What are the stages of a felony prosecution in California?

Image by Thomas Roche
Photo -Thomas Roche

If you are arrested on a felony charge in California, this is an overview of the stages of the prosecution.


Upon your arrest, the police are required to bring you before a “magistrate” (judge) within 48 hours, excluding Sundays and holidays.  (Penal Code section 825)  The district attorney has until then to make a decision about whether or not to file charges against you.  If charges are filed, the first stage is the arraignment.  At that time, you will be told of the charges and any sentencing enhancements filed against you.  Although it is customary to enter a plea of “not guilty” at that time, there may be specific legal reasons to delay the entry of the “not guilty” plea.  (For example, to file a demurrer.  That can only be done before the entry of a plea.)  Bail will also be set at that time.

Preliminary hearing

From there, you are entitled to a preliminary hearing within 10 court days.  (Penal Code section 859b.)  If the prosecution is unable to begin the hearing within those 10 days, the court must dismiss the charges unless the prosecution can establish “good cause” why the case cannot begin within those 10 days.  If a continuance is granted beyond the 10 day period, you would be ordered released from custody if you were still being held.

At the preliminary hearing, the prosecution must put on enough evidence to show there is “probable cause” to hold you for trial.  The DA must prove all charges (both felonies and misdemeanors) and conduct enhancements against you at the preliminary hearing.  Your attorney can, of course, cross examine any witnesses and challenge the evidence against you at the hearing.  You can also file motions to suppress evidence against you.  At the preliminary hearing, your right to present a defense is restricted by Penal Code section 866.  You are only allowed to put on evidence that will establish an affirmative defense (such as self-defense), negate an element of the crime charged (for example, a required intent for a crime) or impeach the testimony of a witness.

Second arraignment

If the judge determines that the prosecution has presented sufficient evidence to hold you for trial, you will be ordered to appear for arraignment on a charging document known as an “information.”  That arraignment must occur within 15 days of the conclusion of your preliminary hearing.  You would again enter a plea of “not guilty” (or one of the other forms of a plea as you and your attorney decide).  Your trial must begin within 60 calendar days from that arraignment or the charges must be dismissed.

In the time between your second arraignment on the “information” and the trial date, your attorney can file several important motions.  The first is a motion under Penal Code section 995 – to challenge the ruling a the preliminary hearing.  The prosecution is only entitled to charge you in the “information” with any crimes they were able to prove at the preliminary hearing.  If you believe you were ordered to stand trial and there was insufficient evidence presented at the preliminary hearing to support that charge, the 995 motion is the way to challenge it.

There will be at least one pretrial conference date set to verify if both sides anticipate being prepared to go forward on the trial date.  It is also an opportunity to negotiate a plea deal to settle your case.

Once your case is assigned to a trial court, your attorney can file additional motions (such as to suppress statements based on Miranda violations and exclude evidence.)  The trial itself has its own stages and procedures.  I’ll cover those in a future post.

*Edit* – added information about the stages of a criminal trial

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