What to Expect if Under Felony Arrest in San Diego, California: An Overview of the Felony Criminal Process
The following information is meant as a brief overview of what to expect if you find yourself charged with a felony crime in California. We also included general information about the steps that your case may take from the pre-arrest investigation to the appeal stages of felony criminal law proceedings.
If you have additional questions, speak with the San Diego criminal lawyers at the Law Office of Vikas Bajaj, APC. With 19 years of experience handling criminal matters, we know how to protect your freedom. Our office is conveniently located just a few blocks from the downtown San Diego Superior Court.
Phase 1: Pre-Arrest Investigation
In criminal law proceedings, a felony is a class of crimes that are considered by a community to be the most serious. They can be either violent or nonviolent and cover crimes such as murder, rape, robbery, burglary, and arson. Crimes eligible for capital punishment include poisoning, murdering police, witnesses, or prosecutors, or killing someone while committing one of the crimes listed above.
During a pre-arrest investigation, law enforcement officials contact the suspect. At the point of initial contact, no arrest has been made and no formal charges have been filed with the criminal courts. In California, felony cases are generally heard in the Superior Court. Lower courts are able to transfer cases to the Superior Court if misdemeanor charges are upgraded to a felony.
During the pre-arrest investigation stage, law enforcement officials may seek a search warrant. A search warrant permits law enforcement to search a suspect’s home, business, or personal property for evidence in support of their investigation. Keep in mind that if you consent to a search of your person or property a search warrant is not necessary because you have given law enforcement permission to conduct the search. Absent express consent from you, law enforcement officials, must first obtain a search warrant before they can search your home, business, or property.
It is important to seek an experienced San Diego criminal defense attorney immediately after being contacted by law enforcement. You should not answer any questions posed by law enforcement without the presence of an attorney. A criminal lawyer explains the potential criminal charges and how they are treated in your jurisdiction. He or she can prevent the filing of charges by clearing up incorrect facts, reduce charges, assist with a voluntary surrender, or obtain an informal resolution all during the pre-arrest stage.
Exercise Right to Remain Silent
Do not talk to the police during a pre-arrest investigation. They are not your friends. The information they collect and gather will be used against you. Be courteous to law enforcement officials but remain firm. Exercise your right to counsel and right to remain silent.
Phase 2: Arrest
Many of you have a basic understanding of an arrest and what happens during an arrest because of what you have seen or heard from friends, family, and television shows. The fundamental concept to remember is that to make an arrest a law enforcement official must have probable cause, or reasonable grounds to arrest you. When the arrest is completed you change from a criminal suspect to a criminal defendant.
A Note on Arrest Warrants
Not all arrests require an arrest warrant. Expect to be arrested immediately if the suspected crimes involve domestic violence, a crime in progress, and DWI or DUI cases. The law enforcement official’s observations are enough to establish probable cause and make the arrest.
Know Your Rights – Miranda Warnings
Miranda Warnings are one of the most recognizable processes of the criminal justice system. The warnings advise an arrested person of his or her right in criminal proceedings before they are interrogated.
Failure to properly administer Miranda Warnings affects the admissibility of statements made to law enforcement officials after arrest. While on television the Miranda Warning is administered simultaneous to arrest, in reality, the requirement is that they get administered before any questioning starts by the police. Don’t get hung up on the order. Do get hung up on asking to speak to counsel and remaining silent.
Know Your Rights – Ask to Speak with Counsel and Remain Silent
Prior to police interrogation, ask for an attorney first. Then invoke your right to remain silent, second. All questioning by law enforcement should stop after requesting counsel’s assistance. Anything you are asked and answer after invoking your right to counsel can be excluded from evidence later on in the proceedings. Invoking your right to remain silent by itself does not stop the questioning.
Remain silent at all times when in police custody. Do not talk with anyone outside of the presence of an attorney. That includes police officer, jail cell or holding roommates, and stay away from telephones. Telephone calls are recorded and played back. Remain silent.
Once physically detained, you are handcuffed and taken to central booking for processing. Processing means getting your photo and fingerprints taken, being searched (may include strip search), and being placed in a holding cell or temporary jail until you see a Superior Court Judge.
San Diego County criminal defendants are taken Downtown or Chula Vista; federal criminal defendants are taken to MCC. Keep exercising your right to remain silent. Keep any answers to drivers’ license information: name, address, date of birth, height, and weight.
After being processed you may find yourself in jail cell, scared and confused. Don’t panic or ask to speak to the police at this time. You will soon likely make bail or meet with your criminal defense attorney. If they police do approach you during this time, reaffirm your desire to have counsel present and exercise your right to remain silent.
Phase 3: Arraignment and Bail
After arrest and booking, you must be brought before a judge for an arraignment. An arraignment is your initial appearance in court and must occur within 48 hours of your arrest (not including weekends and holidays).
At arraignment, the charges against you are lodged, you are read your rights, and you enter a plea or answer the charges levied against you by stating the words, “not guilty” or “guilty.” You may also plea “no contest”, which has the same effect as a guilty plea. The court will advise you of your constitutional rights. If you cannot afford an attorney, the court will appoint a lawyer to you free of charge.
Once the charges are levied and a plea entered, bail is set. In California bail is established annually by a schedule determined by each county. Click here for the 2016 San Diego County Bail Schedule. Bail is insurance to make sure you return to court on future dates. The amount of bail is determined by:
- the seriousness of the crime,
- ties to the community,
- prior criminal record, and
- whether or not you are a flight risk.
You will be asked to pay a certain amount of money or be released on your own recognizance for no money.
If you cannot pay the entire bail amount, you may seek the services of a bail bondsmen. Bail bondsmen post or pay the entire bail amount for you and typically charge ten percent of the bail amount as a fee for providing bond services to you. The charge is also their fee which are non-refundable.
Arraignments can be handled by a judge in any criminal court. If you are before a lower court judge at time of arraignment and you are being charged with a felony or your misdemeanor charge is being upgraded to a felony charge, your case will be “bound over” to the Superior Court for a felony arraignment. A plea is entered again and there is an opportunity to review the initial bail determination. The bail amount may be increased or decreased depending on the particular circumstances of your case or any new developments that come to light since your first arraignment.
Phase 4: Pre-trial Proceedings
The majority of felony criminal cases are resolved in the pre-trial phase of criminal proceedings through court appearances (conferences and hearings), waivers, motions (requesting court to resolve a dispute about the evidence or charges between the defense and prosecution), discovery issues, and plea bargains or negotiations.
Court Appearances – readiness conference or felony disposition conference, preliminary hearing
Felony Disposition Conference (FDC)
At the readiness conference or felony disposition conference (also referred to as the “plea bargaining conference”) the prosecution makes an offer to resolve the case before any other activity in the case happens. In exchange for pleading guilty, the prosecution offers a reduction in charges or lower sentencing recommendations. You must be present at the FDC.
Usually negotiated in the judge’s chambers, if resolvable, the criminal defendant accepts the plea and pleads guilty to the charges or reduced charges. If not resolvable, the criminal matter continues on the pre-trial track and further proceedings like waivers and motion practice occur.
Please note that depending your individual circumstances, you may have additional readiness conferences (even after the preliminary hearing).
Following the arraignment, the next most important appearance is a preliminary hearing, colloquially known as a “prelim” or “probable cause hearing.” During the preliminary hearing, two issues are before the court: (1) is there probable cause to believe that a crime was committed; and (2) if so, is there probable cause to believe that the defendant is the person who committed the crime.
While rare, the judge may dismiss the charges against you at this juncture and no further action is required. More commonly however, if both questions are answered in the affirmative, the judge rules that you are to “answer for the charges” meaning your case is sent to the trial court for further pretrial proceedings.
Arraignment For Trial
Typically, after the preliminary hearing you will have what is known as an “arraignment for trial.” Two important things happen. First, your attorney is given a written document listing the charges you must face in court. This is known as an “information.” Additionally, your attorney will receive a copy of preliminary hearing transcript.
Your attorney will also be given three important dates:
- Motion cutoff date
- Trial Readiness Conference date, and
- Date for trial
Waiver of Speedy Trial Right
If you choose to fight the charges, the Sixth Amendment to the U.S. Constitution requires that the prosecution bring the case to trial within 60 days of your arrest.
At the readiness conference, if the offer is not accepted, the criminal defendant often waives the right to a speedy trial because it is advantageous to their defense. The result is a trial takes a long time to schedule and ultimately resolve.
Pre-trial motions are a set of requests made to the trial judge, by either side, to help reduce the issues for trial. The motions include:
- Motion to Suppress Evidence,
- Motion to Dismiss Information,
- Motion for Speedy Trial,
- Motion to Sever Counts or Charges, and
- Motion to Compel Discovery.
Each of these motions have a particular purpose and must be made at certain times in the process or the ability to make the motion is curtailed or waived because the motions are time-limited.
From a defense perspective there are three powerful motions that can be made during the pretrial phase of the case:
- the motion to set aside information,
- the Pitchess motion, and
- motion to suppress.
In a motion to set aside the information pursuant to California Penal Code § 995, the defense asks the court to dismiss one or more of the criminal charges that have been lodged against you. A Pitchess motion asks the court for permission to review the arresting or investigating police officer’s personnel file. Defense attorney are looking for prior complaints, excessive force, biases, or other police misconduct to taint the arresting or investigating police officer’s credibility.
Lastly, a motion to suppress evidence asks the court to exclude from consideration all illegally obtained evidence. If these motions are successful, they are instrumental in resetting plea negotiations and may lead to the dismissal of all charges because of lack of evidence or credibility concerns
Discovery in a criminal proceeding is a phase where the defense and prosecution exchange evidence regarding the criminal case. Neither party may hide or withhold information from the other party and then attempt to present it later at trial. There is of course an exception, for newly discovered evidence. There are strict rules and time-limits for the exchange and presentment of evidence in criminal proceedings.
Phase 5: Trial
There are two types of trials available to the criminal defendant for resolution of his or her felony case: trial by court (bench trial) or trial by jury. In a trial by jury, 12 community members listen to the evidence and decide whether the defendant is culpable – guilty or non-guilty. In a bench trial, the judge is also the jury. He or she listens to the evidence to decide whether the defendant is guilty or not and makes all decisions regarding the law and criminal procedure.
If either side is not satisfied with the results of the trial by jury or bench trial, post-trial motions are available to both sides to present to the judge. One such post-trial motion, often filed by the defense is a motion for a new trial on the basis of jury misconduct, an error of law by the court, or new evidence, to name a few of the permissible reasons. Post-trial motions must be made prior to the sentencing hearing where the trial judge assesses the punishment and penalties the defendant will be assessed.
Phase 6: Sentencing
The sentencing hearing occurs after the trial and before the judge issues his or her sentencing decision. Each side is afforded an opportunity to present and explain what type of sentence or sentence considerations the judge should take into account when assessing punishment in the case.
From a defense perspective, mitigating circumstances, prior positive community involvement, and lenient treatment are advocated.
From the prosecution’s perspective victim impact statements and harsher penalties are presented for the judge’s consideration.
After hearing both sides, the judge may sentence the criminal defendant to incarceration for a fixed period of time or life, death in capital punishment cases, and any other permissible form of punishment. The sentence may include periods of probation post release from prison or supervision in sexual assault or rape of minors cases for life as well as the assessment of fines, penalties, and surcharges.
Three Strikes Law
For individuals convicted of two or more violent crimes or serious felonies, a third felony conviction will automatically trigger the three strikes law. The three strikes law compels the judge to impose a life sentence removing all other punishment options at the sentencing phase regardless of any mitigating circumstances.
When sentenced to death, the criminal defendant is allowed to choose death by lethal injection or exposure to lethal gas. If he or she fails to choose the method of death, the decision is made for them. However, on July 16, 2014, California’s death penalty system was declared unconstitutional by federal district court judge Cormac J. Carney because it is arbitrary and plagued with delay, a violation of the 8th amendment. Since 2006, even though there are over 700 people currently on death row, California has not executed a prisoner.
Phase 7: Appeals
If convicted of a felony in California, you have 60 days to file an appeal, unless you have been given a death sentence that automatically triggers an appellate review.
If the conviction was based on a plea before the trial, many times a condition of the plea agreement is that the criminal defendant waive his or her right to an appeal as to plea and sentence.
Review appellate options with your attorney prior to agreeing to a plea and most certainly after a conviction after trial. Appeals are generally a new case and are not covered under the original retainer or letter of engagement.
California takes a tough position on crime. The felony laws are the most severe in the country. A felony conviction impacts the criminal defendant’s life forever. If you or a loved one is facing a felony charge, seek the counsel of an experienced criminal attorney as soon as reasonably possible. At any stage of the case, whether during the pre-arrest investigation stage or the night before a court date, a criminal defendant can retain an attorney.