The Criminal Court Process in California

Q: What is the pretrial process?

Once you have entered a not guilty plea...and the question of your bail has been resolved...you enter the pretrial process. California's pretrial process is the phase of the California criminal court process where the majority of cases are resolved. Pretrial refers to all proceedings that take place before a trial. This includes court appearances, motions (a request for the judge to take a desired action), discovery issues (that is, the exchange of relevant evidence), and plea bargains or negotiations.

Updated August 3, 2021

The criminal court process in California proceeds chronologically through three primary phases: (1) arraignment and pretrial, (2) court or jury trial and (3) post-conviction proceedings. Some cases get resolved at an early point in this process by way of a plea bargain or a dismissal by the court or the prosecutor.

In this article, our California criminal defense attorneys¹ explain:

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

Most cases resolve before the trial date.

1. What are the early stages of the California criminal court process?

Investigation

Many criminal cases begin with police witnessing a person allegedly breaking the law and arresting him/her. In other cases, the police suspect a person of criminal behavior and are conducting an investigation.

Criminal investigations typically comprise interviewing witnesses and executing search warrants. Sometimes police reach out to the suspect for questioning. If this happens, the suspect is advised to invoke his/her Fifth Amendment rights against self-incrimination and retain a criminal defense attorney on a pre-file basis right away to speak on his/her behalf.

In some cases, the defense attorney can even persuade prosecutors to drop the investigation by showing them that insufficient evidence exists to arrest the suspect. But if police believe they compiled enough evidence to show probable cause that the suspect committed a crime, they will apply for an arrest warrant and execute the arrest.

Arrest

It is a common misconception that police must read arrestees their Miranda Warnings right away. In fact, arrestees do not need to hear Miranda Warnings until they are being interrogated (questioned by police). Arrestees are advised to remain silent and let their attorney speak for them.

Following an arrest, the ball is in the district attorney’s court to press charges. If the D.A. does not press charges, the jail will release the defendant. Otherwise, the court will schedule an arraignment.

Arraignment

After you’ve been arrested by law enforcement for a crime in this state, your first formal court appearance takes place at your arraignment. This is where you are formally charged and read your charges.

Your California arraignment is your first opportunity to enter a plea in your case.² The three most common pleas at this court date include:

not guilty,

guilty, or

nolo contendere, more commonly referred to as “no contest”.³

If you enter a guilty or “no contest” plea, you proceed directly to a sentencing hearing (discussed under Section 4. Proceedings Following a Guilty Plea / Guilty Verdict).

If you enter a “not guilty” plea…which is much more common at this stage of the proceedings…the judge will address the issue of bail.

Note that defendants unable to afford their own attorney will be assigned a public defender.

California’s bail and bail bonds

California bail and bail bonds refer to the money that is posted with the court to ensure that you will attend all of your court appearances. Bail is typically set according to the local county bail schedule.⁴ However, California bail laws provide you with an opportunity to ask the judge to reduce the scheduled bail.

2020 Update for Los Angeles County: Except in serious or violent felony cases, most arrestees will be released without having to pay bail. Learn more in our California bail article.

2021 Update for California: People can no longer be incarcerated solely because they cannot afford bail. Clear and convincing evidence is required to show that detention is necessary to protect public safety. See In Re. Kenneth Humphrey on Habeas Corpus, (March 25, 2021).

California bail hearings

During a California bail hearing, you are permitted to present mitigating factors in support of your request to reduce or eliminate your set bail at city or county jail. But before the judge will reduce, raise, or eliminate your bail, he/she considers factors such as

your criminal history,
the seriousness of the offense,
the facts of the case,
your community ties,
your likelihood to return to court, and, most importantly,
public safety.⁵

Note that bail hearings can occur at the arraignment, or the judge can schedule a separate bail hearing later. Defendants who are denied bail are held in jail until the case is resolved.

O.R. or “own recognizance” release

If the judge agrees to waive your bail, he/she releases you on your own recognizance, more commonly referred to as an O.R. release. Misdemeanor defendants are entitled to an O.R. or “own recognizance” release or supervised own recognizance release unless that release

will compromise public safety, or
will not reasonably ensure their appearance in court.^{6 7}

2. What is the pretrial process?

Once you have entered a “not guilty” plea…and the question of your bail has been resolved…you enter the pretrial process.

California’s pretrial process

California’s pretrial process is the phase of the California criminal court process where the majority of cases are resolved.

“Pretrial” refers to all proceedings that take place before a trial. This includes

court appearances,
motions (a request for the judge to take a desired action),
“discovery” issues (that is, the exchange of relevant evidence), and
plea bargains or negotiations.

The preliminary hearing in felony cases

A California preliminary hearing is one of the first pretrial proceedings that take place in a felony case. Commonly referred to as a “prelim” or a probable cause hearing, this proceeding takes place to ensure that you are not being held to answer for a crime for which there is not adequate evidence.⁸

In order to resolve this issue, the judge must answer two questions:

is there probable cause to believe that a crime was committed, and
if so, is there probable cause to believe that are you the person who committed that crime?

If the judge answers these questions in the affirmative, he/she will “hold you to answer for the charge(s)” and will transfer you to the trial court for further pretrial proceedings…proceedings that generally involve motions.

Penal Code 995 PC motion to set aside the information

If…following your preliminary hearing…it appears that the judge incorrectly held you to answer for the criminal charge(s), your California criminal defense lawyer will file a Penal Code 995 “motion to set aside the information” on your behalf.

A Penal Code 995 PC “motion to set aside the information” is essentially a request for the judge to dismiss one or more of the charges against you.⁹

But “as long as there is some evidence that supports probable cause, a reviewing judge cannot grant a 995 motion simply because it is equally as likely that there was not probable cause.”¹⁰

However, if the trial court judge believes that the preliminary hearing judge was incorrect in finding a reasonable or probable cause, the trial judge will grant the 995 motion and will set aside the pertinent count(s).

Pitchess motions

Another popular pretrial motion is what’s known as a Pitchess motion. A California Pitchess motion is a request for information contained in an officer’s personnel file about prior complaints of excessive force, bias, or other forms of police misconduct.¹¹

If the judge grants your motion, you may be able to call those complainants as witnesses to taint the officer’s credibility. In reality, if the prosecutor learns that there is damaging information, he/she will usually reduce or even dismiss one or more of the charges against you.

California Penal Code 1538.5 motions to suppress evidence

Along these same lines, if it appears that the police violated your Fourth Amendment right to be free from unreasonable searches and seizures, your attorney will file a 1538.5 motion to suppress.

A California Penal Code 1538.5 motion to suppress evidence is just that…a request for the judge to exclude any evidence that was illegally obtained and should therefore be inadmissible at trial.¹² When this takes place, the suppression of the illegal evidence is what’s known as the “exclusionary rule”.

And…like a Pitchess motion above… if your lawyer prevails on this motion, it often means that the case against you is weakened or even gets dismissed.

california jury looking off camera at trial taking place

Cases that do not resolve during pretrial proceedings progress into the trial phase of the California criminal court process.

3. What happens at jury trials?

Cases that do not resolve during pretrial proceedings progress into the trial phase of the California criminal court process. Defendants have the constitutional right to a speedy trial, though may defendants opt to delay the trial for weeks or months.

California trials may be of two types: bench trials or jury trials.

Bench trials (also known as court trials) take place when the judge acts as both the judge and jury. In a jury trial, by contrast, 12 members of the community are selected to hear the evidence against you–and your defense–and then to decide whether you are guilty or not guilty.

Anyone accused in this state of a misdemeanor or felony is entitled to a jury trial.¹³ A California jury trial typically proceeds as follows:

jury selection,
opening statements,
attorneys present evidence,
closing arguments,
jury deliberations,
verdict, and finally, if necessary,
sentencing.¹⁴

Prosecutors have the burden to show that there is enough evidence to prove guilt beyond a reasonable doubt.

4. What are the proceedings following a guilty plea / guilty verdict?

If, following your trial, you discover that your verdict was tainted by

jury misconduct,
prosecutorial misconduct,
an error of law by the court, and/or
insufficient evidence…or that
the trial record or transcript has been lost or destroyed, and/or
that new evidence exists,

you may be entitled to a new trial.¹⁵ A California motion for a new trial may be raised on any of these grounds as long as it is filed before the judge pronounces judgment (which is usually done at a California sentencing hearing).

If granted, you begin the new trial with a completely clean slate as if no trial had ever taken place.¹⁶

Sentencing hearings

Once you are convicted, California law entitles you to a sentencing hearing. A California sentencing hearing presents both sides with an opportunity to explain to the judge what each feels is an appropriate sentence.¹⁷

The defense presents mitigating circumstances to justify lenient treatment. Conversely, the prosecution presents aggravating circumstances to justify harsher penalties. Misdemeanor cases carry fines and county jail time, while felony cases carry fines and state prison time. (There is currently a moratorium on the death penalty in California.)

This is just another reason why it is so important to have skilled representation on your side throughout the California criminal court process. As former cops and prosecutors, we know the most effective arguments to convince judges to impose the least restrictive penalties available.

Appeals

People convicted of a crime can appeal their verdict to a higher court. For example, a person convicted of a felony in the Eighth Judicial District Court would appeal to the Nevada Supreme Court.

An appeal is not a new trial. Instead, the appellate judges review the lower court’s decision for mistakes. Common grounds for appeal include:

insufficient evidence
jury misconduct
prosecutorial misconduct
judicial misconduct
ineffective assistance of counsel

The appellate court will then either affirm the verdict or overturn the verdict and remand it to the lower court for new proceedings.

Contact us for help…

Call our criminal law firm for a free consultation.

If you or a loved one is in need of help with the court process and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. Our criminal justice system attorneys can provide a free consultation in our office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout the state of California.

Also see our faq about California criminal cases.

To learn about the Nevada criminal court process, go to our page on the Nevada criminal court process.

Legal References:

Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
California Penal Code 825 PC — California arraignment; appearance before magistrate; unnecessary delay…. (“(a)(1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate [for his/her arraignment] without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays. (2) When the 48 hours prescribed by paragraph (1) expire at a time when the court in which the magistrate is sitting is not in session, that time shall be extended to include the duration of the next court session on the judicial day immediately following. If the 48-hour period expires at a time when the court in which the magistrate is sitting is in session, the arraignment may take place at any time during that session. However, when the defendant’s arrest occurs on a Wednesday after the conclusion of the day’s court session, and if the Wednesday is not a court holiday, the defendant shall be taken before the magistrate not later than the following Friday, if the Friday is not a court holiday.”)
California Penal Code 1016 PC — Kinds of pleas. (“There are six kinds of pleas to an indictment or an information, or to a complaint charging a misdemeanor or infraction: 1. Guilty. 2. Not guilty. 3. Nolo contendere [more commonly referred to as “no contest”], subject to the approval of the court. The court shall ascertain whether the defendant completely understands that a plea of nolo contendere shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. 4. A former judgment of conviction or acquittal of the offense charged. 5. Once in jeopardy. 6. Not guilty by reason of insanity.”)
California Penal Code 1269b PC — Acceptance of bail; notice of appearance of prisoner; schedule of bail. (“(c) It is the duty of the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail [aka a local county bail schedule] for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council in accordance with Section 40310 of the Vehicle Code.”); (Learn about Pretrial Assessment Services, pretrial risk assessments, validated risk assessment tools, and preventive detention hearings in California.)
California Penal Code 1275 PC — Setting, reducing or denying bail; considerations. (“(a) In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration. In considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant. (b) In considering offenses wherein a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, the judge or magistrate shall consider the following: (1) the alleged amounts of controlled substances involved in the commission of the offense, and (2) whether the defendant is currently released on bail for an alleged violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code. (c) Before a court reduces bail below the amount established by the bail schedule approved for the county, in accordance with subdivisions (b) and (c) of Section 1269b, for a person charged with a serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, “unusual circumstances” does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses.”)
California Penal Code 1270 PC — Release on recognizance; non-capital offense; offense; considerations; public safety; procedure. (“(a) Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a California court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out-of-county warrant. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, shall be entitled to an own recognizance release unless the court makes a finding on the record, in accordance with Section 1275 [below], that a [California] own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set bail and specify the conditions, if any, where under the defendant shall be released.”)
San Jose criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients throughout the Bay Area, including San Francisco, Berkeley, Marin County, and Oakland.
California Penal Code 872 PC — California preliminary hearings; order holding defendant to answer; probable cause; basis of finding. (“(a) If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or indorse on the complaint an order, signed by him or her, to the following effect: “It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe that the within named A.B. is guilty, I order that he or she be held to answer to the same.””)
California Penal Code 995 PC — Grounds; motion to set aside; delay in final ruling. (“(a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: (1) If it is an indictment: (A) Where it is not found, endorsed, and presented as prescribed in this code. (B) That the defendant has been indicted without reasonable or probable cause. (2) If it is an information: (A) That before the filing thereof the defendant had not been legally committed by a magistrate. (B) That the defendant had been committed without reasonable or probable cause. (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.”)
People v. Superior Court (Bolden) (1989) 209 Cal.App.3d 1109.
California Evidence Code sections 1043-1047 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 set forth the parameters of a California Pitchess motion involving allegations of police misconduct.
California Penal Code 1538.5 PC — Motion to return property or suppress evidence.
Your right to a California jury trial is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution, by the California Constitution Article 1, sections 16 and 24, and by various California statutory provisions.
California Penal Code 1093 PC — Order of procedure in a California criminal jury trial; change of order; powers of judge to comment and to charge as to law. (“The jury having been impaneled and sworn, unless waived, the trial shall proceed in the following order, unless otherwise directed by the court: (a) If the accusatory pleading be for a felony, the clerk shall read it, and state the plea of the defendant to the jury, and in cases where it charges a previous conviction, and the defendant has confessed the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction. In all other cases this formality may be dispensed with. (b) The district attorney, or other counsel for the people, may make an opening statement in support of the charge. Whether or not the district attorney, or other counsel for the people, makes an opening statement, the defendant or his or her counsel may then make an opening statement, or may reserve the making of an opening statement until after introduction of the evidence in support of the charge. (c) The district attorney, or other counsel for the people shall then offer the evidence in support of the charge. The defendant or his or her counsel may then offer his or her evidence in support of the defense. (d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. (e) When the evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to the court and jury; the district attorney, or other counsel for the people, opening the argument and having the right to close. (f) The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party; and the judge may state the testimony, and he or she may make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case and he or she may declare the law. At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy.”)
California Penal Code 1181 PC — California motion for a new trial. (“When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: 1. When the trial has been had in his absence except in cases where the trial may lawfully proceed in his absence; 2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property; 3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury; 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed; 7. When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed; 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable. 9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.”)
California Penal Code 1180 PC — Effect of grant; parties; evidence; former verdict or finding. (“The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.”)
California Penal Code 1170 PC — Determinate sentencing. (“(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment [that is, the California sentencing hearing], either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer’s report, or to present additional facts. In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.”)