The Court Process

Filing Of Charges

The criminal process starts with the filing of a criminal complaint which is the document that lists the charges against the defendant. The District Attorney has the sole responsibility for deciding what charges if any should be filed. Charges can be in the grade of an infraction, misdemeanor, or felony. Infractions are punishable by a monetary fine, misdemeanors by county jail and/or a fine, and a felony by state prison or county jail and/or a fine. A defendant may be brought to court by several methods: 1) a warrant for the arrest of the defendant may be issued by the court; 2) a letter may be sent to the defendant asking him/her to surrender to the jail; 3) the defendant may already be in custody and will be brought to court by the jail; 4) or other arrangements may be made to have the defendant voluntarily appear in court. The seriousness of the crime, the likelihood of the defendant fleeing, and the danger to the public are all considerations in determining which method is used.


The first court appearance is called an arraignment. At the arraignment, the defendant is informed of the charges, appointed a defense attorney, if he or she cannot afford one, and is asked for a plea. It is extremely common for a defendant to plead "not guilty" at this stage. The judge next decides whether a defendant should be required to post bail or be released on his/her own recognizance ("OR"). The same issues of danger to the public, likelihood of flight and seriousness of the crime are all considered. The more serious the case the higher the bail. The judge can also order conditions on any release such as a "stay away" order, drug testing, etc. Finally, the next court dates will be set. What dates and when they occur are dependent upon whether the case is charged as a felony or a misdemeanor.

For misdemeanor cases three dates will generally be set at the arraignment; a settlement conference, a trial readiness conference, and a jury trial. For felony cases there are two possible arraignments.

Two dates are set at the initial arraignment: a preliminary hearing settlement conference, and a preliminary hearing.

Settlement Conferences/Trial Readiness

The pre-preliminary hearing settlement conference and the settlement conference are primarily for the prosecutor, defense attorney, and the judge to discuss the case and determine whether any settlement is possible. Sometimes this occurs in the judge's chambers. This is when a deputy district attorney will make a settlement proposal. Victims who would like to have input at any of these conferences should call our office or send a letter before the date of the conference. If the case is not resolved following these settlement conferences, the matter is confirmed for trial or preliminary hearing on the dates previously set.

The trial readiness conference is generally the Friday before the trial date. At the trial readiness conference, the parties again attempt to settle the case and represent to the judge whether each side is in fact ready to start trial on the scheduled start date. If the case does not settle or is not continued, the case will be assigned to a trial judge and courtroom. Unfortunately, it is common for cases to be continued or postponed.

Preliminary Hearing

Following the initial arraignment on a felony criminal complaint, a defendant has the right to a preliminary examination or hearing. This is not a trial, but a hearing at which a judge listens to the evidence of the crime and determines whether it is sufficient to require the defendant to stand trial. The preliminary hearing is not a trial and the defendant is not found "guilty or not guilty". Normally, just enough evidence is presented to convince the judge to "hold" the defendant for a trial. Thus, the judge issues a "holding order" if sufficient evidence is produced. Witnesses are subpoenaed to testify at these hearings and the defendant is present throughout the proceeding. Following a successful preliminary hearing, the District Attorney may file an Information. The Information, like a Complaint, is a document which lists the charges against the defendant that were proved at the preliminary hearing. The defendant is then arraigned a second time, but this time on the Information in the Superior Court.

Grand Jury Indictment

The Grand Jury process is an alternative in felony cases to issuing a complaint and conducting a preliminary hearing. The Grand Jury process is not frequently used. The Grand Jury is a body comprised of citizens of the community empowered to investigate allegations of a felony. If the Grand Jury finds sufficient evidence to support criminal charges against a defendant, the Grand Jury issues an Indictment which is a document like the Information in a felony case that lists the charges against a defendant. The defendant is arraigned on the Indictment in the Superior Court.

Jury Trial

All defendants charged with a crime are presumed innocent until proven guilty beyond a reasonable doubt. The District Attorney has the burden of proving guilt beyond a reasonable doubt. In California, anytime a defendant faces a possible jail or prison sentence, he or she has the right to a jury trial where 12 jurors chosen from the community decide the guilt or innocence of the defendant. The time when the trial is to take place depends on whether the charges are misdemeanor or felony charges. Cases involving both felony and misdemeanor offenses in the same charging document are controlled by the felony trial schedule.

Time Frames For Trials 

Under California law, a defendant charged with a felony charge must be brought to trial within 60 days of the filing of the Information or Indictment unless that right is waived by the defendant. Generally, the defendant does agree to "waive time" or agree to setting the trial beyond the 60 day period.

Under California law, a defendant charged with a misdemeanor must be brought to trial within 30 days if the defendant is in custody or 45 days if the defendant is not in custody unless that right is waived by the defendant. Witnesses must testify at trial. Even in felony cases in which the witness may have testified and been thoroughly questioned at the preliminary hearing, a witness may be called to testify again. In most cases, a trial is not held because the defendant pleads guilty.


Motions are formal requests by either the prosecution or the defense for a judge to hear and decide a disputed issue. Motions can be made at anytime during the pendency of the case. However, many significant motions are brought before a case goes to trial. Motions are often used to define what evidence will ultimately be presented to a jury.


The pre-trial procedure by which evidence and information is provided to the defense by the prosecution is called "discovery". This information includes police reports, witness statements, information potentially impacting the credibility of witnesses, and any other information that might tend to show the defendant's guilt or innocence. The scope of discovery is quite broad. The defense attorney is also required to provide discovery to the District Attorney before trial.


A subpoena is a document which represents a court order directing a witness to be present for court at the time and place stated. Subpoenas may be received from the District Attorney, the defense attorney or both. The subpoena may be served in person or by mail. Court hearings do not always take place on the precise day or time scheduled. Court calendar conflicts, the unavailability of essential witnesses, or a legal motion may cause a case to be delayed or "continued". Whenever possible, arrangements are made to place witnesses "on call" or "telephone standby". This means that the witness may leave the courthouse, but must be able to come to court immediately when called.


The "verdict" is the decision of the jury or judge regarding the guilt of the defendant. The reading of the verdict is done in open court and anyone from the public may attend. The defendant will be found either "guilty" or "not guilty" of the crime. If the defendant is found "not guilty" of all charges, the defendant will be set free. If the jury cannot reach a verdict (called a "hung jury"), a mistrial will be declared and there may be a new trial. If the accused is found guilty, a date will be set for sentencing.


On the sentencing date, the judge will consider a variety of information to formulate an appropriate punishment for the defendant. This information includes a probation department recommendation, if one is prepared, the circumstances of the crime, the defendant's background, the victim's statement and any argument or other evidence presented by the attorneys. A victim who wishes to have input should send a letter to the probation department or the District Attorney's Office as soon a possible after the verdict, stating the victim's views on the case, any opinion regarding the appropriate sentence, and the monetary amount of any loss suffered (with receipts if available). A victim should NOT wait to be contacted by the probation department or the court. At the sentencing hearing, the victim has an absolute right to speak to the judge about the appropriate punishment.

A judge may sentence a defendant convicted of a misdemeanor to time in the county jail and place him or her on probation for up to 3 years in most cases. On felony charges, the judge may sentence the defendant to a term in State Prison or place the defendant on a grant of probation for up to 5 years and time in the local county jail. The judge can order the convicted individual to pay restitution to the victim of the crime for damages. The convicted individual may also be ordered by the judge to fully disclose his or her financial assets and ability to pay off court ordered restitution and fines.


Probation is a court imposed sentence that places conditions on a convicted individual and releases that person into the community instead of sending them to jail or instead of sending them to jail for the entire length of their sentence. If a defendant is placed on probation for either a misdemeanor or felony, certain conditions and restrictions will be placed on him or her. These may include fines, payment of restitution, a stay away order, drug or alcohol testing, and search and seizure clauses. The defendant may also be supervised by a probation officer.


If the sentence includes being sent to state prison, the individual may be released from Prison before serving his/her full sentence by being granted parole. The parolee is subject to terms and conditions which, if they violate, can result in their being returned to prison.

Violations of Probation or Parole

Violation of Probation - If a defendant, who is placed on probation, violates any term or condition of probation, he or she can be arrested and punished by additional county jail time. Before punishment can be imposed upon probationer, however, the defendant has the right to a hearing to determine if the violation actually occurred. The burden of proof is much lower than a trial and the matter is tried before a judge instead of a jury.

Violation of Parole - If someone is charged with violating a condition of parole, the parole agent can initiate the process to have the parole revoked. A warrant for the arrest of the parolee will be issued and the California Department of Correction's Parole Agent will complete the administrative steps necessary to have the parolee returned to prison for the violation.