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Criminal Process In California: Bail And Release On Own Recognizance

The first step in any California criminal case is, if possible, to secure the release of the client by obtaining release on own recognizance or assisting the client in posting bail. Under certain, very limited, circumstances, individuals charged with a misdemeanor are entitled to release on their written promise to appear, or “own recognizance.” In those misdemeanor cases where own recognizance release is not warranted, minimal bail can be obtained. In all California felony cases, except capital cases or cases where life imprisonment is possible, an individual is entitled to release on bail and in some cases can be released on their own recognizance.

Arraignment Or First Appearance In California

In California the arraignment on the criminal complaint will be your first appearance in court. The complaint, in either a felony or misdemeanor case, is the document that tells you about the charges filed against you by the state. At the arraignment you will be advised of your constitutional rights, and your attorney will enter a plea on your behalf. In addition, your attorney will generally receive a copy of the police reports that form the genesis of the charges filed against you by the state of California.

At the time of your arraignment, if you are out of custody your attorney will do everything legally possible to ensure that you remain out of custody. If you are in custody at the time of your arraignment your attorney will seek your release from custody, whether by seeking your release on own recognizance or on bail. Bail is set to ensure your attendance at the next, and future, court appearances. There are a number of factors a California court will consider in setting bail. An experienced criminal defense firm can ensure that the court considers all the legally appropriate factors.

California Preliminary Hearing Process

If you were charged in California with a felony, a probable cause/preliminary hearing will be held. Under California law you have a right to a preliminary hearing within 10 court days from the date of your initial arraignment. You are also entitled to have the preliminary hearing completed within 60 calendar days from the date of your initial arraignment. If your preliminary hearing is continued beyond the first 10 court days, you may be entitled to release. Your case may also be dismissed if your preliminary hearing is continued beyond 60 calendar days. Further, in California you have a right to have your preliminary hearing completed in one session. If the preliminary hearing is not completed in one session, the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones the preliminary hearing. The postponement of the preliminary hearing shall not be for more than 10 court days, unless certain conditions occur.

During the preliminary hearing the magistrate will decide if a crime may have been committed and whether you may have in fact committed, or have been involved in, the crimes charged. At the preliminary hearing the alleged victim, if any, is not required to testify. In California the law allows hearsay testimony at the preliminary hearing. This hearsay testimony is presented by the investigating officer provided the officer meets certain requirements.

At the preliminary hearing in California, you have a right to an attorney, including an appointed attorney if you can not afford to hire an attorney. You have the right to confront and cross examine witness, to present a defense, to present evidence, and to testify on your own behalf. You also have the right in California to remain silent and you can not be compelled to testify against yourself in violation of your Fifth Amendment Rights against self incrimination.

The standard or burden of proof at the preliminary hearing in California is well below the more well know beyond a reasonable doubt burden required at trial. In fact, the standard of proof at a preliminary hearing in California falls below the preponderance of evidence proof that is required in most California civil cases.

Arraignment After The Preliminary Hearing

In California, at the preliminary hearing, if the magistrate determines that a crime has been committed and that you may have committed the charged offenses, (probable cause), you will be arraigned in the Superior Court, (sometimes referred to as “upper court”), for trial. You will be arraigned on an Information (“charging document”) that will be filed by the prosecutor. The prosecutor can, and sometimes does, file additional charges where the information adduced at the preliminary hearing establishes a basis for the charges. At the arraignment in the Superior Court, the judge will set several dates, including a future trial date. In a felony case, you have a statutory right to have your trial take place within 60 calendar days from the date of the arraignment in the Superior Court.

Settlement Discussions

During the process, your defense attorney will have the opportunity to discuss your case with the prosecuting agency, (in most cases the district attorney), in an attempt to reach a favorable plea bargain. In some counties a judge will participate in the settlement discussions. Settlement discussions are generally on-going and sometime continue up to and including the time set for trial. An experienced criminal defense firm will have an established reputation with the prosecuting agency. A well established criminal defense firm is critical to successful plea negotiations.

California Trial Process

If for some reason, (and there are many), that your attorney is unable to reach a favorable pretrial disposition in your case, it will proceed to trial. At trial, a jury of 12 impartial members of the community are selected to hear testimony, evaluate the testimony of sworn witnesses and then deliberate the evidence in your case. During the trial, both sides make opening statements, present testimony, introduce witnesses, cross-examine witnesses and make closing arguments.

In order to convict an accused all twelve jurors must unanimously agree beyond a reasonable doubt that you are guilty of the charges filed against you by the state. If the jury is unable to unanimously agree on a verdict, they are considered “hung,” at which point the trial judge will declare a mistrial. After a mistrial, it is quite likely the prosecuting agency will attempt to try the case again.


Sentencing occurs after there is a conviction. A conviction can occur either by way of plea bargain (see settlement discussions above), or by way of a guilty verdict after trial. Prior to sentencing (in felony cases), you will be referred to the probation department for an interview. The probation department will evaluate your case, including your interview, and will draft a presentence report. The presentence report is generally a recommendation to the sentencing judge as to what sentence the judge should impose. Although the judge has discretion on what sentence to impose, the presentence recommendation will play a significant part in your sentencing. There are many factors to be considered at sentencing, most of which could aversely affect your punishment. At sentencing the judge will decide if you will get probation, spend time in county jail, or in severe cases, state prison. Thus, it is imperative that you have an experienced and aggressive law firm in your corner. Only a experienced law firm can guide you and, more importantly, the judge, through the sentencing process.


If you or your attorney believes that an error occurred either during the trial of your case or during the plea or during sentencing you can appeal the potentially adverse ruling.

If you were charged with a felony you must file your notice of appeal within sixty days from the date of judgment and sentencing. If you were charged with a misdemeanor then you must file your notice of appeal within thirty days from the date of judgment and sentencing.

When filing your notice of appeal, either felony or misdemeanor, you must file the notice of appeal in the Superior Court, (i.e., the trial court), where your case was handled. Do not file the notice of appeal with the appellate court.

If you were indigent during the trial phase of your case, or you can not afford to hire an appellate attorney, the court of appeal will appoint an attorney to represent you during the appeals process.

Contact Sierra Law Center, APC

If you are in need criminal defense services, contact Sierra Law Center, APC, by calling 530-798-3548 or filling out the online contact form.

Northern California | Criminal Process | Criminal Defense Attorney Jacob Zamora, Esq.