California Felony Procedure Explained by Criminal Defense Attorney Joseph Tully
My name is Joseph Tully of Tully & Weiss Attorneys at Law. A lot of times criminal law can seem very mysterious, and mysterious can be very scary. The purpose of this video is to give you a brief overview of California felony procedure.
There are normally two phases of a felony case: a complaint phase, and an information phase. And we’ll get into what that means in just a little bit. Well, how does a felony case in California start? It starts out pretty basic. A police officer generally delivers their police report to the district attorney’s office. The District Attorney’s Office is full of lawyers.
A lawyer will look through the police report and decide whether or not to file a case. They’ll decide not only what charges to file, but whether to charge them as felonies or misdemeanors. If the District Attorney’s Office decides to file a case, they file what’s known as a complaint with the court. A complaint is a piece of paper. It has the word complaint on it, and it has a list of the charges.
One of the biggest comments that I hear from people in the position of waiting to see whether or not the district attorney’s office is going to file charges against them is something like, hey, the District Attorney’s Office wouldn’t waste public funds on something like this.
Well, you’d be dead wrong there. We have big budgets for law enforcement, we have big budgets for the district attorney’s office, and the courts run a massive amount of people through the system day in and day out. So it’s more likely than not if the DA is serious about a case that they’re going to file. The notion that they won’t waste public resources on this doesn’t fly anymore. When the prosecutor files a complaint with the court, it’s what starts off a criminal case. A complaint has to give you notice under due process, there might be one charge. There might be 10 charges. There might be 100 charges.
It all depends on how a prosecutor reads the police report and decides to file. Once a case is filed in court and the criminal case begins. The very first thing that happens is an arraignment. Think of arraignment as a start of a case. It’s the kickoff. A lot of times before a court, people are very afraid and they’re nervous. But the first court date is usually very simple. You go to court; you get a copy of the complaint. You go through the charges, and you say not guilty and leave court. Because you have the right to a speedy trial, things will move along fairly quickly in criminal court, unless you waive time, unless you give up the right to a speedy trial and waive time.
The defense attorney also has an opportunity at arraignment. If the defendant is in custody to argue for either in or release or “OR” means on your own recognizance. Basically you promise the judge the will show back up to court when they tell you to or for lower bail. The decision to go with a speedy trial or to waive time really should be decided by an attorney. Again, the defendant always has the right to a speedy trial, and no one can take that away from you. But if your attorney wants to waive time, I recommend highly that you listen to your attorney about this decision. It’s a very important decision and it could affect the whole outcome of the case. So once this case is in motion, once the complaints’ been filed, and once an arraignments happened where a defendant has pled not guilty, in other words, by saying “not guilty”, you’re telling the government prove it. Then what happens?
Well, the case doesn’t go away. The government proceeds to prove the case against you. So the first phase of a felony case begins with an arraignment and it ends with a preliminary hearing. All a prosecutor has to do at a preliminary hearing is to show a judge that there’s reasonable suspicion that the crimes occurred. It’s usually very easy for them to do so. A lot of people think of a preliminary hearing as a rubber stamp procedure. In other words, whatever the prosecution wants, they generally get, but it’s still very important to fight with everything that you have at a preliminary hearing. The DA gives just enough cards away to the judge, so that the judge has a reasonable suspicion that the crimes occurred.
If the judge finds that there’s reasonable suspicion that the crimes occurred, then the judge will hold the case over for jury trial and the case starts all over again. But this time in a jury trial phase and the defendant will have to go to another arraignment. Again, there’s two phases in a California felony case. The first phase is the arraignment to preliminary hearing. The second phase is arraignment to jury trial, whereas preliminary hearing was the end of the first phase. Jury trial is the end of the second phase. After a holding order, the judge will issue a date for arraignment. At arraignment, it’s the exact same thing as the first arraignment.
The defendant shows up to court. The defendant receives a list of the charges. Instead of it saying complaint on it, it’ll say the word information and it’ll have the list of charges that the government is charging someone. At this arraignment, it’s the same decisions, plead not guilty and decide to waive time or not waive time. A jury trial can last for weeks, months in some cases even years. A preliminary hearing is much shorter. It can last for minutes, hours, days, sometimes weeks, but usually not years, where a jury trial would be like a movie lasting for two hours. A preliminary hearing is like a movie preview. It lasts for two minutes. A jury trial, you see all the characters, you see all the plot points.
In a preliminary hearing you see some of the characters and some of the plot points. One good thing about a preliminary hearing is that it gives you insight into where the government is going, how are they going to present their case? Again, they don’t present their whole case, but they present a thumbnail sketch of it, and it could give you a clue as to how a prosecutor will be seeking to convict someone in front of a jury.
For a speedy trial for a preliminary hearing, you have two separate rights. The first right, you have the right to a preliminary hearing within 10 court days. The second right, you have the right to a preliminary hearing within 60 calendar days. Again, you should talk to an attorney about waiving one or both of these rights and whether or not the case will benefit from that. Another thing about a preliminary hearing as it it’s kind of the halfway point in a criminal case. Even though a preliminary hearing might happen within 10 court days, and a jury trial might take much longer to happen, weeks, months, even years, a preliminary hearing is still sort of the halfway point; sometimes the point of no return in a criminal case. It might be that a preliminary hearing takes two years to get to, and then a jury trial happens 45 days after that, but still a preliminary hearing is always the midpoint of a case because after a preliminary hearing, then the defendant is facing jury trial, and you’re in a much more serious position.
So whether or not to go through with a preliminary hearing, again, should be discussed with an attorney. Sometimes if the case is going to plead out, it’s better to do so early on. Sometimes it’s better to wait until just before jury trial, and sometimes it’s best to go to jury trial.
Once the felony case starts, it can only stop three different ways. If the DA dismisses, if there’s a plea agreement, or a plea bargain, or if it‘s adjudicated at a jury trial. If the case goes to a jury trial, there are only three different outcomes. You can be found not guilty, you can be found guilty, or the jury can fail to reach a decision, which then the judge declared a mistrial, and that’s called a hung jury. To be convicted of a crime in California, there needs to be a unanimous verdict.
In other words, all 12 members of a jury would have to vote guilty. If a jury verdict is anything other than unanimous, then that’s either not guilty, or it’s a hung jury. If there’s a hung jury, the DA can either elect to go to trial again and give it another shot. They can change things around a little bit. They can call witnesses that they didn’t call the first time, they can introduce new evidence, they cannot introduce evidence and the defense can either react or not react. But the point is that the choice is up to the DA. Do they want to bring it before a jury again or do they not? If it’s a case where they had 11 people voting guilty, and only one person voting not guilty, they’ll probably bring it to a jury trial again
If it’s the case, or they had 11 voting not guilty and one voting guilty, then they probably wouldn’t want to bring the case again, although with a lot of prosecutors, you never know. If it’s somewhere in the middle, then it’s anyone’s guess. After a hung jury—sometimes a defense attorney is able to negotiate a better plea agreement than before jury trial. So sometimes a hung jury can lead to a successful plea bargain. If a case hung six to six, for instance. I’d argue that that’s a pretty strong evidence of reasonable doubt. It means that half the people didn’t buy the government story, but it’s still up to the government to either pursue the case or not pursue it. Sometimes it’s up to that DA that tried the case, sometimes it’s up to their supervisor.
Sometimes they’ll go forward with the case, sometimes they won’t. You’re really sometimes at the mercy of the personality of the individual prosecutor in charge of that decision.
Now, I want to talk to you about another way a felony case can start, an indictment. Think of an indictment as replacing the first phase, the preliminary hearing phase of a felony case. With a preliminary hearing phase, you have a complaint, and then you have a preliminary hearing where the judge hears the evidence and decides whether or not to issue a holding order. With an indictment you have a grand jury being told about evidence and they decide whether or not to file charges.
If the grand jury decides to file charges, then that’s called an indictment. And it basically substitutes for the preliminary hearing phase. After an indictment, you don’t have the right to a hearing. You can’t be present during a grand jury. You don’t have the right to an attorney during an indictment. But if an indictment is filed against someone, then you start the jury trial phase of a case. There’s an interesting anecdote about prosecutors and indictments and it goes something like this. A halfway competent prosecutor can indict a ham sandwich in front of a grand jury. After an indictment, because it substitutes for a preliminary hearing phase, you end back at a jury trial phase.
So everything that we just talked about jury trials, that happens after an indictment, you’d have an arraignment, you show up to court, you say not guilty, and you decide to waive time or not waive time based on your attorneys advice. At the end of that phase is the jury trial. So with a preliminary hearing, you get some insight into how the government is going to present its case. With a grand jury indictment all that is secret, your attorney will get transcripts but you can’t be part of that process. In fact, it’s not public. One thing to be aware of when deciding to fight your criminal law case and talking to an attorney is that most attorneys out there will charge only for the first part of the case—for the preliminary hearing case.
And then if you can’t come up with more money, which sometimes means higher rates, then you’re left on your own or with the public defender and the second phase, the most important phase, the jury trial phase of the case. So in cases where people retain attorneys who only do the preliminary hearing phase, all of the work, all their relationship, all of the comfort and everything that you’ve invested in that attorney, it’s gone if they don’t stay on the case after the preliminary hearing. A lot of times the preliminary hearing can be used to set up the case successfully for jury trial, so you should have one Attorney for the preliminary hearing who stays on for the jury trial if you can do it.
At Tully & Weiss, we want to represent you for the whole case, we want to do the preliminary hearing. And if the case proceeds, then we want to continue representing you up to jury trial and through jury trial, if that’s what the case calls for.
We’re not afraid to go to jury trial, and we’ve been proven to be very good at it. Not all attorneys are created equal, just like not all doctors are created equal. Just like not all scientists are created equal. You want to make sure that you find the right attorney for your case. You want to find an attorney who you can communicate with, who communicates back to you, who has a staff, who when you call can pick up the phone and talk to you. If you’re meeting with an attorney to talk about hiring them for a felony case in California, be sure to clarify, now, is this retainer covering the whole case or is this only covering the preliminary hearing phase? What happens after the preliminary hearing phase? What are your rates? Will you still stay with the case? Make sure you clarify that.
Also, another thing to talk about with your attorney is whether or not the fee includes a jury trial. Usually it does not. Most attorneys charge separately for jury trials. But it’s important to think about that in your case. It’s important to know that because you may need to go to jury trial to continue to represent yourself. If there’s going to be additional fees, you need to plan accordingly. You want to be very cautious about someone who’s never gone to a jury trial or doesn’t go that often. Prosecutors are going to be more afraid or be more respectful of defense attorneys who go to trial, who aren’t afraid to go to court and fight for their client, especially if that attorney has great trial results, like we do at Tully & Weiss versus some defense attorneys have reputations for never going to jury trial, for pleading their clients out.
In the criminal law field, a defense attorney who pleads our client out always and never goes to trial is called a “dump truck”. You want to watch out for those people. Another thing that people will talk about is whether or not someone is an ex prosecutor, if that helps. Again, I think somebody who’s a hard working attorney, who cares about their clients, who is knowledgeable is a lot more important than their past work history. Some ex-prosecutors are excellent. Some still think like prosecutors and don’t really care about their clients that much. It depends on the person. You can’t have a blanket rule. Another thing that people will talk about when hiring an attorney is whether or not to hire a local attorney or a non-local attorney.
Sometimes I get hired because I’m a local attorney. Sometimes I get hired specifically because I’m not a local attorney. In my experience, I don’t know that whether or not an attorney is a local attorney, whether or not that has a great impact on the case. I’ve gotten great results being a local attorney and I’ve gotten great results being a non-local attorney. A hard working, knowledgeable attorney is a lot more important than their location. Again, no one, not even me, can guarantee you a certain result. So an attorney when you’re meeting with them will not guarantee you any kind of result. All we can do is guarantee you that we will care about you, that we will work hard for your case and that we will fight for you.
Another thing to look for when selecting an attorney is whether or not they’re a specialist in their field, as recognized by the California State Bar. Because, I have been recognized as a certified specialist in criminal law by the California State Bar, I can tell you that there’s generally a big difference between a certified specialist and just general practitioner who doesn’t do a lot of criminal defense. I hope this video has been helpful to you. Again, this isn’t the end all be all, this is a thumbnail sketch. This is speaking in generalities. If you are facing felony charges please speak to a qualified attorney.