In previous entries in this series, I discussed the various steps that
lead up to the actual filing of a criminal complaint. Today we will look
at the charging documents that initiate and sustain a criminal prosecution
and the first hearing in a criminal prosecution, the arraignment.
In California, any felony or misdemeanor prosecution is initiated by the
filing of a criminal complaint. This is a document filed by the prosecutor
that provides the accused defendant notice of what they are being charged
with. The complaint can include the actual charged crimes as well as any
enhancements or prior convictions being alleged. The document may also
include the prosecutor’s request for bail and required notices of
the prosecutor’s intent to later present evidence under certain
evidence codes (if the prosecution is going to attempt to prove their
case by evidence of prior similar conduct, common in sex and domestic
violence cases, they must notify the defense of this intent and this is
often done at the time of filing on the face of the complaint).
When the prosecution files a complaint, it initiates the criminal prosecution
and triggers an arraignment. The primary purpose of this hearing is for
the defendant to make her initial appearance and enter a plea to the charges.
In most cases, the default entry of plea is not guilty and this begins
the further process of the case. However, sometimes, particularly in prosecutions
for less serious misdemeanors, prosecutors or judges will make favorable
settlement offers at arraignment in an attempt to decongest the court
system. People who have retained counsel at the earliest possible stage,
as advised in prior entries in this series, can be significantly advantaged
by their prepared counsel’s ability to evaluate an offer at arraignment
and jump at a “low-ball” offer at an early stage.
Several other things can happen at the arraignment on the complaint. The
court will address bail and decide whether the accused will be released
on their “own recognizance” while the prosecution is pending,
which means the court will not require bail to be posted and will instead
simply accept the person’s promise to appear at future court hearings.
Alternatively, the court may set a bail amount that must be posted to
secure pre-trial release. Often, a bail amount has been set by the law
enforcement agency that made the initial arrest and may have already been
posted prior to the defendant’s initial appearance. Judges frequently
accept whatever that figure is and allow the accused to simply remain
free on the bail already posted, but they are not required to and there
are instances in which a judge may require an increased bail. It is best
practice to have arrangements lined up prior to one’s arraignment
in the event that bail is set or increased so that it can be posted immediately
at the courthouse before the person is taken into physical custody.
In rare instances, a defendant may wish to file what is referred to as
a demurrer to a complaint. A demurrer is not an opportunity to litigate
whether the charges are true or not, it is a technical vehicle that can
be used when there is a defect in the way the complaint was prepared.
For example, if the complaint alleges a crime that occurred outside of
the statute of limitations for that offense, a demurrer would be the way
to get that offense dismissed at an early stage. This does not happen
often, but it is important to have a competent and prepared lawyer present
at arraignment because the ability to demur to a complaint can be waived
if not accomplished in a timely manner.
Sometimes, the accused may wish to continue the arraignment rather than
entering a plea at the first appearance. The most common reason for this
is when more time is needed to prepare before certain statutory timelines
are triggered. The timetables for felonies and misdemeanors differ significantly.
Felonies proceed in two different stages. When a complaint is filed, before
the government may take an accused to trial, they must demonstrate that
there is probable cause to believe the charged offenses are true, either
in front of a judge or a grand jury. A person accused of a felony has
a right to a speedy probable cause determination unless they choose to
waive this right. There is both a 10 day and a 60 day right to a speedy
preliminary hearing. If the government cannot proceed to preliminary hearing
within 10 court days and the accused has not waived this right, the accused
is entitled to be released on their own recognizance. If the prosecution
cannot proceed within 60 calendar days and the accused has not waived
the right, the accused is entitled to the dismissal of the complaint.
Thus, it can be advantageous for the defendant’s lawyer to be as
prepared for the preliminary hearing as possible before entering a plea
so that the defendant does not have to waive the right to a speedy preliminary hearing.
In a misdemeanor, there is no requirement of a probable cause hearing before
trial. There is, however, still a speedy trial right. A person who is
in custody at the time of their arraignment is entitled to a trial within
30 days if they do not waive the right. A person who is out of custody
at their arraignment has the same right, but the time frame is 45 days
instead of 30. Again, this is a powerful right and an attorney who is
prepared to try a case “within time,” meaning without any
waiver of the speedy trial right, can secure her client very favorable
offers and even dismissal of the charges when the prosecution is unable
to prepare for trial in time.
Because felonies proceed in two stages, there is a second charging document
in a felony after the probable cause hearing. If the government establishes
probable cause at a preliminary hearing in front of a judge, this document
is called an “Information.” If the government establishes
probable cause in front of a grand jury, the document is referred to as
an “Indictment.” This document leads to another arraignment
very similar to the arraignment on the complaint. The entry of plea on
a felony Information or Indictment entitles the accused to a trial within
60 calendar days, absent a waiver of that right. Most of the same concerns
that relate to the filing of the initial complaint attend the filing of
We have now covered a lot of the technical nuts & bolts of the criminal
case. In the next entry in the series, I will begin discussing the real
behind the scenes work that goes into preparing a case as we talk about
discovery, investigation, motion work and negotiation.