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Criminal Process in California State Courts - An Overview

Criminal Case Process in California State Courts
The criminal justice system in California is filled with many complicated specific rules and procedures.

One of the most frequent questions we get from potential clients and family members is how the criminal case process works in Los Angeles County. Even for those who have gone through the unfortunate process of being arrested and charged before, the process can be confusing and opaque.

For that reason, we encourage you to review this brief overview of the major stages of a criminal case.

The California criminal justice system is complex and filled with many complicated specific rules and procedures. Police make arrest based on probable cause that someone has committed a criminal offense. They have rules that must be followed in a stop-and-frisk situation and a Miranda Rights violation.

It's important to note police don't file criminal charges and it's a myth an alleged victim has the legal authority to “press charges” on anyone.

Police simply provide reports and evidence to the prosecuting attorney, who then decides whether or not charges should be filed and what type.

For an inexperienced defendant, the consequences of attempting to defend yourself are often devastating. Retaining an experienced criminal defense lawyer who knows the rules, codes, common defenses, and legal procedures and use the justice system to their client's advantage have the best chance at a favorable outcome.

Our Los Angeles criminal defense law firm at Eisner Gorin LLP can evaluate your situation and plan an effective strategy, such as filing pretrial motions, to get you the best legal defense possible. A Penal Code 995 motion to dismiss is a legal motion asking for the dismissal of a criminal case. It's filed after a preliminary hearing in a felony case.

If you have been denied a right to a speedy trial, then your criminal lawyer can file a motion asking the court to dismiss your charges. This is known as “Serna motion,” which is a motion to dismiss a misdemeanor or felony case due to a speedy trial violation.

We can help you with a bail reduction motion in California criminal cases.

For a detailed consultation regarding your particular situation, we encourage you to set up an appointment with one of our experienced criminal defense attorneys. 

For many first-time offenders or someone charged with a minor crime, there are some alternative prosecution programs that allow a defendant to earn dismissal of criminal charges.

Initial Report and Investigation

Before a criminal prosecution is initiated, the alleged crime must first be investigated. The investigative process begins with some type of report.

This can be a formal statement provided by a witness at the police station directly to an officer or it can simply be a call to 911 by someone asking for assistance.

Once a crime has been reported to law enforcement, the relevant agency - either the police or the Sheriff's department - will respond. If the situation constitutes an emergency, law enforcement will be dispatched immediately to contact the reporting party and/or the suspect. 

In other cases, a detective may be assigned to investigate prior to any arrests being made. In some cases, a they may use a police lineup in an attempt to get an eyewitness to identify a suspect.

Whether no arrest was initially made or the alleged perpetrator was arrested and bailed out, a detective will typically be assigned to conduct an investigation.

This process can take days, weeks, months, or even years depending on the complexity of the alleged crime and how busy law enforcement is.

The investigative stage of the case is critical as it presents an opportunity for prefiling intervention. By presenting an effective defense position to the detective, the case may be dropped prior to formal charges being filed.

Filing the Complaint - Criminal Charges

Once a detective has completed the investigation, the case will be “presented” to a prosecuting agency for filing consideration. As stated above, it's a common myth that an alleged victim can “press charges” against anyone. Furthermore, police do not file criminal charges.

The detective lays out the factual basis for the requested criminal charges and a deputy District Attorney or City Attorney determines whether the case should proceed to a formal criminal charge. While this determination is most often made prior to the first court date (typically the date on the citation given to the defendant at the time of arrest), sometimes more time is required.

When the defendant appears for the first court date, they may be informed that no case is filed and be given a proof of appearance. However, the prosecuting agency has up until the relevant statute of limitations to decide to file charges.  An indictment means that a grand jury, not a prosecutor, has filed criminal charges against you. 


If a case has been filed, the first formal court date is known as an arraignment. This is the time for the defendant to enter a Not Guilty plea and receive initial discovery, usually consisting of the police reports, witness statements, etc. 

Arraignment is also an opportunity to request increased or decreased bail at the bail hearing. The first source of authority relied upon by judges in setting bail and prosecutors in requesting bail is typically the bail schedule

Anyone who has been charged with a minor crime or non-violent misdemeanor are frequently granted an own recognizance release.

In domestic violence cases (and some others), the court will additionally issue a protective order requiring the defendant not to contact the alleged victim while the case is pending.

In most misdemeanor cases, a defendant who has already retained a private attorney does not need to be present at arraignment. For felony crimes, however, the defendant must be physically present.

Early Disposition - Preliminary Hearing Setting - Pretrial Conference

After arraignment, the next court date will be some form of status conference. The exact verbiage used differs from courthouse to courthouse and even between different courtrooms. The early disposition court proceeding is a chance for both parties to resolve the case without having to litigate the issues at a trial.

The major distinction is between felony and misdemeanor cases. In felonies, the defendant is entitled to a preliminary hearing, or probable cause hearing, at which the government has a relatively low burden of proof and must demonstrate to the court that enough evidence exists to bring the case to a jury trial. 

One of the purposes of a preliminary hearing is for the prosecutor to show the judge there is at least some evidence of your guilt. Misdemeanor defendants do not enjoy that right and must either settle the case or proceed directly to a jury trial. 

There can be, and often are, multiple early disposition conferences, preliminary hearing setting dates, or pretrial conferences.

At these dates issues of outstanding discovery can be addressed with the court while the parties engage in settlement negotiations to determine whether the case can be resolved without the need for contested litigation.

If the defense brings a motion which requires a formal hearing, such as a motion to suppress, the court may decide to hold such a hearing on one of these setting dates. 

In felony cases, however, suppression motions are typically heard in conjunction with the preliminary hearing. We can also determine if your are eligible for Mental Health Diversion or another California pretrial diversion program, such as a drug court.

Preliminary Hearing

A preliminary hearing is a probable cause hearing which shares many features with a jury trial. Witness testimony and legal argument will be presented by both sides and the proceeding is a formal, reported, hearing. However, the burden of proof is much lower. 

The government only has to establish that probable cause exists to “hold to answer” the defendant, meaning there is enough evidence to take the case to a jury.

This is a much easier burden to meet than the proof beyond a reasonable doubt required for a conviction at trial. Preliminary Hearings offer the defendant he opportunity to poke holes in the government's theory of the case and cross-examine their witnesses.

By demonstrating to both sides the strengths and weaknesses in the case, these hearings also often inspire the government to make a settlement offer. Again, preliminary hearings are only conducted in felony prosecutions, not in misdemeanor prosecutions.

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Trial and Sentencing

If no negotiated resolution between the parties can be reached, the case will proceed to a jury trial as guaranteed by the United States Constitution.

A panel of citizens will be asked to evaluate the evidence and determine if the defendant has been proven guilty beyond a reasonable doubt. If they do, the defendant is deemed convicted. If not, the defendant is deemed acquitted.

Whether by a plea of Guilty or No Contest pursuant to a negotiated plea agreement, or following a Guilty verdict at a jury trial, the defendant will face sentencing.

In the case of a plea deal, the defendant knows the terms of the sentence ahead of time and the judge's role is simply to approve the terms of the deal reached by the parties. 

After a jury verdict however, the judge has more discretion to impose a sentence of his or her choosing. 

For the significant majority of misdemeanor defendants with non-violent charges, a conviction does not result in incarceration, rather they are placed on misdemeanor probation.

In felony cases of non-violent offenders or those with otherwise clean records, the court will often agree to impose formal, or felony probation.

California employs a sentencing regime in which the judge selects between a low term, a mid term, and a high term for each offense of conviction pursuant to the Penal Code

For instance, a crime might be punishable as a “2-3-5,” meaning the judge, after weighing the aggravating and mitigating factors in the case, will select either a 2, 3, or 5-year State Prison sentence.

Misdemeanor sentences are capped at 1 year in the county jail, whereas felonies are punishable by State Prison time of at least 16 months, or even death in the case of some 1st degree murder cases.

California criminal procedure has a mechanism for defendants to move to set aside their convictions and obtain a new trial even after a jury has found them guilty of a criminal offense following a jury trial. This is known as a Motion for New Trial and is described under California Penal Code 1181.

Post-conviction Appearances

In many cases in which probation is granted, including both misdemeanors and felonies, the defendant will be given some affirmative obligations to complete. 

These could include community service, counseling, anger management, the payment of fines and fees, or any other reasonable conditions which the judge imposes.

Courts will typically want to set progress report dates to monitor the defendant as he or she completes these obligations.

Many defendants choose to represent themselves at these dates, but some choose to retain attorneys, especially if they are not in strict compliance. 

If a defendant does not obey the terms and conditions of probation, the judge may find them in violation and sentence them to additional punishment. 

A defendant accused of a violation of probation has a right to a formal hearing at which the government has the burden, by a preponderance of the evidence, to establish that the defendant is in violation.


As you can see, the criminal investigative and court process is complex. From start to finish - from a report being made to a case reaching final disposition - the process can take months or even years. 

Effective legal representation at each stage of the process is critical to achieving the best possible outcome. In some cases, you may be eligible to file a motion for factual innocence.

If you, or someone you know, needs assistance with any stage of the process described above, please contact our experienced Los Angeles criminal defense attorneys for a consultation. Eisner Gorin LLP is a boutique criminal defense firm practicing in the Southern California area.

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