Criminal Court Process

If you or your children have been abused or seriously harassed or stalked, the following law enforcement agencies can help you with your domestic violence or harassment case. If you want more general information about criminal cases, read our Criminal Law section and read How does a Criminal Protective Order help me?

Call 911

Tell the operator where you are and that you need help immediately. When the police get there, tell them what happened. Tell them as much as you can about:

  • What happened and who caused the injuries or property damage, if any;
  • If the abusive person violated a restraining order;
  • If threats or weapons were used;
  • If there have been threats or violence before;
  • If there were any witnesses.

Ask the police to:

  • Take pictures of injuries or damaged property, and
  • Take away any weapons used.

Ask for an Emergency Protective Order
If you are a victim of abuse, serious harassment, or stalking, you can ask the police for an emergency protective order (also called an "EPO").

Police officers can get EPOs 24 hours a day. Tell the police officer what happened and why you are afraid.

An EPO can last up to 7 days. If you live with the abusive person, it can order him or her to move out. If you have children with the abuser, the EPO can include child custody orders.

To get a more permanent order, you must ask the court for a temporary restraining order (also called a "TRO"). Review the section on Restraining Orders to find out what type of restraining order you need.

Make a Report

  • The police must write an incident report for every domestic violence call, even if the abusive person has already left.
  • You can make the report during an incident, or hours or days later.
  • The police may take photos of injuries when they take a report. Or they may take pictures days later since bruises often appear hours or days after an incident.
  • Ask the police for an information card with the incident report number and the officer's name and badge number.

Get a Copy of the Police Report
The victim of the abuse has the right to get a copy of the police incident report free of charge.

Ask for a Civil Standby
Anyone can call the police and ask them to be present for a limited time to keep the peace. This is called a "civil standby" and is often used when a person needs to collect clothing or property from his or her home after a domestic violence incident.

Report Restraining Order Violations
The police must arrest the restrained person if they believe that person has violated a restraining order.

Police Arrest
Even if the abusive person has broken the law, the police may choose not to arrest him or her. If the officer does not arrest, ask the district attorney if he or she will charge the abusive person with a crime.

If the police take the abusive person (the defendant) to jail, he or she may be released on bail within just a few hours. If you want to know when the defendant gets out of jail, call the jail. Also, some counties have a telephone notice system. Ask your local police department how to sign up.

Arrest by Warrant
If the police do not make an arrest at the time of the incident, the case can be assigned to a detective. If so, a detective may interview people and collect more evidence, including medical information.

The detective will decide whether to refer the case to the district attorney for review.

The District Attorney's Office will review the report and decide whether to file charges. If the district attorney files charges, a judge will sign a warrant for the abusive person's (defendant's) arrest.

If the defendant does not report to the court, the police will try to find him or her. That could take some time.

The victim has the right to ask for an increase in bail. The judge must set the defendant's bail within 8 hours after that person is booked into custody. The judge can increase bail if the victim is in danger. Once bail is set, the victim has the right to request another hearing to increase or revoke bail.

Appointment of Defense Attorney
If the defendant cannot afford a lawyer, the court will appoint one at the first court hearing (called "the arraignment").

Release at Arraignment
If the defendant has not paid bail, the judge will decide whether to release the defendant from custody at the first court hearing (called "the arraignment").

Release on Own Recognizance (OR)
The judge may release the defendant at the arraignment on his or her own recognizance (also known as "OR").

"OR" means the defendant must meet certain requirements necessary for your safety and for guaranteeing his or her appearance in court.

Stay-Away and Other Conditions of OR Release
The court, the district attorney, or the victim can ask for a "stay-away" order to be a condition of release.

Other common conditions of release include participation in a batterer intervention program and substance abuse treatment.

Violation of the Conditions of Release
If the defendant does not follow the conditions of release, the court can cancel the release on own recognizance (OR). The police will arrest the defendant or the judge will order the defendant to come back to court.

Only the district attorney (also called the "DA") can decide whether to "press" or "drop" criminal charges. The victim of a crime cannot press or drop charges.

The DA's Office will either file ("press") charges or reject the case based on the facts in the police report. If the DA's Office decides to file charges, they will file either a felony charge or a misdemeanor charge.

The victim's cooperation in the case is very important. But if the victim does not cooperate, the DA can still prosecute the abusive person.  If the victim does not want there to be a criminal restraining order, he or she can explain to the district attorney why he or she believes it would be best, given the circumstances, not to pursue a criminal restraining order. But the district attorney can still press charges against the defendant for the domestic violence crime.

Some counties call the district attorney a "prosecuting city attorney" or "PA." This website uses the term "DA" to mean both.

Felony or misdemeanor
A felony is more serious than a misdemeanor. A person convicted of a felony can go to prison or jail.

For a misdemeanor conviction, the maximum sentence is 1 year in jail.

If the district attorney files charges, the defendant will go to court. This first time the defendant comes to court is called the "arraignment." If the defendant is taken to jail by the police, the arraignment will happen within 48 to 72 hours. If the defendant is not in jail, the arraignment may not happen for several weeks.

At the arraignment, a judge will tell the defendant what the charges are. The judge will also ask if the defendant pleads guilty, not guilty, or no contest (also called "nolo contendere").

If the defendant pleads guilty or no contest, the judge can sentence him or her immediately. The victim has a right to be present and speak to the judge at this time.

Pretrial conference (misdemeanor cases only)
If the defendant pleads not guilty, the judge will set a date for a pretrial conference.

At the pretrial conference, the judge, a DA, and the defendant's lawyer will discuss the case.

The victim has the right to be present, but it is not required. If the defendant still pleads not guilty, the judge will set a court date for trial.

Preliminary hearing (felony cases only)
If a defendant charged with a felony pleads not guilty, there will be a preliminary hearing so the judge can decide if the DA has enough evidence to prosecute the case against the defendant.

The victim will be asked to testify. The victim has the right to have a support person with him or her during this hearing.

Most domestic violence cases do not go to trial. Most of the time, the defendant pleads guilty or no contest, and there is a plea agreement.

If the defendant pleads not guilty, there will be a trial and the DA's Office must prove guilt "beyond a reasonable doubt."

The victim will be asked to testify at the trial. The victim has the right to have a support person with him or her during the trial.

The victim may be a witness
The court can require (or "subpoena") the victim to come to court. If the victim does not go to court as ordered, the court can put him or her in custody to make sure the victim will be in court to testify.

If the court does not issue a subpoena, the victim does not have to go to court.
The victim does not need a lawyer. But the victim can talk to or hire a lawyer anyway. Click for help finding a lawyer

The victim has the right to be present in court for any case the defendant is involved in.

If you are a victim of a violent crime, you have the right to get money for medical expenses, lost wages, and counseling for yourself or your children.

The victim witness assistance center can help you get:

  • Emergency services, like food, shelter, clothes, and transportation;
  • Counseling;
  • Someone to be with you (a support person) at court; and
  • Restitution.

Find your local victim witness assistance center.

If, as the victim, you do not want a criminal restraining order to be issued, you can explain to the district attorney why you believe it would be best, given the circumstances, not to pursue a criminal restraining order. You can also tell the judge your reasons for not wanting a criminal restraining order, and the judge will make the final decision.

If someone calls you about the case
If someone calls you about the case, ask the caller who they work with. Unless there is a specific court order that says you must talk with the caller, you have the right to talk to or refuse to talk to anyone, including:

  • The defendant's attorney or investigator;
  • The Public Defender's Office; or
  • The District Attorney's (or "DA's") Office or the police

Plea agreements
Most domestic violence cases do not go to trial. Usually, there is a plea agreement. This means the DA's Office, the defense attorney, and the defendant agree on the charges and the conditions of the sentence.

Charges may be reduced or dismissed during the plea agreement process.  The victim can ask the DA's Office to be notified about any plea agreement in a felony case involving violence.

Disposition of the case
The victim has the right to ask the district attorney (also called the "DA") about the outcome of the case.

If the defendant gets formal probation, the probation department will send the victim a written notice saying what the charges were and what sentence the judge gave the defendant.

The county probation department makes recommendations to the judge about how to sentence the defendant.

Their recommendations may include:

  • Prison or jail time
  • Programs to help the defendant take responsibility for the violence
  • Restricted contact between the defendant and you and other protected persons in your case

Presentence report
In all felony cases, and in some misdemeanor cases, the probation department writes a presentence report for the court.

The report describes the crime and the defendant's personal history and criminal record. It includes the defendant's statement and the victim's views about the crime.

The victim's statement is very important. It may affect the probation officer's recommendations and the judge's orders.

The probation officer (also called a "PO") may talk to the victim about the injuries and emotional harm caused by the violence.

Probation will notify the victim about the sentencing hearing
After completing the presentence report, the probation department will tell the victim the date when the judge will sentence the defendant.

They will tell the victim about his or her right to go to court and speak to the judge in person or in writing.

The victim can also ask the judge to order the defendant to pay for expenses or losses caused by the violence.

The minimum sentence for anyone convicted of certain crimes against his or her partner is:

  • 3 years of probation;
  • A criminal protective order to protect the victim from further acts of violence;
  • Completion of an approved, 1-year batterer intervention program;
  • Payment of medical expenses, property damage, or lost wages to the victim; and
  • Public service and fines.

Jail alternative programs
Some counties let defendants serve their jail time by working in an alternative program. These programs allow the inmates to live or work in the community while serving their jail sentences.

Court probation
If the defendant is put on court probation, the court will monitor the defendant's compliance with the court orders.

Formal probation
If the defendant is put on formal probation, a probation officer (or "PO") is assigned to supervise the defendant. The PO's job is to provide protection for the victim and to enforce the court order. Victims can speak directly with the PO assigned to the defendant.

Batterer intervention programs
A defendant must go to a 1-year batterer intervention program. This program does not guarantee that the defendant will never be violent or abusive again. The program tries to teach the defendant how to stop the violence. Victims are not allowed to participate in the program with the defendant. But a victim can ask for information about the program and the defendant's participation.

For a list of "approved" batterer intervention programs, contact your county probation department.

Contact with the defendant during probation
The judge can also make an order restricting the defendant's contact with the victim.

Usually the judge makes one of the following "no-contact" orders:

  • No harassing, annoying, or striking the victim;
  • No contact at all; or
  • No contact without the approval of the probation department.

Other probation conditions
The defendant may be ordered to:

  • Go to substance abuse counseling,
  • Submit to searches without a warrant,
  • Submit to testing,
  • Participate in parenting classes, and
  • Not own or have any weapons.

Anyone convicted of a felony cannot own or have a gun — ever.

Changes in Probation
The victim has the right to be told about any changes in the defendant’s probation.

Violation of Probation
A judge, not a jury, decides if the defendant has violated probation.

If the defendant disobeys the conditions of probation, the judge can order more jail time and other probation conditions.

In felony cases, the judge can order the defendant to serve time in state prison.

Release from prison (felony cases)
If you are the victim, you can ask the Department of Corrections and Rehabilitation's Office of Victim & Survivor Rights & Services to be notified about the defendant's release from prison.

You must ask for notification in writing. To do that, get the Request for Victim Services CDCR Form 1707 or call 1-877-256-6877. You can also get this form (the Request for Victim Services, CDCR Form 1707) from your local victim witness assistance center.

State parole (felony cases)
After the defendant gets out of state prison, he or she will be supervised by a state parole agent.

Parole usually lasts 3 years. But it varies depending on the crime and the parolee's adjustment to life outside prison.

Parole conditions
Once released from state prison for a domestic violence offense, the parolee is sometimes:

  • Not allowed to live with the victim;
  • Not allowed to contact the victim without the parole agent's approval;
  • Required to attend a parolee outpatient clinic (for psychiatric or psychological counseling);
  • Required to get substance abuse counseling;
  • Required to attend a defendants' program (like a batterer's intervention program); or
  • Subject to other restrictions as determined by the parole board.

The victim can call the Office of Victim & Survivor Rights & Services at the Department of Corrections and Rehabilitation at 1-877-256-6877 to suggest parole conditions. The victim must do this BEFORE the inmate is released from prison.

Contact with the parolee
The parole agent will decide if the parolee can live with or have contact with the victim. The parole agent will consider the victim's safety. The parole agent can also serve a restraining order on a defendant.

Violation of parole
If a defendant commits a crime, like domestic violence, while on parole, he or she is in violation of parole.

The parole agent will investigate the parole violation. The violation is separate from criminal prosecution for the crime.

So the defendant can be charged with a parole violation AND a separate crime.

The agent may ask the victim for:

  • The case number of the police report;
  • A statement;
  • Names of witnesses and ways to contact them; and 
  • Photos of injuries or damaged property.

Morrissey hearing
If the defendant violates parole, the victim may be ordered to testify at a hearing.
This kind of hearing is called a "Morrissey hearing." It is much less formal than a trial. The hearing can take place with the defendant in or out of custody. At a Morrissey hearing, a member of the Hearings Operations Division reviews the evidence of the violation.

The parolee is usually present and can ask the victim questions. But in extreme cases the victim can be interviewed outside the parolee's presence. If this happens, the parolee can leave a list of questions for the victim to answer. After the hearing, the victim can be notified about its outcome.

Consequences of parole violations
A parole violation can have serious consequences. It depends on the severity of the charge.

The consequences can include:

  • A return to custody for up to 12 months;
  • Increased supervision;
  • Continued parole with additional requirements or conditions; or
  • Continued parole with no additional restrictions or limitations.

Adapted from chapter 3 of the Domestic Violence Information and Referral Handbook. Used with permission of the County of Santa Clara Probation Department.