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/She is informed of the charges, and offered legal representation if he/she cannot afford counsel. 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 attorney who handles arraignments in that particular court will discuss the case briefly with the defendant. Usually the attorney will 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 attorney 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 District Attorney's case does not have to be proven 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 District Attorney 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 frustrating for a client who wants to "fight" aggressively to win his case now, rather than later. However, this is not always possible, nor wise. It is important to remember that delay in a court case does not mean defeat. Effective and thorough legal defense takes time to prepare. Preparation is often worth the wait.

After the preliminary hearing, the defendant is once again arraigned; however, this time a trial date is set. Generally speaking, the trial must 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 if there are legal grounds. This might include a motion to get evidence excluded if police acted improperly when seizing it or a motion to dismiss if 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." This may include a guilty plea to a less serious charge or 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 referred to as a “lid.”

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" -- 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 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. [Insert Link to Drug Court FAQ.]

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 has been proved. 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 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, the case may be dismissed, or a case settlement may be agreed upon 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 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, there is a separate proceeding, called a penalty phase, at which both sides present evidence in aggravation or mitigation of penalty. The jury determines the appropriate penalty. If the jury determines the defendant should be executed, the judge still has the power to overrule that determination and 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. An attorney who specializes in appeals will then be appointed by to represent the defendant on appeal.

Find more information about this on the Felony Information page.

Show All Answers

1. Are Deputy Public Defenders real attorneys?
2. How do I get an attorney to represent me?
3. Can I get advice from an attorney before I appear in court?
4. How do I contact my attorney?
5. I forgot the name of my attorney. How can I find out who is representing me?
6. I forgot where my court is located. How can I find out where I'm supposed to appear?
7. I can't afford an attorney. Will I have to pay to be represented by the Public Defender's Office?
8. How much can I earn and still be eligible for the services of an attorney?
9. What if the Public Defender cannot represent me?
10. Are all "appointed attorneys" employees of the Public Defender's Office?
11. What is "O.R."?
12. What is bail?
13. When will the judge set bail and/or consider an O.R. release?
14. What happens when someone is charged with a felony?
15. What happens when someone is charged with a misdemeanor?
16. Will the Public Defender represent me if I am a resident of another state?
17. Will the Public Defender's Office represent me if I am a citizen of another country?
18. Will the Public Defender's Office represent me in an extradition hearing?
19. My English is limited. How can I get an interpreter to assist me or my witnesses?
20. I like a certain attorney. Can I choose who represents me?
21. I don’t like my attorney. How do I get a new one?
22. Who is eligible for drug treatment within the criminal justice system under Proposition 36?
23. I have heard about the success of drug treatment courts. How do they differ from regular criminal courts?
24. What happens when someone under the age of 18 is charged with a crime?
25. My child, who is under 18, has been arrested and needs drug treatment, mental health treatment or specialized education. Can the Public Defender help?
26. Will the Public Defender's Office represent me in the appellate courts?
27. Will the Public Defender represent me in a habeas corpus proceeding?
28. What is an expungement?
29. Who is eligible for an expungement?
30. When is an expungement available?
31. What will an expungement do for me?
32. Does the Public Defender's Office have access to any police officers or investigators who can look for evidence that will help me talk to witnesses in my case?
33. I know my attorney can't repeat anything I say in confidence. How can I be sure that what I say to a Public Defender investigator or paralegal will be kept confidential?
34. If the police contact me, do I have to speak with them?
35. What should I do if the police want to search me or my belongings?
36. I want to sue the Police Department. Will the Public Defender represent me?
37. I was treated unfairly by the judge in my case, and I want to sue the court. Will the Public Defender's Office represent me?
38. I am the victim of a crime. Will the Public Defender represent me?
39. I need an attorney to help me in a civil case (like divorce, landlord/tenant dispute, debt payment, bankruptcy, child custody). Does the Public Defender handle that type of case?
40. How do I get a certificate of rehabilitation?
41. What is Proposition 64?