Criminal Defense in California: A Complete Guide

Being charged with a crime in California sets two clocks running at once — the criminal case itself and, in a DUI, a separate DMV process with a 10-day deadline you can miss before you ever see a courtroom. California also has its own sentencing landscape, reshaped over the last decade by Three Strikes reform, Proposition 47, and realignment. This guide explains how a California criminal case works from arrest to sentencing, the rights that protect you, the major categories of charges, and how a record can later be cleared.

This is general legal information about California law, not legal advice. If you have been arrested or charged, the most important step is to stop talking to police and consult a California-licensed criminal defense attorney before answering questions.

California criminal cases at a glance

Infractions, misdemeanors, and felonies

California sorts offenses into three levels (Penal Code § 16). Infractions (most traffic tickets) carry only fines, no jail, and no jury trial. Misdemeanors are punishable by up to a year in county jail and a fine. Felonies are the most serious, punishable by a year or more in county jail or state prison. A large category of offenses are "wobblers" — crimes the prosecutor can charge as either a felony or a misdemeanor, and that a judge can later reduce, under Penal Code § 17(b). Whether a charge is a wobbler, and which way it is charged, often matters more to the outcome than any other single fact. See misdemeanors vs. felonies in California.

The classification is not just a label — it dictates the maximum punishment and a long tail of collateral consequences. A felony can trigger a lifetime firearm prohibition, disqualify a person from certain professional licenses, carry immigration consequences for non-citizens, and weigh heavily on background checks. A misdemeanor, capped at a year in county jail, generally carries far fewer lasting restrictions, and an infraction carries essentially none beyond the fine. One subtlety surprises many people: after realignment, "felony" no longer always means state prison. Under Penal Code § 1170(h), many non-violent, non-serious felonies that do not require sex-offender registration are now served in county jail, sometimes with part of the term on supervised release in the community. Serious felonies (Penal Code § 1192.7(c)), violent felonies (Penal Code § 667.5(c)), and registrable offenses are excluded and still carry state-prison terms. Because so much turns on classification, a central goal of the defense is often simply getting a charge filed or reduced at the lowest appropriate level.

The criminal process, step by step

1. Arrest and booking. The police take you into custody and record the arrest. You have the right to remain silent — use it.
2. Arraignment. Your first court appearance — which under Penal Code § 825 generally must occur within 48 hours of arrest, excluding Sundays and holidays — where the charges are read, you enter a plea (usually not guilty at this stage), and the court addresses bail or release.
3. Bail or release. Under In re Humphrey (2021) 11 Cal.5th 135, a court generally cannot keep someone in jail solely because they cannot afford bail; it must consider ability to pay and non-monetary conditions of release.
4. Preliminary hearing (felonies). In felony cases, the prosecution must show enough evidence for the case to proceed to trial.
5. Pretrial and plea negotiation. Most cases resolve here through motions and plea bargaining.
6. Trial. If the case does not settle, you have the right to a jury trial where the prosecution must prove every element beyond a reasonable doubt.
7. Sentencing. If there is a conviction or plea, the judge imposes a sentence within the statutory range, often including probation.

Your constitutional rights

The protections that govern every California criminal case come from the U.S. and California constitutions: the right to remain silent and the requirement that police give a Miranda warning before custodial interrogation; the right to counsel, with a court-appointed public defender if you cannot afford a lawyer (Gideon v. Wainwright); the right to a speedy and public jury trial; the presumption of innocence and proof beyond a reasonable doubt; and protection against unreasonable searches and seizures. Anything you say to police can be used against you — the single most valuable thing most people can do after an arrest is decline to answer questions until they have a lawyer. See your rights after arrest in California.

These rights work best when you invoke them affirmatively. Silence is most protective when you say out loud that you are invoking your right to remain silent and want a lawyer, then actually stop talking — including on recorded jail phones and with other inmates. The Miranda warning is required only before custodial interrogation, not for routine booking questions or ordinary traffic stops, so its absence does not by itself end a case. On searches, police generally need a warrant, your consent, or a recognized exception (search incident to arrest, plain view, the automobile exception with probable cause, or genuine exigent circumstances); your cell phone's contents ordinarily require a warrant even after an arrest. Declining to consent is not evidence of guilt and preserves your ability to challenge an unlawful search later, when the exclusionary rule can bar the resulting evidence. California also protects access to counsel in custody by statute (Penal Code § 825), making it a misdemeanor for an officer to willfully deny an attorney's visit.

DUI: two cases at once

A California DUI under Veh. Code § 23152 triggers two separate proceedings. The criminal case in court can carry fines, license restrictions, DUI school, probation, and (with priors or injury) jail. Separately, the DMV moves to suspend your license through an Administrative Per Se action — and you have only 10 days from the arrest to request a DMV hearing, or the suspension takes effect automatically. The legal limit is 0.08% blood-alcohol concentration for most drivers, 0.04% for commercial drivers, and 0.01% for drivers under 21. Under California's implied-consent law, refusing a chemical test after a lawful DUI arrest carries its own license penalties. Penalties escalate sharply with prior convictions within ten years, and a DUI causing injury can be charged as a felony. See California DUI defense.

The two tracks are genuinely independent: you can win one and lose the other. A court can reduce a DUI to a "wet reckless" (Veh. Code § 23103.5) or dismiss it, while the DMV separately suspends your license unless you request and win the administrative hearing — and the reverse is equally true. California's DUI statutes distinguish driving "under the influence" (Veh. Code § 23152(a), which is about impairment and can apply even below 0.08%) from the "per se" offense of driving at 0.08% or more (§ 23152(b)), and they reach drug impairment from cannabis or prescription medication with no fixed numeric limit (§ 23152(f)). Penalties climb with each prior within the 10-year lookback — from an informal-probation first offense to mandatory jail minimums and longer DUI programs — and a fourth DUI within ten years, or any DUI causing injury (Veh. Code § 23153), can be a felony. Because the DMV's 10-day clock runs before most people ever reach a courtroom, a DUI is one of the few situations where waiting even a week to seek help can cost you a right you cannot get back.

Sentencing and California's reforms

California uses determinate sentencing for most felonies (Penal Code § 1170), with the judge selecting among statutory terms. Several reforms reshaped this landscape:

• Realignment (AB 109, 2011) shifted many lower-level, non-violent felonies from state prison to county jail and county supervision.
• Three Strikes (Penal Code § 667), as amended by Proposition 36 (2012), imposes greatly enhanced sentences for repeat offenders but generally now requires the third strike to be a serious or violent felony.
• Proposition 47 (2014) reclassified several drug-possession and low-value theft felonies as misdemeanors and allows eligible people to petition for resentencing or reclassification.
• Proposition 57 (2016) expanded parole consideration for non-violent offenders and changed how juveniles are charged as adults.

A few of these reforms deserve a closer look. Three Strikes (Penal Code § 667 and § 1170.12) remains one of the most consequential sentencing laws in the country: a defendant with one prior serious or violent felony ("strike") faces a doubled sentence on a new felony, and a defendant with two prior strikes can face a term of 25 years to life. Proposition 36 (2012) softened the harshest edge by generally requiring that the third strike itself be a serious or violent felony, and it allowed some people already serving life terms for non-serious third strikes to petition for resentencing. Realignment (AB 109) is why "felony" no longer automatically means state prison — under Penal Code § 1170(h), many non-violent, non-serious felonies are served in county jail, often with a portion on community supervision. Proposition 47 made certain theft and drug offenses involving $950 or less into misdemeanors and is partly retroactive, letting eligible people petition to reduce old felony convictions. Together these measures mean that two people who commit the same act can face very different consequences depending on their record and how the case is handled.

Many convictions result in probation rather than incarceration — a period of court supervision with conditions, which, if completed, opens the door to clearing the record. California recognizes two broad forms: informal (summary) probation, common in misdemeanor cases, where there is no assigned probation officer and the person simply complies with court-ordered conditions; and formal (felony) probation, which involves supervision by a county probation officer and stricter reporting. Effective in 2021, Assembly Bill 1950 generally capped most misdemeanor probation at one year and most felony probation at two years, shortening what had often been three-, four-, or five-year terms and accelerating the point at which a person becomes eligible to petition to clear the record. Common conditions include fines and restitution to victims, community service, counseling or treatment programs, and obeying all laws; a violation can lead the court to revoke probation and impose the original suspended sentence, which is why completing every condition matters.

A concrete example shows how California's sentencing framework fits together. Suppose a person with no prior record is convicted of grand theft of property worth $1,200 — a wobbler. The prosecutor could have charged it as a misdemeanor or a felony; if charged as a felony, the defense might persuade the court to reduce it to a misdemeanor under Penal Code § 17(b) at sentencing. If it stays a felony, it is the kind of non-violent, non-serious offense that, under Penal Code § 1170(h), would be served in county jail rather than state prison, and the court would often grant felony probation instead of any custody at all. Because the value exceeds Proposition 47's $950 threshold, it is not automatically a misdemeanor, but it still illustrates how charging level, § 17(b) reduction, realignment, and probation interact to produce very different outcomes for the same underlying act.

Clearing your record

A California conviction is not always permanent. After successfully completing probation, many people can petition under Penal Code § 1203.4 to withdraw the plea or set aside the verdict and have the case dismissed — commonly called an "expungement." Arrests that did not lead to conviction can often be sealed as factually innocent or for lack of conviction under Penal Code § 851.91. California has also expanded automatic relief: recent legislation (including AB 1076 and SB 731) directs the state to automatically seal or dismiss many eligible records without a petition. Clearing a record can remove barriers to jobs, housing, and licensing, though some consequences (such as certain professional and firearm restrictions) can persist. See expungement in California.

It is worth being precise about what each tool does. A § 1203.4 dismissal lets you state in most contexts — including most private job applications — that you were not convicted, but it does not literally erase the record, does not restore firearm rights on its own, does not end a sex-offender registration duty, and can still count as a "prior" or "strike" in a future case. Sealing an arrest under Penal Code § 851.91 (or sealing and destroying records for the factually innocent under § 851.8) addresses arrests that did not lead to conviction. Reducing a wobbler felony to a misdemeanor under Penal Code § 17(b) can restore firearm rights that the felony took away and is often paired with a dismissal. And California's "Clean Slate" laws (Penal Code § 1203.425, expanded by AB 1076 and SB 731) now grant much of this relief automatically — though serious and violent felonies and registrable offenses are excluded, and an individualized petition can still add value when you need a clear court order.

The public defender and your right to counsel

If you cannot afford a private attorney, the court appoints a public defender to represent you at no cost — a right grounded in Gideon v. Wainwright and reinforced throughout California criminal procedure. Public defenders are licensed, experienced criminal trial attorneys; in many counties they handle the largest volume of serious cases and know the local courts, judges, and prosecutors well. The right to appointed counsel attaches at every "critical stage": interrogation, the arraignment, the preliminary hearing, plea negotiations, trial, and sentencing. Public defender offices often carry heavy caseloads, which can affect how much one-on-one time any single client gets, but the quality of representation is real, and the constitutional right to effective assistance of counsel applies whether your lawyer is appointed or retained. If a genuine conflict of interest exists (for example, where co-defendants are involved), the court appoints separate conflict counsel so that each defendant has independent representation.

What it costs

If you cannot afford an attorney, the court appoints a public defender at no cost — public defenders are experienced criminal trial lawyers, often carrying heavy caseloads. Private California criminal defense attorneys typically charge flat fees that scale with the seriousness of the charge — from around $1,500–$5,000 for a straightforward misdemeanor to $25,000 or more for a serious felony — or hourly rates of roughly $250–$500. The fee usually depends on whether the case is expected to resolve by plea or go to trial.

What to do if you've been arrested or charged

• Invoke your rights. Say clearly that you wish to remain silent and want a lawyer, then stop talking. Do not try to explain your way out.
• Do not consent to searches you are not legally required to allow.
• Act on the DUI 10-day clock. If it's a DUI, request the DMV hearing immediately — an attorney can do this for you.
• Write down what happened while it is fresh: who was present, what was said, and what the police did.
• Consult a California-licensed criminal defense attorney quickly. Early intervention can affect charging decisions, bail, and the evidence that survives.

Frequently asked questions

What's the difference between a misdemeanor and a felony in California?

A misdemeanor is punishable by up to a year in county jail; a felony by a year or more, potentially in state prison (Penal Code § 16). Many offenses are "wobblers" that the prosecutor can charge either way and a judge can later reduce (Penal Code § 17(b)), which is why the same conduct can carry very different consequences.

I got a DUI — what do I do first?

Request a DMV hearing within 10 days of the arrest, or your license is suspended automatically. The DMV case is separate from the criminal case (Veh. Code § 23152), and both need attention. An attorney can request the hearing and handle both tracks.

Can the police question me without a lawyer?

They can ask, but you do not have to answer. You have the right to remain silent and the right to counsel, and police must give a Miranda warning before custodial interrogation. The safest response is to say you want a lawyer and then stop talking — anything you say can be used against you.

What if I can't afford a criminal defense lawyer?

The court will appoint a public defender at no cost if you cannot afford private counsel. Public defenders are experienced criminal trial attorneys. You are entitled to representation at every critical stage of the case.

Can I get a conviction removed from my record?

Often, yes. After completing probation, many convictions can be dismissed under Penal Code § 1203.4 ("expungement"), and many arrests can be sealed under § 851.91. California is also expanding automatic record relief. Eligibility depends on the offense and your history, and some convictions are not eligible.

Will I have to go to trial?

Usually not. The majority of California criminal cases resolve through motions and plea negotiations. You always retain the right to a jury trial where the prosecution must prove guilt beyond a reasonable doubt, and whether to exercise it is a strategic decision to make with your attorney.

What is Proposition 47?

A 2014 ballot measure that reclassified several drug-possession and low-value theft felonies (generally involving $950 or less) as misdemeanors and allows eligible people to petition to have prior felony convictions reduced or to be resentenced. It significantly changed how many lower-level offenses are charged and punished in California.

What is the Three Strikes law?

California's Three Strikes law (Penal Code § 667) greatly enhances sentences for people with prior serious or violent felony convictions — doubling the term with one prior strike and reaching 25 years to life with two. Proposition 36 (2012) generally now requires that the third strike itself be a serious or violent felony and allowed some people to petition for resentencing.

How fast do I have to act after a DUI arrest?

Very fast. You have only 10 days from a DUI arrest to request a DMV hearing, or your license is suspended automatically (Veh. Code § 23152). This administrative deadline runs separately from, and usually before, your first court date, so it is one of the most time-sensitive steps in any California criminal matter.

Does a felony conviction always send me to state prison?

No. Since realignment (Penal Code § 1170(h)), many non-violent, non-serious felonies that do not require sex-offender registration are served in county jail, sometimes partly on community supervision. Serious, violent, and registrable felonies still carry state-prison terms.

How long will probation last?

It depends on the offense, but California shortened most probation terms effective 2021. Under Assembly Bill 1950, most misdemeanor probation is now limited to one year and most felony probation to two years, with exceptions for certain offenses (such as some violent and financial crimes) that have their own statutory terms. A shorter probation period also means you generally become eligible sooner to petition for a Penal Code § 1203.4 dismissal once probation is successfully completed.

How quickly do I have to be brought before a judge after arrest?

Under Penal Code § 825, you must be taken before a magistrate without unnecessary delay and, in any event, within 48 hours of arrest, excluding Sundays and holidays. That first appearance is the arraignment, where the charges are read, you enter a plea, and the court addresses bail or release. The 48-hour rule is a core protection against being held indefinitely without charges.

Find a California criminal defense attorney

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