Criminal Court 101:  Basic Fundamentals of Criminal Court

If you have been charged with a crime in California for the first time, you probably have a lot of questions.  This article will help you understand the basic rules for the criminal court system.

 

What is the difference between criminal court and civil court?  

 

  • Criminal court – criminal charges are brought by either the federal government, state government, or city against you with the allegation that you have violated a law. If the defendant is found guilty, the judge can impose a sentence that includes fines, jail/prison, or other restrictions or requirements.
  • Civil court – this occurs when one party (for example, a person, business or organization) has a claim against another party and requests the court to decide the question.  A person will not go to jail or prison for a civil case.

 

What types of criminal offenses are there?  

  • Infractions – this is the lower violation in terms of seriousness, and it is something like a traffic violation.  The punishment is usually a fine.
  • Misdemeanors – this is more serious than an infraction. The jail time can be 6 months or a year and the fine can be up to $1000 typically.

 

      • Examples include DUI, petty theft, vandalism

 

  • Felonies – these are the most serious.  Punishments can include fines, jail, prison, or even the death penalty in very rare cases.

 

What is the difference between the state system and the federal system?  

  • Type of crime – there are federal laws and state laws, but in some cases, one crime could qualify as either federal or state.  
  • Procedures – there are different procedures in the federal system vs. the state system, for example in the procedures for charging a defendant and for sentencing
  • Courtroom/judges – the courtroom and judges are different for federal vs. state

 

Do I need an attorney?

  • You have a right to represent yourself, so you are not required to have an attorney.
  • An attorney is trained in the rules and procedures of the court, and typically that information will be advantageous to your case.
  • Conventional wisdom is that there are advantages to having someone represent you besides just the knowledge.  Most attorneys, if they are charged with a serious offense, will even hire someone to represent them.  A person who is outside the situation is often less emotionally invested and has the impartiality to see angles and arguments that someone who is under the stress of the case may not be able to discern as easily.

 

 

4 Things You Didn’t Know About Shoplifting and Theft In California

If you have been charged with a crime in the theft category, you may have some questions about shoplifting or theft.  This article addresses some common questions.

Is it a crime if you didn’t leave the store?  Yes it can be. You can still be convicted of a crime, if you took something but didn’t leave the store.  If you look at the elements below, you will notice that the prosecutor doesn’t have to prove that you moved the item out of the store.  Still, the prosecutor must prove that you had intent, so that’s one area that can be attacked in the prosecution’s case if, for example, you intended to pay for the item but put it in a pocket or a purse without thinking.

 

What does the prosecution have to prove to convict me of petty theft?  The summary below will show you the general  elements of petty theft:  

  • taking possession of property owned by someone else
  • without the owner’s consent
  • with the intent to remove it from the owner’s possession
  • moving it, and keep it for a period of time
  • value of property is $950 or less.

What does the prosecution have to prove to convict me of shoplifting?  The summary below will show you the general  elements of petty theft:  

 

  • entering a commercial establishment (for example, a store)
  • while the establishment is open during regular business hours
  • with the intent to steal items worth less than $950

How can you fight a theft charge?  

 

  • Lack of intent – You can show that you had no intent to steal the item.  For example, if you purchased many expensive items and forgot to pay for the milk that was at the bottom of the cart, then those factors would indicate that not paying for the milk was an oversight rather than an intentional taking.   
  • Accident/Mistake– This defense also attacks the intent element by showing that you were unaware of the item or that it was a mistake.  For example, if a child or friend put the item in your pocket without your knowledge, you could claim that it was a mistake.  Or, if you thought the item had been previously purchased by a family member or friend, then that could show a valid accident or mistake.
  • Belief the property belonged to you – This defense is also a subset of lack of intent and can be used when you believed that the property was yours and not someone else’s property.
  • Consent from the owner – If the owner said or did something that made you believe that they consented to your use or taking of the property, then this is also a defense.

 

 

5 Things You Should Know About Domestic Violence

If you are facing domestic violence charges or if you are a victim or a witness in a domestic violence case, you may have some basic questions.  

Can the victim “drop the charges”?  No, in a criminal case the victim is not the person bringing the charges.  In a civil suit, the plaintiff can choose to dismiss the case.  In a criminal case, the charges are brought by prosecutor, and the judge has the power to dismiss the case. The prosecutor has to have enough evidence to be able to convict the defendant, so the victim’s testimony may have an impact on the prosecutor’s ability to convict.  However, in many domestic violence cases, the prosecution has pictures, statements from the victim which may be admissible due to the particular circumstances, or other types of evidence that can be used in spite of a victim’s reluctance.      

Do the defendant and the victim have to be married for the crime to count as domestic violence?  No, the defendant and the victim just have to be in an intimate relationship (which includes but is not limited to marriage).  For example, domestic partners, currently or previously dating, living or lived together, have a child together can all qualify as an intimate relationship for a domestic violence charge.

Is domestic violence a felony or a misdemeanor level crime?  Each case is unique and the prosecutor determines the charges.  There are multiple different types of specific crimes relating to domestic violence.  In general, the extent of injury involved is one factor the prosecutor uses in determining how to charge, and the second factor is previous criminal convictions.  

Are there any possible defenses to a domestic violence charge? Yes, there are many potential defenses, and you should seek legal advice on the facts of your specific case. Self-defense is one common defense, where the defendant claims that he/she reasonably perceived an imminent threat, had a proportional response and was not the initial aggressor.  False allegations for manipulating child custody or divorce proceedings.  Here, the defendant shows that the witness has a motive to lie about facts, and did in fact lie about them.  Another tactic for winning these types of cases is to attack the level of proof presented.  The prosecutor must prove the crime beyond reasonable doubt and many domestic violence cases leave room for significant doubt about what was said and done. Another common defense is to show that the conduct was not willful, in the instances where a true accident occurred.

Is a domestic violence allegation a big deal? Yes, it can be, and it’s likely that you are going to want to hire an attorney to vigorously defend you.  Fines can be up to $6,000, and on rare occasions with enhancements even higher.  Penalties can include up to a year of jail for misdemeanors and several years for felonies.  Convictions can have consequences for your career as well, so it’s important to take a domestic violence allegation seriously.

 

Criminal Law Basics:  How Does the Criminal Law System Work?

If you are facing a criminal charge, you may be wondering how the criminal law system works.  This article will walk you through the main steps in a typical criminal case.  

  1. Arrest and Jail.  The typical start of a criminal case is the arrest by the police.  From there, there are three main scenarios:  

1) the defendant can be released from jail if the prosecutor decides to drop the case,

2)  the defendant posts bail/bond, and is released with the promise to appear,

3) the defendant stays in jail.

  1. Charging.  The police write a report.  The prosecutor reviews the report and has discretion to decide whether or not to file charges and which ones. Charges are typically filed within 48 hours of the arrest if the defendant is in custody.  

 

  1. Arraignment.  This is the defendant’s first appearance in court to find out what the charges are and to enter a plea, which is very often “Not Guilty.”  Even if you think you are guilty, it is often advisable to enter a “Not Guilty” plea at this stage of the process.  After the plea is entered, the judge will either release the defendant on his or her own recognizance, or set bail for the defendant’s release, or require that he or she stay in jail.

 

  1. Pre-trial. In the interim before the trial, there can be additional hearings.  For example, in felony cases, a preliminary hearing is held, where the judge makes sure that there is enough evidence for the case to continue.  In some cases, the defendant will concede that sufficient evidence exists, and waive the preliminary hearing.  This pre-trial time is the time for discovery, which is when the prosecution and defense can exchange documents.  During this time, the defense attorney will research the facts in more detail.  Motions can also be filed.  For example, a Motion to Suppress alleges that evidence should not be admitted (or heard by the jury), because the defendant’s rights were violated in the process of getting that evidence.

 

  1. Trial.  A defendant is presumed innocent, so the purpose of the trial is for the prosecution to present the evidence that shows beyond reasonable doubt that the defendant committed the crime.  Each crime has specific elements that the prosecution must prove.  The trial must occur within a certain time period of the Arraignment.

 

  1. Appeals.  If the verdict is guilty, the defendant may have the right to appeal.  The appeal must be filed within a certain time period, so a defendant should consult with his or her attorney immediately if an appeal is desired.

 

  1. Sentencing.  If the verdict is guilty and an appeal is not sought, the next step is sentencing, where the judge imposes the punishment, which is typically involves fines, counseling, incarceration in jail or prison.  

 

HELP!  I Need to Hire an Attorney and I’m Broke!

If you are not in a position to afford to pay for an attorney, you are not alone.  Many people struggle just to make ends meet, so it’s not unusual if legal fees may put a strain on your budget.  This article will provide some ideas of resources to help you.  

  • Criminal Case – Do you qualify for a public defender?  If you do not have the means to hire an attorney to represent you in a criminal case, the judge can appoint an attorney to defend you. When you go to court for your first appearance, you can request an attorney.  Judges may ask different questions about your income, but in general come with prepared with information on:

Your income

Your debts, including student loans, credit card debts, etc.

Your assets.  For example, you may be asked whether you own or rent your home, whether you own or make payments on your car

  • Family Law Case – Have you checked into free community resources?  For example, if you live in Solano County, the Solano Legal Access Center might be a helpful resource to you.

http://solano.courts.ca.gov/Courts/SolanoLegalAccessCenterSLACandFamilyLawFacilitator.html

The website above is a resource for California forms.

This website also has a repository of self-help information, videos and documents.

  • Domestic Violence – Have you looked into a Victim’s Advocate Office in your community?  Many communities have teams of professionals dedicated to assisting in protecting you from domestic violence.

For example, the Solano Advocates for Victims of Violence https://www.savvcenter.org/

Another resource for those in the Vacaville area is the Advocate Against Domestic Violence in the African – American Community, http://www.aadvac.org/

  • Pro Bono for Other Types of Cases – There are instances where an attorney may assist you without charge.  The term for this is “Pro Bono.” It isn’t the norm for an attorney to represent you for free or for a reduced fee, but there are instances where a lawyer may be willing to help you.  Use your resources.  Ask people in your network if they have a friend who is an attorney.  Meet with a lawyer and explain your problem.  Don’t expect free services, but you may be able to work out payment plans or other billing options that can make the representation affordable for you.   

What Should I do if there is a Warrant for My Arrest?

  • What is a bench warrant and why is there one for me?

Some of the most common reasons why there might be a warrant for your arrest is that a judge issued a bench warrant based on 1) failure to appear in court on your scheduled date, or 2) failure to complete the terms of your probation, or 3) failure to pay fines.  A warrant is signed by a judge and authorizes law enforcement to arrest you.

  • What are the consequences of failing to comply with court orders?

Failure to comply with court orders may result in a mandatory court appearance, additional charges being filed by the prosecutor, a hold being placed on driver’s licenses with the DMV or an arrest warrant.

  • What does an arrest warrant mean to me?

An arrest warrant puts you at serious risk because a police officer has a duty to arrest you if there is one outstanding.  This often happens if you are stopped for a traffic violation, and the officer runs your license and discovers that there is an outstanding warrant.  You can also be arrested at your home or workplace or anywhere that you might come in contact with the police.

  • What can I do if I’m concerned about an arrest warrant?

A criminal defense attorney can tell you if there is a warrant outstanding, what it’s for and the amount of bail.  Your attorney can help you schedule a voluntary appearance, so that you can avoid the scene of getting arrested unexpectedly.  If you are out of state, your attorney can provide information to you about your options.  

  • Do I have to go to jail if there is an arrest warrant out for me?

Not necessarily.  In some cases, your warrant may be able to be recalled without ever having to appear in court, post bail, or spend time in jail. This depends on the particular circumstances.  For bench warrants relating to misdemeanor offenses, your attorney can typically appear in your absence to clear the warrant.  

Can I get a Felony Conviction Reduced to a Misdemeanor?

A felony conviction can have serious repercussions for employment, loans and grants and immigration. With a Proposition 47 Petition, you have a chance at getting your felony reduced to a misdemeanor.

  • Background on Proposition 47

California voters passed this proposition to allow people who had been convicted of certain felonies to have those felonies reduced to misdemeanors.

  • What are some of the types of felonies that work for a reduction under Proposition 47?
  • Certain felonies such as shoplifting, forgery, check fraud, theft , receiving stolen property where the amount was less than $950
  • Is there a deadline on when these petitions can be filed?
  • Yes, consult with your attorney on deadlines and filing requirements.  Typically, the petition must be filed in the original court where you were sentenced.
  • Who is not eligible?
  • If you have had a previous conviction for certain sex offenses (such as rape, child molestation) or certain violent crimes (such a murder, or attempted murder), then you would not be eligible to petition a court for resentencing under Proposition 47.
  • Will there be a hearing? 
  • A hearing is not mandatory, but may be involved.  If you are out of state, contact an attorney about a Proposition 47 reduction.
  • What are my chances?
  • The court will look at whether you satisfy the criteria and then grant the petition unless resentencing you would grant an unreasonable risk of danger to public safety.
  • How many other people have filed these petitions?
  • As reported by NBC Sand Diego back in 2014, thousands of Prop 47 Petitions have been filed.  With the deadline to file fast approaching, now is the time to make a decision if you have been considering filing a Proposition 47 Petition. (See http://www.nbcsandiego.com/news/local/Prop-47-Has-Immediate-Impact-on-SD-Judicial-System-Attorney-281711231.html)

Note:  This article does not list in its entirety the types of crimes for eligibility or ineligibility.  This article is not intended as legal advice.  Rather, it is informative about introductory information regarding Proposition 47 and interested parties are encouraged to seek legal advice from an attorney. 

How to Know When to Strike a Plea Bargain and When to Go to Trial

Deciding what to do when you are facing a criminal charge can be challenging, but taking a step back to analyze your case will help you decide the best course of action for you.  Since each case is different, there are many facts and factors play into a decision this important, but this article will help you think them through.   

  • Do you need to decide yet?

If you were just arrested, you do not need to decide immediately whether to enter a plea or go to trial.  You will have the opportunity to attend hearings prior to trial.  If you qualify, you can request that an attorney be appointed for you.  If you want to hire a private attorney, you will have time to follow through with that.  It is possible obtain a continuance to have additional pre-trial hearings if there is an appropriate reason.  The bottom line is that you shouldn’t feel pressured to decide your case strategy right up front.

  • What are your odds of winning at trial?

You need to look at your odds of winning at trial to decide whether to risk it.  Is there a witness that may recant or may not be available?  Is there a credibility issue that a jury is likely to believe or disbelieve witnesses at trial?  How much technology was involved in creating the evidence against you?  Is a common person likely to find the evidence reliable?  Is the evidence extremely strong, or is there room for doubt?

  • Is the plea bargain really to your advantage?

Remember that the prosecutor is your adversary in this situation.  Look carefully at the deal that is presented.  Is it really valuable to you?  For example, a typical offer the prosecutor may make to every defendant with a DUI charge is that the traffic violation will be dismissed with prejudice.  Is this really a benefit to you?  Can you get more out of a bargain if you wait?

  • What are the policies at play?

A prosecutor is likely under the direction of his or her supervisor, and it is helpful to have the advice of an attorney who knows the prosecutor or the office politics.  Is the prosecutor reluctant or eager to go to trial?  This could determine whether the plea offer gets better or worse as you go along.  Are there restrictions to the prosecutor’s ability to offer you a plea?

  • What sentence is likely under either scenario?

When you are considering a plea vs. trial, you need to know what punishments are likely with each choice.  Make sure you find out all aspects of the prosecutor’s plea.  Don’t just focus on the amount of jail time that will be involved, but also find out what counseling, probation and fines will be included.  Is there a significant difference between the sentence likely under the plea bargain and the sentence likely if you lose for trial?

These are just a few of the many factors that need to be weighed when choosing between a plea bargain and a trial.  Consulting with an experienced criminal defense attorney will typically be helpful to you in making the choice because they can assist in determining the strength of the evidence against you, the extent of advantage the plea bargain really is to you, and the various possibilities for sentencing of the charge if a plea is entered vs. a trial.   

3 Questions You Should Ask Before Hiring a Criminal Defense Attorney

No two attorneys are alike, so you need to take the initiative to ask questions to ensure that the person you will be trusting to represent you is really the right fit for you.  Three questions are essential to discover if this attorney will be the best for you and your case:

  • Do you have the time and experience for this type of case?
  • Time:  Even the best attorney cannot perform well if they don’t have the time resources to dedicate to you.  Make sure that your attorney is comfortable with the time that your case will take and court where your appearances will be made.
  • Experience: If you are facing a criminal charge, you want to confirm that the attorney you are considering has extensive experience in criminal defense.
    • References:  Ask your attorney for references, and follow through to contact the references given.  Find out what advice others have for you about working with this attorney.
  • What strategy do you envision for this case? 
  • Motions, Trial, or Settlement strategy:  Some cases are a good fit for a Motion to Suppress, which basically alleges that the evidence against you should be thrown out because that evidence was obtained by violating your Constitutional rights.  Other cases may be a better fit for trial because the evidence is not sufficient or potential may exist for testimony from witnesses that could help your case.  Other cases might be a good fit for a settlement strategy and sometimes even a cooperation with the prosecution.  There are many good ways to approach a criminal case, so you should find out what this attorney feels is the best approach to decide if that matches up with the approach you had in mind.
  • How will I be billed and what cost should I anticipate?
  • Billing:  Attorneys typical bill with an hourly structure or flat fee.  You will want to find out how you will be billed.  Some attorneys will not give an estimate on the cost of the case, but the more information you can get about the billing, the better you’ll be able to plan.
  • Retainer Agreement:  Many attorneys utilize a retainer agreement, which is just a document that typically outlines what you will pay and what those payments covered.  If you are using a flat fee legal service, you will want to pay particular attention to whether you are billed extra for emails, phone calls, meetings, rescheduled hearings, etc. Under any billing system, you need to look for additional charges for items such as copies, so that you can be prepared for the bills.

Knowledge is power, so take the time to ask these important questions.  Evaluate the answers carefully and do not be afraid to follow up with addition inquiries.  You are the client, which means you are the employer of the attorney for this case, so take the lead in finding out if this person is the right lawyer for you.

3 Ways You Know You Need to Find a New Lawyer

Did you hire an attorney to represent you, and now you are having second thoughts?  Are you wondering how to know if you hired the wrong person?  Here are things to look for when deciding whether you should break ties and find someone new to represent you.  Before you switch attorneys, however, you should always inquire into the retainer and billing and how that change may impact the cost of your case.

1. You Are Not A Priority to This Attorney.  We all know that attorneys have a roster of clients, but every case should be handled with diligence and care.  Take a look at how serious the problem is.  If your attorney is missing hearings or deadlines, then you probably need someone new.  If he or she is consistently late to court, then that is something also to look at.  If your calls or emails are not being returned, then your attorney is not fulfilling their responsibility to communicate with you.  If your attorney talks down to you or pressures you to make a decision you aren’t comfortable with, then those are also signs that you and your attorney may not be a good team.  

2. Your Attorney Doesn’t Know What He or She Is Doing. Even if you were referred to your attorney by a friend or if they are an acquaintance, the relationship is a business one. You have to look out for yourself and make sure that you are being represented by someone who is competent to represent you in this type of case.  Signs to look for:

  • Does your attorney seem to know the system?

Can he or she give you an overview of each step or hearing in your case and what will take place?

  • Does your attorney appear confident?  

Trust your instincts about the level of confidence your attorney displays.   Confidence doesn’t equal competence, but it is one indicator of whether this is your attorney’s first case of this type or 10000th.

  • Does your attorney answer questions?

If your attorney is knowledgeable, he or she will not shy away from questions, but rather, encourage you to ask about anything you don’t know or understand.

Does your attorney know the people?  

Does your attorney seem familiar with other attorneys, court staff, counselors, etc. Professional affiliations are another clue to experience.

3. You can’t Afford Your Attorney. This is a tricky one because the value you get from an attorney is difficult to quantify.  Any attorney is going to be a strain on your budget because divorce, adoption, criminal defense, and so forth are expenses that are unusual and will seem high.  So, the financial discomfort of any attorney is a given and you want someone who is good, which doesn’t come free.  However, some attorneys are better salesmen than lawyers.  Some bill for things that may not be necessary.  Here are some things to look for when deciding if the cost is prohibitive:

  • Are you comfortable with the billing approach?  Would you prefer a flat fee for your case?  Do you prefer hourly?
  • Do you understand the fees and do you understand how to maximize your value? For example, if your attorney bills you a flat fee for every email they read from you, then you may want to consolidate all questions into a short email.  As another example, is your attorney “chatty” such that a phone call will cost you a lot more than email exchanges or is your attorney a bit of a slow writer, such that a call will resolve issues faster than email.  
  • At the end of the day, do you feel like you are getting the full value out of your representation?

Your decision on legal representation should not be taken lightly, as the outcome of your case will impact your life for years to come.  There is no easy answer to whether you should make a change, but the factors to be considered certainly include whether your counsel is giving you the attention you deserve, whether they are competent to represent you in this type of case, and whether you will be able to pay the bill when it’s all said and done.