I've been arrested. What happens now?
The very first (1st) court appearance is called the "arraignment." At the arraignment, the court typically appoints the public defender if you can't afford a private attorney. At the arraignment, the court also provides the public defender with a copy of the "complaint" which is a written document, filed by the prosecutor, accusing you of one or more crimes.
The "complaint" lists the charges or crimes. The arraignment judge also sets your next court dates which are usually for both a Felony Disposition Conference (FDC) and a Preliminary Hearing. Sometimes a felony disposition conference is not set by the court.
Within a day or a few days after the arraignment, the prosecutor usually starts sending to our office some of the police reports, laboratory reports, and copies of evidence items regarding your case. These reports and evidence items are called "discovery". Sometimes it takes a long time to get all the discovery. Discovery is extremely important because it allows us to discuss the evidence the prosecutor has against you.
The FDC is also sometimes called the plea bargaining conference. You must be present on time at the felony disposition conference.
The judge, the prosecutor, and your lawyer all meet in the judge's chamber (along with other defense attorneys).
At FDC, the prosecutor will tell the judge the facts of the case from the perspective of the prosecutor. In other words, the prosecutor will tell the judge what the prosecutor thinks happened. The prosecutor will often, but not always, make an offer to settle your case without a trial and without a preliminary hearing. The offer is typically in the form of "If the defendant will plea guilty now to the charge we want him to plea guilty to, then at the time of sentencing the prosecution will recommend to the judge that the sentence be as follows...".
An example of an offer by the prosecutor at FDC may be, "If defendant pleas guilty to count 1, the prosecutor will have No Opposition to Local Time at sentencing." This is referred to as a 'NOLT' offer: "no opposition to local time". This means that the prosecution could recommend that you be placed on probation for up to five years, that you be ordered to pay fines and restitution, that you serve a period in jail of up to 365 days, and/or other probationary terms.
During the FDC, your lawyer may correct any misstatements by the prosecutor and also tell the judge true facts about your case or true facts about you personally which your lawyer believes will help your case. The lawyer will not tell the judge your secrets without your permission but the lawyer cannot lie to the judge or mislead the judge.
The FDC judge will then tell your lawyer and the prosecutor what you can expect from the judge, if you accept the prosecutor's offer, at the time of sentencing. Some judges are very specific and will say: "I will send your client to prison for no more than X number of years" or "I will not send your client to prison," or "I will sentence the client to jail for up to 365 days." Other judges may say: "I will not make any promises on this case" or "I need to see a probation report." The person who makes the decision about the sentence you will receive is the judge.
If you are in custody at the time of the FDC, the sheriff will bring you to the courtroom.
If you are out of custody at the time of the FDC, you must arrive at the courtroom on time.
Your attorney is required by law to tell you of the prosecutor's offer. Your lawyer will tell you what the prosecutor's offer was, what the judge said, and then it is up to you to decide whether or not you want to accept the offer.
If you accept the offer by the prosecutor at the FDC to plea guilty, then a number of things happen. First, you will review the contents of a change of plea form, which the attorney will explain to you. After you initial and sign the change of plea form, your lawyer will review it, sign it, and give it to the prosecutor so the prosecutor can sign it. The change of plea form is then given to the judge. You will then appear in court in front of the judge. The judge will show you the change of plea form and ask you questions about it such as: "Are these your initials?"; "Is that your signature?"; "This form says you want to plea guilty to count 1, is that what you want to do?"; "What are you charged with?"; and other questions to make sure you know and understand what you are doing and that the plea is what you want to do.
The decision to plea guilty is always only your decision and your decision alone. Your lawyer will give you the best advice possible based on years of education and experience, but the decision to plea guilty is ultimately yours and yours alone.
If you reject the prosecutor's FDC offer, then the offer goes away. The offer does not stay somewhere waiting for you to decide to take it; it's gone. So, when you reject the prosecutor's offer at the FDC, the date and time of your preliminary hearing are confirmed and you will NOT be brought in front of the judge.
The "preliminary hearing" is also called a "preliminary examination." You must be present at the preliminary hearing.
The purpose of a preliminary hearing is for a judge to decide whether there is "sufficient cause" for the judge to believe that one or more of the crime(s) charged were committed and that you committed the crime. The prosecutor calls witnesses and puts on evidence at the preliminary hearing. Your attorney will ask questions. Your attorney might also present evidence at the preliminary hearing, (for tactical reasons, presentation of such evidence is rare), but this is a decision your attorney will make. At the end of the preliminary hearing, the judge will decide whether the evidence produced establishes probable cause to believe that you committed a crime. If the judge decides there is no probable cause, then you win. If the judge decides there IS probable cause to believe you committed one of the charged crimes, then the judge will issue an order requiring you to stand trial.
If the preliminary hearing judge issues an order holding you to answer the charges at trial, then a date will be set for your arraignment for trial. Arraignment for trial is a very brief court appearance in front of a judge typically lasting two minutes or less. You must be present at the arraignment for trial. It may be held that same day.
At the arraignment for trial, your lawyer may be given two things. First, your lawyer is given a written document listing the charges you must face in the trial court. This document is called an "information". Second, your lawyer is given a copy of the preliminary hearing transcript. The preliminary hearing transcript is a written version of what people said under oath at the preliminary hearing. The preliminary hearing transcript is not available until after the date of the trial court arraignment. In addition to receiving the "information" and the "preliminary hearing transcript" your lawyer will be given three dates: a "motion cutoff date" which is the date by which all motions must be filed, a date for the "trial readiness conference", and a date for the "trial".
You do not have to be in court on the "motion cutoff date". The motion cutoff date is the only date where you do not have to be in court. The "motion cutoff date" is the date by which your lawyer must file any pretrial motions. Some motions are trial motions and can only be made in front of the trial judge.
The "trial readiness conference" is designed to see if your case is ready for trial and to make an attempt to settle the case. You must be present on time at the trial readiness conference. Typically, but not always, the offer made by the prosecutor and the judge at the FDC is better for you than any offer made at trial readiness conference. But this is not always the case.
The reason the prosecutor usually makes the best plea bargain offer at the FDC is to save money and reduce the work of prosecutors. It works like this: if you take the offer at the FDC, then the prosecutor does not have to reassign the case to another prosecutor, the prosecutor does not have to prepare the case for preliminary hearing, a prosecutor does not have to interview witnesses or bring the witnesses to court, a prosecutor does not have to bring the evidence to court, and law enforcement officers do not have to come to court. Therefore, the "bargain" for a prosecutor in a "plea bargain" is that it saves the prosecutor work, and it saves the courts time and money. Of course, whether the offer is a "bargain" for you, is something that you will discuss with your lawyer, but the decision whether to accept or reject a prosecutor's offer is your decision.
How long does all of this take?
If you are in custody you are entitled to a preliminary hearing within 10 "court days" from the date of your arraignment. "Court days" means those days in which the court is open for business. Saturday, Sunday, court closures and holidays are excluded.
If you are out of custody you are entitled to a preliminary hearing within 60 calendar days. If you are in custody, this 60 calendar days rule means that if you do not have a preliminary hearing within 60 calendar days you are entitled to a dismissal unless you waive the right to a speedy preliminary hearing.
Arraignment for trial must occur within 15 days of your preliminary examination.
The trial is required to begin within 60 days from the date of your trial court arraignment. You must be present every day of your trial.
So, the time from your first arraignment until the date your trial starts is usually 68 to 85 days. Cases that are more complicated and cases that require experts or have special investigation needs take longer to prepare for trial.
To effectively defend some cases, it is sometimes necessary for the person accused to give up ("waive") the right to a 'speedy' preliminary hearing and/or a 'speedy' trial so the defense lawyer can obtain all the necessary evidence and reports from the prosecution and complete the defense investigation. Your attorney will advise you whether or not a waiver is necessary in your case and the reason for it.
If your case was started by a grand jury indictment, special procedures apply and your lawyer will discuss these with you.
***DO NOT TALK TO ANYONE ABOUT YOUR CASE, OTHER THAN YOUR ATTORNEY. ANYONE ELSE MAY LATER BE FORCED TO TESTIFY AGAINST YOU. THIS INCLUDES FAMILY AND FRIENDS.
Your lawyer will want to talk with you as soon as possible about the case.
To help him or her, please write or print the following:
1. Any questions you have.
2. The names of all witnesses.
3. The nicknames or other names the witnesses are known by, if any.
4. The addresses of all witnesses.
5. The telephone number of all witnesses.
6. The names, addresses, and telephone numbers of people who can tell the court something favorable about either the facts of the case or about you, the accused, personally.
If you are out of custody, please telephone the Public Defender's office at (619) 338-4700 about three days after your arraignment to make an appointment to discuss your case with your attorney.
If you are in custody of the San Diego County Jail, you may use a special lawyer telephone line to call the Office of the Public Defender free of charge; a receptionist will connect you to your attorney's telephone.
Question: What is a misdemeanor?
Answer: A misdemeanor is a criminal charge that can carry a maximum sentence of 365 days in county jail and/or a substantial monetary fine.
ARRAIGNMENT:
Your first court appearance is called an ARRAIGNMENT. There are five main purposes of ARRAIGNMENT:
1. The first purpose of ARRAIGNMENT is to formally advise you of the misdemeanor charge(s) brought against you by the prosecutor. For all misdemeanor cases, the prosecutor is called a city attorney.
The charge(s) against you are contained in a document called the complaint. The complaint contains language from the actual law you are accused of violating with very little information specific to your case, other then the date the offense allegedly occurred.
2. The second purpose of ARRAIGNMENT is to appoint an attorney to represent you if you cannot afford to hire one.
If you are in jail the day of your arraignment the court will appoint an attorney to represent you. If you are not in jail the day of your arraignment, the court will ask you to fill out a financial declaration to determine whether your financial situation requires the court to appoint an attorney for you or whether you can afford to hire an attorney. If the court finds that you are financially ineligible for a court appointed attorney your arraignment will be continued for a short period of time so you can hire an attorney to represent you.
You will speak with an attorney from the Public Defender's Office before you actually go in front of the judge for your ARRAIGNMENT. This attorney will have a copy of the complaint against you and/or the police report or citation made at the time of the incident.The attorney will ask you to tell them your side of the story. It is important to tell the attorney everything about your case. Your conversation with that attorney is completely confidential and they will not divulge any part of your conversation to the city attorney.
3. The third purpose of ARRAIGNMENT is to enter a plea to the charges against you. You have the choice of pleading Not Guilty, Guilty, or No Contest. The public defender that speaks to you about your case will also tell you if the city attorney has made any offers to settle your case for a less serious charge and/or a less serious sentence.
A plea of Not Guilty means that you are not willing to take the prosecutor's offer. It also means that the judge will set future court dates. At this time the public defender will formally request that the Public Defender's Office be appointed as your attorney and will formally request a jury trial. Although a date will not be set for your trial at this time, if you are in jail, your trial date is set within 30 days of your ARRAIGNMENT or within 45 days if you are not in jail.
A plea of Guilty means that you are willing to take advantage of the prosecutor's offer. When you plead Guilty you will be immediately sentenced by the judge (with very few exceptions).
A plea of 'No Contest' is almost identical to a Guilty plea. The only difference is that a 'No Contest' plea cannot be used as evidence of civil liability in a civil case arising from the same incident. The only time 'No Contest' pleas are entered is for cases in which property damage or personal injuries have occurred. Often the prosecutor will not allow a 'No Contest' plea to an offer they have extended.
For some charges you will be required to initial and sign a change of plea form. Your public defender will explain this form to you. This form basically contains the terms of your agreement with the prosecutor and some other terms the court wants you to know.
4. The fourth purpose of ARRAIGNMENT is for the court to set future court dates for you to appear on your case. As stated above, even when you plead Not Guilty to a charge, you must come back for at least one more court date (usually more). Even if you plead Guilty or 'No Contest' to a charge you will most likely have a date set in the future to show proof of compliance with specific requirements of your sentence or probation.
Following your ARRAIGNMENT the court will provide you with a pink piece of paper containing your future court dates and information about what occurred during your court appearance. Never leave court without this piece of paper.
5. The fifth purpose of ARRAIGNMENT is to address the issue of bail. If you are in jail at the time of ARRAIGNMENT, the public defender will argue to have your bail reduced or ask to release you without bail (on your own recognizance. or OR). Remember, the judge is required to assume the charges against you are true for the purposes of setting bail. The judge will consider factors such as the seriousness of the charges and whether you will return for your next court appearance. If you have a parole hold or INS hold (immigration) the judge will not release you and you will not be able to "bail out" unless these holds are lifted.
If you are not in jail at the time of your arraignment, it is unlikely the judge will set bail in your case. In almost all cases the judge will allow you to remain out of jail for the duration of your case.
FIRST MEETING/CONVERSATION WITH YOUR ATTORNEY:
The terms lawyer, attorney, and public defender can be used interchangeably. A public defender is a lawyer (attorney) that represents people that can not afford to hire one.
If you have entered a plea of Not Guilty at your ARRAIGNMENT, your case is immediately sent to the Public Defender's Office where it is assigned to one of the attorneys in the office. You should receive a call from your attorney within one week from your arraignment. If you do not speak to your attorney by this time, you should call the office at (619)338-4700 and ask to be transferred to the attorney assigned to your case. Have your case number available.
If you schedule an appointment to meet with your attorney, be sure to bring all documents, photographs, names, addresses and telephone numbers of witnesses and anything else that is relevant to your case. Since the time between arraignment and trial is only 45 days (if you are out of jail at the time of arraignment), it is very important to help your attorney prepare in the most time efficient way possible. However, NEVER attempt to speak to the alleged victim in the case (if there is one). Your attorney will make arrangements for an investigator to interview possible witnesses including the alleged victim.
It is very important to stay in touch with this attorney and advise them of any address or phone number changes that occur during your case.If you forget your public defender's name, you should call the public defender general number: (619)338-4700. Remember that all public defenders have very busy court schedules and are usually in court between 8:15am and 4:30pm Monday through Friday. If you do not immediately receive a return call from your attorney, they will almost certainly return your call within a day.
TRIAL SETTING DEPARTMENT (TSD):
If you did not plead Guilty or No Contest at your ARRAIGNMENT, your second court appearance will most likely be your readiness conference held in the TRIAL SETTING DEPARTMENT (TSD). This is another opportunity to negotiate your case with the prosecutor. At this time they may make an offer to settle for a less serious charge or sentence. Many times this offer is not any better than the offer at ARRAIGNMENT. If you do not want to change your plea to Guilty or No Contest the court will set a date for a JURY TRIAL.
JURY TRIAL:
This is the date that your case will go to trial. You must appear in the Trial Setting Department (TSD) that morning to meet your attorney. At this time the prosecutor may have one last offer for you to plead Guilty instead of going to trial. This is unlikely however. Instead, your attorney will answer up "ready" for you to begin your JURY TRIAL. The judge will ask your attorney very briefly about settlement and then he will send you to the third floor of the courthouse.
You and your attorney will walk there together. That judge will send you to yet another courtroom. However, that will be the where your trial will be held.
Your trial will probably last for more than 1 day. On the days following the first day of trial, your attorney will tell you what time to arrive in court the next day. Make sure you understand when and where you must be every day. Typically, after the first day of trial, you will return to the courtroom where your trial is being conducted. When attending trial, be sure to dress your best.
VERY IMPORTANT THINGS TO REMEMBER:
It is VERY IMPORTANT that you arrive on time to all of your court appearances. Except in very unusual circumstances that you have specifically discussed with your attorney, you MUST appear at every court date. If you are late or do not show up the judge will issue a warrant for your arrest. If you are going to be late or cannot appear for some reason, you must call your attorney IMMEDIATELY.
It is VERY IMPORTANT not talk to anyone except your attorney about your case. If you talk to someone else about your case, even in the strictest confidence, the city attorney can call them as a witness against you. If you feel you must talk to someone about your case, consult with your attorney first.
It is VERY IMPORTANT to stay in contact with your attorney. If you are in jail you can expect your attorney to visit you by video conference or in person. However, you can always call your lawyer from jail. If you wish to write a letter to your lawyer, be sure every page and every envelope is marked with the words "attorney-client privilege" so the guards do not read it. The guards read all the mail you send out so be very careful if you decide to communicate with anyone from jail through the mail. Remember not to talk to anyone about your case unless you have spoken to your attorney first.
It is VERY IMPORTANT to comply with all of your terms of probation if you plead Guilty (or No Contest) to an offense or are found guilty by a jury. If you do not stay current with probation requirements (for example you can not complete volunteer work by the date required) then you should try to get an earlier court date BEFORE your required date of completion. This will enable you to come to court and talk to the judge and an attorney about getting more time to comply. You can do this by either going to the courthouse or calling the Public Defender's Office at (619)338-4700.
If you are late paying a fine, the court will require you to pay a $300.00 civil assessment penalty. There is virtually NO WAY out of this penalty once it is imposed, so DO NOT fall behind in your payments. You must pay the exact amount of payment required when it is due. The court will not accept a larger previous payment to satisfy a smaller subsequent payment. If you think you will have a problem making a payment call your public defender to try to put yourself on the court calendar before you are late with a payment.
When a juvenile (anyone under the age of 18 when the crime is committed) is arrested, many different things can happen, including handling the charges informally or having the charges filed in juvenile court and being detained in juvenile hall or with their parent(s) or guardian(s).
When a juvenile is first arrested, the police may decide to handle the charges informally. The police department may have the juvenile, and their parent(s), sign a contract where the juvenile promises to do community service, attend classes, etc., in exchange for not filing charges.
The police may decide to refer the case to the juvenile probation department. The juvenile, and his parent(s), then meet with a probation officer who can handle the case informally, or refer the case to the district attorney's office (prosecutor) for the filing of a petition. The petition lists the charges and is called a complaint in adult court.
The police can also take a juvenile to juvenile hall. If the juvenile is kept in custody (detained), the prosecutor's office has 48 hours to file a petition. If the juvenile is not detained, the charges can be filed at a later date and the juvenile is notified by mail.
The first court appearance is called an arraignment. If the juvenile is in custody, the arraignment is called a detention hearing. Typically, at this hearing the court appoints the public defender and sets a readiness conference date. If the juvenile is detained, the court decides if he should stay in juvenile hall, or be released on house arrest, or with no restrictions.
After the appointment of the public defender, the prosecutor's office begins sending the discovery to our office. Discovery includes police and laboratory reports, photographs, video-tapes, audio-tapes and other evidence. An attorney is then assigned to the case and begins reading the discovery, meeting the juvenile and preparing the case.
The readiness conference is where the juvenile and the attorney decide whether to accept the prosecutor's offer, or set the case for another hearing. If the juvenile is in custody, the case may have been 'fast-tracked' at the detention hearing. This means that the probation officer's report (social study) has been prepared and the juvenile knows what the probation officer is recommending. Many times the judge will follow the recommendations, so they have an idea of what the disposition (sentence) may be if they accept the prosecutor's offer.
If the juvenile accepts the offer and 'fast-tracked' the case, the juvenile can change his plea and admit the charge(s). The judge will ask a number of questions so he can decide if the attorney has explained everything to the juvenile. The judge then accepts the plea, and enters a true finding (conviction), and proceeds immediately to disposition. If the juvenile has not fast-tracked the matter, the case is set for a disposition hearing.
A juvenile can reject the prosecutor's offer and set the case for a motion or adjudication hearing. A motion is where the juvenile, through his attorney, asks the court, in a written document, to do something regarding the case. For example, the motion can request informal probation, suppression of the evidence, or dismissal of charges.
An adjudication hearing is a trial where the prosecutor's office must prove the charges beyond a reasonable doubt. A juvenile has a right to a trial within 14 court days (holidays, court closures, and weekends don't count) of their detention hearing if they are in custody. An out of custody juvenile has a right to a trial within 30 court days of the date the petition was filed.
A trial is where the prosecutor must bring the witnesses to court, have them take an oath to tell the truth and answer questions (testify). At the trial the juvenile has an attorney who can cross-examine (ask questions) the prosecutor's witnesses. The attorney can subpoena witnesses or evidence for the juvenile. At the trial, the juvenile decides whether he wants to testify or remain silent. If the judge finds reasonable doubt, the charges are dismissed. If reasonable doubt is NOT found, the judge makes a true finding and the case proceeds to disposition.
Disposition is where the judge decides what the sentence will be after it reads the social study and hears from the attorneys, parents and juvenile. A juvenile can be sent home, placed in Juvenile Hall, sent to probation camps, put in residential treatment, or committed to the California Youth Authority. In juvenile court, unlike adult court, the judge and attorneys are NOT allowed to negotiate the disposition. What that means is a juvenile does not know what their disposition will be until they are sentenced.
After disposition, the juvenile is ordered to return to court for a review hearing. A review hearing is usually 1 year after the disposition and is to see how the juvenile is doing on probation. If the juvenile is doing well, the court can terminate probation. If the juvenile is NOT doing well the judge may extend probation to allow the juvenile to complete the conditions. If a juvenile successfully completes their conditions of probation, they can petition the court to seal their records.
The prosecutor's office can file a petition alleging a juvenile should be tried in adult court. The juvenile is then entitled to a fitness hearing where a judge will decide if the person should stay in juvenile court, or be tried as an adult. If the juvenile is kept in juvenile court, all of the above apply.
If you are charged with a crime, DO NOT TALK TO ANYONE ABOUT YOUR CASE OTHER THAN YOUR ATTORNEY. If you talk to other people about your case, they can be forced to testify against you. Your attorney is the only person who cannot be forced to reveal what you tell them about your case.
To help your attorney, write the following items:
1. Any questions you have.
2. The names, addresses or telephone numbers, of any witnesses. Include their nicknames, or other names they may be called.
3. The names, addresses and telephone numbers of people who can tell the court something favorable about the facts of your case, or about you as a person.
If you are out of custody, please telephone the Department of the Public Defender, Delinquency Section at 858-974-5757 a few days after the arraignment to make an appointment to discuss the case with the attorney.
If you are in custody your attorney will visit with you before your readiness hearing.
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