By: Frances Prizzia | Criminal & DUI Defense

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 the Information/Indictment.

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 criminal defense case, as we talk about discovery, investigation, motion work and negotiation.

To discuss your case or your questions with a criminal defense attorney in Orange County, do not hesitate to contact my firm at (714) 362-0157.

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