In California, a criminal defendant can be initially "charged" with a felony although no probable cause determination has been made.  This raises an issue concerning the precise meaning question F(2) on Form MU4, required for registry with the Nationwide Mortgage Licensing System (NMLS), which asks, “Are there pending charges against you for any felony?”

The NMLS Policy Guidebook, published by the NMLS Resource Center, provides a definition of “charged” as “being accused of a crime in a formal complaint, information, or indictment (or equivalent formal charge).”  A formal criminal “charge” differs from a simple accusation or an arrest, in that the state must prove that there is sufficient cause to believe the defendant committed a particular crime.  This is accomplished in different ways in different states—some states use a grand jury to evaluate cases and return “indictments,” some states file an “information” after a preliminary hearing, and other states use formal complaints certified by judges.

This raises a legal question under California criminal law, because in California, a felony can be “charged” by three separate means: a complaint, an information, or an indictment.  The precise moment at which a defendant in California is “charged” with a criminal case can be found at California Penal Code (“CPC”) §949, which provides that “[t]he first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a.”

If an information or an indictment is returned against a defendant, he or she is unquestionably “charged” for the purposes of the MU4 and the event must be disclosed to NMLS.  However, before an information is issued against a defendant, the state files a “complaint” against the defendant alleging that he or she has committed a certain felony. 

CPC §859 explains this process in detail, beginning: “[w]hen the defendant is charged with the commission of a felony by a written complaint subscribed under oath and on file in a court […]”.  On its face, this language suggests that a defendant in California is “charged” as soon as a written complaint is subscribed under oath, filed with the appropriate court.  However, CPC §949 indicates that the people have not filed their first pleading—in other words, have not formally charged the defendant with a crime—until the “complaint is certified to the superior court under Section 859a.”

CPC §859a adds a procedural requirement to the language of §859.  If a defendant is presented with a criminal charge under §859 and wants to plead guilty, the complaint must first be certified by the judge before the defendant can be committed to the appropriate law enforcement officer to serve his or her sentence.  Only when the complaint is certified in this manner does it become a “pleading on the part of the people” as discussed in CPC §949.

It is my opinion that, in California, when a formal complaint is filed by the people against a defendant, it is not a criminal charge as contemplated by Form MU4 unless the defendant pleads guilty prior to the filing of an information.  CPC §949 specifically lists what constitutes the “first pleading on the part of the people,” and a complaint that has not been certified under §849a is not mentioned.  Instead, the complaint must first be certified before it can be considered a legal pleading.  Further, unless the complaint is certified in this matter, a California court cannot accept a guilty plea to any of the alleged crimes.  If a defendant does not plead guilty to an alleged crime, the state must proceed to a preliminary hearing and obtain an “information” against him or her before the state can proceed.  At this point, the state has filed its first pleading under CPC §949 and the defendant is formally charged.

If a defendant cannot legally plead guilty to an allegation, it is my opinion that there are not yet formal charges pending against him within the context of question F(2) on Form MU4.  Please note that this opinion is written with reference to California law and general principles of U.S. law and does not address the particular laws of other states.  Specific facts may yield a different result.