Preliminary Hearings

If a criminal defendant is charged with a misdemeanor, the only court appearance you will usually be required to make is at the trial. Preliminary hearings are not held for misdemeanor offenses or infractions.

When a criminal defendant is charged with a felony, you may be required or may want to attend more than one court proceeding. Generally, your first court appearance will be for a preliminary hearing in the Justice or Municipal Court.

The preliminary hearing is held to determine if a crime has been committed and if there is sufficient cause to believe the defendant committed the crime. If so, the defendant will be ordered to stand trial in Superior Court.

The "Crime Victims Justice Reform Act" (Proposition 115, 1990) authorizes, among other things, a law enforcement officer to provide "hearsay" testimony in certain cases. You should discuss the possibility of such "hearsay" from a law enforcement officer testimony with the prosecuting attorney to learn if it is appropriate in your case.

Upon request by the defendant, a preliminary hearing may be closed to the public, except for the people who accompany crime victims. Crime victims have the right to choose someone to be with them at all hearings for emotional support. Further, victims of child abuse or sex crimes are entitled to have two support people of their choice with them during their testimony at preliminary hearings, jury trials, and juvenile proceedings.

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Grand Jury Indictments

Proposition 115 restored the Grand Jury indictment process. If the Grand Jury investigates allegations of a felony and indicts a defendant, a preliminary hearing is not required. Grand Jury proceedings are closed to the public and may not be discussed outside the Grand Jury room. Once an indictment occurs, the case is referred directly to the Superior Court for trial.

Superior Court

After a preliminary hearing has been conducted, or the Grand Jury returns an indictment, the case against the defendant charged with a felony is sent to Superior Court for trial. Guilt or innocence will be determined by a jury or, in some cases, the judge. If a defendant is found guilty, or enters a plea of no contest, the superior court judge will pass sentence after a presentence report, including a sentencing recommendation, is completed by the probation department for the court.

Motions

Motions are formal requests by either the prosecution or the defense for a judge to hear and decide a disputed issue. Before a case goes to trial, motions such as a motion to suppress evidence may be made to the court, and hearings are held to determine whether the motions will be granted. An example of a disputed issue may be the legality of police conduct. Criminal defendants have the right to question the legality of police conduct, especially searches and seizures, prior to their trials. Defendants may also challenge the reliability of identifications made by victims and other witnesses before trial. Therefore, crime victims or witnesses may be required to attend several hearings.

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Your Testimony

During the preliminary hearing, evidence suppression hearings or during the trial, you may be questioned by the prosecutor and the defense attorney. The prosecutor may discuss courtroom rules and testimony with you before court appearances.

The following are some pointers on how to be a good witness:

• Be truthful. Never exaggerate or shade your testimony. Just tell the facts, simply and concisely, as you know them.
• Be attentive. Listen carefully to the questions. If you do not understand a question, ask that it be repeated or explained.
• Answer only the question asked. Do not try to say everything at once or volunteer information that is not requested.
• Explain your answer, if necessary. If a question cannot be answered truthfully and fully with a "yes" or "no," you have the right to ask the judge to permit you to explain after first answering "yes" or "no."
• Do not guess. Give definite answers whenever possible. If you do not know an answer, do not be afraid to say so. Do not stop to figure out whether your answers will help or hurt your testimony for either the prosecution or the defense. Just answer questions to the best of your knowledge.
• Be prepared. Do not try to memorize what you are going to say; try to recall relevant facts.
• If asked, "Have you talked to anyone about the case?" do not forget your conversations with the prosecutor, defense attorney, staff members such as a paralegal, investigators, or victim advocates.
• When an attorney objects to a question, do not answer the question until the judge rules on the objection and instructs you to answer the question. If the judge agrees with the grounds for an objection, the objection will be "sustained." When the judge does not believe the objection has merit, the objection will be "over ruled." If you are confused, ask the judge for direction.
• Remain calm and courteous. Do not lose your temper or become angry, as it may diminish the impact of your testimony.
• Speak clearly and loudly. Always face the person questioning you, and speak clearly enough to be heard by the jury. Do not simply nod for a "yes" or shake your head for a "no."
• Dress neatly and always show respect for the court. For example, wearing hats or chewing gum is generally not acceptable in court.
• Be yourself. The judge, jurors, and attorneys are human also and appreciate sincerity.

Relatives and Friends in Court

Relatives and friends may decide to attend court proceedings. The following are suggestions on courtroom behavior for visitors.

• Dress neatly. Take hats off. Remember to show respect for the court.
• Leave drinks and food, including gum, outside of the courtroom.
• Smoke only in designated areas and never in the courtroom.
• Stand when instructed to do so by the judge or bailiff.
  This will usually only occur when either the judge or the jury enter the court.
• Never talk loudly or for a prolonged period of time. Save conversation for breaks.
  Keep gestures, facial expressions and head shaking to a minimum.
• Never attempt to talk with a member of the jury.
• Wait until the jury exits before leaving when the court recesses.

Sentencing

When all testimony and other evidence have been heard by the jury and/or the judge, the case will be submitted for a decision, commonly known as the verdict. If the defendant is found guilty of a felony charge, a sentencing hearing will be scheduled. Most criminal defendants are sentenced under the Uniform Determinate Sentencing Law (DSL). Generally, there are three possible fixed sentence terms: the lower term (shortest confinement time); the middle term; and the upper term (longest confinement time). The judge must choose the middle sentence term if no mitigating or aggravating circumstances are present.

Some criminal defendants may be given an indeterminate sentence which means that the sentence is not fixed and the release date is set by the Board of Prison Terms.

Victim Impact Statement

An important aspect of the sentencing process is the presentence report. The county probation department is responsible for preparing the presentence probation report prior to the sentencing hearing. This report includes a victim impact statement, so it is important that you provide information to the department for this statement. This is a good opportunity for you to tell the court what impact the crime has had on your life, such as physical and emotional injury or property loss. Because you have a right to restitution from the defendant, include information on any out-of-pocket expenses that you have incurred as a result of the crime.

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Right to Attend the Sentencing

You are entitled to appear at the sentencing hearing and exercise your allocution right. Allocution is your right to speak at the sentencing hearing on matters concerning the crime, the penalty, and the need for restitution. You do not have to be present at the sentencing proceedings, but you have the right to attend if you wish, and to reasonably express your views. For more information on allocution, see Victims' Rights section below.

Victims' Rights

The following is a brief description of rights or legal matters that benefit crime victims and witnesses.

Right to Keep Address Confidential

In cases of child abuse, spousal abuse and sex crimes, victims have the right to have their addresses kept confidential. Their addresses may be given only to the attorney for the defendant, but will not appear on any forms or public documents.

Right to not be Threatened or Intimidated

If anyone threatens you, call your law enforcement agency to report the threat and contact the prosecutor immediately. It is a crime for anyone to dissuade or prevent, or attempt to dissuade or prevent, a crime victim or witness from (1) assisting law enforcement agencies or prosecutors; or (2) attending or giving testimony at any trial or any proceeding authorized by law. If any such efforts involve coercion, threats or force, or are done for financial gain, it is a felony; otherwise it is a misdemeanor.

Counselor-Assault Victim Privilege

If you are a sexual assault or domestic violence assault crime victim, and you are referred to a sexual assault or domestic violence counselor, the law provides limited counselor-assault victim privilege. The law requires the counselor to complete specific training and to meet specific criteria before the confidential privilege applies. Footnote No. 1 This means that the law protects whatever is communicated or said in confidence between the victim and a qualified counselor. The qualified, trained counselor cannot reveal the communications to others unless ordered to do so by the judge. It is similar to the legal protection given doctor-patient and lawyer-client relationships. The victim may choose to sign a release which will allow the counselor to discuss the victim's case with a designated person or agency.

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Allocution or Impact Statement

Allocution is the right of victims, or their next of kin, to make a statement (spoken or written) at felony sentencing hearings and parole hearings. Do not hesitate to express your views of he defendant, the crime, or other relevant facts or circumstances.

The law requires that the county probation department notify you of the sentencing hearing for felony cases. As a practical matter, and given the workload of county probation offices, you can take the initiative to contact the prosecuting district attorney to let him or her know that you wish to speak at the sentencing hearing. Additionally, if the sentencing hearing is continued (delayed), you will need to contact the probation department, prosecuting district attorney's office, or the court clerk to find out when the hearing will be held.

You have the right to be informed of the sentence recommended to the court by the probation officer, but you may not view the actual probation report prior to sentencing. However, the law Footnote No. 2 permits you to inspect the probation report within 60 days after the judgment is pronounced.

Victims also have the right to make a statement at parole hearings. Parole hearings are held for prisoners serving an indeterminate term such as fifteen years to life. A request to be notified of hearings and to make a statement at a parole hearing must be sent, in writing, to:

If the offender in your case was sentenced to the California Youth Authority, make your request, in writing, to:

Before appearing at either a sentencing or a parole hearing, you may want to think about what you are going to say. To make it easier on yourself, write out a statement so that if you become nervous during the hearing, you can simply read the statement. Or, instead of making a verbal statement to the court, you also have the right to submit your statement in writing or on videotape.

Making a statement (either spoken, written, or recorded) at the sentencing hearing or the parole hearing can be valuable because it helps you restore a sense of control and relieves the frustration that most victims experience. This also enables you to take an active role in the criminal justice process.

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Restitution

A judge may order a criminal defendant to pay you for damages caused by the crime. This type of restitution is sometimes called direct restitution. Direct restitution should not be confused with the Restitution Fund that legislation has provided for the payment of claims under the Victims of Crime Program. If you receive direct restitution from the offender for out-of-pocket expenses, the Victims of Crime Program will not cover those losses. (See the chapter on Victims' Compensation for information on this program.)

As a victim, you have the right to make the court aware of your need for restitution. The victim's request for restitution is typically included as part of the presentence report prepared by the county probation department. It will help the county probation department and the judge if you keep records of your personal injuries, money or property loss. Restitution does not provide compensation for "pain and suffering." This may be addressed through a civil lawsuit. Civil cases (lawsuits) are separate cases initiated by a crime victim and his or her personal attorney.

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Return of Property

Easily identifiable items, such as cars, are usually returned to the owner shortly after they have been recovered. However, you may have to pay towing and storage fees before your car is returned. Other items may be held for the trial because they are necessary to prove the crime. Once your property has been received as evidence in court, it may be a long time before it is returned. In some cases, you may successfully request that your property be photographed and then returned to you. The photographs are then substituted as evidence in the court proceedings. Your local victim/witness assistance center can assist you in finding out if your property can be returned to you.