Felony Charges

Jose H. Varela, Public Defender

In Custody

If you are taken into custody when you are arrested, the police may want to talk with you about your case. Before talking with you, the police must tell you the following (often referred to as a Miranda advisement):

  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to talk to an attorney and to have an attorney present before and during questioning
  • If you can't afford an attorney, one will be appointed free of charge to represent you if you desire

Do not talk to the police about your case. Tell the police that you do not want to talk to them about your case and that you want an attorney. Then, say no more. You are entitled to a phone call.

However, except for attorney calls, your jail phone calls are recorded! Do not discuss the case, or anything related to it, with anyone other than your attorney. Likewise, your jail visits can be audiotaped.

Initial Arraignment

The very first court appearance is called the arraignment. At the arraignment, the court provides you or your private attorney with a copy of the complaint. The complaint is a written document, filed by the prosecutor, accusing you of one or more crimes. If you can't afford a private attorney, the court typically refers you to the Public Defender's Office and sets a future date for your case in one of the felony court rooms.

If you are in jail, an attorney from the Public Defender's Office will visit you to determine whether or not you qualify financially for the services of the Public Defender.

If you are out of custody, you will go to the Public Defender's Office at Room 139, Marin Hall of Justice, 3501 Civic Center Drive, San Rafael, CA 94903, and an attorney will conduct a financial evaluation in the Public Defender's Office. At this first meeting, your attorney will briefly discuss your case and your history. If there is no police report available, the attorney may wait to obtain the police report before talking with you in more detail about what happened in your case.

Appointment of Counsel and Entry of Plea

At the next court date, the Public Defender's Office is officially appointed as counsel of record on your case (if you qualify for our services). If you are out of custody, you may want to call the office at (415) 473-6321, to discuss the case with the assigned attorney before your court date. Your attorney will most likely enter a not guilty plea on your behalf and may set the case for a preliminary hearing.

Change of Plea or Trial Setting

After you have been accepted as a Public Defender client, your attorney will speak to the prosecutor (District Attorney) about possible ways to resolve your case short of preliminary hearing and/or trial. This process, called plea bargaining, simply gives you additional information and choices to make about how you wish to handle your case.

A District Attorney offer typically is in the form of if the defendant will plead guilty now to the charge we want him to plead guilty to, then the prosecution will dismiss other counts in the complaint or reduce the penalties.

If you take the offer, then the prosecutor does:

  • not have to reassign the case to another prosecutor,
  • not have to prepare the case for trial,
  • not have to interview witnesses,
  • not have to bring the witnesses to court,
  • not have to bring the evidence brought 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 of a plea bargain is your decision.

If you accept the offer by the prosecutor, then a number of things happen. First, you will review with an attorney the contents of a change of plea form. After you initial and sign the change of plea form, you will give it back to your lawyer who will review it and sign it. The change of plea form is then given to 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 plead guilty to count 1, is that what you want to do?; and, other questions to make sure you know and understand what you are doing and that the plea is what you want to do.

Instead of entering a bargain with the District Attorney, you may want to enter a bargain with the judge. Your attorney may go into the judge's office and discuss your case with the District Attorney present. The judge may make an offer such as: If your client pleads guilty to all of the charges, I won't send him/her to state prison (I will give them probation and local jail time). If you get an offer from the judge, the District Attorney will withdraw any offer they may have made to you.

If you do not accept the District Attorney or the judge's offer, then you will proceed to preliminary hearing and trial.

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 you committed one or more of the charged crimes. The prosecutor calls witnesses and puts on evidence at the preliminary hearing.

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, and holidays are excluded. If you are out of custody you are entitled to a preliminary hearing within 60 calendar days.

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 they believe a waiver would be helpful in your case and the reason for it. You then decide if you want to waive your right to a speedy preliminary hearing.

At the hearing, your attorney will question the witnesses. 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 on Information

Arraignment for trial must occur within 15 days of your preliminary examination.

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.

At the arraignment for trial, your lawyer is 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 the date of the trial court arraignment. In addition to receiving the information and the preliminary hearing transcript your lawyer will be given a motion filing date and a trial date.

Trial

At trial, 12 members of the community will listen to the evidence and decide whether or not you are guilty of the charge(s) beyond a reasonable doubt. The trial is required to begin within 60 days from the date of your trial court arraignment. You must be present on time every day of your trial. You may waive your right to a speedy trial and postpone the date beyond this time limit. This timing is a strategic question to discuss with your attorney.

Do not talk to anyone about your case, other than your attorney. If you talk to other persons, they 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:

  • Any questions you have.
  • The names of all witnesses.
  • The nicknames or other names the witnesses are known by, if any.
  • The addresses of all witnesses.
  • The telephone number of all witnesses.
  • 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 (415) 473-6321 as soon as possible to make an appointment to discuss your case with your attorney.

Sentencing

If you are convicted of a Felony either by pleading guilty, or at trial, the judge will sentence you. Felony sentencing can include a combination of many things, depending on the crimes and facts involved, and your personal history. Typical court orders include such items as:

  • Jail, actual or suspended
  • Jail alternatives, such as community service
  • Probation orders, which can be informal, such as "lead a law abiding life for the next number of years," or formal, such as "follow all the instructions ordered by your Probation Officer."
  • Restitution (paying back anyone injured, or paying a sum to various community funds to prevent crime and such).
  • Fines or their alternatives.
  • Counseling, treatment, or education programs (drinking driver programs, or domestic violence programs, for example).

Please be certain you understand all of the terms of your sentence, and comply with them. We recommend you keep a "diary" or personal record so you can keep track of all you have done. Ask your lawyer to explain anything that seems confusing.