California criminal court procedures vary greatly amongst the 58 counties. Get to know how your county works to give you a better shot at success. Photo by BCFC/iStock / Getty Images
This is a first of a series of articles where we will address criminal court procedure in California with specific focus on how each county does things. Many people assume that criminal procedure is consistent across all the counties in California and this simply is not the case. While your rights will remain consistent the actual procedures of court vary widely. Let's dig in.
Overview of California Criminal Court Structure
California court structure has changed through the years. Today we have three primary court branches for criminal cases. First, there is the "lower" court called the Superior Court. The official long name of each superior court will depend on what county you are in. For example, in Fresno the court is called the Superior Court of California, County of Fresno. Each of the 58 counties in California will have a superior court. Before budgeting issues arose, many counties also had "satellite" courts, which were simply branches of the local superior court. They were helpful because sometimes the main superior court was too far away for people to get to easily. Now, like in Fresno, many of the satellite branches are closed because the court system no longer has funding to keep them going.
The superior courts handle all matters first before the other two main court branches. All types of cases are heard in the superior court: traffic matters, criminal cases, lawsuits, family matters, and everything else. Superior courts handle cases from start to finish (we will get to that in a moment).
Once cases are concluded in the superior court, some cases will move on to one of the next branches. Some cases can reach these next branches even before the case is over in the trial court if the issue to be decided is very important and an immediate review is necessary. The next branch is an appeals court called, well, the California Court of Appeal. These courts are broken into 6 districts that in whole cover the entire state of California. Each district will handle the review of a certain number of counties and superior courts. For example, the Fifth District Court of Appeal will cover the following counties: Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne. The Court of Appeal primary function is to review what happened in the superior courts for errors. In criminal cases, this means the appeal court will review criminal trials, court rulings on motions, and many other matters. The primary issue on appeal is often whether the accuser's constitutional rights were violated in some way in the superior court.
No appeals court will here new evidence and it will not take witness testimony; this is because the court reviews issues, and does not decide issues newly. Instead of one judge handling a case (like in the superior court), a panel of three judges will decide issues on appeal. Importantly, all criminal trials are granted an automatic appeal right -- meaning that if a defendant is convicted by trial they automatically get to appeal. Others matters are not automatic and the appeal court can decide not to hear a case.
The third and final branch is the California Supreme Court. For California matters this is the last stop to have your case reviewed for errors. Review in the California Supreme Court is usually discretionary, meaning the court can decide not to hear an appeal. There are exceptions, of course, like in the case of the death penalty. There are 7 justices (judges) that sit on the California Supreme Court and cases are usually decided by a majority of votes. Technically, on certain issues, if you are unsuccessful in the California Supreme Court you can appeal in federal court, like to the United States Supreme Court but those cases are rare. The California Supreme Court is much like the lower level Court of Appeal in that it does not take on new evidence and cannot hear from witnesses. It is strictly a review court.
Overview of Criminal Procedure
Each criminal case begins a superior court. There are various stages that every case will take (or could take) and so the procedural aspect is relatively predictable. Now of course each case is different and some stages may be skipped but the following will demonstrate all the stages that are possible. The primary stages are: pre-charges/pre-file, filing, arraignment, discovery, preliminary hearing, motions, and plea or trial.
Pre-File Stage
One of the main differences between a private defense attorney and a public defender is when they can get to work for the client. Public defenders really only get involved once charges are filed and will meet you on your first day of court. Private counsel, however, can get to work for you right away, even before charges are filed. In fact, one of the primary reasons you may want to hire a private attorney is because they can work to keep charges from being filed. This is a huge advantage.
Say for example you have an alibi or you have evidence that shows you were not involved in a crime. Typically you will have no opportunity to present this until the time charge are filed. You would then present the evidence in court to try and beat the case. If you have a private attorney though, and you hire them early on, they can present that evidence for you to try and keep charges out of court. They can also arrange for interviews and witnesses. Essentially they can defend the case much earlier on.
The pre-file or pre-charge stage may be a very short or very long period of time. Technically, the prosecutor (District Attorney) will have the entire length of the statute of limitations period to file charges. Statute of limitations is just a legal term for deadline period. Lower level crimes like misdemeanors will typically have a one year deadline while more serious felony charges will start at around three years. Some cases can be filed whenever, such as cases of murder. With that said, if the prosecutor does not file relatively early on there is a very good chance you may be in the clear (but it is not guaranteed). Your private attorney can use the deadline period to build up your case and present your side of the story. But remember, you should never under any circumstances make a statement to police without having an attorney present. There are exceptions of course but I repeat you should never do so.
This period ends when one of two things happens. Either when the district attorney files charges or when they decide not to file charges. Your attorney can keep on top of district attorney to find which option is chosen.
Fresno County Pre-File Stage
The Fresno County District Attorney has a team of filing supervisors that monitors and decides on filing cases. They typically have separate supervisors deciding the cases depending on the level of crime (misdemeanor or felony) and whether the case would be handled by a special unit (such as domestic violence, gang, etc.). For lower level crimes the Fresno County District Attorney offers a variety of pre-file options. For petty theft offenses, they have a program that if you pay a fine and take a class, they will agree to not file charges. They have similar programs in the fields of welfare fraud and other financial areas. They may also agree to file only misdemeanor charges (when they were considering felony charges) if you present favorable evidence to them.
Filing Stage
If the district attorney decides to file charges the next stage is the filing stage. This occurs (usually) over a short period of time and there is not much you need to do during this period. Typically the supervisors with the District Attorney's office will approve a filing and then hand the actual complaint (paper document that lists the charges) to their court runner. Then the court runner will shortly thereafter visit the courthouse and file the document (the complaint). This will create a court case number and get the ball rolling. If you were not cited prior (and provided a predetermined court date) a warrant will likely issue. Let's talk about warrants a bit.
Often when you are pulled over for a traffic offense or misdemeanor you will be cited by police on the spot. The ticket will serve as a promise to appear in court and will have a date listed on the document telling you when you have to go to court. This is favorable because it bypasses the warrant process. When the district attorney files charges and you were already issued a citation, the court will simply use that date when creating the case file to set your first court date.
If you were arrested and booked into jail the pre-file process is very quick because the district attorney has to decide to press charges right away. Typically you cannot be held in jail without charge for more than 48-72 hours. If you are arrested on a Friday you will usually go into court Monday or Tuesday and charges will already have been filed.
If you were not arrested or cited then a warrant will likely be issued if charges are filed. If you have hired a private attorney they can hopefully arrange to have you turn yourself into jail for a simple book and release (and therefore get rid of the warrant) or can let the court and authorities know that you will appear for court on a specified date.
Fresno County Filing Stage
The Fresno County District Attorney's office is well known for not providing any sort of notice that charges were filed. This is true even if you have a private attorney who has been in contact with the prosecutor's office. For example, they "rush" over a filing on Friday at 3pm to the courthouse and a warrant is issued and then you are picked up over the weekend. This leads to a lot of frustration and unfairness. Having a private attorney aware of this routine can really help you because they can stay on top of it and arrange to have you booked and released at the Fresno County Jail and/or set a court date where you promise to appear.
Arraignment Stage
Once charges are filed the next step is the arraignment. The arraignment is the first court appearance in a criminal case and several important things happen.
First, if you do not have private counsel hired then the court will decide if a public defender should be appointed to represent you. Every person has a right to an attorney in a criminal case even if you cannot afford one.
Second, your attorney will be provided a copy of the evidence against you. At the arraignment stage it is not uncommon for the district attorney to turn over the police reports and perhaps photos or videos. Many times you will continue to get more of the evidence as the case progresses. The reason why it sometimes takes time probably has more to do with custom than anything (prosecutors are used to not really getting involved in case until after the arraignment is completed).
Third, the court will address bail. If you have already posted bail and have appeared in court out of custody, the judge will decide whether the previously posted amount is sufficient, too low or too high. The attorneys will argue one way or another. The initial bail finding is pivotal though because once it is addressed and decided it is often very difficult to have it lowered at a later date. Therefore, going into this initial hearing prepared and ready to discuss bail is very important.
Fourth, your attorney will advise you what type of hearing should be set. There are many different types of hearings and it will depend on the facts of your case. Some common types are: suppression hearings, pre-preliminary hearings, pre trial hearings, motions hearing, etc.
Fifth, your time waiver status will be addressed. Every criminal defendant has a constitutional right to have the case progress on a reasonable time period. In the old days it was common for cases to drag out for months and sometimes years before bringing the person to trial come only to find out there was no evidence in support. Well, today there are constitutional and statuary rules that prescribe the timeframes for cases. If you do not enter a time waiver then cases must progress to finish in a matter of a few months. If you do enter a time waiver the attorney can set the dates whenever. A general time waiver means hearings can be scheduled whenever. There are some very strong reasons why general time waivers may be worth it and you discuss the reasons with your lawyer. For example, your attorney wants to do extensive research and investigation and cannot get it done in a matter of weeks -- a time waiver may be necessary to make sure no stone is left unturned.
Fresno County Arraignment Stage
In Fresno most hearings after an arraignment for misdemeanor matters are called pre-trial hearings. Pre-trial hearings are used to inform the court the status of the case and what the attorneys are working on. For example, you could set a pre-trial hearing to let the judge know if there are any discovery (evidence) issues or to inform the judge the status of negotiations. Another common hearing for misdemeanor cases is the suppression hearing where your attorney argues why certain evidence should be thrown out (suppressed) because of some violation of law.
For felony cases you can also set all the same types of hearings you would in misdemeanor cases. However, Fresno County does not use the term "pre-trial" in felony cases. Instead, the term "pre-preliminary hearing" is used and it is commonly abbreviated to PPH. These hearings are used in the same way pre-trial hearings are used -- to inform the court the status of the case.
Also at arraignment in Fresno County it is very common for the attorneys to discuss the case with the judge in the judge's chambers prior to calling the case. This is preferable when sensitive issues need to be addressed off the record. It also allows the attorneys to get a better picture on issues such as bail and time waivers. Also important is that the prosecutor will appreciate discussing the case at counsel's table before calling the case -- they appreciate being brought in the loop and not being put on the spot. Approaching them this way is preferable and can mean a better resolution.
Note, in Fresno it is not uncommon for some judges to take the bench later in the morning even though the client is ordered to be present at 8:30. This is because many discussions take place in the judge's chambers prior to the judge coming out.
Discovery Stage
The discovery stage can be very quick or quite long depending on the complexity of the case. Discovery is just a legal term for evidence. In criminal cases, the prosecutor is constitutionally required to produce all the discovery (evidence) it intends to use to prove you committed a crime. The government can not "hide the ball." Everything is supposed to be out in the open and known to both sides. If the government hides evidence your rights are violated and you are entitled to a dismissal. If the government has evidence it knows might help you (called "exculpatory evidence") it too has an obligation to give it to you, even if you never knew about it. This is called Brady material. An example might be a witness who believes it saw someone other than you -- the government cannot simply ignore this evidence -- it must let you know.
Often times the government has to pushed a bit to give over all its evidence (even though you should not have to do this). At an arraignment sometimes the government will provide police reports that mention other type of evidence (such as photos, videos, etc) but those are not provided. You may have to request those. That is why it is always a good idea to request all discovery on the record in court so it is clear when you requested it. If the government does not turn over the discovery you can file a motion to compel, which asks the court to order the turning over.
Defendants also have a right to conduct their own discovery in cases. That is, you should not simply rely on what the government has. Instead you and your attorney should gather your own that helps your cause. Do you have to turn this over to the government? It depends but if you plan on using it at a trial you generally must turn it over. Ask your attorney specifically about your case to determine a discovery strategy.
Fresno County Discovery Stage
As mentioned, the government sometimes fails to turn over discovery at the arraignment stage. This is especially true in Fresno County where it is very common to have to request additional discovery mentioned in the police reports. This may take a while for Fresno District Attorneys so make sure you ask at an early stage. Many Fresno prosecutors prefer you make the request via an email. This is a good way because it is informal but can easily be tracked. Some lawyers prepare standard discovery request letters and send to the prosecutors, which is fine but it is not as good at tracking receipt. With email you can prove when it was sent and received. Letters only let you know when delivered. Email is also much faster and often times the prosecutor will simply email the discovery. Other counties are different. For example, some require a letter or fax. Fresno is more informal. Also, you can request the discovery be put on a USB, which is preferable to the default way of putting it on a CD. With a USB everything will fit and be easier to manage.
Preliminary Hearing Stage
Outside of a possible trial or plea the preliminary is the most important stage in a criminal case. In the old days it was common for prosecutors to file charges without evidence and hold the person in jail for months on end. Preliminary hearings act as a check on this abuse of power. They are as the name suggests, hearings that are "preliminary." The sole function of a preliminary hearing is to ensure the government has at least some credible evidence against the accused.
They are often confused with trials but they are very different. At a trial a prosecutor not only has to produce evidence against the defendant but also prove to the jury that the evidence establishes guilt beyond a reasonable doubt. There is no jury for a preliminary hearing -- there is only the judge. The prosecutor instead simply attempts to show the judge it has evidence. It does not have to show the evidence is strong only that it has evidence. Guilt is not established. The judge does not weigh credibility or determine whether the defendant committed an act. The sole question the judge decides is whether with the evidence produced a jury might find the defendant guilty. This is a pivotal distinction than with trials.
The rule against hearsay is relaxed. In simple terms, hearsay is an out of court statement offered for the truth of the matter asserted. For example a prosecutor would want a police offer to say what a witness says to prove that what the witness saw was truth. This would be hearsay because the officer is testifying not about what they saw but what another saw, the witness. At trial this is not generally allowed because such statements re unreliable (there is no way to tell if the witness is telling the truth if that witness is not actually on the witness stand). At trial the prosecutor would have to call the witness themselves to the stand. For a preliminary hearing in California the prosecutor can just call the police officer. This is called a "Prop 115" preliminary hearing because an old proposition made it so hearsay is allowed at a preliminary hearing so long as the officer has completed certain training. The theory is that because a preliminary hearing does not determine guilt that it is better to be efficient and just have the officer testify.
Also different is that the defense generally will not present any evidence of its own. The reason why is because, remember, that at a preliminary hearing the judge does not weigh evidence or determine truth. Therefore, it does not really help to put on your best evidence at this stage. The only real exception is if the evidence establishes beyond a doubt that the defendant is innocent or that it was impossible for defendant to have committed the crime. For example if the date of offense is X and on that date you have video surveillance that shows the defendant was overseas. For these same reasons there is really no valid reason why the defendant would need to take the stand at a preliminary hearing.
The preliminary hearing is important not because you really expect to be set free after but more so for practical reasons. It is the first opportunity your defense attorney has to question the witnesses that will be used at trial so it is helpful to begin asking them tough questions. It is also a good opportunity to weaken the case and to put you in a better bargaining position.
Fresno County Preliminary Hearing Stage
In Fresno County preliminary hearings can be very quick. Many of them last no more than an hour and are often handled with a full courtroom while others wait their turn. If the preliminary hearing is expected to last more than an hour it might get sent to a different courtroom to a judge that has a lighter calendar. In Fresno floors 5, 6, and 7 are reserved for judges that handle trials (and not calendaring hearings) and so longer preliminary hearings are often sent to these floors. Also in Fresno County many district attorneys will pull any plea offers they have made if you make them do the preliminary hearing. So, make sure you actually want to go forward with the hearing because doing so will send ripple effects throughout the case. Judges will often want to talk about the case in chambers before doing a preliminary hearing to see if there is any way to settle the case. As such, the preliminary hearing in Fresno is a very important stage.
Motions Stage
Many cases will not have a motions stage. A motion is simply a legal term for a written or oral argument submitted to the judge asking the judge to do or not do something. For example, a motion to reduce bail, a motion to suppress evidence, a motion to dismiss, and the thousand other motions that can be made. The motion can be made orally but many of the more important motions will be made in writing. Writing is important because it gives your attorney the best shot at exploring the issue in depth. If the issue concerns complicated law or legal theory then writing the motion is advisable.
Motions in California can be made throughout the length of the case though many are only relevant at certain times. For example there are motions that can only be made after a preliminary hearing and some must be made before. Talk to your lawyer about timing issues. Importantly, not every type of motion is made in every case because many times certain motions will be irrelevant in your case. The last thing you want to do is start filing frivolous motions (motions made without any support whatsoever) as this will end hurting your case and make you less credible. An experienced defense attorney will know which motions to file depending on the unique facts of your case.
Motions are another advantage to hiring private counsel. Public defenders are over worked and they often do not have time to file motions for their clients. Motions are very time consuming to research and write. Private attorneys have more time and can provide that deeper level of service.
Fresno County Motions Stage
Given that many prosecutors in Fresno County have a heavy case load they often times do not even respond to written motions. For example, if your attorney files a motion to suppress evidence it is not uncommon for a prosecutor to not respond in writing and instead just argue in court orally. Knowing this ahead of time can provide an advantage to Fresno defense attorneys because they will likely be able to dig deeper (through writing), which gives you a better shot at winning the argument.
Also important in Fresno is to realize that there is a wide range of judges that have different personalities and backgrounds. Some are more relaxed and allow many more oral motions. However, some judges follow the rules to a tee and will require written motions for almost everything.
Plea or Trial Stage
The most important stage in every criminal case is the stage where the case concludes. If cases are not dismissed in the motion stage, the case will end in either the plea or trial stage. We lump these two together because their effect is the same: the case ends. Lets look at pleas first.
At the arraignment stage you will deny the charges and plead not guilty. This will attach the American presumption of innocence to your case and will force the government from then on to prove guilt beyond a reasonable doubt. This presumption lasts until a different plea is entered or there is a trial. During the course of your criminal case there will be plea negotiations. What this means is that your attorney and the prosecutor will negotiate (either lightly or in depth) a possible resolution to the case. A possible resolution would usually mean that in exchange for a plea of guilty or no contest the prosecutor will do X, Y or Z. A plea of guilty means you now admit you did the crime. A plea of no contest means you no longer contest the charge. They have the exact same effect in every criminal case. The only scenario where a plea of no contest might help is if you are later sued and under certain circumstances the no contest plea can be used to establish liability. For example you committed a DUI and caused an injury. A no contest plea means you lose the criminal case but the injured person cannot use the criminal case plea to establish money damages. The advantage to a plea is that it is negotiated and often means you get a favorable result on punishment. For example lets say as charged you face up to 3 years in prison if convicted at trial but through a plea negotiation the prosecutor agrees to probation if you plead no contest. That would be a positive result for many people charged, especially if the evidence is strong against the defendant. Plea negotiations is a vital part of every case and having an experienced defense attorney certainly gives you a leg up.
A trial occurs when you maintain your plea of innocence. If you do you force the prosecutor to bring you to trial where they attempt to prove the case to a jury. A jury in California consists of 12 people from the community who must vote unanimously for a verdict of guilt That is, they must all agree. For a verdict of not guilty they also must vote unanimously. Anything else is what we call a hung jury and it results in a mistrial. If that happens the government can choose to do a new trial though they often decide not to. Trial rules are complicated and cannot be explored in depth here and we will address such rules in a later post. Until then make sure you ask about trials to your defense attorney.
Fresno County Plea or Trial Stage
Fresno County goes relatively in depth with defendants who decide to enter a change of plea. That is, the courts will require your attorney to fill out what is called a Change of Plea Form, a form that goes in depth into your rights that you are giving up by entering a change of plea. Your attorney is supposed to go through it with you and then the court also goes through it with you in open court on the record. The form will explain your constitutional rights, what the terms of the plea agreement are, the maximum punishment you may face, and other advisements. Going through this form in depth is very important as you give up substantial rights when deciding to enter a plea of guilty or no contest.
For criminal trials in Fresno County you will be assigned to courtroom on either the 5th, 6th or 7th floor. The judges in these courtrooms do trials only and so they are very experienced in the procedures. The hearing right before a trial in Fresno is called either a Trial Confirmation (TC) or a Settlement Conference (SC) depending on the judge. The purpose of the last hearing is to confirm that the trial "is a go" and to see if there is any last chance of settlement. Take this last court date very serious because often times you will not be allowed to take a plea deal after this hearing.
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