What Happens Before Criminal Charges Are Filed in California?

A person can become the subject of a criminal investigation before ever receiving a court date. Police may be collecting evidence, interviewing witnesses, reviewing digital records, or preparing reports for a prosecutor while the person under investigation knows little about what is happening.

In other cases, a person may be arrested and released without being formally charged. Being given a future court date does not necessarily mean that a criminal complaint has already been filed.

Understanding what happens between the beginning of an investigation and the filing of criminal charges can help a person avoid unnecessary mistakes and identify opportunities for early defense intervention.

1. The Criminal Investigation Begins

Most criminal matters begin when law enforcement receives a report, observes suspected criminal activity, or is asked to investigate an incident.

Depending upon the allegations, investigators may:

• Interview the reporting person
• Question witnesses
• Obtain surveillance recordings
• Review photographs and body-camera footage
• Collect physical or forensic evidence
• Search electronic devices
• Review telephone, location, or social-media records
• Request medical or financial records
• Execute a search warrant
• Ask the suspected person to provide a statement
• Submit evidence for laboratory testing

Police reports do not necessarily contain every relevant fact. They may omit defense witnesses, rely upon assumptions, contain misunderstandings, or present disputed allegations as though they have already been established.

A defense investigation may reveal evidence or context that was not included in the original police investigation.

🚨 Should I Speak to the Police?

A person contacted by law enforcement should ordinarily speak with a criminal-defense attorney before agreeing to an interview or providing a written statement.

Investigators may describe the interview as an opportunity to “clear things up” or explain the person’s side. Even an innocent person can make inaccurate statements because of stress, confusion, imperfect memory, or uncertainty about what the investigator already knows.

Statements can also be taken out of context or used to develop additional evidence.

Politely requesting an attorney is not an admission of guilt. It is an exercise of a constitutional right.

If law enforcement requests an interview, consider saying:

“I want to cooperate appropriately, but I will not answer questions without first speaking with an attorney.”

Do not lie, destroy evidence, influence witnesses, or physically interfere with an investigation.

🚨 2. Police Determine Whether There Is Probable Cause

Probable cause is not the same as proof beyond a reasonable doubt. It is the legal standard that may permit officers to make an arrest, obtain a warrant, or take other investigative action.

If officers believe probable cause exists, they may:

• Arrest the person immediately
• Obtain an arrest warrant
• Issue a citation and release the person
• Submit the investigation to the prosecutor without making an arrest
• Request further investigation
• Continue gathering evidence before taking action

An arrest is not a conviction. It is also not a final determination that the accusations are true.

🚨 3. Arrest, Booking, Citation, or Release

A person who is arrested may be booked into jail, released on bail, released on their own recognizance, or given a future court date.

The documents received at release may identify a date when the person is instructed to appear in court. However, that date may be based upon the arresting agency’s paperwork rather than an already-filed criminal complaint.

When the prosecutor has not completed the filing review by that date, several things may happen:

• Charges may be filed before the scheduled appearance
• Charges may be filed under a different case number
• The prosecutor may request further investigation
• The matter may remain under review
• No complaint may be filed at that time
• The person may be instructed to wait for additional notice

A person should not assume that a matter has permanently ended merely because charges were not filed by the first anticipated court date. The prosecutor may still act before the applicable statute of limitations expires.

⚖️ What Does California Penal Code Section 825 Require?

California Penal Code section 825 generally requires a defendant who remains in custody to be taken before a magistrate without unnecessary delay and ordinarily within 48 hours after arrest, excluding Sundays and holidays. Additional timing rules apply when the period expires while the court is not in session.

Section 825 is intended to provide prompt judicial review for someone held in custody.

A violation does not ordinarily cause the criminal charges to be automatically dismissed. The available remedy depends upon the circumstances, the nature of the delay, whether the delay produced evidence, resulting prejudice, and whether a related constitutional violation occurred.

The immediate objective is usually to obtain access to the court, address release or bail, protect the accused person’s rights, and preserve any appropriate objection—not to suggest that a delayed arraignment automatically ends the prosecution.

🔍 4. The Prosecutor Reviews the Case

After receiving reports and supporting evidence, a prosecutor—usually the county District Attorney’s Office—decides whether formal criminal charges should be filed.

The prosecutor may:

• File the charges requested by law enforcement
• File fewer or less serious charges
• File additional or different charges
• Request supplemental investigation
• Refer the matter for another type of proceeding
• Decline to file charges
• Leave the matter under review while awaiting additional evidence

The prosecutor is not required to accept every conclusion reached by the investigating officer. The filing decision may depend upon whether the available evidence can prove each required element of an offense and whether witnesses and evidence are likely to be admissible and credible.

🏛️ Pre-Complaint Intervention Before the Filing Decision

The period between an investigation or arrest and the prosecutor’s filing decision may provide an opportunity for defense counsel to intervene.

The Bogan Law Firm calls this process Pre-Complaint Intervention, or PCI.

PCI may involve the careful preparation of a defense submission for the prosecutor to consider before deciding whether charges should be filed.

A PCI packet may be built around two principal pillars:

✅ Vindication

Vindication focuses on evidence showing innocence or exposing material weaknesses in the proposed prosecution. Depending upon the case, this may include:

• Defense witness statements
• Alibi evidence
• Surveillance recordings
• Photographs
• Electronic communications
• Location information
• Scientific or forensic evidence
• Evidence contradicting the police report
• Information affecting a witness’s credibility
• Proof that another person was responsible

✅ Mitigation

Mitigation explains the person and circumstances behind the police report. Depending upon the situation, it may include:

• Employment history
• Family responsibilities
• Educational background
• Community involvement
• Medical or mental-health information
• Treatment or counseling
• Restitution or corrective action
• Evidence of an isolated event
• Information supporting diversion
• Reasons why prosecution would not serve the interests of justice

PCI is not simply a character-reference packet. When appropriate, it combines defense evidence, legal analysis, and mitigation into an organized submission addressing the concerns likely to affect the prosecutor’s decision.

Learn More About Pre-Complaint Intervention

⚠️ Pre-Complaint Intervention Is Not Appropriate in Every Case

Contacting the prosecutor or investigating agency before charges are filed requires careful strategic judgment.

An early submission could unintentionally:

• Reveal the defense theory
• Identify witnesses unknown to investigators
• Help law enforcement correct weaknesses in its investigation
• Produce additional evidence for the prosecution
• Encourage the prosecutor to file charges more quickly
• Lock the accused person into a position before all evidence is known

Attorney Bogan first considers whether intervention is likely to help or whether the defense should preserve its evidence and remain silent.

A prosecutor may reject the defense submission and file charges despite counsel’s efforts. No attorney can guarantee that PCI will prevent criminal charges.

Even when charges are filed, however, properly gathered evidence and mitigation may remain useful in later negotiations, motions, hearings, diversion requests, or trial preparation.

📂 Court-Ready PCI Packets

When appropriate, a PCI packet can be organized so that its evidence and arguments remain useful if charges are ultimately filed.

This may include:

• Preserving recordings before they are erased
• Obtaining signed or recorded witness statements
• Organizing photographs and electronic evidence
• Identifying evidentiary conflicts
• Developing a factual timeline
• Locating records that may be difficult to obtain later
• Documenting mitigation
• Identifying potential experts
• Preparing arguments that may later support dismissal, reduction, diversion, or trial

Early preparation can provide value even when the prosecutor does not decline the case.

✅ 5. The Prosecutor Declines to File Charges

A prosecutor may decline a case because:

• The evidence is insufficient
• The wrong person may have been identified
• A witness is unavailable or unreliable
• The available evidence does not establish criminal intent
• Evidence may have been obtained unlawfully
• The conduct does not satisfy every element of an offense
• Additional investigation is required
• Prosecution would not serve the interests of justice

A decision not to file at that time does not always mean the matter can never be filed. The prosecutor may reconsider the case if additional evidence is obtained, provided the applicable statute of limitations has not expired.

When possible, defense counsel may attempt to confirm the filing status and determine whether the matter was rejected, returned for additional investigation, or remains under review.

🚨 Does an Arrest Become a “Detention Only” If Charges Are Not Filed?

Not automatically in every situation.

Under California Penal Code section 849(b), an arresting agency may release a person without bringing them before a magistrate in specified circumstances. One circumstance is when the officer is satisfied that there are insufficient grounds for making a criminal complaint.

When a release occurs under the applicable portion of section 849(b), the arrest is treated as a detention only, and the official record is supposed to reflect that status.

However, the fact that a prosecutor did not file a complaint by a particular court date does not necessarily establish that the arresting agency made a section 849(b) insufficient-grounds determination.

The record should be reviewed before telling someone that their arrest has automatically become a detention only.

⚖️ 6. Charges Are Filed

If the prosecutor files a criminal complaint, the case moves into court.

The early stages may include:

• Arraignment
• Appointment or retention of counsel
• Bail and release litigation
• Entry of a plea
• Criminal protective orders
• Discovery review
• Pretrial conferences
• Negotiations
• Motions
• Preliminary hearing in a felony case
• Trial preparation

Work completed before filing may provide the defense with preserved evidence, a developed factual record, and a clearer understanding of the prosecution’s weaknesses.

Learn What Happens After Criminal Charges Are Filed

🛡️ Why Early Attorney Involvement May Matter

✅ Protecting Against an Unnecessary Statement

An attorney can communicate with investigators and help prevent an accused person from participating in an interview without understanding the risks.

✅ Preserving Evidence

Surveillance recordings may be erased, electronic data may be lost, and witnesses’ memories may fade. Early action may preserve evidence that would otherwise disappear.

✅ Investigating the Defense

The police investigation is usually directed toward determining whether a crime occurred. Defense counsel can investigate evidence supporting innocence, justification, mistaken identity, lack of intent, or another defense.

✅ Evaluating Pre-Complaint Intervention

Counsel can assess whether a PCI submission is likely to help or whether early contact would expose the defense unnecessarily.

✅ Preparing for Court

If charges are filed, early preparation may allow the defense to begin with organized evidence, identified witnesses, developed mitigation, and a strategy for the first court appearance.

✅ Addressing Professional and Personal Consequences

An investigation may affect employment, professional licensing, firearms, immigration status, family relationships, or reputation before the case reaches court. Counsel can identify issues that may require immediate attention.

👤 How Attorney Bogan Handles a Pre-Filing Matter

Tai C. Bogan is a California State Bar Certified Criminal Law Specialist who has practiced criminal defense since 2006.

Attorney Bogan personally reviews the available evidence, evaluates whether pre-filing intervention is strategically appropriate, directs the defense investigation, and oversees any submission made on the client’s behalf.

Depending upon the needs of the case, The Bogan Law Firm may bring experienced contract attorneys, paralegals, investigators, or expert witnesses onto the defense team. Attorney Bogan remains responsible for leading the defense and making critical strategic decisions.

No attorney can promise that an investigation will end or that charges will not be filed. The objective is to identify the best available strategy based upon the evidence, law, timing, and individual circumstances.

Learn How Attorney Bogan Will Be Personally Involved in Your Case

❓ Frequently Asked Questions

📞 Speak With a California Criminal Defense Attorney Before Charges Are Filed

The period before criminal charges are filed can be an important stage of the defense. Evidence may still be available, witnesses may still remember what happened, and the prosecutor may not yet have made a final filing decision.

The right response depends upon the individual case. Sometimes the best strategy is a carefully prepared Pre-Complaint Intervention submission. In other cases, the better strategy is to preserve the defense, avoid an unnecessary interview, and prepare for the possibility of court proceedings.

Call The Bogan Law Firm at (209) 565-3425 to discuss your situation.

Learn More About Pre-Complaint Intervention

Explore Our Criminal Defense Overview

Learn How Attorney Bogan Will Be Personally Involved in Your Defense

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