Crimes are classified as felonies and misdemeanors. Infractions are civil offenses not considered crimes, like traffic violations. A felony is any crime punishable by prison. A misdemeanor is a crime punishable with up to a year in jail.
The Role of Attorneys in a Criminal Case
The District Attorney's Office (DA) is responsible for filing criminal cases. The DA is the prosecutor that represents the People of the State of California and decides what charges to file against you, if any, in a formal document known as a complaint or information. The DA is present at all court appearances once the case filed until the case is resolved and makes offers and recommendations to Defense counsel and the Judge for resolution of cases. In some hearings, the DA will waive their appearance, typically for traffic tickets. In North Court, the City of Anaheim has its own team of prosecutors who are City Attorneys but act functionally the same as a DA.
The Defense Attorney represents the accused or the Defendant in a criminal case. We call them clients. It is our job to make sure you understand this process and your rights and obligations in the proceedings. Sometimes that means you get to say nothing except to us outside the presence of the Judge and/or the DA.
The Role of Judges in a Criminal Case
The Judge (also referred to as "the court") gets involved in criminal cases at every court hearing. Once the case is on the calendar, the attorneys may want to discuss the case with the Judge "off the record" in the Judge's chambers. If a resolution is being discussed, the Judge has independent discretion to offer a resolution of the case without the approval of the DA. If the court offer is accepted, the court must take a plea to all the charges brought against the Defendant. The court cannot change the specific crimes charged, only the punishment for pleading to all of them. The DA is in charge of the complaint and can agree to dismiss charges and will usually make an offer to resolve the case. In this instance, the court doesn't need to be involved in discussion between the attorneys.
Warrants and Investigation
A warrant is an order from the court permitting law enforcement to go out and look for people or evidence. These kinds of warrants are usually requested by law enforcement with the approval of the DA. A warrant to get someone is an arrest warrant, a warrant to search a place is a search warrant. Not to be confused with a bench warrant, which is a warrant issued by the judge usually for failing to appear at a court hearing. The result of a warrant being issued is that the person being requested can be arrested and brought to the local jail. We provide 24 hour release assistance if you are arrested. If you suspect or get notice that a warrant exists for you, call us so we can begin getting the warrant recalled so you don't get arrested and suffer the inevitable consequences of an unexpected incarceration.
If a crime is observed or investigated by police, or a warrant is issued and executed, or police are requested by a citizen to arrest, the criminal case begins to take shape at this stage. An arrest is an important legal activity, a seizure of your person, that gives rise to many defenses in a criminal case when it is not effected properly. If your rights are violated during or because of an arrest, your defense attorney must know. Once arrested, the individual can start the process of getting out. This can occur via posting a bond, or getting released on his own recognizance (O.R.) with a written promise to appear in court on the day scheduled for arraignment.
Bail is simply insurance that ensures the defendant's appearance in court. If a bond is posted for bail, and the defendant fails to show up for court, the bond is forfeited, and the co-signor is responsible to produce the defendant, or pay the entire bail amount. Bail agents use bounty hunters to track down fugitives and return them to court.
Bail is set by the arresting officer or his supervisor, the watch commander, jail release officers, or the Judge. In each county, a bail schedule gives a guideline for bail amounts depending on the charges that the individual was booked on. To post bail, one can use cash or a bail bondsman. We have access 24 hours a day to local bondsmen that are willing to post your bond as soon as possible to get your loved one out of jail. In Orange County, we can contact the jail to discuss reducing the bail amount after booking occurs before the suspect is sent to court.
Decision to File Charges
After law enforcement make an arrest, they write their reports and send the reports to the DA for a charging decision. Police will recommend the DA file certain charges based on the information obtained by the Police. The DA is the entity solely responsible for filing charges. The D A has independent discretion to bring the recommended charges, other charges, or none at all. Occasionally, the DA may need to return the file back to the Police to clarify a certain point that is necessary to the case. There is a common misconception that citizens or victims can "press charges" or "drop the charges". The DA is able to take into consideration whether their interest or lack of interest would affect the case, but the prosecutor has the ultimate decision and can file charges even if there is no interest to the specific victim or citizen because there may be other reasons to prosecute.
Once arrested, if the suspect remains in custody, the law requires that the individual be charged within 72 hours of the arrest. If the third day is a weekend or holiday, the rules allow the arraignment to take place the next business day. In Orange County, an arraignment occurring for an individual in custody, will occur at the county jail in courtroom CJ1.
At the arraignment, the charges are read and the individual can now be considered a defendant, with the important rights provided by the State and Federal Constitution and State Law regarding communication, legal representation, and speedy trial rights. A copy of the police report is provided to defense counsel at the arraignment by the DA. The court may review the bail setting at arraignment and future hearings.
Pre-trial Conferences and Plea Bargaining
Plea bargaining is merely a device that is designed to allow discussion among the attorneys and the judge, if necessary prior to trial. The negotiations and case preparation can help to narrow the issues that are presented at trial, or provide a resolution of the case before trial. Pre-trial conferences are the court hearings in which these discussions take place and pre-trial motions to exclude evidence can be brought by the defense. Cases can be resolved at any stage of the proceedings, even during the middle of trial. Generally, about 3 to 5 percent of cases do not get resolved and a full blown trial is conducted before a resolution is obtained. Either by way of conviction or acquittal.
Only in a felony case is there the added procedure called a preliminary hearing. At the preliminary hearing, the DA must prove that the crimes were committed and that the Defendant committed them. The burden required to prove these facts is low and is not hard to provide at a preliminary hearing and the DA may provide as little evidence as possible just to get the case past the preliminary hearing. The law allows for police with 5 years of experience to speak on behalf of every witness that has personal knowledge of the facts of the case. These witnesses may be necessary for trial, but not at the preliminary hearing. The prelim is an important stage of the proceedings, however, because it allows the defense to test the efficacy of the People's case and reveal weaknesses in the case overlooked by the DA. The court will dismiss charges if there is not enough evidence presented to convince the judge that there is probable cause that the crime(s) was/were committed.
This is the first half of two guides that I've provided for you. The other is the rest of what can happen in a criminal case, the trial, appeal, and post conviction motions and modifications of probation or a criminal sentence. I hope this helps, but there is nothing that can replace an in-person consultation with a criminal defense attorney addressing your specific case or questions.
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