Questions?: Southern California Criminal Law

FREQUENTLY ASKED QUESTIONS: CRIMINAL LAW

Q: Do I really need a lawyer?

A: Yes, without a doubt. While it is true that in some routine cases a lawyer cannot get a better "deal" than a person representing themselves and pleading guilty can, this is a very dangerous business. See "What a Good Criminal Defense Lawyer Does", from nolo.com.

There are many potential legal issues even in the most straightforward misdemeanor criminal case. If there is a problem with evidence, a search and seizure issue, or issues with the calibration of a breath test machine in a DUI, such information will never come forward without the assistance of an experienced criminal attorney.

Of course, in some cases there are no difficulties at all with the Prosecution’s case, and the defendant eventually must plead. However, before a plea is entered every possible avenue should be explored as to legal and technical defenses. An experienced criminal lawyer can often work out creative settlements that a person with no legal background, or even an attorney without experience in the criminal field, simply cannot do.

Q: I am concerned about going to jail. Are there options?

A: The answer is yes, there usually are options. In some serious cases jail may be the only alternative, but in most first offense misdemeanor crimes, and in many felonies, there are alternatives to actual incarceration. Many first offenders will not be at risk for jail time if the case is handled properly.

Public works programs such as Cal Trans or other community service type labor programs are a real alternative in most Southern California counties to jail. Also, certain drug rehabilitation programs can be an alternative, and have the benefit of providing treatment to persons with chemical dependencies.

Electronic monitoring, commonly called "house arrest" is also available in several Southern California counties. If you have a stable employment and residential history, electronic monitoring is an excellent alternative to jail. The electronic monitoring program allows you to keep your job, live at home, and still go to work while "serving" a jail sentence.

Again, only an experienced criminal attorney can make sure that these options are available to you, and can craft resolutions to your matter that maximize the chances of you being placed into one of these alternative programs, rather than jail.

Q: What is the difference between an infraction, a misdemeanor, and a felony?

A: In California, there are three (3) types of criminal offenses; they are defined as follows:

Infraction: An infraction is a minor offense such as a traffic violation, and can only be punished with a fine.

Misdemeanor: A misdemeanor is a criminal offense that can be punished by up to one (1) year in jail, a fine of $1,000 or both. Examples of misdemeanors are such things as DUI without injury, petty theft, battery, and disturbing the peace.

Felony: A felony is a more serious criminal offense. Felonies carry with them the possibility of a fine of up to $10,000.00 as well as incarceration in the State Prison system for many years. Numerous felonies require registration as narcotics or sex offenders and carry with them severe disabilities in future life.

Q: What is an arraignment?

A: An arraignment is the first appearance in Court for a misdemeanor or a felony. At the arraignment the defendant is formally charged, notified of what the charges are, and provided with initial discovery materials which consist of police reports, lab reports, witness statements and the like. At arraignment the prudent thing to do is to plead "not guilty". There is a common misconception that pleading not guilty at an arraignment may anger the Judge presiding over the case. This is (usually) not true. If charged with any sort of misdemeanor or felony offense, a not guilty plea and consultation with an experienced criminal attorney are absolutely necessary.

Q: What can I expect in a misdemeanor case?

A: Misdemeanors, as well as felonies, begin with the arraignment. Then, depending upon the facts of the case, there can be a number of pre-trial conferences in which a negotiated settlement is attempted, or there may be motions to suppress evidence filed, or discovery motions to force the Prosecutor’s office to either dismiss the case or produce additional evidence which may be exculpatory.

The case can then proceed to negotiated resolution or jury trial depending on the facts of the case and the wishes of the defendant. In most cases, the case will not go to trial. Over 90% of criminal cases are resolved without a jury trial, and often this is in the best interest of the defendant.

Q: What about a felony?

A: A felony is much more complex than a misdemeanor. There is an initial arraignment in the Municipal Court, followed by what is called a Preliminary Hearing. A Preliminary Hearing is a mini-trial in which the Prosecution must convince the Municipal Court Judge or Magistrate that sufficient evidence exists to "hold a person to answer" for a felony offense in the Superior Court. In today’s environment, persons are almost always held to answer in the Superior Court, unless there is a glaring deficiency with the Prosecution’s case.

After the Preliminary Hearing, there is another arraignment in the Superior Court. Then there are similar steps as mentions in misdemeanors above, such as pre-trial conferences, motions for discovery or suppression of evidence, trial readiness conferences and then eventually (perhaps) a trial. Again, most felony criminal cases settle without a trial.

DISCLAIMER:

Please be advised that the above information is given only as a general guideline and is not meant to provide legal advice or substitute for the consultation with an attorney. Additionally, no representations or guarantees are made regarding your case. Each case is different and results depend upon the facts of each case.