California Criminal Defense

 

Criminal law is concerned with offenses against public order and not disputes arising between individuals. Government entities, including the federal government and state governments, prosecute people who commit crimes. These crimes can range from traffic violations to violent offenses such as rape or murder. People charged with a crime are known as defendants. Criminal defense attorneys represent people who are accused of a crime. The representative of the governmental entity that charges a defendant is known as a prosecutor.

Should you be charged with a crime, the legal counsel of an experienced criminal defense attorney can protect your present and future rights.


The United States Constitution requires due process of law to take a person's life, liberty, or property. To be constitutional, a criminal statute must clearly set out what conduct will be considered criminal. More than a vague description of the prohibited conduct is required. A person must have notice of exactly what conduct is prohibited. However, ignorance of the laws is not generally a valid defense in a criminal case. A criminal statute is required to set out a guilty person's state of mind, or mens rea, as well as the unlawful action, or actus reus. For example, accidentally stepping on someone's toes is not a crime because there was no guilty mind. Furthermore, fantasizing about stepping on your boss's toes would not be a crime because there is no guilty act. While crimes of attempt, like attempted murder, have no completed guilty act, they can still be prosecuted because a person has taken some action toward the commission of the crime. A criminal defense attorney is able to better explain these and other terms.

 


 

The Defense Process

 

The criminal justice system has a complex set of rules of procedure that ensure a fair trial. Both prosecutors and defense attorneys must follow these rules. Because of these complicated procedural rules, an experienced criminal defense attorney is better able to deal with the criminal justice system. If possible, a client should involve a defense attorney at the earliest stages of the case, even before interrogation. Most of us are familiar with warnings, from crime movies and television shows called "Miranda" warnings. These warnings are named after a U.S. Supreme Court case that first required arresting officers to inform the person in custody that he or she has the right to an attorney, and the right to have an attorney appointed if he or she does not have the ability to pay for an attorney. The juvenile justice system is a separate criminal justice system that only handles crimes committed by children. Typically, juvenile courts have less formal procedures and are a less formal manner of adjudicating cases.

 


 

Negotiating a Plea Agreement


In some criminal cases, the charges may be dropped or reduced following negotiations with the prosecutor. The prosecutor may agree to drop more serious charges in exchange for the defendant pleading guilty to a less serious charge. The defendant must make the final decision on whether to accept a proposed plea agreement.


The sentence a defendant who is found guilty receives depends of the severity of the crime committed. Possible sentences include, the defendant being required to serve a period of probation, the payment of a fine, the performance of community service, payment for the monetary losses caused by the crime, or serving time in jail or prison. The death penalty is applied in some states to the most severe crimes. A veteran criminal defense attorney can effectively work with a prosecutor to create a plea agreement that for the least severe punishment possible. If a plea agreement can not be made, a criminal defense attorney can take the case to trial to convince the jury that the prosecutor cannot prove that the defendant committed the crime beyond a reasonable doubt.



 

Felony vs Misdemeanor

 

The California Penal Code has three categories of criminal offenses.

 

INFRACTIONS

This is your typical speeding ticket. These cases only involve fines up to $250. There is no possibility of probation or jail time for these offenses.

 

MISDEMEANORS

These crimes are more serious and are punishable by up to one year in a county jail. The limit on fines ordered by the court for these offenses is $1,000. The most common examples of misdemeanor offenses are D.U.I., petty theft, simple drug possession, and most domestic violence. Jail time is a possibility, but it is more likely the case's outcome will include counseling and/or community service. In misdemeanor cases you have the right to waive your presence at all misdemeanor court appearances and have your lawyer appear on your behalf. We represent misdemeanor clients in this manner on a regular basis. Waiving your presence saves you time, lost wages, and the potential for embarrassment. Most clients at the misdemeanor level waive their presence, and an actual misdemeanor client appearance is unusual in the courtroom. Waiving your presence is your decision and we will respect your desires.

 

FELONIES

Felonies represent the most serious category of crimes, and as such, you must personally appear for each court date. A felony is usually defined as any crime that may be punished by more than a year's imprisonment, or death. Felonies include both violent and non-violent crimes, such as grand theft, embezzlement of large sums of money, first degree assault, or assault that causes severe bodily harm, all degrees of murder, rape, racketeering, large scale fraud, kidnapping, and serious drug crimes. Probation terms can typically include fines, restitution, counseling, work service, and up to one year of county jail. If you are facing felony criminal charges in Kern County, contact a criminal defense attorney without delay.

 

Points to Consider About Misdemeanors

Crimes that are considered to be less serious are referred to as misdemeanors. A misdemeanor usually is punishable by a fine or by incarceration of less than one year in a county jail. A grand jury is usually not convened to investigate or issue indictments for misdemeanor charges even though same actions could result in both felony and misdemeanor charges. Misdemeanors are usually charged by a written complaint instead of by an indictment. Misdemeanor charges may be considered minor, but being accused or convicted of a misdemeanor can disrupt the life of an accused. Like any criminal case, a misdemeanor defendant should have an experienced criminal defense attorney zealously represent him or her.

 

If you have questions regarding your criminal defense, contact us today for a free consultation.



California Criminal Court Process

 

Arraignment Hearing - First Court Appearance

Your arraignment will be your first appearance in court even if you are not in custody. At your arraignment, you will be formally advised of the charges against you, your constitutional rights, and your attorney will receive a formal complaint stating what charges that have brought against you.


If you are currently in custody, your bail will generally be set at your arraignment hearing. Bail is required to assure your attendance in court. Your attorney will likely argue for you to be released on your "own recognizance," which means on only your promise to appear in court. A judge will consider your risk of flight, how long you have been in the community, whether you have family ties in the community, your prior record or lack thereof, any previous failures to appear in court, the nature of the charges, whether you pose a danger to the community, and other factors when determining the amount of your bail. For some offenses bail is not permitted.

 

Pre-Trial Conferences

Your attorney will meet with the judge and the prosecutor to discuss possible resolutions at your pre-trial conference. The Judge will let both sides know his/her thoughts on the strengths and weaknesses of the case. After the pre-trial conference, either a plea agreement is reached or the case is set for preliminary hearing and or trial.

 

Preliminary Hearing

Should you be charged with a felony, a preliminary hearing is used to determine if there is sufficient evidence supporting your charges. There is a lower standard of proof at a preliminary hearing which is unlike the requirement of guilt beyond a reasonable doubt in place at trial.


Your attorney has the opportunity to present your case at the preliminary hearing but for strategic purposes your attorney will generally use the hearing to attack the prosecutor's case. Your attorney will have the opportunity to cross-examine the prosecution's witnesses and in some instances get the case dismissed.

 

Trial

If a disposition of your case can not be reached, a trial will be set. Impartial individuals will be selected to hear your case's evidence. At trial, both the prosecutor and your attorney will have the opportunity to make opening statements, present witnesses and evidence, cross-examine the opposing side's witnesses, and make a closing statement. The jury will then deliberate on your case. The jury must unanimously agree beyond a reasonable doubt that you are guilty for you to be convicted. If the jury cannot agree, the judge will declare a mistrial.

 

Sentencing
Your case will be set for a sentencing hearing if you have accepted a plea agreement or have been found guilty at a trial. At a sentencing hearing, the judge will decide what the applicable sentence will be.

 


 

False Accusations

 

What to Do if You are Falsely Accused of a Crime

Many people who are convicted of a crime were falsely accused. Although the American criminal justice system is one of the best in the world, not all juries make the correct decision. The result is an innocent person pays the price and a guilty person remains free. The best way to avoid this unjust outcome when faced with false accusations is to seek out the best criminal defense attorneys available.

 

The Same Criminal Law Procedures Apply in False Accusation Cases

The same criminal law procedures apply when a person has been falsely accused of a crime. A defendant should not think that because he or she is innocent there is no use for legal representation. There is perhaps a greater need for legal representation when a defendant has been falsely accused, especially when the defendant does not know what he or she is charged with. In certain situations, a guilty plea to a lesser offense may be in the defendant's best interest, even when the defendant is innocent. A plea agreement may be the defendant's best alternative in this situation because it would avoid a trial and could reduce or avoid jail time. The decision to plead guilty to even a lesser crime they did not commit is always left to accused individual. Some defendants will justifiably refuse to plead guilty to something they did not do. Experienced criminal defense attorneys can assist defendants in this situation by explaining the criminal law procedures and advising them on the best tactics for their case.

 

Recourse for Wrongfully Accused Defendants May Exist in the Civil Courts

A falsely accused individual who plead not guilty and whose charges were dismissed may be able to file a suit against the person responsible for the charges. If a private citizen files a false criminal charge against another person and that person's case is then dismissed, the accused may be able to sue the accuser for malicious prosecution. The accused may have a claim for a civil rights violation or for false imprisonment if a law enforcement officer brought the false charges.

 

A wrongfully accused person can recover their actual injuries, including attorney's fees, in a malicious prosecution case. The judge might also order punitive damages beyond the person's actual damages, in some cases, to discourage others from making false accusations. To successfully bring a malicious prosecution case, a person must show two things. First, that the accuser was responsible for bringing the criminal charges and that those charges were dismissed in criminal court. Second, that the accuser had no reasonable basis on which to bring the charges. Generally this will require proof that the accuser lied or proof of similar wrongful conduct. The falsely accused person must show more than that the charges were dropped or that a not-guilty verdict was reached, because a prosecuting attorney will often dismiss a criminal case or juries will find a defendant not guilty based a "reasonable doubt," even when they believe the accused actually committed a crime.

 

Conclusion

A person falsely accused of committing a crime should turn to an experienced knowledgeable criminal defense attorney because they face the same challenges as a guilty criminal defendant. If the falsely accused person's charges are ultimately dismissed or a not-guilty verdict reached, that person may be able to obtain recourse from the courts. Before a falsely accused person begins to contemplate a civil suit, he or she should focus on their criminal defense.

 


 

Search Warrants

 

A search warrant is authorization by a judge that allows the police to enter private property to look for particular items. The search warrant tells the owners of the property that a judge believes it is reasonably likely that contraband or evidence of criminal activities will be found in the locations specified on the warrant. As a general principle, the police must apply for a warrant before searching private property. There is a presumption that any warrantless search is unreasonable. This means that in order for any evidence found to be used, the police officers must justify both the search and why a warrant wasn't obtained prior to the search.

 

What does it take to get a search warrant?

A search warrant will be issued after the police convince the judge that:

 

1. It is more likely than not that a crime has taken place.
2. It is likely that items connected to that crime will found in a specified location on the property.

 

The police tell the judge what they know about the situation in order to convince the judge of these two things. Generally, the judge is given information based on the officers' observations or information obtained from an informant. The police's ability to use secondhand information obtained from an informant is limited and the information must be considered reliable given the situation. Information is generally considered reliable when it is corroborated by police observation. For example, a police officer is able to corroborate a citizen's tip that someone regularly delivers drugs to a certain house when the officer observes that person's routine. Corroboration is not always necessary, a judge will sometimes issue a warrant if the information was obtained from an individual who is known to the police and has previously provided reliable information.

 

Do police always need to obtain a warrant prior to conducting a search?

No. In many situations, police may legally conduct a search without first obtaining a warrant.

 

CONSENT SEARCHES
If you give your permission to search your home, backpack, briefcase or other property, the search is considered consensual and does not require a warrant. A common tactic used by the police to obtain a person's consent is to threaten to detain that person until a warrant is obtained.

 

SEARCHES THAT ACCOMPANY AN ARREST
In order to prevent harm to police officers, whenever a person is placed under arrest, the police may search the person and the immediate surroundings for weapons. If the person is taken to jail, the police may conduct a search to ensure weapons or contraband are not brought into the jail. This is commonly known as an inventory search and frequently involves the search of the arrested person's car, if it is in police custody, and personal effects so that the police can obtain a precise record of a person's property to avoid claims of theft.

 

SEARCHES NECESSARY TO PROTECT THE SAFETY OF THE PUBLIC
A warrant is not required if the police have a reasonable fear that either their safety or the public's safety is in imminent danger.

 

SEARCHES NECESSARY TO PREVENT THE IMMINENT DESTRUCTION OF EVIDENCE

A search warrant is not required if a police officer has observed illegal items, such as drugs, and believes that the items will be destroyed or disappear unless the officer intervenes. This exception frequently arises when drugs or weapons are observed in a car. Because cars are easily moved, the police would not need a warrant to search the entire vehicle, including the trunk. On the other hand, if the police learn about a meth lab from a neighbor, they usually would need a warrant, because it is unlikely evidence of the operation would quickly disappear.

 

"HOT PURSUIT" SEARCHES
Police may enter private dwellings to search for criminals they observe fleeing the scene of a crime.

 


 

Arrest Warrants

 

When do the police need a warrant to make an arrest?

As a general rule, if the police have probable cause that a crime has been committed and that the person they are going to arrest committed the crime, they are not required to obtain an arrest warrant from a judge. A major exception to the general rule is that the police can not enter a person's home to arrest him without a warrant. If the person is believed to have committed a non-serious offense, such as simple assault, and they do not fear the destruction of evidence and the public is not in danger, the police must ask a judge for a warrant.

 

If I'm arrested, are the police required to read me my rights?

No. They will not be able to use what you say as direct evidence against you if they question you before you have been read your rights. Commonly known as the Miranda warning, the warning that must be given right before questioning in police custody consists of the following, which may be familiar from TV:


1. You have the right to remain silent.
2. If you do say anything, what you say can be used against you in a court of law.
3. You have the right to consult with a lawyer and have that lawyer present during any questioning.
4. If you cannot afford a lawyer, one will be appointed for you if you so desire.
5. If you choose to talk to the police officer, you have the right to stop the interview at any time.

 

If you are in police custody, meaning that you are deprived of your freedom of action in any significant way, and the police want to question you and use your responses as evidence against you at trial, they must give you a Miranda warning. You can be in police custody, for Miranda warning purposes, anywhere from a jail to the middle of a busy street. If you are not considered to be in police custody then no Miranda warning is required. If the police go up to someone to ask them some questions about a nearby fire and that person confesses to arson, that person's response can be used against her in court because her freedom of action was not deprived by the police.

 

Can my case be dismissed if I did not receive a Miranda Warning before being questioned?

No. While many people believe their case would be dismissed if they were questioned without receiving Miranda warnings, the U.S. Supreme Court case that required Miranda warnings only prohibits a person's responses from being used as evidence. Should the police question you without giving you a Miranda warning, nothing you say in response to the questioning or any evidence obtained as a result of your questioning can be used to convict you. The exception to this "fruit of the poisonous tree" rule is that the evidence can be used to convict you if the police can prove the evidence would have been found without the information obtained by improper questioning.

 


 

Bail and Own Recognizance for Release From Custody

 

What does it mean to "post bail?"

An arrested person gives the court bail, which is cash or a cash equivalent, to ensure that he or she will appear in court when ordered to do so. The arrested person is then let out of jail but must return to court on the scheduled date. The court refunds the bail if the defendant appears in court when he or she is ordered to appear. If the defendant does not appear in court, the court keeps the bail and a warrant for the defendant's arrest is issued. Bail can take any of the following forms:


  • Cash or check for the full amount of the bail.
  • Property worth the full amount of the bail.
  • A bond which guarantees payment of the full bail amount.
  • A waiver of payment on the condition that the defendant appear in court when ordered to do so. This is commonly known as being released on one's own recognizance.

How much bail will I have to pay?

In general judges are responsible for setting someone's bail. Most jails have standard bail schedules that specify bail amounts for common crimes without having to see a judge. This allows people to get out of jail quickly without having to wait up to a couple of days to see a judge.

 

How do I pay for bail?

You have two options to pay your bail. You can either pay the full amount of the bail or purchase a bail bond. A bail bond is similar to a check being held in reserve. The bail bond represents your promise to appear in court when you are ordered to appear. You pay the person selling the bond for them to post a bond with the court. The court keeps the bond in case you don't appear when you were ordered to. The person selling the bond will generally charge you about 10% of the amount of your bail to post this bond. The bond sellers fee represents his risk that you won't appear in court. While a bail bond may sound like a good deal, buying a bond could cost more in the long run. If you pay the full amount of the bail, you will get everything but a small administrative fee back if you appear when you were ordered to. The 10% premium you pay to a bond seller is nonrefundable and the bond seller may require you to provide collateral. When you give the bond seller collateral, you or the person who paid for your bail bond gives the bond seller an interest in valuable property such as your house. If you fail to appear in court when ordered to do so, the bond seller can collect on this interest by, for example, selling your house.

 

If you don't have enough money to pay the bail outright and you don't have a friend or relative that can help out, a bail bond could be your only option. You can find a bond seller in the Yellow Pages. Bond sellers' offices are likely located very close to the jail. You should be ready to pay in cash or with a money order or cashier's check because jail bond sellers usually will not take credit cards or personal checks. A criminal defense attorney can often refer you to a bail bondsman they trust.

 


Probation and Parole

 

Parole in California Criminal Cases

Parole is granted when a convicted person completed the majority of his or her sentence. A parole board will vote for the release of a subject to supervision by a parole officer if the convicted person meets certain criteria such as good behavior while incarcerated. A prisoner's lawyer may be present at the parole hearing and at any hearing regarding the prisoner's parole. If the parolee follows the rules after being granted parole, his or her sentence is considered to be served when the parole is complete. If he or she violates the rules while on parole, the rest of his or her sentence will be served in prison.

 

Probation as Conditional or Suspended Sentencing in California Criminal Cases

Probation occurs after a defendant is convicted, but before the sentence is served. While the sentence has been determined, the judge has decided to wait on imposing it to give a second chance to a young or first-time offender. The person's sentence will be imposed and the person will be sent to jail if the person fails to follow the court's orders or disobeys the probation officer. The probationer may have a lawyer present at the hearing to determine if he or she has failed to follow the court's orders or disobeyed the probation officer. If he or she complies with all terms of the probation, he or she will not be required serve the sentence in prison.

 


 

Record Expungement

 

Expungement is a legal process that petitions the court to withdraw a guilty plea or a finding of guilt and order the case dismissed. The court will review the conviction to determine the following:

1. Whether probation was successfully completed or there was no probation and a year has passed since the conviction;
2. Whether all fines, restitutions and reimbursements the court ordered have been paid;
3. Whether the petitioner is now on probation for another offense;
4. Whether the petitioner has any new pending cases.

 

If these conditions are satisfied, the Court then allows the petitioner to withdraw their plea or finding of guilt, and orders the case dismissed.

 

How Can This Help Me?

California Expungement law (Penal Code Section 1203.4) provides in part:

"[Petitioner shall]...be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendrere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided..."

What about applying for jobs?

If you receive an expungement, when private employers ask if you have ever been convicted of a crime, you can tell them no. However, when Government Employers or Government Licensing Applications ask whether you have been convicted of a crime, you must still tell them about your expunged case. You should state that the conviction has been expunged if there is an explanation section of the application.

 

What will an expungement not do?

• You will not be allowed to own or possess a firearm if you would otherwise not be able to do so.
• Your dismissed conviction can increase your punishment in future criminal cases, especially if the offense is a DUI or theft.
• An expungement does not relieve your obligation to register as a sex offender.

 

Does this erase all records and destroy the court file?

No. An expungement will only update your case's disposition to reflect a dismissal under 1203.4 of the Penal Code. This means that while the records still exist, the court file, the California Department of Justice file, and the FBI file will be updated to show the case was ordered dismissed by the court.

 

Will I Need to Go To Court?

Generally, no. The attorney should be able to handle all court appearances for you.

 

How long will an expungement take?

 

Misdemeanors:
Most misdemeanor expungements take between 4 to 6 weeks to complete after the application is filed. This estimate does not include the time used to research all your records and process the application. The application can be processed faster if you are prepared with the information you need such as dates, charges and court locations. Additional time may be necessary if it is necessary to conduct a search of court records for your information.

 

Felonies And Felony Reductions To Misdemeanors:

Most felony expungements take between 6 to 8 weeks to complete after the application is filed. While some felonies cannot be expunged, they may be able to be reduced to misdemeanors. A felony reduction takes between 4 to 6 weeks to complete after the application is filed. Again, the application can be processed faster if you are prepared with the information you need such as dates, charges and court locations. Additional time may be necessary if it is necessary to conduct a search of court records for your information.

 

Sealing Of Juvenile Records:

It takes on average 4 to 6 weeks to have the records of a juvenile sealed. Additional time may be required, depending on the amount of information you provide.

 

Why should I expunge my record?

A primary reason our clients want to expunge their records is to obtain a sense of closure. There are also employment and licensing reasons that make expungement beneficial.



 

Traffic Matters

 

For all traffic matters, please call:

Eric Berg

(661) 303-1337