Charged With a Felony

What Happens When Someone is Charged With a Felony?

A felony is a serious criminal charge, which is defined in terms of possible punishment. It is defined in the California Penal Code as "any crime that is punishable by death or by imprisonment in state prison." In most cases, a felony prosecution starts with an arrest. Written police reports are presented to the District Attorney's Office, which then decides what charges, if any, should be filed and whether those charges will be felonies or misdemeanors (which are less serious crimes punishable by no more than a year in county jail and/or a possible fine).

Felony charges may also be filed even though there has not been an arrest. For example, the police may conduct an investigation of a crime and identify a suspect. Rather than arresting that person, the police may instead present their investigation to the District Attorney, who may file charges with a court and get an arrest warrant. The District Attorney may also present evidence to the Grand Jury, which has the power to charge a person with a felony.


The first step in the criminal court process is called an arraignment. Usually, this is the first time the defendant appears in court. He is informed of the charges, and is offered legal representation if he cannot afford to hire a private attorney. The defendant then enters a plea of guilty or not guilty. Most often, this is also the time when the defendant has his first contact with the Public Defender's Office.

The Deputy Public Defender who handles arraignments in that particular court will discuss the case briefly with the defendant. Ordinarily the Deputy Public Defender will then enter a plea of "not guilty" on behalf of the client. (If a case is particularly complex or unusual, a plea might not be entered at the first appearance, but might be entered at a later date in order to allow the Deputy Public Defender time to gather more information about the charges.) If a "not guilty" plea is entered at this first appearance, the case will then be scheduled for a pre-preliminary hearing and a preliminary hearing which is usually set no later than 10 court days after the arraignment. You must meet with your attorney prior to these next two appearances.


The pre-preliminary hearing is a brief appearance at which the case will either be confirmed for preliminary hearing the next day, continued, or a change of plea might be entered.
The preliminary hearing is the court proceeding at which the District Attorney's Office must present enough evidence to convince a judge that there is reasonable cause to believe a crime has been committed - and that the accused is the person who committed the crime.

This hearing is not heard by a jury, and at this point in the criminal process, the prosecution's case does not have to be proved beyond a reasonable doubt. The primary purpose of the preliminary hearing is to weed out charges that are obviously groundless. At a preliminary hearing, the prosecution may use police officers to present the statements of victims and witnesses to demonstrate to the judge that there is enough evidence to justify sending the case to a court for trial. The vast majority of defendants are "held to answer" after the preliminary hearing.

Understandably, this can be terribly frustrating for a client who wants to "fight" aggressively to win his case now, rather than later. Unfortunately, this is not always possible, nor wise. However, it is always important to remember that delay in a court case does not mean defeat. Effective and thorough legal defense takes time to prepare and that is always worth waiting for.


The case then moves to a trial court where the defendant is once again arraigned; however, this time a trial date is set. Generally speaking, the trial has to occur within 60 days from the date of this new arraignment, although felony cases frequently require more time so that the defense can conduct a complete, independent investigation, interview witnesses, consult with expert witnesses, and sift through all evidence presented by the District Attorney.

The defense attorney may also make various motions in order to get the case dismissed on legal grounds, such as a motion to get certain evidence thrown out of court because the police acted improperly when seizing this evidence, or a motion to dismiss because the evidence presented at the preliminary hearing was not strong enough to warrant a trial. The defense might also make motions to force the District Attorney or the police to disclose other pieces of evidence which could prove that the client is not guilty of the charge.


While the case is ongoing, the defendant may decide he or she does not want to go to trial but wants to settle the matter. Just as often, a District Attorney might offer the defendant a case settlement, referred to as a "plea bargain," to plead guilty to a less serious charge or agree to ask for reduced incarceration time at sentencing.

Settlement may occur at any time, from the first court appearance at the initial arraignment up to, and even during, trial. Case settlement usually involves the defendant pleading "guilty" or "no contest" for an agreed sentence, to an agreed-upon charge, or to a maximum sentence.

Another kind of "settlement" can be possible in certain felony cases involving non-violent drug offenses. Individuals who have been charged with first-time drug offenses, as well as certain defendants who suffer from the disease of drug addiction may be eligible to attend classes or other rehabilitation programs. If they successfully complete all required programs, they can have their case dismissed in a process which is known as "Deferred Entry of Judgment" (DEJ) - commonly referred to as DEJ or drug diversion. Still other defendants who commit non-violent drug possession offenses may be eligible for sentencing according to the Proposition 36, which generally favors long-term drug treatment as an alternative to incarceration. DEJ is available only upon a plea of "guilty," whereas Proposition 36 sentencing is available upon conviction - whether a defendant pleaded guilty or was found guilty after a trial.

An adult criminal defendant has the right to a trial by jury. This is where 12 jurors, who are called "the finders of fact," listen to all the evidence presented by both the prosecution and the defense and decide what is proved and what is not. The judge's job at a jury trial is to make sure that both the prosecution and the defense adhere to all the rules of evidence when presenting their case to the jury.

At trial, the prosecution must try to prove the client's guilt beyond a reasonable doubt. All 12 jurors must agree in order to either convict or acquit. If the jury cannot agree, a "mistrial" will be declared by the court, and the case may be tried again before a different jury, it may be dismissed, or a case settlement may be agreed by the prosecution and the defense.

A defendant can also decide to have a judge hear the case, instead of a jury; this is called a "court trial." For this to happen, the prosecution must also agree. In a court trial, the prosecution still has to prove the case beyond a reasonable doubt, but this time, the judge is the "finder of fact" and must decide whether or not the defendant is guilty, while also making certain that both attorneys are abiding by all the rules of evidence.


If a defendant is found guilty, the judge will then impose a sentence. The possible range of sentence, which is set by various laws, may range from no jail and probation, to imprisonment in the state prison. Sentencing can be a very complex process, depending on the severity of the crime for which the defendant has just been convicted.

In the most serious of cases, referred to as special circumstance prosecutions, the defendant faces a sentence of life imprisonment without the possibility of parole, or even the death penalty. If a defendant has been convicted of such an offense, then there is a separate proceeding, called a penalty phase, at which both sides present evidence either in aggravation or mitigation of penalty. The jury determines the appropriate penalty. If the jury determines that the defendant should be executed, the judge still has the power to overrule that determination and to sentence the defendant to life imprisonment without the possibility of parole. However, if the jury agrees that life imprisonment is the appropriate punishment, the judge does not have the power to impose the death penalty.


Defendants who have been convicted after a trial have the right to appeal their conviction. This process is started by the trial attorney who, upon request of the client, will file a notice of appeal in the trial court within 60 days of the imposition of sentence. A lawyer who specializes in appeals will then be appointed by the Court of Appeal to represent the defendant on appeal.

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