Felonies and Misdemeanors

The common distinction between felonies and misdemeanors in state court is the level of punishment: felonies are punishable by a state prison or county jail sentence of one year or more, while misdemeanors are punishable by a county jail sentence of one year or less. (Penal Code section 17.) Some crimes can be charged as either a felony or a misdemeanor; some misdemeanors can be charged as either a misdemeanor or an infraction. (For more information, see the Post-Conviction Proceedings, Criminal Appeals, & Habeas Corpus section of our website.) Under Penal Code section 1170(h), people convicted of certain felonies may serve their sentence in county jail, on mandatory supervision or a combination of both on a “split sentence,” instead of state prison. 

In addition to taking on the most complex felony cases, the firm also prides itself on handling misdemeanors in the local community.

While the Penal Code lays out the maximum penalties for misdemeanors and felonies, we can help you understand the most likely sentences and the serious potential collateral consequences of specific charges.  These consequences can affect immigration, professional licensing (doctors, teachers, nurses, etc.), driving privileges, registration, firearm spousal support and child visitation and custody. Even a seemingly low-level misdemeanor case can have enormous immigration consequences under federal law, including rendering an individual deportable or inadmissible to the United States.  (8 U.S.C. section 1227).  This is especially true for convictions involving controlled substances or domestic violence. 

Misdemeanor Prosecutions 

The procedures for how a case progresses through the criminal justice system varies depending on whether the charge is filed by the District Attorney's office as a misdemeanor or a felony. Misdemeanor matters are handled in the Limited Jurisdiction Division of the Superior Court. In Santa Clara County, misdemeanor and felony cases are heard in Palo Alto (North County), San Jose and Morgan Hill (South County). In San Mateo County, misdemeanor and felony matters are heard in Redwood City (Southern Branch) and South San Francisco (Northern Branch). In San Mateo County, all jury trials—felony and misdemeanor—are called in Redwood City.

For most misdemeanor cases, except cases involving domestic violence charges and certain DUI cases, the accused typically does not have to personally attend court. (Penal Code section 977.) All appearances can usually be made by the attorneys at Nolan Barton Olmos & Luciano, without the client having to personally appear in court. The first appearance in a misdemeanor case is an arraignment.  At this court date, the accused or the attorney advises the court whether the defendant is represented by counsel and enters a plea, typically a plea of not guilty. The purpose of an arraignment is to formally advise the person of the charges against them. The case next proceeds to a settlement conference, also called a pre-trial conference, during which the defense attorney confers with the prosecutor and the judge and attempts to obtain a dismissal or favorable negotiated settlement. There is also an opportunity to file certain motions, including a motion to suppress evidence based on an illegal search, detention or arrest, and to have these motions heard prior to trial. (For more information, see the Motion Practice and Unlawful Searches section of our website.) If a misdemeanor case does not resolve by dismissal or negotiated settlement, the case goes to a jury trial or, if both the defendant and the prosecutor agree, to a court trial.

Felony Prosecutions 

In a felony prosecution, the case begins with an arraignment in the Limited Jurisdiction Division of the Superior Court. In San Mateo County, the accused advises the court whether he is represented by counsel and enters a plea, typically a plea of not guilty. In Santa Clara County, the accused may delay entering a plea until a later hearing. Issues regarding bail and release conditions can also be addressed at the time of arraignment. All defendants are entitled to a preliminary hearing within ten court days of arraignment and sixty calendar days of arraignment, regardless of whether the person is in or out of custody.  (Penal Code section 859b.)  If the person is not in custody or consents to delay, the case generally proceeds more slowly. 

In the weeks and months following a felony arraignment, the defense attorney obtains information about the case, also referred to as discovery, from the prosecutor. (Penal Code section 1054 et. seq.).  The defense may also conduct an independent investigation. During this time, there are opportunities to meet with the prosecutor and a judge to discuss the possibility of a negotiated settlement. If the case does not reach a settlement, a preliminary examination is held. At that hearing, the prosecutor must call witnesses to show there is probable cause that the accused committed the charged offense.  Probable cause is a very low standard of proof and the prosecutor can present hearsay evidence (such as a police officer testifying to what a civilian witness said) to meet its burden at the hearing.  The hearing can also provide defense counsel with an important opportunity to preview the prosecution's case.

If the prosecutor presents enough evidence at the preliminary examination, the defendant is “held to answer” for trial and the case is transferred to Superior Court, General Jurisdiction. After the preliminary hearing, the District Attorney has fifteen days to file an Information.  The defendant is then arraigned on that Information.  Again, the defendant advises the court whether he is represented by counsel and enters a plea, typically a plea of not guilty. The case is then set for a jury trial.  A defendant is entitled to a jury trial within sixty days of the arraignment.  Frequently, the jury trial date is delayed as both sides prepare for trial. The defendant can again file motions to be heard prior to the commencement of trial and the defense attorney can negotiate with the prosecutor and the court. If the case is not resolved through a negotiated settlement, the defendant is entitled to have his case heard by a judge or jury.