Process of a Felony Case

    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.