If you have been arrested or believe that you are under suspicion in a criminal case, you may want to consult with a criminal defense attorney. In criminal law, the government may charge a person with a criminal offense and the assigned prosecutor must prove the case beyond a reasonable doubt. Generally, the District Attorney’s office (DA) and their prosecuting attorneys represent the People of the State of California and will issue a criminal complaint against the person charged with the crime, known as the defendant. In San Diego County, the DA will issue felony complaints but misdemeanor complaints within the limits of the City of San Diego will be handled by the City Attorney’s office.  The DA’s Office will issue misdemeanor complaints elsewhere in the County.

A person charged in a criminal case is presumed innocent unless and until proven guilty.  The prosecuting agency bears the burden of proving guilt beyond a reasonable doubt, which is defined in publicly available jury instructions. Not every person arrested will be charged with a crime and it is up to the prosecuting agency to decide if there is compelling evidence to issue a criminal complaint.  Internal prosecution policies will be consulted in conjunction with a review of the evidence to determine if charges will be issued. Usually, the DA will decide if there is sufficient evidence to prove guilt beyond a reasonable doubt.  This is higher than the standard for arrest by a police officer, which is probable cause.

Criminal offenses are generally categorized based on the punishment that may be imposed for the offense, and only some offenses require top criminal defense attorneys. The lowest levels are called infractions, sometimes called minor or petty offenses, which are punishable by a fine or summary probation and do not necessitate hiring a criminal law attorney so long as you are not facing actual custody, in which case a lawyer is constitutionally required. Summary probation is informal and does not require reporting to the Probation Department. Most traffic tickets and numerous other citations are infractions.

Misdemeanor
These are offenses generally punishable with incarceration in local custody (jail) for up to 365 days and fines up to $1,000, not including attorney  fees and court costs/assessments. Punishment may include probation, either summary (to the court) or formal (reporting to a probation officer), and other court ordered programs such as custody or volunteer work, Alcoholics Anonymous (AA) classes, Narcotics Anonymous (NA) classes, anger management classes, stay away/restraining orders, restitution, etc. Common crimes such as prostitution, petty theft, vandalism, first offense DUI/DWI, and domestic violence may be charged as misdemeanors.

Felony
This is a crime that carries a possible punishment of incarceration in a state prison (or, in California, local jail) for more than one year up  to life in prison or even the death penalty. When charged with a felony,  it is critical to consult with a criminal defense attorneys Serious crimes such as rape, robbery, possession of drugs for sale, second or third offenses of drunk driving, arson, kidnapping and murder are classified as felonies. Felony convictions, whether they result in a prison term, may be chargeable as enhancements when new offenses are committed. Additionally, a felony may be classified as violent or serious, in which case it might qualify as a “strike” under the “3 Strikes” sentence enhancement laws.

• Motion to Dismiss: This is a formal request for a court to dismiss the case, which could apply to a settlement between parties, a voluntary withdrawal of the complaint, or issues with jurisdiction.
• Expunge Criminal Record: An expungement occurs when a judge grants the individual the right to have their conviction set aside and limits their use in future proceedings.  Your record is not sealed, and the public can learn that your charges were dismissed pursuant to the statute.
• Petition for Declaration of Factual Innocence: In contrast to an expungement, if a Judge finds, after a hearing, that your arrest was conducted without probable cause, he or she can seal your records and direct they be scrubbed from state or federal repositories.

  • Petition for Certificate of Rehabilitation and Pardon: A pardon (or sentence commutation) is an act of grace from the Executive Branch.  Before asking the Governor for a pardon, the interested party must seek a Certificate of Rehabilitation from the court. The granting of a pardon restores the individual’s civil and political rights. The issuance of a Certificate of Rehabilitation merely entitles you to represent that in the eyes of the Court you have redeemed yourself.

Criminal sentencing guidelines apply to prescribed sentencing formulas set forth in the Penal Code. When judges impose a  criminal sentence, they look to these guidelines as a way to determine the most appropriate punishment for the crime.

In order to protect your right to remain silent and render it meaningful, the Supreme Court has created the Miranda rule.  Most people have heard about Miranda Rights. When a person in the United States is deemed in custody and subjected to custodial interrogation, their statements are inadmissible unless they have been clearly explained and clearly waived. The prescribed Miranda warning is as follows:

• You have a right to remain silent. Anything you say can and will be used against you in a court of law.
• You have a right to an attorney.
• If you cannot afford an attorney, one will be appointed for you.

Although the wording can vary slightly, this entire message must be conveyed.  If a person does not understand English it must somehow be read to them in the language they understand.

To invoke your Miranda rights, you should simply say “I wish to exercise my right to remain silent and demand that I be allowed to speak to a lawyer prior to any questioning.” Booking questions do not constitute interrogation for Miranda purposes. Nor does the taking of photographs or fingerprints

A detention, such as a traffic stop, is not deemed custody for Miranda purposes so the officer need not read you your Miranda rights before asking you about the offense. Further, a failure to provide Miranda warnings does NOT result in dismissal of the charges. If your Miranda rights have been violated, and you make a statement, the Court will exclude that statement from evidence at your trial, but the case can still be prosecuted if there is sufficient independent evidence.

Nor does Miranda mean the police will call a lawyer for you right away. At the time of arraignment in court, a person is entitled to bring a private attorney or advise the court that they cannot afford an attorney, but they want to have an attorney assigned to their case. At this time, the Court will appoint an attorney from one of the following offices that the County of San Diego has designated to represent indigent clients:

• Public Defender (PD)
• Alternate Public Defender (APD)
• Multiple Conflicts Office (MCO)
• Office of Assigned Counsel (OAC)

Once a person receives a notice from the Court concerning an infraction, they may appear on or before that date either in person or by hiring an attorney who can appear for you. Some cases may be resolved without an appearance by a process called bail forfeiture (this is an amount of money posted to satisfy payment for the crime).

Some crimes (called wobblers) may be charged as an infraction or a misdemeanor or a felony at the discretion of the prosecutor and/or court, depending on the facts of the case and the specific statute under which you are charged.

If a person fails to appear, a warrant will be issued for their arrest! There may be occasions where an attorney will appear on behalf of a defendant and have a good excuse why their client isn’t present, and they may get a continuance. Sometimes the judge will issue a warrant and hold it pending a future appearance, ordering the attorney to produce their client at that time or the warrant will be executed.

A warrant may also be issued at other times during criminal proceedings for failure to comply with court orders such as paying fines, doing volunteer work, reporting for custody, or attending treatment programs.

When appearing in Court, a person who is out of custody should bring the following:

• A case number if available;
• citations or courtesy notices;
• receipts for bail bonds or cash bail;
• personal identification;
• money;
• cash; and/or
• checks or charge cards to pay fines.
   

Young children should not be brought to the courtroom, but each courthouse has a children’s waiting room for parents unable to provide child care at home. Weapons, drugs, food, gum, should not be brought into court.

Court Trial vs. Jury Trial
Defendants in criminal cases (misdemeanor or felony) are entitled to have a jury of their peers decide their guilt or innocence. Therefore, defendants need to decide whether to pursue their right to a jury trial (where the jury decides if the defendant is guilty or not) or to have a court trial (where the judge decides).

There may be circumstances where a defense attorney will recommend a court trial. Misdemeanor cases are prosecuted similar to felony cases but have fewer steps. For a detailed explanation of the court process in Misdemeanor and Felony cases, visit the following website:
http://www.sdcourt.ca.gov.

A felony conviction may carry a determinate sentence (specific number of years) or an indeterminate sentence (such as 15 years to life). Probation may also be an option.

Sometimes a person convicted of a felony will have prior cases or be sentenced on more than one case at a time. These felony cases may be ordered to be served concurrently (at the same time) or consecutively (meaning one sentence is served at the completion of the other sentence). 

Example of Felony Conviction and Sentencing Terms: PC211. Robbery in the first degree is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. It may result in probation or 3, 6, or 9 years in state prison. In addition, a person who uses a gun will be given an additional term if the allegation of gun use is found to be true.

In California, there is also a legal provision in the Penal Code for persons convicted of a new offense after having two prior serious or violent felonies, called the Three Strikes Law.

The Three Strikes Law was created to require the Courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious or violent criminal offense on three or more separate occasions.

What is Restitution?
Victim restitution (a payment of money for the loss experienced by the victim) may be available to a crime victim from a defendant if the defendant is found guilty of a crime.

The prosecuting attorney’s office will work with crime victims to determine the appropriate amount of money they may request through the criminal case. Additionally, the District Attorney’s office has a Victim’s Restitution Unit and may provide emergency funding to cover immediate losses if a family or person cannot wait until the case is resolved.  Restitution shall be ordered as a part of the sentence imposed.