When a crime is committed, it is investigated by law enforcement—be it police, the Sheriff or some other agency. An arrest is made of a “suspect.” The suspect is taken to jail and booked “for the crime of” burglary, robbery, murder or whatever. Generally, the crime is contained in the California Penal Code and the booking is on a penal code section—187 for murder, 211 for robbery, 459 for burglary, etc. To view a searchable online database of the current Penal Code click here. It is updated annually to include changes in the law.
At this point, it is improper to say that police have charged the suspect with a crime. It is proper, however, to say that police have booked the suspect “on suspicion of” a particular crime. “Charging” comes later. If the suspect is in custody, charges must be filed and the person arraigned within 48 hours—or 72 hours if the arrest occurs toward or during the weekend when courts are not open.
POLICE DO NOT CHARGE CRIMES. They arrest on the suspicion that a person has committed a crime. It is up to a prosecutor to determine if investigators have come up with sufficient evidence for a criminal case to be filed.
After the suspect is booked, the investigating agency goes to a prosecuting agency to seek filing of charges. In San Bernardino County, the District Attorney files all felony, misdemeanors and most infraction charges. The investigators discuss the evidence they have gathered with a prosecutor. Included in the discussion is any material evidence seized, such as a weapon, ballistics report and the like. Investigators also outline for the prosecutor the evidence they have obtained from witnesses.
At the conclusion of the discussion, it is up to the prosecutor to determine if law enforcement has gathered adequate information for the filing of a criminal complaint against the suspect. If the prosecutor determines there is insufficient evidence for a criminal filing, a “rejection” is issued. If the suspect is in custody, he or she may be freed if there is no other case pending. Many times, the prosecutor will tell the investigating officer more work needs to be done on the case and suggest areas of further investigation.
If there is not a rejection, the prosecutor evaluating the case must determine what charges are to be filed and if there are any special allegations, such as use of a firearm in the commission of the crime, that might “enhance,” or add time to, a sentence upon conviction. These also are called “enhancements.” If it is a murder case, the prosecutor who files the case also might decide if special circumstances are to be alleged along with the murder charge. In California, a special circumstance case is one in which the only possible sentence for a defendant is death by lethal injection or life without possibility of parole. Death penalty cases will be discussed later.
The prosecutor also determines how much bail to recommend to the court, taking into consideration the seriousness of the crime and the possibility that the accused may flee rather than face the charges. Once the case is filed, the suspect becomes a “defendant.”
After a criminal complaint is filed, the defendant is arraigned before a judge. If the defendant is in custody, the arraignment generally occurs the same day the complaint is filed—or the next day if the complaint is filed very late in the afternoon. An arraignment simply is the recitation of the charges against a defendant. Unless a defendant wants to plead guilty or “no contest” at the time of arraignment (a circumstance extremely rare in felony cases), a plea of not guilty is entered on his behalf. The judge also may be asked by the defense attorney to set bail, if no bail is recommended by the prosecutor; to lower the recommended bail; or to have the defendant released on his own recognizance, often called “OR release.” The judge may entertain the motion at this time or schedule a new date for a hearing on bail.
In some cases, most of them involving sale and possession of narcotics or pimping and pandering cases, a prosecutor will file what is called a “1275 motion.” Under such a motion, the prosecutor requests that a hearing be held before a defendant is freed on bail to ensure that the money posted is not derived from ill-gotten gains. After the arraignment on a felony charge, a date will be scheduled for a Pre Preliminary Hearing and the defendant’s Preliminary Hearing. If it is a misdemeanor case, a date will be scheduled for the defendant’s trial.
The Pre-Preliminary Hearing is just to see if both sides are ready to proceed on the Preliminary Hearing Date.
A Preliminary Hearing (also sometimes referred to as a “Prelim”) basically is a mini-trial in which the prosecution presents evidence and testimony in an attempt to persuade a judge that there is sufficient evidence against the defendant for the case to be set for trial. A prosecutor does not have to present his or her whole case at the preliminary hearing, only enough evidence to show there is “probable cause” that the defendant committed the crime charged and the matter should go to trial.
The defense has the opportunity to cross-examine witnesses and to challenge prosecution evidence at the Preliminary Hearing. A defense attorney also can put on what is called an “affirmative defense” and call witnesses on the defendant’s behalf. Generally defense lawyers do not do this, saving their big guns for trial. If, at the conclusion of the Preliminary Hearing, the Judge determines there is sufficient cause for the defendant’s case to be set for trial, the defendant is ordered “held to answer” on some or all of the charges against him.
Occasionally, a defendant will plead guilty or “no contest” prior to the start of his preliminary hearing. This is called a “disposition” and generally results from an agreement reached between the prosecution and defense on a recommended sentence for the defendant. At times, the defendant will “plead open,” meaning no agreement has been reached on a recommended sentence. In effect, it means the defendant is taking his chance on a sentence that might range, for example, from a low of 16 months in prison to a maximum of three years.
In any event, agreements made by prosecutors and defense attorneys on sentences are not binding on the judge, who has the power to set aside any plea agreement he determines is not in the interest of justice. The judge also can disregard any agreed upon sentence and impose a sentence he or she thinks is appropriate. A defendant can withdraw his plea prior to sentencing.
If the defendant enters a felony plea, the case is set for sentencing. Adequate time between the plea and the time of sentencing will be allowed in order for the county Probation Department to interview the defendant, victims and others involved in the case. A probation officer also will recommend a sentence and cite several interesting things, including whether the defendant showed remorse when he was interviewed. Again, the judge is not bound by the probation officer’s recommendation when imposing a sentence. When a defendant pleads or is convicted, what is called a PJ “Pronouncement of Judgment” date is scheduled to allow a probation report to be prepared.
All this can be bypassed by a prosecutor opting to take a case directly to the county grand jury. The grand jury in a closed session hears the evidence and testimony presented by the prosecutor, and then decides whether to return an indictment, also called a “true bill.” California counties generally use one grand jury. However, a special criminal grand jury may be impaneled, as the need arises, to serve in addition to the regular grand jury. Due to the massive number of criminal prosecutions in the State courts, cases chosen to be presented to the grand jury are relatively few in number.
Usually, a prosecutor will decide to take the case to a grand jury to use its power of subpoenas, something that a prosecutor does not have alone prior to the filing of a criminal case. Other times, a prosecutor may wish to have a grand jury decide the case because witnesses are reluctant to testify in public and open themselves up to defense cross-examination at this early stage of the criminal proceeding.
Witnesses are subpoenaed to testify before a grand jury. Targets of the grand jury investigation usually are “invited” to appear, and most turn the grand jury down. Only the prosecutor, the witness and the grand jurors are in the grand jury hearing room. In grand jury cases, a defense attorney is not allowed inside to cross-examine witnesses or, indeed, to advise a client.
Once a grand jury indictment is returned, the defendant skips the whole preliminary hearing process and goes directly to Superior Court for arraignment. Until the defendant is arraigned, the indictment remains secret. Even to tell of the existence of an indictment prior to arraignment is not allowed. The transcript of the grand jury proceedings is a public record, but it is not available until 10 days after the defendant has been arraigned and served his copy. A defense attorney can ask that the grand jury transcript be sealed and it is up to a Superior Court judge to determine whether to grant the request.
After a felony defendant is held to answer, the defendant again is arraigned in Superior Court and enters a plea. If the defendant pleads guilty or “no contest,” a date is scheduled for sentencing (“PJ” date)—again allowing the probation department time to prepare a report. If a defendant pleads not guilty, a trial date generally is scheduled by the judge.
It should be noted that a “no contest” plea carries the same weight as a guilty plea in criminal cases and counts as a conviction. The formal name of the plea is “nolo contendere,” a Latin phrase meaning, “I will not contest it.” The principal difference between a guilty plea and a “no contest” plea is that a “no contest” plea generally may not be used against the defendant in a civil action based upon the same acts as the criminal case.
In complex cases, a trial date may not be scheduled immediately. The judge may schedule dates for various motions, generally, those sought by the defense. Pre-trial motions may range from a defense request to have the charges dismissed on grounds of lack of probable cause against the defendant (in shorthand, called a “995 motion”) to defense requests for the court to order the prosecution to turn over evidentiary material (called “discovery”) to help prepare the defendant’s case.
During all these motions, a defendant must agree to “waive time.” Under the law, a defendant has the right to have his trial within 60 days of arraignment. It should be noted, however, that it is rare that a defendant refuses to waive time, because generally, it is his attorney that is asking for the extension to prepare the case or have pretrial motions heard.
Once all the pretrial matters have been taken care of, it is time for trial. There are two types of trial: a court trial and a jury trial. The choice generally is the defendant’s. In a court trial, the judge sits as the trier of fact and no jury is empaneled to hear the case. In felony criminal cases, court trails are few and far between. Defendants and their attorneys generally feel they have a better chance before a jury.
If it is to be a jury trial, a panel of prospective jurors is summoned to the courtroom and a process lawyers call “voir dire” begins. Quite simply, “voir dire” is the questioning of the prospective jurors by the trial judge and by attorneys for each side in an attempt to find any biases or prejudices that a prospective juror might have that would make it impossible for that person to be an impartial juror and give a fair shake to the prosecution and defense.
There are three ways that prospective jurors can be excused: for hardship, for cause, and by peremptory challenge. Jurors generally are excused for hardship reasons if the trail is to be a long one and their employers do not pay for jury service—either at all or beyond the 10 days of regular jury service. Hardship reasons also might include illness or injury of a prospective juror or some problem with child care. There is no limit on hardship excusals.
During jury selection, a prosecutor or defense attorney may challenge a prospective juror “for cause,” meaning that they believe the prospective juror has said something during “voir dire” that indicates he is prejudiced against one side or the other and cannot render an impartial verdict. The trial judge has a final say, however, on whether a prospective juror is excused for cause. There is no limit on excusals for cause.
The final way an attorney can get rid of a prospective juror he thinks may not be fair to his side is the peremptory challenge. These are challenges in which no reasons need be given by the attorney. Peremptory challenges are exercised by either side after all other options are exhausted and a tentative panel of 12 prospective jurors is seated in the jury box.
It generally goes something like this: PROSECUTOR: “The prosecution thanks and excuses Juror No. 10.” Then a new prospective juror is put in that seat in the jury box and questioning of that person begins. Peremptory challenges are limited to a certain number for each side. The number of peremptory challenges is agreed upon and approved by the court prior to the start of jury selection.
After the panel of 12 jurors is approved and sworn in, the selection of alternate jurors begins with the same voir dire process. Depending on the estimated length of the trial, a case may have two, four, six or sometimes more alternate jurors. Alternate jurors hear all the evidence in the trial, just as the regular jurors. They are there to step in if a regular juror for some reason such as illness or death cannot continue to be a juror in the case.
If a lot of jurors are excused and there are no alternate jurors left to fill in, a mistrial must be declared. That is why—out of an abundance of caution—a judge will decide to have several alternate jurors for a case if he thinks it may be a protracted trial. After the alternate jurors are sworn in, the evidence portion of the trial begins. The first thing that happens is that the prosecutor and the defense attorney give what is called opening statements.
During an opening statement, the prosecutor or defense attorney outlines what he intends to prove through testimony and presentation of physical evidence. It’s a roadmap, if you will, for a juror to follow either side’s theory of the case. What is said during the opening statement is not evidence. However, sometimes attorneys will tell jurors during an opening statement that they intend to call certain witnesses to show certain things—then never follow through.
Sometimes, a defense attorney will opt to waive his opening statement to the jury and present it at the conclusion of the prosecution case. This is not uncommon. Under our system of justice, a defendant is presumed innocent until proven guilty. Since the prosecution has the burden of proof, it gets first crack at presenting its evidence.
If, after the prosecution completes its case, the defense believes there was not sufficient evidence against the defendant, the attorney will ask the court for dismissal of the charges or a directed verdict of acquittal. It is common for a judge to dismiss some charges against a defendant, especially in the case of multiple charges, at the end of the prosecution’s case.
Sometimes, however, a directed verdict of acquittal is ordered by the judge if he determines that the prosecution’s case simply wasn’t there. Remember, it is the prosecutor who has the burden of proving beyond a reasonable doubt that the defendant is guilty of the crime charged. If there is a directed verdict of acquittal, the defendant may not be tried again for the same crime. That’s called “double jeopardy” and it’s a no-no under our judicial system. Assuming none of the above happens, the defense attorney then presents his testimony and evidence to the jury.
During presentation of testimony, the side that calls the witness to the stand conducts what is called direct examination of the witness. The opposing side’s questioning is called cross-examination. After cross-examination, comes redirect, re-cross, re-direct, re-recross ad infinitum. During this phase of the trial, both prosecutors and defense attorneys will be introducing physical evidence (the murder weapon, clothing, medical records, tape recordings, photographs, etc.) relating to what the witness is saying on the stand.
After the prosecutor and defense present their witnesses, a prosecutor can call rebuttal witnesses to rebut defense testimony. The defense can call a surrebuttal witness to rebut the prosecution’s rebuttal witnesses. Once all the testimony is concluded and all the evidence introduced, the attorneys usually get together with the judge to go over the instructions in the law that the judge reads to the jury. After the judge and lawyers decide on what instructions will be given, closing arguments are presented by each side. The prosecution gets to talk to the jury twice during this phase. It gets the first word and the last word, with the defense closing argument nestled in between.
If you haven’t been in a courtroom, by the way, you immediately can tell which side is which. The prosecution always sits next to the jury box, with the defendant and his attorney at the opposite side of the counsel table, farthest away from the jurors. After closing arguments are completed and the instructions are read to the jury by the judge, deliberations begin. During the reading of the instructions, the courtroom may be locked and if so, you cannot go in or out.
The first order of business after getting the case is for the panel to elect a foreman who will preside over the deliberations. Remember that jurors are to decide a case only on the evidence presented in the courtroom. So your hallway opinions on the guilt or innocence of the defendant—or value of the testimony—or whatever involving the case—could be construed as a deliberate attempt by you to prejudice a juror or jurors to decide a case one way or the other.
During deliberations, jurors reach either a unanimous verdict or they don’t. If they don’t, they report themselves hopelessly deadlocked and a mistrial is declared. In the case of a mistrial, it is up to the prosecution to decide whether the charges against the defendant are going to be retried. If there is a unanimous verdict, it is returned in the courtroom in the presence of the prosecution and defense.
Once the verdict is reached, it goes like this: The jury informs the judge that a verdict has been reached, all parties are summoned to court and the jury comes into the courtroom and sits in the jury box. The foreman hands the signed verdict forms to the bailiff (a uniformed Sheriff’s deputy). The judge goes through the verdict forms to make sure everything is in order then hands the proper forms to the clerk to read aloud.
If it is a not guilty verdict, the defendant is free. If it is a guilty verdict, a date is scheduled for formal imposition of the sentence by the judge. In California, there are two types of trials—called bifurcated trials—that come in two parts—death penalty cases and cases in which the defendant has pleaded innocent by reason of insanity.
In state court, appeals of rulings made in misdemeanor cases are made to a Superior Court appellate panel.
Appeals of Superior Court rulings, convictions, or sentences in felony cases are made to the California Court of Appeal. The Court of Appeal often is referred to as the DCA, for District Court of Appeal, because it is divided up into appellate districts serving geographic areas of California. In San Bernardino, for instance, the cases go to the Fourth Appellate District, Division Two.
After a Court of Appeal decision, the losing side can seek review from the state Supreme Court, which may or may not decide to hear the case.
Generally, the public (and therefore the press) is barred from juvenile court proceedings. This includes getting the name of the juvenile who has been charged.
Under Section 676 of the California Welfare and Institutions Code, which governs juvenile proceedings, the public does have access to proceedings if certain crimes are charged. The crimes include the more serious ones of murder, robbery, rape, kidnaping, etc.
If a juvenile is between the ages of 16 and 18 when a serious crime is committed, a prosecutor can ask the Juvenile Court for a fitness hearing. It then is up to the court to determine whether the juvenile is fit to be tried in juvenile court or unfit, meaning the defendant can be tried in adult court. Generally, fitness determination is sought by prosecutors in murder cases and some of the more serious crimes.
In a special circumstances murder case in which the defendant was between the ages of 16 and 18, and then tried as an adult, the prosecution may not seek the death penalty. The only possible sentence upon conviction and finding that the special circumstances are true is life without the possibility of parole.
If convicted of a crime in juvenile court, a defendant may be placed on probation, turned over to some type of foster or home supervision program, sent to a youth camp or sent to the California Youth Authority. The California Youth Authority sentence is the most severe and in the most serious cases, such as murder, the juvenile can be held there until he reaches the age of 25.
The other type of bifurcated trial is one in which the defendant pleads not guilty and enters a second plea of not guilty by reason of insanity. The first phase of the trail is for the jury to determine if the defendant is guilty of the crime. If it determines that he is, then the second phase—the sanity phase—is held.
During the sanity phase—again with opening statements, testimony and closing arguments—the jury must determine if the defendant was sane or insane at the time he committed the crime. If the jury determines the defendant was sane at the time the crime was committed, he will be sentenced to state prison. If the jury determines that the defendant was insane at the time of the crime, he will be sent to a state mental institution, where he will be held until doctors determine that he has regained his sanity.
There have been cases in California in which a defendant was convicted of murder, then determined insane at the time of the crime, sent to a state mental institution and released within a couple of years after doctors have determined that sanity has been regained.
Prosecutors call a death penalty case in California, a “special circumstances” case. Under California law, there are only limited murder cases in which the death penalty may be sought against a defendant.
The criteria for a death penalty are so-called special circumstances and the law is very specific on what special circumstances may be alleged. Special circumstances include: intentional murder for financial gain, multiple murder, and murder by a destructive device such as a bomb or other type of explosive, murder to avoid arrest, murders by lying in wait, murder during a robbery, kidnaping, rape or other crime, etc. The categories of special circumstances are found in Section 190.2 of the California Penal Code.
In a death penalty trial, the first phase deals with the guilt or innocence of the defendant. If a defendant is convicted of first-degree murder, the jury at that time must determine if the special circumstance(s) alleged by the prosecutor is true. If true, the second phase—the penalty phase—of the trial is held. The penalty phase consists of opening statements, testimony and closing arguments by both sides on why the defendant should or should not receive the death penalty. If evidence in the guilt phase of the trial can be called clinical, evidence in the penalty phase can be viewed as extremely emotional.
This is the portion of the trial in which the prosecutors try to persuade the jurors that the defendant should die for taking the life of another human being. Defense attorneys, meanwhile, pull out all the stops—including tearful testimony from mothers, fathers, children, wives, husbands, and friends—to show why the defendant should not die for what he did.
In a special circumstances case there are only two possible verdicts: death or life without the possibility of parole. If a jury is unable to decide the question, a mistrial is declared by the trial judge and it is up to the prosecution to determine whether it wants to retry that phase of the case before a new jury or settle on the sentence of life without the possibility of parole. After the jury reaches its decision on the penalty, a date is scheduled for formal imposition of the sentence by the trial judge.
A defense attorney can ask the trial judge to overturn a jury’s verdict of death and instead give the defendant life without the possibility of parole. The defendant himself might beg for his life during this proceeding. It would be extremely rare for the trial judge to change the recommended sentence, however, since jurists are loath to overturn verdicts by a jury. And, of course, the prosecution would be adamant that the jury verdict stand. In California, all death penalty convictions are automatically appealed directly to the state Supreme Court.