“Arraignment Hearings” in California – A Legal Guide

An arraignment is usually the first court hearing in a California criminal case. The arraignment is where you are formally charged with a crime. The judge can also address issues of bail and restraining orders.

Five key things to know are:

1. You will likely plead “not guilty” at your arraignment. You can always change your plea later on in the case.
2. With some exceptions, you can usually hire an attorney to go in your place to your misdemeanor arraignment.
3. In most felony cases, you need to appear personally at the arraignment.
4. The arraignment starts the pretrial process, which includes plea negotiations, trial preparation, and a preliminary hearing in felony cases.
5. If you forget to show up to your arraignment, the court can issue a bench warrant for your arrest.

In the article below, our California criminal defense lawyers will explain the arraignment process, your rights, and what you may expect to happen.

• What is an arraignment?
• What happens at an arraignment hearing?
• When does a felony arraignment take place?
• When is a misdemeanor arraignment?
• What are my rights at the hearing?
• Can my lawyer appear on my behalf so I do not have to show up?
• What happens if I fail to appear?
• What should I bring to the hearing?
• When do I enter a plea?
• Will the judge consider reducing my bail at the arraignment?
• Can charges be dropped at an arraignment?
• Can a judge drop a criminal charge at an arraignment hearing?
• What plea can I enter if charges are not dropped during my arraignment?
• What if I was unlawfully arrested?
• What happens post arraignment?
• With respect to other motions
• Additional reading

What is an arraignment?

An arraignment hearing is the first formal court proceeding in the California criminal law process after your arrest and the filing of criminal charges against you by the local District Attorney’s office or City Attorney’s office. Your arraignment is where:

1. the court will formally charge you with a crime and advise you of your Constitutional rights,
2. you will find out the specific criminal charges that have been filed against you
3. your attorney will argue against any pending orders that may apply to your case, such as a restraining order, and
4. you will enter an initial plea.

At an arraignment, some of the important rights that you must be advised of are:

• the right to an attorney,
• the right to confront and question witnesses,
• the right against self-incrimination,
• the right to be released on reasonable bail, and
• the right to a speedy trial.

Six different pleas can be made at an arraignment. They are:

1. guilty,
2. not guilty,
3. no contest (nolo contendere),
4. former judgment of conviction or acquittal,
5. double jeopardy,
6. not guilty by reason of insanity.

Upon request, the judge must continue the arraignment for a reasonable amount of time. For example, you may want to consult with an attorney once you learn the charges.¹

What happens at an arraignment hearing?

An arraignment hearing is the first formal court hearing in a criminal case. Judges use these hearings as an opportunity to:

• advise you of your Constitutional rights (state and federal)
• inform you of the specific charges that have been filed against you
• accept your plea
• set, modify, or exonerate your bail

The arraignment hearing takes place once the local District Attorney’s office or the local City Attorney’s office has filed formal charges against you. Ultimately, you can be charged with one or more of the following:

• felonies, which are punishable by death or prison
• misdemeanors, which are punishable by up to one-year in county jail
• infractions, which are not punishable by imprisonment

The procedures for infraction arraignments are basically the same as misdemeanors. Two important differences are that if you are accused of an infraction, you:

• are not entitled to a jury trial and
• are not entitled to appointed counsel

Courts can collectively advise you – if you are charged with misdemeanors or infractions – of your rights. This is usually done by showing a video.

Also note that there are several procedural motions that can be made at an arraignment.

When does a felony arraignment take place?

There are actually two arraignment hearings in the lifespan of a felony case. One occurs at the very start of criminal proceedings. The second happens after the preliminary hearing – if the result of that hearing is to hold you to answer on the charges. For now, we’ll focus on the first of these: the initial arraignment.

If you committed an offense that requires you to remain in “custody” (that is, in jail), you must be arraigned within 48 hours of your arrest, not including weekends and holidays. This timeframe establishes the maximum amount of time the police and prosecutors have to place you before a judge. (See our article on how long it takes to get a court date for a felony case.)

Depending on the circumstances, sometimes even making you wait 48 hours could be considered unreasonable – an issue that your attorney could explore and potentially argue on your behalf.

Unreasonable and unnecessary delays

If there is an unreasonable delay between your arrest and your arraignment, the delay converts an otherwise lawful arrest into an unlawful detention. This type of potential police misconduct may entitle you to civil (or monetary) damages from the law enforcement agency for violations of California’s false imprisonment law.

However, unlawful detention will not typically result in a dismissal of the case, unless

1. you can prove that the delay deprived you of a fair trial, or
2. otherwise caused you to suffer some type of prejudice or unfair injury.

If you are being arraigned on a felony complaint that does not require you to remain in custody – that is, you were released following your arrest, or you bailed out – you must be arraigned “without unnecessary delay.”

In reality, however, if you are out of custody, it may be weeks or even months before your arraignment.²

Example: John is arrested Friday night for felony assault with a firearm. He’s held in the West Valley Detention Center in lieu of $50,000 bail. Because he’s in custody, the prosecutor must arraign him no later than the following Tuesday (2 court days).

On Saturday, however, John’s family posts bail and he gets released. Because John is now out of custody, the D.A. no longer needs to arraign him within this timeframe. Therefore, John is given a notice to appear for his arraignment three weeks later, rather than Tuesday.

When is a misdemeanor arraignment?

The 48-hour rule applies to all crimes that require you to remain in custody, regardless of whether they are felonies or misdemeanors. That said, most defendants are released following a misdemeanor arrest.

When this is the case, the misdemeanor arraignment hearing generally does not take place for at least ten days following your arrest.

What are my rights at the hearing?

Both the United States Constitution and the California Constitution empower you with a variety of rights during all criminal procedures. During your arraignment, the judge (or, in larger counties, a prerecorded announcement) will advise you of these Constitutional rights:

• the right to be represented by an attorney (which includes the right to be represented by a court-appointed public defender if you are not able to afford a private criminal defense attorney),
• the right against self-incrimination,
• the right to a speedy trial (enforceable through something called a Serna or speedy trial motion),
• the right to a trial by jury, and
• the right to produce and confront witnesses.

If you have been accused of committing an infraction, only some of these rights apply. Having only an infraction charge does not entitle you to a court-appointed attorney or a trial by jury.³

Can my lawyer appear on my behalf?

Felony cases

If you were arrested for a felony offense, you typically must appear in person at your arraignment hearing and most other proceedings. There are exceptions that either

1. allow you to appear via a two-way audio/video conference (sometimes called “video court”), or
2. excuse your presence altogether if you execute a written waiver, and the judge accepts your waiver.

Misdemeanor cases

If you were arrested for a misdemeanor, you are typically permitted to have your attorney appear on your behalf unless your charge is for

• California domestic violence charges,
• alleged violations of a protective order, and
• certain aggravated offenses involving driving under the influence (DUI), such as:
  • Vehicle Code 23153 VC California’s “DUI causing injury” law or
  • Penal Code 191.5(b) PC California’s “vehicular manslaughter while intoxicated law”.⁴

What happens if I fail to appear?

If you or your attorney fails to appear (commonly referred to as an FTA), the court will generally issue a California bench warrant. This authorizes law enforcement officers to arrest you and bring you directly to court.

Failing to appear on a felony case may trigger a separate felony charge. Failing to appear on a misdemeanor case is a misdemeanor.

In most misdemeanor cases an attorney can appear on your behalf. For certain misdemeanor crimes, you must appear at the arraignment even if represented by an attorney. These crimes include:

• domestic violence offenses,
• violation of a domestic violence court order,
• some driving under the influence or DUI-related charges.

In felony cases, you must be present for the arraignment. If you are in custody, video arraignments are allowed.⁵

What should I bring to the hearing?

You will want to bring your attorney as well as any paperwork the police, jail, or bail bondsmen gave you. If you have documents or evidence that could aid in your defense, you will probably want to bring those as well. You will likely leave the arraignment with:

1. a copy of the formal complaint that prosecutors filed against you,
2. possibly a copy of the police report pertaining to your case, and
3. possibly an offer to resolve your case.⁶

The arraignment is the prosecutor’s opportunity to inform you of the charges that are pending against you. This is also their first opportunity to make you an “offer” which is the sentencing that they seek for the crime(s) you have allegedly committed.

When do I enter a plea?

The arraignment presents your first opportunity to enter a “plea” in the case. Whether or not you choose to do so – or attempt to continue the case – will depend on your individual circumstances. If you enter a plea, it will either be:

• guilty (in which case, you will proceed to a sentencing hearing, and all further stages of the criminal court process will be limited to post-conviction issues),
• nolo contendere (or “no contest”) which is essentially a guilty plea (the difference being that a “no contest” plea cannot be used as evidence against you in the event that there is also a civil case that arises from the incident), or
• not guilty (in which case you will proceed to the pretrial phase of the California criminal court process).

Although most defendants who are represented by attorneys do not plead guilty or no contest during the arraignment phase, sometimes it is strategically advisable to do so. This may be the case, for example, in order to avoid further prosecution for more serious, uncharged offenses.⁷

Deferred entry of judgment or diversion

In certain cases, you could request a deferred entry of judgment under Penal Code 1000 PC. This is a diversion program that allows you to abide by certain terms and conditions that – once you complete them – entitle you to a dismissal of the charges.

Deferred entry of judgment most commonly applies to:

• certain drug offenses,
• certain cases involving child abuse and/or neglect under Penal Code 272 PC (contributing to the delinquency of a minor), and
• Penal Code 470 PC California’s “bad check” forgery cases.⁸

Will the judge consider reducing my bail at the arraignment?

Most likely, yes, although this issue could be set aside and argued at a more formal bail hearing which would likely be held within a week of your request.

“Bail” is money that the court requires you to pay in order to assure your court appearances. The amount of bail varies depending on the crime involved. A county bail schedule sets forth the amount for bail for each type of crime.

If you feel that your bail is too high or that you should be released on your own recognizance (“O.R.”) (without having to pay anything), you may ask the judge to modify the amount.

The bail hearing

Whether the judge considers this issue at your arraignment or at a future bail hearing, they will presume that you are guilty of the charges and make their decision with that presumption in mind. The judge then considers:

• the danger you may pose to the community and to specific parties in the case
• your flight risk (if you are employed, live in the area, or have friends or family in the area, these community “ties” will usually weigh in your favor).

After considering these factors, the judge may decide to

1. keep the set bail amount,
2. modify your bail by reducing or raising it, or
3. release you O.R.

O.R. release

If you obtain an O.R. release (which is common for many first-offense misdemeanor cases that do not involve domestic violence), it means that the court believes you will keep your promise to appear in court as instructed.

If you do not obtain an O.R. release and cannot afford to bail out, California law requires that you be released unless there is clear and convincing evidence that detaining you is necessary to protect public safety.

In Los Angeles, most arrestees automatically get released on O.R. except in serious or violent felony cases.⁹

Can charges be dropped at an arraignment hearing?

Criminal charges generally do not get dismissed at an arraignment. While prosecutors can dismiss a charge if there is a compelling reason to do so (for instance if they learn that you were wrongly charged), in practice, they rarely do this. This is true with both

• misdemeanor charges and
• felony charges.

An arraignment hearing is the first formal court hearing in the criminal court process. In most jurisdictions, judges use the hearing to:

• advise you of your Constitutional rights,
• make decisions on issues involving bail, and
• instruct you on the charges filed against you.

Types of pleas

If charges are not dropped during an arraignment, then you can enter your plea as to the charges filed against you. You can plead in any of the following ways:

• guilty,
• not guilty, or
• no contest (sometimes referred to as “nolo contendere”).

If you plead not guilty, then you enter the pretrial phase of the criminal court process. This phase includes events like:

• plea bargains or
• plea negotiations.

Note that experienced criminal defense attorneys can often work out a resolution prior to the arraignment. Sometimes it is even possible to prevent a case from being filed by conducting a prefile investigation on your behalf.

Can a judge drop a criminal charge at an arraignment hearing?

Judges do not generally have the authority to dismiss charges at an arraignment, and in practice, they normally do not.

With that said, however, the prosecutor can dismiss charges at arraignment, but only if there is a compelling reason to do so. An example of a compelling reason is if the prosecutor uncovers that you were wrongly charged with a crime.

Sometimes the prosecutor and defense counsel enter into an early plea deal at the arraignment, and as a result, a charge or charges against you get dismissed.

Contacting an attorney early

You should contact a criminal defense attorney post-arrest and prior to your arraignment. Once you secure representation, you can work with your criminal defense lawyer to examine all the evidence in your case to understand the charges filed against you.

This evidence may include:

• the arrest report,
• an officer’s notes from the arrest,
• the names and statements of any witnesses to the alleged crime,
• any documentary evidence referenced by the district attorney, and
• any physical evidence (for instance clothing, weapons, lock-picking tools, etc.).

Motions to dismiss

Upon examination of the above, you and your attorneys may find that a prosecutor wrongly charged an offense. Defense counsel, then, can file a motion to dismiss the charge.

Once the arraignment is held, judges will then review the motion and the evidence available in the case. Judges can go ahead and grant the motion if they find that any charges are not supported by ample evidence.

Note, however, that it is not typical for a criminal charge to get dismissed at an arraignment.  In most cases, the arraignment takes place and the criminal court case advances into the pretrial phase of the proceedings.

What plea can I enter if charges are not dropped during my arraignment?

If charges are not dismissed at your arraignment hearing, then you can enter your plea as to the charges filed.

You have the option of pleading:

• guilty (in which case you will avoid a jury trial and proceed to a sentencing hearing),
• no contest (which is like a guilty plea, but the plea cannot be used as evidence against you if there is also a civil case that arises from the incident), or
• not guilty (in which case you proceed to the pretrial phase of the criminal court process).

What if I was unlawfully arrested?

If California police arrested you on a misdemeanor charge without a warrant – and you remain in custody at the time of arraignment – you may request a probable cause hearing through a Penal Code 991 motion.

A probable cause hearing requires the judge to determine

1. if there is probable cause to believe that a crime was, in fact, committed, and
2. if you are the person who committed that crime.

“Probable cause” is a legal standard that means

“a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”¹⁰

Probable cause hearings are typically conducted at the time of the arraignment.¹⁰

What happens post-arraignment?

If a judge does not dismiss the charges filed against you during the arraignment, then the case enters “pretrial.”

As the name implies, pretrial includes all events that take place prior to your jury trial.

These events may include things like:

• attorneys filing motions with the court (or requests for the judge to take desired actions),
• “discovery” matters (where parties exchange relevant evidence with one another), and
• plea bargains or plea negotiations.

With respect to other motions.

When applicable, the arraignment is also your attorney’s first opportunity to argue against pending orders, such as a restraining order or stay-away order. These are most common in connection with:

• California domestic violence cases and
• alleged violations of Penal Code 646.9 PC California’s stalking law.

This is simply another reason why it is so important to consult with an attorney prior to your arraignment if you can afford to do so.

Additional reading

• The Quality of Justice in Misdemeanor Arraignment Courts – The Journal of Criminal Law, Criminology, and Police Science.
• Right to Counsel before Arraignment – Minnesota Law Review.
• Police Interrogation: The Right to Counsel and the Prompt Arraignment – Brooklyn Law Review.
• Tracing Charge Trajectories: A Study Of The Influence Of Race In Charge Changes At Case Screening, Arraignment, And Disposition – Criminology.
• Criminal Law. Arraignment. Plea – California Law Review.

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