“Arraignment Hearings” in California – A Legal Guide

An arraignment is usually the first court hearing in a California criminal case. The arraignment is where you are formally charged with a crime. The judge can also address issues of bail and restraining orders.

Five key things to know about arraignments are:

1. You will likely plead “not guilty” at your arraignment. You can always change your plea later on in the case.
2. With some exceptions, you can usually hire an attorney to go in your place to your misdemeanor arraignment.
3. In most felony cases, you need to appear personally at the arraignment.
4. The arraignment starts the pretrial process, which includes plea negotiations, trial preparation, and a preliminary hearing in felony cases.
5. If you forget to show up to your arraignment when required, the court can issue a bench warrant for your arrest.

In this article, our California criminal defense lawyers discuss the following topics re. arraignments:

• 1. The Hearing
• 2. Your Rights
• 3. Can my lawyer appear for me?
• 4. Missing Court
• 5. What should I bring?
• 6. Pleas
• 7. Bail
• 8. Denied Charges
• 9. Probable Cause Hearing
• 10. After the Arraignment
• Additional Reading

The prosecutor at an arraignment will be either a county district attorney, a municipal city attorney, or the Attorney General.

1. The Hearing

In California, the arraignment hearing is where:

1. the court formally charges you with one or more felonies or misdemeanors,
2. the court advises you of your Constitutional rights,
3. your attorney argues against any pending orders that may apply to your case, such as a restraining order,
4. your attorney asks to reduce or eliminate bail, and
5. you enter an initial plea.

Upon request, the judge may postpone (“continue”) the arraignment for a reasonable amount of time. For example, you may need extra time to consult with an attorney once you learn the specific charges.¹

If you are still in custody following your arrest, your arraignment must occur within 48 hours (not counting weekends or holidays). If you are released prior to the 48-hour mark, the arraignment may not occur until weeks or months later.²

2. Your Rights

Both the United States Constitution and the California Constitution empower you with a variety of rights during all criminal procedures. During your arraignment, the judge (or, in larger counties, a prerecorded announcement) will advise you of these Constitutional rights:

• the right to be represented by an attorney (which includes the right to be represented by a court-appointed public defender if you are not able to afford a private criminal defense attorney),
• the right against self-incrimination,
• the right to a speedy trial (enforceable through something called a Serna or speedy trial motion),
• the right to a trial by jury, and
• the right to produce and confront witnesses.

If you have been accused of committing an infraction, only some of these rights apply: You do not get a court-appointed attorney or a trial by jury.³

If you were arrested for a misdemeanor, you usually can have your attorney appear on your behalf.

3. Can my lawyer appear for me?

If you were arrested for a felony, you typically must appear in person at your arraignment hearing and most other proceedings. There are exceptions that either

1. allow you to appear via a two-way audio/video conference (sometimes called “video court”) or
2. excuse your presence altogether if you execute a written waiver, and the judge accepts your waiver.

If you were arrested for a misdemeanor, you are typically permitted to have your attorney appear on your behalf unless your charge is for:

• domestic violence ,
• alleged violations of a protective order, or
• certain aggravated offenses involving driving under the influence (DUI), such as:
  • DUI causing injury (23153 VC) or
  • Vehicular Manslaughter while Intoxicated (191.5(b) PC).⁴

4. Missing Court

If neither you nor your attorney appear at your arraignment, the court will generally issue a bench warrant for your arrest. Failing to appear (“FTA”) may also trigger separate criminal charges.⁵

Arraignments must occur within 48 hours for in-custody defendants (with some exceptions).

5. What should I bring?

You will want to bring your attorney to your arraignment as well as any paperwork the police, jail, or bail bondsmen gave you. You will likely leave the arraignment with:

1. a copy of the formal complaint that prosecutors filed against you,
2. possibly a copy of the police report pertaining to your case, and
3. possibly an offer to resolve your case.⁶

6. Pleas

The arraignment presents your first opportunity to enter a “plea” in the case. You have the option of pleading:

• guilty, in which case you will avoid a jury trial and proceed to a sentencing hearing,
• no contest (nolo contendere), which is like a guilty plea, but the plea cannot be used as evidence against you if there is also a civil case that arises from the incident, or
• not guilty, in which case you proceed to the pretrial phase of the criminal court process.

(In rare cases, you may instead be able to plea either double jeopardy, not guilty by reason of insanity, or former judgment of conviction or acquittal.)

Your attorney will likely advise you to plead not guilty, especially since you can always change the plea later on prior to a trial verdict. Though sometimes it makes sense to plea guilty or no contest right away in order to avoid further prosecution for more serious, uncharged offenses.⁷

In certain cases like for minor drug offenses, you could request a diversion program or deferred entry of judgment (DEJ). This is where your case will get dismissed once you complete certain terms such as rehab or counseling.⁸

Typically, your attorney and the prosecutors come to an agreement regarding diversion or DEJ prior the arraignment, and the judge will rubber stamp it at the hearing.

Judges will dismiss your charges if you complete a diversion program.

7. Bail

At your arraignment, you can ask the judge to lower your bail or release you on your own recognizance (“OR”) without having to pay anything. If the judge refuses, you can always request a more formal bail hearing at a later time.

Whether the judge agrees to release you from custody depends on:

• the severity of the crime,
• whether you pose a public safety risk, and
• whether you are a flight risk.

The amount of bail is typically determined by the county bail schedule. The more serious the crime, the higher the bail amount.

If you do not obtain an O.R. release and cannot afford to bail out, California law requires that you be released unless there is clear and convincing evidence that detaining you is necessary to protect public safety. In Los Angeles, most arrestees automatically get released on O.R. except in serious or violent felony cases.⁹

8. Denied Charges

If you are lucky, the prosecutor at your arraignment will announce that they do not have enough evidence to charge you and will “deny” your case. (You can still be charged if prosecutors later obtain enough evidence within the applicable statute of limitations, though this is rare.)

Sometimes it is possible to prevent a case from being filed in the first place. Attorneys can do this by convincing the prosecutors that they lack sufficient evidence to sustain a conviction.

In practice, most arraignments go forward with charges getting filed.

Most scheduled arraignments go forward with charges being filed.

9. Probable Cause Hearing

If California police arrested you on a misdemeanor charge without a warrant – and you remain in custody at the time of arraignment – you may request an immediate probable cause hearing through a Penal Code 991 PC motion.

A probable cause hearing requires the judge to determine

1. if there is probable cause to believe that a crime was, in fact, committed, and
2. if you are the person who committed that crime.

“Probable cause” is a standard that means:

“a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”¹⁰

Probable cause hearings are typically conducted at the time of the arraignment. Even if the judge does find probable cause, you can ask the judge to release you on bail or your own recognizance.

10. After the Arraignment

If the judge does not dismiss your charges at your arraignment, then the case enters “pretrial.” As the name implies, “pretrial” includes all events that take place prior to your jury trial such as:

• filing motions asking the court to take certain actions (such as suppressing evidence or a motion to dismiss),
• the exchange of evidence (“discovery”) between the prosecution and defense, and
• plea bargains.

Note that if you lose your preliminary hearing (only in felony cases), then your case gets transferred to a higher court where you get a second arraignment.

The arraignment is only the beginning of the criminal court process.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• The Quality of Justice in Misdemeanor Arraignment Courts – The Journal of Criminal Law, Criminology, and Police Science.
• Right to Counsel before Arraignment – Minnesota Law Review.
• Police Interrogation: The Right to Counsel and the Prompt Arraignment – Brooklyn Law Review.
• Tracing Charge Trajectories: A Study Of The Influence Of Race In Charge Changes At Case Screening, Arraignment, And Disposition – Criminology.
• Criminal Law. Arraignment. Plea – California Law Review.

Legal References: