An arrest is made when a police officer has probable cause to believe a crime has been committed. An arrest may also be made after the issuance of an arrest warrant. Once a person is arrested, a Complaint is filed and a defendant is brought to Court for Arraignment within 48 hours (Penal Code section 825). At an arraignment, a person is informed of the charges, bail may be set (often bail is already set upon arrest according to a counties' bail schedule), a defendant is appointed a lawyer if he cannot afford one, and a date is set for further proceedings or a preliminary hearing. Some Courts require an entry of a not guilty plea and others do not require the entry of a not guilty plea and accept the setting of a further court date.
After Arraignment and Before Preliminary Hearing
After a person is arraigned on the charges and he has a lawyer (whether appointed by the Court or private), a case is usually set for further proceedings. Various Courts call the next set of court appearances various labels--Superior Court Review, Settlement conferences, etc.--but what these next appearances amount to is allowing the defense time to review police reports, conduct some investigation, gather materials for mitigation, preparing for a bail reduction, and attempting to resolve a case by some form of plea bargain.
If Plea Bargaining Fails, then What?
If the case is not plea bargained at this stage, and there may be many reasons for this inability to reach a plea bargain agreement, then a defendant will set the case for a preliminary hearing. A preliminary hearing can be set within 10 days of the entry of a not guilty plea or a defendant may waive time for a speedy preliminary hearing. At a preliminary hearing, the prosecution may elect to have the investigating officers testify in place of prosecution witnesses (a Proposition 115 Preliminary Hearing) or to have "live" witnesses testify or a combination of the two procedures. A defendant has the right to cross-examine witnesses and a limited right to produce witnesses on their own behalf. A judge, after hearing the evidence, decides two things: (1) is there a reasonable suspicion that a crime was committed; and, (2) did the defendant(s) commit the crime(s) alleged in the Complaint. If the Judge concludes yes on these two issues, then the case is set for jury trial.
A defendant has a right to a speedy jury trial within 60 days of his entry of a not guilty plea at his arraignment on the Information. The time for a jury trial may be waived and set after the 60 day time period.
At a Jury Trial, the lawyers typically discuss the case with the Judge who has been assigned the case just to get him familiar with the facts and some of the legal issues. A jury is selected from a random selection of people drawn from the community. After jury selection is finished, the lawyers give their Opening Statements and the evidence begins. Evidence starts with prosecution witnesses who are questioned and cross-examined. The defense may call their own witnesses to testify. Once all witnesses and documents have been introduced into evidence, both lawyers give their Closing Arguments. The Jury is instructed on the law by the Judge and the Jurors are sent to deliberate and decide whether the DA has proved its case beyond a reasonable doubt.
If the Prosecution has failed to prove the charge(s) beyond a reasonable doubt, the defendant is entitled to a NOT GUILTY verdict. If the DA has proved its case beyond a reasonable doubt, then the jury gives its GUILTY verdict on one or more of the charges. The case is then set for SENTENCING within 20 Court days of the date of the VERDICT. This time may also be waived. A PROBATION REPORT is prepared, MITIGATION evidence may be prepared by the defense and the Judge decides what the sentence is going to be. A person may be placed on PROBATION or be sent to PRISON.
After the Sentence
After Sentencing occurs, a defendant should always file a NOTICE OF APPEAL. That Notice must be filed within 60 days of the date of the Sentence. The defendant's lawyer can file that document. This NOTICE OF APPEAL starts the Appeal process. The Appeal is for a higher court to decide whether or not there were errors in the trial. An Appellate Court may decide that a defendant is entitled to a new trial, to a different sentence, to have the conviction thrown out altogether or that the Judgment and Sentence should stay the same. A defendant may also file for a WRIT, A Petition for Review in the State Supreme Court, and for Federal Writs and Federal Review in some circumstances.
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