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    Criminal Defense Division

    The “Criminal Court Process” in California – How It Works

    California’s “criminal court process” refers to how a criminal case proceeds, from

    The criminal court process may differ slightly depending on if you are charged with an

    Infractions – which comprise most traffic violations like speeding – are civil offenses punishable only by fines. You have the right to contest an infraction before a judge at a bench trial.

    Misdemeanors and felonies are criminal offenses that may carry incarceration in addition to fines. The criminal court process involves:

    You can also file a motion for a new trial or an appeal following a conviction.

    California criminal court process flowchart

    Our California criminal defense attorneys will highlight the following in this article:

    A courtroom.

    The California criminal court process may differ depending on if you are charged with an infraction, misdemeanor, or felony offense.

    1. What is the court process for infractions?

    While California infractions are violations of the law, they are not considered crimes (unlike misdemeanors and felonies). One result is a fairly straightforward court process that mainly includes a trial.

    Most infractions are traffic violations. Examples include:

    Infractions do not lead to imprisonment or probation. Thus, if you are charged with one, you do not have the right to a jury trial. Trials, rather, are “bench trials” that occur before a judge.

    If you are charged with an infraction, you can hire a defense attorney to assist in the matter. Though the State is not required to appoint a public defender for representation.

    You can try to contest or fight an infraction at trial with a legal defense. If you are found guilty, the offense is punishable by a fine. The maximum amount is $250.1

    The State of California will also report the infraction to the Department of Motor Vehicles (DMV). The DMV will then place one or more points on your driving record.

    2. What is the criminal court process for a California misdemeanor?

    California misdemeanors involve a more structured court process in comparison to infractions. The process includes several steps, including:

    1. investigation and arrest,
    2. arraignment
    3. a pre-trial process, and
    4. trial.

    2.1. Legal definition of a misdemeanor

    California law defines a misdemeanor as a crime for which the maximum sentence is no more than one year in county jail.2 A misdemeanor is more serious than an infraction but less serious than a felony.

    Common examples of misdemeanors are:

    2.2. Investigation

    Many criminal cases begin with police witnessing you allegedly breaking the law and then arresting you. In other cases, the police suspect you of criminal behavior only after conducting an investigation.

    Criminal investigations typically include police interviewing witnesses and executing search warrants.

    Sometimes police reach out to you for questioning. If this happens, you are advised to invoke your Fifth Amendment rights against self-incrimination and retain a criminal defense attorney on a pre-file basis. Your attorney can then speak with law enforcement on your behalf.

    In some cases, the defense attorney can even persuade prosecutors to drop the investigation by showing them that insufficient evidence exists to arrest you.

    2.3. Arrest

    Once police arrest you for a misdemeanor, they typically “book” or process you. Booking means the police take you to the police station and:

    • gather fingerprints,
    • record your personal information (for example, name and address),
    • take note of the facts involved in the alleged offense, and
    • search your criminal history.

    You are then either held in custody or released. If released, you are either released:

    California bail and bail bonds refer to the money that is posted with the court to ensure that you attend all of your court appearances. Bail is typically set according to the local county bail schedule.3 However, California bail laws provide an opportunity for the judge to reduce a scheduled bail.4

    Note that it is a common misconception that police must read you your Miranda Warnings immediately after an arrest. You do not need to hear Miranda Warnings until you are being interrogated (questioned by police). If an interrogation occurs, you are advised to remain silent and let your attorney speak for you.

    Following an arrest, the district attorney’s office determines whether or not to press charges. If the D.A. does not press charges, the case is dropped and you are released from custody (if you were held in jail). If the D.A. files charges, the court will schedule an arraignment.

    2.4. Arraignment

    An arraignment is your first formal court appearance following an arrest. It is essentially a hearing held in front of a judge.

    The arraignment is where the court reads you the charges that the D.A. has filed against you. You then have the opportunity to enter a plea.5

    The three most common pleas include:

    • not guilty,
    • guilty, or
    • nolo contendere, more commonly referred to as “no contest”.6

    If you enter a guilty or “no contest” plea, you proceed directly to a sentencing hearing (discussed in section 4 below). If you enter a “not guilty” plea, the judge addresses the issue of bail (if you are confined in jail).

    Note that you have the right to an attorney at an arraignment. If you cannot afford a lawyer, the court will appoint one.

    2.5. Pre-trial process

    California’s pre-trial process is the time in a criminal case from post-arraignment to the moment right before a trial begins.

    The process represents the timeframe where the majority of cases are resolved. For example, a prosecutor may dismiss a case or you may enter into a plea bargain and advance to a criminal sentencing hearing.

    The pre-trial process varies in terms of length. In some cases, it can last up to 45 days. The process can grow longer in more complex cases.

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

    • court appearances,
    • discovery issues (that is, the exchange of relevant evidence),
    • motion practice (a request by the defense or prosecution for the judge to take a desired action), and
    • plea bargains or negotiations.

    The discovery and motion aspect of the process usually brings the most questions.

    2.5.1. Discovery

    “Discovery” is the term used to describe the exchange of information between the defense and the prosecution.

    The purpose is for each side to learn what evidence the other will present during trial, including what witnesses will testify and the subject of their testimony.

    Discovery may reveal:

    • physical evidence relevant to the case,
    • applicable police reports,
    • expert reports or statements, and
    • witness statements.

    2.5.2. Motion practice

    Motion practice refers to a prosecutor or defense counsel asking the court to make a certain ruling with respect to some aspect of a criminal case.

    An example is a motion to suppress evidence. This is a request, often by the defense, for the judge to exclude certain evidence from a case. You may bring this motion, for example, if the police obtained evidence via an illegal search and seizure.

    Another popular pre-trial 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:

    If the judge grants a Pitches motion, you could call those complainants as witnesses to taint the officer’s credibility. In reality, if the prosecutor learns of damaging information in a peace officer’s file, they will usually reduce or even dismiss one or more of your charges.

    2.6. Trial

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

    Note that you have the constitutional right to a speedy trial, but you may opt to delay the trial for weeks or months.

    California trials may be of two types. These are:

    1. bench trials, or
    2. 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 they then decide whether you are guilty or not guilty.

    Anyone in California accused of a misdemeanor has the right to a jury trial.8 A California jury trial typically proceeds as follows:

    • jury selection,
    • opening statements,
    • attorneys present evidence,
    • closing arguments,
    • jury deliberations,
    • verdict, and
    • sentencing (if a guilty verdict).9

    To secure a guilty verdict at trial, prosecutors have the burden to show that there is enough evidence to prove your guilt beyond a reasonable doubt.

    A handcuffed man being led by an officer.

    In California, a felony crime carries a maximum sentence of more than one year in custody.

    3. What is the criminal court process for felonies?

    The court process for felony offenses is similar to the process for misdemeanors. The process includes the following:

    1. investigation and arrest,
    2. arraignment,
    3. preliminary hearing,
    4. second arraignment,
    5. pre-trial process, and
    6. trial.

    3.1. Legal definition of a felony

    In California, a felony is defined as a crime that carries a maximum sentence of more than one year in custody.10 A judge may also impose a fine up to $10,000 in addition to, or instead of, imprisonment.11

    Felony offenses are more serious than both misdemeanors and infractions. The most serious felonies can be punished by life in prison without the possibility of parole.

    Examples of a felony include:

    3.2. Investigation and arrest

    The investigation and arrest steps for a California felony generally follow the same protocol as the investigation and arrest steps for misdemeanors.

    Note, though, that since felonies are more serious crimes than misdemeanors, you are more likely to remain in custody after a felony arrest.

    3.3. Arraignment

    There are actually two arraignment hearings in the lifespan of a felony case. One occurs at the very start of criminal proceedings. The second happens after the preliminary hearing. For now, we will focus on the initial arraignment.

    If you are held in jail after a felony arrest, police and prosecutors must arraign you within 48 hours of arrest, not including weekends and holidays.12

    If there is an unreasonable delay between an arrest and an arraignment, the delay can convert an otherwise lawful arrest into an unlawful detention. This type of potential police misconduct may entitle you to recover civil (or monetary) damages.

    Note that the 48-hour rule discussed above applies to all crimes for which you are held in custody, regardless of whether they are felonies or misdemeanors. That said, you are usually released following a misdemeanor arrest.

    If you get released from custody following a felony arrest, the police must arraign you “without unnecessary delay.” In reality, an arraignment usually takes place within a few weeks to a few months following an arrest.13

    Like an arraignment for a misdemeanor, a felony arraignment is your first formal court appearance following an arrest. The actual arraignment follows the same rules and procedures as discussed for misdemeanor arraignments.

    3.4. Preliminary hearings

    A California preliminary hearing is one of the first pre-trial proceedings that take place in a felony case. The hearing is commonly referred to as a “prelim” or a “probable cause hearing.”

    The hearing is held before a judge, and the prosecutor must submit evidence related to the crime charged against you.

    The judge then asks two questions:

    1. is there probable cause to believe that a crime was committed? AND
    2. if so, is there probable cause to believe that you were the person who committed that crime? 14

    If the judge answers these questions in the affirmative, they transfer the case to a trial court for further pretrial proceedings. If a judge finds that there is not probable cause related to a charge, the judge can dismiss any charges against you.15

    3.5. Second arraignment

    If a judge finds probable cause following a preliminary hearing, the court must hold a second arraignment within 15 days of the hearing.

    The arraignment largely follows the same procedures as the first arraignment. You simply enter a plea as to those charges that a judge found probable cause to support.

    3.6. Pre-trial process and trial

    Both the pre-trial process and the trial stage of a felony case follow the same rules and protocols as discussed above for misdemeanor cases.

    Since felony crimes are more serious than misdemeanors, felony trials can last much longer than those for misdemeanors.

    4. What happens following a guilty plea or guilty verdict?

    If you plead guilty to a misdemeanor or a felony, or are found guilty of either offense after a trial, California’s criminal process says that you may:

    • file a motion for a new trial,
    • appear at a sentencing hearing, or
    • file an appeal.

    4.1. Motion for a new trial

    California law says that you may be entitled to a new trial if a guilty verdict was tainted by

    • jury misconduct,
    • prosecutorial misconduct,
    • an error of law by the court, and/or
    • insufficient evidence.16

    You can file a motion for a new trial on any of these grounds as long as you file the motion 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.17

    4.2. Sentencing hearing

    California law entitles you to a sentencing hearing after a conviction or guilty plea.

    A sentencing hearing presents both the prosecutor and you with an opportunity to explain to the judge what each feels is an appropriate sentence.18

    You present 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.

    4.3. Appeal

    If you are convicted of a crime, you can appeal your verdict to a new higher court.

    An appeal is not a new trial. Instead, an appellate judge reviews the trial court’s decision for mistakes. Common grounds for appeal include:

    The appellate court can either affirm the verdict of the trial court, or overturn the verdict and remand it to the trial court for new proceedings.

    Additional resources

    For more information, refer to the following:

    1. California Penal Code 19.8 PC.
    2. California Penal Code 19 PC.
    3. California Penal Code 1269b PC.
    4. Note that 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, for example, In Re. Kenneth Humphrey on Habeas Corpus, (March 25, 2021).
    5. California Penal Code 825 PC.
    6. California Penal Code 1016 PC.
    7. See, for example, California Evidence Code sections 1043-1047 and Pitchess v. Superior Court, 11 Cal.3d 531 (1974).
    8. The 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.
    9. California Penal Code 1093 PC.
    10. California Penal Code 17a PC.
    11. California Penal Code 672 PC.
    12. California Penal Code 825 PC.
    13. California Penal Code 859 PC.
    14. California Penal Code 872 PC.
    15. See same.
    16. California Penal Code 1181 PC.
    17. California Penal Code 1180 PC.
    18. California Penal Code 1170 PC.

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