Why Is a Felony Case So Hard to Follow in California?
The answer is largely historical. Originally we had municipal and superior courts in California. Magistrates presided over municipal courts and judges over superior courts. Someone charged on a felony complaint would first be brought before a magistrate and arraigned on the complaint. In order for the defendant to be held on the felony charge, however the magistrate had to hold a probable cause hearing as soon as 10 days after the arrest and in no event longer than 60 days after the arrest. If probable cause was found the defendant was then bound over to Superior Court where he was then arraigned on an information.
The two court systems have now been consolidated. All courts are now Superior Courts. But the same procedure is followed as before. If you are arrested on a felony, you are arraigned on a felony complaint before a judge sitting as a magistrate who within the 10-60 day time limit discussed above has to hold a preliminary hearing to establish probable cause. The defendant is then bound over to superior court where he is arraigned within 20 days before a judge and a date is set for trial.
This system is confusing for many because they don't understand the two step arraignment. And why should they? the system doesn't match the new court structure.
Felony Speedy Trial in California
After your initial arraignment before a magistrate if you insist on your speedy trial rights you must have a preliminary hearing in the next ten days. You can partially waive this right by not insisting on a 10 day preliminary hearing but asserting your right to such a hearing within 60 days. You can also waive both rights and your case will languish until you reassert your rights.
Should I Waive Time?
This question has a simple and a complicated answer. If you are in custody you should not waive time. There is a chance however small that you will be released after your preliminary hearing. This also puts tremendous strain on the system. If everyone insisted on their speedy trial rights instead of pleading out the system would come to a halt.
In complicated high risk cases, such as murder or child molestation, you may choose to waive time to give your attorney time to prepare. Not only does a no-time waiver case stress the DA, it stresses the defense lawyer to be fully prepared in a short amount of time.
How Long Will I Have to Await Trial After My Preliminary Hearing?
If you insist on your speedy trial rights, you must be arraigned on a felony information within 20 days of the preliminary hearing. From that date the DA has 60 days to bring you to trial. If the court room space is not available your case must be dismissed.
What Is an Indictment?
Although this procedure is seldom used in California, the DA may choose to have you indicted before a grand jury rather than disclose parts of his case in a preliminary hearing. If he does so, following a hearing by a grand jury you may be bound over for trial without a preliminary hearing.
Last Step: Trial
During the 60 day period between your arraignment on the information and trial your attorney and the DA will be working feverishly on preparing for trial. 30 days prior to trial the DA must disclose the evidence he is going to use. The defense has a similar obligation but it doesn't apply to rebuttal evidence. Just before trial there will be a readiness conference where some judges will attempt to dispose of a case and others will simply whether the attorneys are ready top precede.
At last you come to your trial where a jury will be chosen and evidence presented first by the DA and then by the defense. This is the goal everyone has been working toward from day one. Your trial starts the day a jury panel is sworn. After that what happens will depend on the evidence and your attorney's skill. But remember that your attorney did not make the facts no matter how skillful he is. And the jury's decision will be made hopefully on the facts that come into evidence and that alone.
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