest when the defendant is in custody (in jail). Weekends, court holidays, and mandatory court closure days do not count against the 48 hours. Also, the deadline for arraignment depends on what time of the day of the arrest.
Arraignment – whether a defendant bails out or detained in custody, the first hearing in court for any case is an arraignment. At the arraignment, the judge tells the defendant:
• What the charges are,
• What his or her constitutional rights are, and
• That if he or she does not have enough money to hire a lawyer, the court will appoint a lawyer free of charge.
The defendant may then respond to the charges by entering a plea. Common pleas include guilty, not guilty, or no contest (also known as “nolo contendere”). However, most times an Attorney will enter a not guilty plea so they can take time to prepare the case. I have had many clients ask if entering a not guilty plea will make the court or a prosecutor mad. The answer is NO. It is routine and accepted that defense attorneys would enter not guilty pleas so they can investigate the charges and all the possible defenses or pleas.
If the defendant is in custody at the time of arraignment, after the defendant enters a plea (responds to the charges), the judge will:
• Release the defendant on his or her “own recognizance” (which means the defendant promises to return to court on a specified date), OR
• Set bail and send the defendant back to the jail until the bail is posted, OR
• Refuse to set bail and send the defendant back to jail. Detention without bail generally only happens in murder cases, and bail is usually denied on felony probation violations.
When setting the amount of bail, the judge takes into account the seriousness of the crime, whether the defendant is a risk to the community, and whether he or she is a “flight risk” and likely to run away.
After the Arraignment – In felony and misdemeanor cases, after the arraignment, an attorney may choose to schedule additional hearings or settings to conduct discovery or to attempt to negotiate a case settlement also known as a plea bargain. Discovery is the name of the process where both sides gather evidence and information.
Plea Bargaining – in most courts, there is a system in place where the prosecutor will negotiate with the defense attorney and attempt an early settlement of the case. However many times it may be wise for the defense to deny the offer and conduct a preliminary hearing. For example, the defense may need to conduct a thorough cross-examination of a critical witness to shape the case in their favor. Of course, in most cases where a defendant is not guilty, the settlement offer is denied, and the case proceeds forward.
Speedy Trial Rights– many legal deadlines must be met by the prosecution or a case may be dismissed. The first occurs after the arraignment. In a felony, the preliminary hearing must occur within ten court days of the arraignment. Following the preliminary hearing, the prosecution has 15 days to file a new charging document called an “information.” A defendant will then attend a second arraignment, and this will commence the trial phase of a felony. From the date of the entry of a not guilty plea to the charges filed in the information, the prosecution has 60 calendar days to start a trial. In misdemeanors, a trial must commence within 30 days of your arraignment if you are in custody or 45 days if a defendant is out of custody.
Waiving Time – very often a continuance may be necessary for a variety of reasons such as case preparation, conducting discovery, defense witness availability and many more important reasons too numerous to list. To obtain a continuance, a defendant will be required to acknowledge that he or she understands their right to a speedy preliminary hearing or trial and then agree to “waive time.” This time waiver doesn’t mean that a defendant loses their rights to a speedy preliminary hearing or trial, it merely means that time is tolled for the period agreed to by your attorney and the prosecution and Judge.
Preliminary Hearing (felonies) – in almost all felony cases (except those involving a Grand Jury) if the case does not settle or get dismissed the judge will conduct a preliminary hearing. At this hearing, the prosecution is required to present witnesses and evidence to prove to the judge that it was likely that a crime was committed. The defense has the right to confront and cross-examine all of the prosecution witnesses. The defense also may occasionally present what is called an affirmative defense to try to sway the court that a crime was not committed. At the end of the testimony, the judge will decide if there is enough evidence to “hold the defendant to answer” for the crimes that are alleged and order the defendant to appear for trial.
Arraignment on the Information – once the judge decides that there is enough evidence to support the charges; the prosecutor will file a document called “the Information.” After the Information is filed with the court, the defendant will be arraigned, a second time. At that time, the defendant will enter a plea and proceed towards trial.
Before the trial:
• The prosecution and the defense exchange information. This exchange is called “discovery.” Defendants may be limited in what information they can see, but their lawyers usually are not because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not jeopardized. This work is an essential reason why a lawyer should represent a defendant charged with a misdemeanor or felony.
• Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
• If a settlement is reached, a defendant can change his or her plea to guilty or no contest.
• The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.
Trial – Defendants in criminal cases (other than infractions) have the right to have a jury of their peers decide their guilt or innocence. Therefore, before trial, defendants need to choose whether to have a jury trial (where the jury determines if the defendant is guilty or not) or a court trial (where the judge decides). Usually, defendants choose to have a jury trial because they want a jury of their peers to hear the evidence and determine their guilt. But sometimes there may be circumstances where a defense attorney will recommend a court trial without a jury.
Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. This Constitutional right means that it is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. The defendant has the right to remain silent, and that silence cannot be used against him or her.
What Happens at Trial:
• Before the trial starts, the lawyers choose a jury. The process for selecting a jury is called “voir dire.” During this process, the attorneys on both sides ask questions of the potential jurors to make sure the jurors will be fair and impartial.
• Before the lawyer’s present evidence and witnesses, both sides have the right to give an opening statement about the case.
• During the trial, lawyers present evidence through witnesses who testify about what they saw or know.
• After the evidence is shown, the lawyers give their closing arguments.
• Finally, the jury decides if the defendant is guilty or not guilty. The jury must find the defendant guilty beyond a reasonable doubt.
The Verdict – If the jury finds the defendant not guilty, it is called an “acquittal,” and the defendant will be released. The defendant can never be tried again for the same crime. This legal term is called “double jeopardy.” A finding of not guilty is not the same as a finding of innocence. It merely means that the jury is not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show up on the defendant’s record, along with the acquittal. If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant is heard in front of a judge. It is often much harder to prove factual innocence than to raise a reasonable doubt about guilt. If the defendant is found guilty, the defendant is sentenced after a cooling off period. Both sides will make recommendations to the Judge, and the Judge will determine the sentence based on the law and legal guidelines.
After the Trial — The Appeal Process – If you are found guilty after a trial, you have the right to an appeal process. There are many reasons for an appeal of a criminal case, but appeals are also complicated, so talk to a lawyer to make sure you know what is best for you.
There are also crucial deadlines that apply to appeals. If you miss the deadline, your appeal will most likely be dismissed.
• For misdemeanor cases, you must file a Notice of Appeal (Misdemeanor) (Form CR-132) within 30 days of the date of the judgment or order.
• For felony cases, you must file a Notice of Appeal — Felony (Defendant) (Form CR-120) within 60 days of the date of the judgment or order.
Keep in mind that the appeal is not a new trial. The appellate court can review the evidence (testimony and exhibits) presented at your trial to see if the trial court made a legal error in how the testimony or exhibits were received. The appellate court does NOT decide the facts of the case as the judge or jury in the trial court does.
You can only appeal if:
1. You contend there was not enough evidence in your trial to justify the verdict or judgment; and
2. You argue there were mistakes of law during or before the trial that hurt your case.
If you contend there was not enough evidence in your trial to justify the judgment, the appellate court will review the record and decide if there was substantial evidence to support the conclusion. If you say mistakes of law were made, the appellate court will hold a hearing to listen to both parties. Then they will decide if there was any irregularity or error that prejudiced (hurt) your case.
In addition to appealing after a trial, there are other situations when you can file an appeal, like appealing the validity of a plea or probation violations. Talk to your lawyer to learn more about your options to appeal.
• If you are appealing a misdemeanor conviction, you can appeal to the appellate division of the superior court. Read the Information on Appeal Procedures for Misdemeanors (Form CR-131-INFO) if you want to appeal a guilty conviction in a misdemeanor case.
• If you are appealing a felony conviction, you can appeal to the Court of Appeal in your appellate district (or the California Supreme Court if it is a death penalty case).
• If you are appealing an infraction case, read the Information on Appeal Procedures for Infractions (Form CR-141-INFO).