What is the Criminal Process?
The following criminal process information is a general
overview of the criminal process and Offenses.
Initial Arrest and Arraignment:
Anyone arrested in California must be brought in front of a magistrate or a judge to be arraigned within 48 hours after the arrest (unless it is on a weekend or holiday). Arraignment is the first stage of the legal proceedings, an it is at this stage that prosecution files its complaint against the arrested person. Generally the accused (defendant) will enter a plea of not guilty and set the case for the next court hearing which could be a pretrial or preliminary hearing.If you are facing an upcoming arraignment contact our office to consult with an experienced criminal defense lawyer.
Pretrial/Preliminary Hearing :
Different jurisdictions may have different approaches to proceedings. Generally, after the arraignment comes either the pretrial or the preliminary hearing depending on whether the accused is charged with a misdemeanor or felony. At the pretrial, the defense attorney and the prosecutor will attempt to resolve the matter if possible through "plea bargaining." As a part of the "bargain", the prosecutor might agree to charge the defendant with a less serious offense, or to reduce the sentence or punishment. Of course prosecutor also has the discretion and power to dismiss the charges altogether (an unlikely result in most situations). All those accused of a crime must know that they are not required to accept an offer made by the prosecutor and must do so after consulting the matter at length with their attorney.
A preliminary hearing on the other hand is the stage where District Attorneys office (prosecutor) will have to present enough evidence to satisfy the presiding judge to send the case to set the case on the trial calendar. Today with the changes made to evidence laws of the state of California, it has been quite simple for prosecutors to meet this burden, however, an experienced attorney can use the preliminary hearing to pressure the prosecutors in proving the elements of their case at an early stage and to commit their witnesses to statements they can't change at the trial.
Pretrial Motions :
Pretrial motions are filed by defense attorneys in both misdemeanor and felony cases in order to point out deficiencies in the prosecutor's case, to seek out more information or to make sure evidence gathered illegally and unconstitutionally is not used at trial. Our office takes pride in devoting long hours to developing a successful strategy and researching the options available to our clients. The difference between an experienced trial lawyer and one who lacks the courtroom experience will become evident at this stage or proceedings.
Jury Trial :
Finally, if the case has not been resolved by this time, it will be presented to a jury chosen by both defense attorney and the prosecutor. Jurors are called "tiers of facts" and their job is to determine the facts while the judge makes sure correct law is applied. The role of the attorney at this stage is crucial. An Experienced Attorney Will Bring Insight Into The Process Of Choosing Jurors, And Will Be Able To Make Sure That The Defendant Gets A "Fair Day" At The Court. Our office has tried many criminal cases in most courthouses in Southern California, allow us to evaluate your case at no charge before you proceed to trial.
Post Trial Motions :
Post-trial motions are filed to challenge the decision of the jury or a ruling by the judge. These motions are very important, as many issues must be raised at trial or in post-trial motions to be preserved for appeal.
Appeal:
The losing side, if so desired, appeals the case. Decisions of the superior court are appealed to the appellate courts and those of the appellate court to the supreme courts of California or United States. It is imperative to note that appeals are costly and rarely successful, however, these facts should not discourage those who feel their rights have been denied from seeking justice in the appellate courts. It is also important to note that there are deadlines to when an appeal has to be filed. If a defendant does not file his/her notice of appeal on time his/her rights are forever relinquished.
Sentencing:
Once convicted, a defendant will have to be sentenced. Sentence is, in essence, the punishment received by a defendant who pleads guilty or is found guilty by the jury or court. Prior to sentencing, probation can be asked to prepare a report, which will make recommendations to the judge as to what sentence to impose. It is important to note that State court judges retain more of discretion than Federal Judges in sentences they hand out. This is why an experienced attorney must prepare the convicted defendants sentencing recommendations. Our attorneys have been quite successful in arranging for jail alternatives for our clients such as, community service, home detention, rehab programs, private jails and weekend confinement.
Expungment:
Expungment is the process by which a person's record maybe cleaned and his/her conviction removed from their record. It is important to note that although a record expunged does not need to be disclosed in most situations, if one is applying for federal or state positions or applying for a license issued by the state, such record must be disclosed. Also expungment might not be an effective way of approaching certain situations such as when the remedy I sought for immigration purposes. Please contact our office for more information on expunging a record under California law.
How Long Does An Expungment Take?:
Misdemeanors: Most expungements for misdemeanors take between 2 to 4 weeks to complete from the time the application is filed. This does not include the time needed to research all records and process the application. The more prepared you are as to the information needed (dates, charges, court location, etc.) the quicker the application can be processed. It is necessary to search the court records for information, it may take additional time.
Felony Expungements and Felony Reductions To Misdemeanors: Most expungements of felony convictions generally take 4 to 6 weeks to complete from the time the application is filed. This is called a Certificate or Rehabilitation. Some felonies that cannot be expunged can be reduced to misdemeanors, this process also takes approximately 4 to 6 weeks. Again, this is based upon receipt of all of the pertinent information by our office. A court search of records for information will take significantly longer.
Cost: Misdemeanor expungment generally costs $1250 which includes the court fees, Felony expungements and motions to reduce cases cost $2500 which also includes the court fees.
Attempt, Conspiracy, Aiding and Abetting:
Anyone who, with intent to commit a crime, takes a substantial step toward committing the crime may be guilty of attempt to commit a crime. Merely thinking about committing a crime, or even preparing for it, is not a crime. There must be a substantial step, For example, if someone buys a gun with intent to kill another person, the act of buying the gun is mere preparation. However, going to the person's house after buying a gun with intent to kill the person may be a substantial step that is enough to charge a person with attempting to commit a crime.
The law of conspiracy and the law of aiding and abetting are other general doctrines that apply to a wide range of offenses. A conspiracy is an agreement between two or more persons to commit a crime. For example, if three people conspire to commit a murder, at least one of them takes action to further the conspiracy, and the murder actually occurs, they all can be charged with both conspiracy and murder. Even if a conspirator backs out of the conspiracy, but the other conspirators commit the crime, all conspirators may be criminally liable if the acts were reasonably foreseeable. A person who intentionally aids or advises another in committing a crime may be guilty of aiding and abetting, and may be criminally liable for the acts of the other person, as well. Thus, if someone intentionally advises another how to commit robbery and lends the robber a car to use in the getaway, both people are equally liable under the law.
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