RIGHTS OF THOSE ACCUSED OF A FELONY

The following is a description of the unique rights and procedures for those accused of a felony.

WHAT IS A FELONY?
Felonies are the most serious criminal charge an individual can face in the criminal process. Felonies are defined as criminal offenses with a maximum sentence greater than one year in jail. Felony charges include cocaine or heroin possession, grand theft, armed robbery, and murder. The classification of crimes as a felony is based upon the maximum sentence provided by law, not what sentence a court may actually impose.

A felony conviction can lead to very serious consequences for the individual convicted.  These consequences include not only incarceration in jail or prison for a significant length of time, but also probation or parole, substantial fines, loss of the right to possess weapons, loss of the right to vote, and potential employment restrictions that make getting a job very difficult.

When you are accused of a felony you must appear in person at all of your court hearings.
Since the potential consequences are very severe if you fail to appear at any court hearing the court will likely issue a warrant for your arrest and forfeit the bond you may have posted.

ARRAIGNMENT

The initial arraignment in inferior court is similar to arraignment for an infraction and misdemeanor.  However, if the defendant is bound over following a preliminary hearing, he will be arraigned again in superior court.

BAIL

Bail is set if the defendant is in custody and as set forth in the county bail schedule.  Bail for those accused of felonies is generally higher than bail for those accused of misdemeanors.

SPEEDY TRIAL RIGHTS

If you are charged with a felony, you have a right to a trial within 60 calendar days of the arraignment in Superior Court. (after a preliminary hearing bind over.)  This means that after a preliminary hearing where the municipal court has determined that probable cause exists to support the charges, the defendant will be arraigned in superior court.  The defendant has a right to a trial within 60 days of the superior court arraignment.

THE PRETRIAL CONFERENCE

Many courts have different names for the pretrial conference. In some courts that handle felonies, the pretrial hearing is called a Felony Settlement Conference (FSC), Disposition and Resetting Hearing (D&R), or Trial Readiness Conference (TRC).

If you are charged with a felony, the appearance after the arraignment is usually a settlement conference in order for your attorney and the prosecutor to discuss and possibly resolve the case prior to a preliminary hearing.

PRELIMINARY HEARINGS AND GRAND JURY PROCEEDINGS

If you are charged with a felony, the state of California has two ways to prosecute you. The first is by an arraignment in the inferior court (the lower court) allowing you the right to a preliminary hearing prior to any trial being conducted.  At the arraignment you will be served with a criminal complaint that will outline the exact charges being brought against you. The criminal complaint will list the nature of the crimes as well as the approximate dates that they were allegedly committed.

The second way to prosecute on a felony charge in California is by way of a grand jury indictment. If you were indicted by a grand jury, there will be no preliminary hearing in the inferior court and your arraignment will be in the Superior Court.  Grand jury indictments are extremely rare in California state courts.

Preliminary Hearing

This is an important right afforded to those charged with a felony. California law requires a probable cause hearing to be conducted prior to a defendant standing trial on a felony. This is a preliminary hearing, also known as a preliminary examination. At this hearing, the prosecutor will subpoena witnesses to testify in court. The prosecutor has the burden to establish that there is reasonable cause to believe a crime was committed and that the defendant committed that crime. The prosecution has the burden of proof to establish there is reasonable cause or reasonable suspicion to believe a crime was committed and that the defendant committed that crime.

If the court does not believe the prosecutor has met this burden of proof then the court is required to dismiss the case at the conclusion of the preliminary hearing and discharge the defendant. In some cases the court can make the decision that the case should be reduced to a misdemeanor from a felony at the end of the preliminary hearing. (See 17(b) of the California Penal Code).  The court can also raise or lower the defendant’s bail after the preliminary hearing.

It is absolutely essential to be represented by an experienced criminal defense law firm when your case is likely going to have a preliminary hearing. Your lawyer must be prepared to aggressively question all the witnesses called to testify by the prosecution at the preliminary hearing in an attempt to have the charges dropped.

Grand Jury

An accused does not have a constitutional right to a preliminary hearing in a felony case if the defendant was indicted by a grand jury.  A grand jury will usually consist of 19 citizens.

In a grand jury proceeding, the prosecutor presents the case to the grand jury with witness testimony and other evidence.  The prosecutor may answer questions that the grand jury has concerning the law.  A grand jury is not supposed to receive evidence that would be inadmissible over objection at trial.  An indictment cannot be based on inadmissible evidence.  However, even if the grand jury hears evidence that would be inadmissible at trial, the indictment is valid if there is sufficient competent evidence to support the indictment.

Once the presentation of evidence is completed, the grand jury deliberates in secret.  An indictment may be found when 12 or more jurors conclude that the evidence presented establishes probable cause to believe that the accused committed the offense.  Probable cause is determined by whether the evidence would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.

The accused has a right not to testify at a grand jury hearing.  The accused person’s attorney is not allowed to be in a grand jury proceeding.  A transcript of the proceeding will be given to the accused or his counsel.  The grand jury proceeding can occur even if the accused has not been arrested.  If an indictment is handed down, the court will issue a bench warrant for the defendant who has not been arrested.

If you or someone you know has been accused of a crime, you will need an experienced criminal defense attorney who will guide you through the criminal process and aggressively defend you at each step.  At Wallin & Klarich, we have over 30 years experience helping people who have been accused of crimes.  Feel free to contact us at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.