Criminal Law

Felony Cases

At Raskin & Tee, the firm is highly experienced in handling ALL Felony Matters. The following provides the court procedure of a felony case.

Stage 1: Arrest and Arraignment

A felony prosecution commences with an arrest, followed by a complaint being filed in the superior court. In some rare cases, the prosecution may instead seek an indictment from the grand jury. The defendant is set for arraignment within a few days - though this may be longer if the defendant posts bail and is out of custody. This first court appearance, at which the defendant must appear, the court reads the charges filed, and usually addresses the matter of bail, if the defendant is still in custody. The defendant is appointed counsel if he cannot afford to retain his/her own private attorney. A plea (almost universally, not guilty) is entered. Dates for a readiness conference, followed by a preliminary examination are set.

Stage 2: First Readiness Conference or “Felony Disposition Conference” (FDC)

At the first readiness conference, counsel confers with the deputy district attorney, and confirms or resets the date for the preliminary examination. At this point, defense counsel should have received the initial discovery materials from the prosecutor's office. This generally consists of police reports, witnesses statements and any initial test results. Discussions towards a possible deposition may also begin at this appearance. If a disposition is reached, the case skips to Stage 7, sentencing.

Stage 3: Preliminary Examination

At the preliminary examination, the prosecutor is required to present the skeleton of his case against the defendant. He must present "some evidence" to lead the judge to believe that a crime has been committed and a suspicion that the defendant is guilty of that crime or crimes. The standard of proof is relatively low, therefore most defendants are "bound over" for trial. In some instances, some charges (or “counts”) may be dismissed at this stage, even if others charges meet this low standard. Identifying the weak counts that can be beaten at this early stage often requires significant research into recent cases in which the interpreted the particular statutes are involved.

This stage in the proceedings may present an opportunity to file a motion to suppress evidence improperly seized, or statements improperly obtained, or a motion to reduce certain charges from a felony to a misdemeanor.

Stage 4: Second Arraignment

The prosecutor’s initial criminal complaint has now been tested for probable cause by an independent judge. The charges that remain are filed as an “information.” (If the prosecutor met the probable cause burden through a grand jury, the charging document is called an “indictment.”) A second arraignment, on the “information,” is then held - this may be conducted immediately following the preliminary examination. In either case, a second readiness conference is set, as well as a trial date. A defendant has a "speedy trial" right - to have the trial start within 60 days from this arraignment.

Stage 5: Second Readiness Conference or “Felony Disposition Conference” (FDC)

At the readiness hearing, discussions with the prosecutor regarding a possible plea bargain usually intensify, as both parties by then have a better idea of the strengths and weaknesses of the case, the defendant's background, etc. If a disposition is reached, the case skips to Stage 7, sentencing.

Stage 6: Trial

If a case does proceed to trial, a jury of 12 persons is selected. (On rare occasions, a defendant may waive a jury trial and have the facts determined by the judge- a “bench” trial.) Once the jury is selected and sworn, counsel gives their opening statements. This is followed by the prosecution presenting its case. Afterwards, the defense presents its case, including testimony from defense witnesses, experts, etc., and potentially the defendant. The judge may then instruct the jury on the applicable law. The prosecutor gives a closing argument, followed by the defense counsel. The prosecutor, but not the defense, is allowed a second argument - the last word. The judge then gives the jury its final instructions and they retire to deliberate in secret. A verdict, whether guilty or not guilty, must be unanimous - meaning all twelve members must agree. If a unanimous verdict cannot be reached one way or the other, a mistrial is declared.

After hearing the facts of the trial, the court may entertain additional motions to reduce felony charges to misdemeanors.

Stage 7: Sentencing

Felony sentencing is an art, demanding tremendous effort on the part of the defendant, family and friends, and of course the lawyer. The skilled lawyer will often begin preparations for sentencing in the initial interview with a client. At each stage, the lawyer and client must work together to maximize the chances of success at the trial, yet also minimize the exposure of the client to lengthy prison terms. The time and effort spent in preparation for a sentencing hearing, by the lawyer, the family, friends, and the defendant, can mean the difference, literally, between probation and years in prison. A felony conviction presents two types of possible sentences. In the first, the defendant is granted formal probation . This may include the requirement that the defendant spend some time (up to one year) in the county jail, make restitution, etc. In the second, probation is denied and the defendant is sentenced to state prison for either a "low", "middle" or "high" term. State prison is usually reserved for cases of more serious charges - those involving weapons, violence, drug sales, sex offenses, serious bodily injury or death - and for defendants with prior felony convictions.

Stage 8: Appeals

In all cases where a trial was held and the defendant found guilty of some charge, an appeal may be taken. An appeal is not a second trial of the case. The appellate courts generally will not re-weigh the evidence. Rather, an appeal contends that some error of the law occurred during trial, which requires that the case be remanded for a new trial or a different sentence. If a guilty plea was entered, the defendant may only appeal the sentence, try to withdraw the guilty plea, or appeal the denial of a suppression motion, if one was made and denied prior to the entry of the plea. Appeals generally go first to the California Court of Appeal - except for death penalty cases (which go directly to the California Supreme Court). If denied, a petition for review can then be filed in the State Supreme Court. From there, a defendant may seek review in the federal courts by filing a petition for writ of habeas corpus in the federal district court. An appeal may then be taken to the circuit court of appeals, followed by a petition for certiorari to the United States Supreme Court.