Depending on the severity of a crime and whether the case is to be handled in state or federal court as well as the issues involved, there are various steps in a criminal case. The first step is generally the arraignment. For felony matters, you may have two arraignments–one before your preliminary hearing and one after its completion if you are held to answer on the charge.
In most cases, such as misdemeanors, the arraignment is the first formal step in the criminal process. After you are arrested , you will typically be brought to a jail or detention center and released without bail or after a bond or the cash amount of bail is posted. Otherwise, you remain in detention and await arraignment that must be held within 48-hours after your arrest. Weekend and holiday hours do not count toward the 48-hour period. If you were released on bail or not required to be in custody, the arraignment may be for weeks or even months following your arrest.
At the arraignment, you may first be asked if you are the person named in the complaint. If you do not have private counsel appearing with you , the judge will inquire if you wish to qualify for a public defender or want a continuance to seek private counsel. Judges will want you to have counsel unless you wish to enter a guilty plea after placing on the record what rights you are waiving, though having counsel at all stages is much preferred, especially in felony cases.
The main function of the arraignment is for you to enter a plea after hearing or learning of the charges that have been filed. If bail is an issue, the court will generally set bail or release you ROR or on your own recognizance with a promise to appear at the next and all subsequent hearings.
Before entering a plea, the court may read the charges that have been brought against you. You will also be advised of your constitutional rights regarding:
- Right to a fair trial
- Right to a speedy trial
- Right to subpoenaing and cross-examining witnesses
- Right against self-incrimination
In the majority of cases, the defendant’s attorney will waive the reading of the complaint or charges before entering a plea.
After the charges are read or the reading of them are waived, you will be asked to enter a plea. You choices are:
- Not guilty
- Nolo contendre
- Ask for a continuance
- Request a deferred entry of judgment or diversion
You do not have to appear at the arraignment if you have an attorney appear on your behalf and the charge is a misdemeanor.There are exceptions in misdemeanor cases where you are charged with domestic violence, are accused of violating a protective order or are charged with forgery or an aggravated DUI charge.
In a misdemeanor case, your failure to appear or to have an attorney appear on your behalf is a misdemeanor. If a felony, your failure to appear is a felony offense. The court will issue a bench warrant for your arrest in either case. In some cases where you appearance is mandatory, you may submit a waiver of your obligation to appear but the court must agree to accept your excuse.
Guilty or Nolo Contendre Pleas
Should you plead guilty, the court may either sentence you the same day if the charge is relatively minor or refer you to probation where a probation officer may question you about the offense, your reasons for committing the crime and your personal circumstances. The report will be given to the court at a later sentencing hearing. One benefit of pleading guilty at the arraignment is that you may prevent the prosecution from bringing additional charges against you if that is a possibility in your case.
A nolo contendre plea is the same as a guilty plea and the court will accept it as such. Its effect is for civil purposes. For example, if someone who was injured in an assault by you brings a civil suit for damages, your plea may not be used as evidence against you.
Not Guilty Plea or Request for Deferred Entry of Judgment
A plea of not guilty will bring you to the next phase, which may be a pre-trial conference for misdemeanor cases and a preliminary hearing if a felony. Most defendants enter a not guilty plea are generally at the arraignment so that their attorneys can review the evidence against them and be prepared to negotiate a plea to a lesser offense or a reduced sentence.
Your attorney can also ask for a deferred entry of judgment pursuant to California Penal Code Section 1000, which is applicable in a drug possession cases. You will have to adhere to certain conditions including participation in a drug treatment program. Once completed, the charges are dismissed.
In some misdemeanor cases, your attorney can ask for a probable cause hearing if there are serious questions as to whether you were lawfully arrested. The court will generally hold the hearing at the arraignment.
Important Note Regarding Bail: On October 1, 2019 the bail system in California is scheduled to change with the passage of Senate Bill 10. Seneta Bill 10 requires for the elimination of cash bail and for it to be replaced by a system of judicial discretion for felonies while misdemeanors will no longer require bail.
In some cases following an arrest, your attorney can inquire of the prosecuting attorney if bail has been set if you are still in custody. The county where you were arrested should have a bail schedule listing the various amounts of bail set for each type of offense. Bail is cash or a bond that a court orders to assure your appearance at all future court appearances. If you seek a bond, you will pay a bondsman no more than 10% of the amount set.
If bail has not been set, then the court will either impose it at the arraignment or order you released on ROR. Most first-time offenders are released ROR in misdemeanor cases unless it is a domestic violence matter. If you are in custody, you must have a bail hearing within 5 days of the date the court set your bail.
A bail hearing is an opportunity for you or your attorney to have your bail reduced or eliminated by having you released ROR or on your own recognizance. You do face the risk that the prosecution could ask the court to increase your bail, especially if you violated probation or parole. For this reason, it may be advisable to post bond as soon bail is set so that you have a better chance of remaining free before the court can place a “hold” on your release.
Factors that a court will consider in setting or reducing bail include:
- Severity of the crime–was someone injured, were weapons or drugs involved
- Prior criminal convictions
- Risk to public safety
- Involvement in the community–employment, family, property or business owner
- Likelihood you will appear for all future appearances
If you are charged with a serious felony, however, the court will not lower your bail below the scheduled amount unless you can demonstrate changed circumstances supported by new evidence. For example, if a key witness recants or disappears or exculpatory evidence is found, then the court may reduce your bail.
If you are released ROR or the court has reduced your bail, the court may issue conditions as well. These may be:
- Surrendering passport
- Surrendering driver’s license
- Entering a treatment facility
- Wearing electronic monitoring device
- Being placed under house arrest with electronic monitoring
- Avoiding contact with victim
- Maintaining or be actively seeking employment
- Imposition of a curfew
- Refraining from drugs or alcohol
- No drinking and driving
- Regularly reporting to police
Failure to abide by conditions can result in forfeiture of the bond. Should you not appear in court, the judge can order that you forfeit property that you pledged. Your assets may also be ordered frozen.
If you appear in court without an attorney, the court will ask you if you have an attorney, whether you will be retaining one or if you wish to qualify for a public defender. If the latter, the court will ask you questions about your employment, if any, and your financial situation to see if you qualify. Usually, the court will determine your eligibility after a few questions.
If you wish to retain private counsel, you can ask the court to continue the arraignment so you can locate and retain an attorney. Most continuances are for one week though you may request and be granted an additional week. By asking for a continuance, the court will ask you to “waive time” or the right to be arraigned within a certain time.