| The Anatomy of a Criminal Case and ARREST. | | | | robbery, burglary, murder, rape and weapons charges. |
| The person suspected of committing a criminal act is | | | | YOU MUST APPEAR IN COURT WITH US IF YOU |
| arrested. | | | | ARE CHARGED WITH A FELONY.4 You can do |
| If the target person is not immediately arrested, that | | | | state prison time for all felonies. Statutorily, or by law, |
| doesn't mean that he or she won't be. It means that | | | | each felony holds three possible state prison terms, |
| the police are continuing to investigate the incident and | | | | low, mid and high term. For example, in a voluntary |
| are trying to obtain sufficient evidence to arrest the | | | | manslaughter case, the possible state prison terms are |
| target person. | | | | 3, 6 and 11 years. In a first degree burglary case, the |
| RELEASE. | | | | possible state prison terms are 2, 4 and 6 years. |
| After arrest, the police can release a person O.R., on | | | | ENHANCEMENTS: |
| their own recognizance, in which case bail does not | | | | These are further allegations by the prosecutor that |
| have to be posted, or they can release him or her | | | | serve to increase the period of custody time above |
| after the bail amount set is posted. | | | | and beyond the statutory low, mid and high terms. |
| BAIL AMOUNT. | | | | Examples of enhancements are membership and |
| There is a bail schedule setting bail amounts for each | | | | acting in furtherance of a criminal street gang, having a |
| offense. For example, a felony domestic violence bail | | | | prior prison term and causing great bodily injury. |
| is $50,000. A misdemeanor DUI bail amount is $5,000. | | | | The first appearance after arraignment in a felony |
| When setting bail, the judge must assume that all of | | | | case is called different things: |
| the allegations against the person in custody are true. | | | | EARLY DISPOSITION CONFERENCE/ |
| However, bail amounts must be constitutionally | | | | PRE-PRELIMINARY HEARING. |
| reasonable. | | | | This appearance is similar to the misdemeanor pretrial |
| ARGUING FOR AN O.R. RELEASE. | | | | conference. We speak to the prosecutor about the |
| In urging the court to release our client O.R., we argue | | | | weaknesses in the prosecutor's case, to amplify the |
| that our clients have strong ties to the community, that | | | | reasonable doubt standard that applies to all of our |
| they have hired us to assist them through the process, | | | | clients. We speak to them about factors in mitigation, |
| that they are not a flight risk and will appear at each | | | | for example, a history of drug use, alcohol abuse, |
| and every court appearance set. If the judge does | | | | mental health issues, tough family situations, marital |
| release our client O.R., the judge can attach terms and | | | | discord. We talk to the prosecutor about things that |
| conditions of that release. | | | | our client may have done after the triggering event, like |
| THE POLICE WRITE A REPORT. | | | | attendance at a drug and alcohol rehabilitation center, |
| After a triggering event, the police agency writes a | | | | AA, NA, CA and MA meetings, payment for any |
| report regarding the incident. | | | | damages caused and the like. We give the prosecutor |
| ATTEMPT TO PREVENT. | | | | character reference letters written by family, friends, |
| In the event that the target person is not immediately | | | | employers, employees and others with personal |
| arrested, we can be hired at this point while the | | | | knowledge of our client. There may be several early |
| investigation is ongoing to try to attempt to prevent a | | | | disposition conferences or pre-preliminary hearing |
| criminal filing against him or her in criminal court. We do | | | | appearances set throughout the case. |
| this by trying to obtain sworn declarations of people | | | | THE PROBATION REPORT. |
| having knowledge of things which tend to exonerate | | | | In felony cases, our client, usually accompanied by us, |
| our client or mitigate the situation in some way and by | | | | attends a probationary interview with a state probation |
| submitting any and all other evidence of mitigation, for | | | | officer. This interview includes the probation officer |
| example, attendance at meetings and programs and | | | | taking an in-depth factual inquiry which goes to the |
| efforts taken after the event to right things and | | | | question of whether or not our client is suitable for |
| character reference letters. | | | | probationary supervision. This is clearly the goal in |
| THE POLICE SUBMIT THEIR REPORTS TO THE | | | | felony cases. Most often, our client does not discuss |
| PROSECUTOR. | | | | the facts of the case with the probation officer. When |
| After the investigation into the situation is complete to | | | | we go to court after our probation interview and pick |
| their satisfaction, the police agency submits their | | | | up the actual written probation report, we want to see |
| findings to the prosecutor who is in charge of deciding | | | | that the probation officer whom we met with |
| whether or not to file the case against our client in | | | | RECOMMENDS PROBATION and not state prison. |
| criminal court. The prosecutor reviews all materials | | | | THE PROSECUTOR'S OFFER. |
| relevant to the event and makes a decision as to | | | | The prosecutor makes an offer to settle the case. |
| whether or not they feel that they can prove a criminal | | | | This is typically the best offer that is extended by the |
| count or counts against our client. The prosecutor must | | | | prosecutor in a felony case before preliminary hearing |
| keep in mind here the standard that applies to all | | | | (discussed below). |
| criminal cases: CAN THEY PROVE OUR CLIENT | | | | OUR COUNTER OFFER. |
| GUILTY BEYOND A REASONABLE DOUBT? They | | | | Many times in felony cases, our counter offer will |
| also need to remember that a unanimous jury is | | | | include a request to reduce the charge from a felony |
| required to convict our client: twelve members of the | | | | to a misdemeanor. If the prosecutor is set on a prison |
| community selected by process of elimination through | | | | offer, we may make a counter offer for a ninety day |
| peremptory challenges by both the prosecutor and the | | | | diagnostic study so that we can have another |
| defense must all find guilt beyond a reasonable doubt. | | | | opportunity at a probation recommendation. |
| EVEN ONE JUROR WHO DOES NOT FIND THAT | | | | HIGHER UPS. |
| THE REASONABLE DOUBT STANDARD HAS | | | | Again, if we feel it necessary and appropriate, we |
| BEEN MET MEANS THAT OUR CLIENT IS NOT | | | | meet with a higher up prosecutor to see if we can get |
| GUILTY and a hung jury is declared. | | | | a better offer extended. |
| INFORMAL PROSECUTOR OFFICE HEARING. | | | | PRELIMINARY HEARING. |
| There are cases where we are able to convince the | | | | In situations where circumstances prevent resolving |
| prosecutor to hold an informal hearing in their offices | | | | the matter early, we proceed to preliminary hearing. |
| instead of filing a criminal case against our client in | | | | Preliminary hearing is a long proceeding wherein the |
| criminal court. Typically in these hearings the | | | | prosecutor calls witnesses to testify in court about the |
| complaining witness, our client and we are present with | | | | event. AT THIS PROCEEDING, THE ACTUAL |
| the prosecutor. After an informal discussion of the | | | | COMPLAINING WITNESSES DO NOT NEED TO |
| event, our client is most often released with no penalty. | | | | APPEAR TO TESTIFY. Under Proposition 115, the |
| ARRAIGNMENT. | | | | prosecutor only needs to call the police officers who |
| This is the first court appearance in all criminal cases. | | | | investigated the event to testify. However, at the |
| The discovery, or the documents in the prosecutor's | | | | actual trial, the complaining witnesses themselves need |
| possession that relate to the case is turned over to us | | | | to come into court and testify. |
| at this proceeding. A "NOT GUILTY" plea is entered at | | | | THE JUDGE'S DECISION. |
| arraignment except in extremely rare situations. 2 | | | | At the end of the preliminary hearing, the judge makes |
| MISDEMEANORS. | | | | a determination as to whether or not there is enough |
| Misdemeanors are "low grade" offenses, petty theft, | | | | evidence to hold our client to answer to any or all of |
| DUI, driving on a suspended license and possession of | | | | the charges against him or her. The standard of proof |
| less than an ounce of marijuana are examples. You | | | | at a preliminary hearing is not beyond a reasonable |
| can do county jail time for all misdemeanor offenses, | | | | doubt. The prosecutor must show instead that there is |
| ranging from ninety days to one year in the county jail. | | | | a STRONG SUSPICION that our client is the person |
| WE CAN APPEAR FOR YOU IN MISDEMEANORS | | | | who committed a crime or crimes. We fight at every |
| pursuant to Penal Code section 977(a): YOU NEED | | | | twist and turn during preliminary hearing. If the judge |
| NOT APPEAR IN COURT.3 However, we will let you | | | | does not believe that the strong suspicion standard is |
| know if we think that your appearance will be helpful in | | | | met, the matter will be DISMISSED. If the case is |
| some way. | | | | dismissed, the prosecutor has the option to re-file the |
| PRETRIAL CONFERENCE. | | | | case against you or to drop the case entirely. |
| The pretrial conference is set about a month after | | | | MOTION TO REDUCE. |
| arraignment. At a pretrial conference, we conference, | | | | During argument after preliminary hearing, if |
| or discuss, the case with the prosecutor. We speak to | | | | appropriate, we can make a motion under Penal Code |
| the prosecutor about the weaknesses in the | | | | section 17(b) to reduce the charge or charges from |
| prosecutor's case to amplify the reasonable doubt | | | | felonies to misdemeanors. |
| standard that applies to all of our clients. We speak to | | | | ARRAIGNMENT. |
| them about factors in mitigation, for example, a history | | | | If the judge finds that a strong suspicion does exist |
| of drug use, alcohol abuse, mental health issues, tough | | | | and our client is held to answer after preliminary |
| family situations, marital discord. We talk to the | | | | hearing, he or she will set the matter for another |
| prosecutor about things that our client may have done | | | | arraignment. Again, we typically plead "NOT GUILTY" |
| after the triggering event to rehabilitate him or herself, | | | | at this appearance. |
| like attendance at a drug and alcohol rehabilitation | | | | PRETRIAL CONFERENCE. |
| center, AA, NA, CA and MA meetings, payment for | | | | Then the matter proceeds to pretrial conference. The |
| any damages caused and the like. We give the | | | | same applies here that has been discussed above and |
| prosecutor character reference letters written by | | | | again, there may be several pretrial conferences |
| family, friends, employers, employees and others with | | | | before trial. |
| personal knowledge of our client and his or her life | | | | YOUR DECISION. |
| situation and character traits. There may be several | | | | At the "end of the road," when we have gone |
| pretrial conferences set throughout a misdemeanor | | | | absolutely as far as we can in your defense, the |
| case. | | | | discovery process is complete and the prosecutor has |
| DISCOVERY. | | | | extended its best offer, you have a decision to make. |
| After a review of the initial documentation that the | | | | WILL YOU RESOLVE THE CASE SHORT OF |
| prosecutor provides to us at your arraignment, we | | | | TRIAL THROUGH A PLEA BARGAIN OR WILL |
| may find that there are holes in their case that we | | | | YOU GO TO TRIAL? We will guide you throughout |
| need more information on. It is the prosecutor's duty to | | | | this process and be very straight and honest with you |
| provide any and all information that can help our client. | | | | in terms of the likelihood of success at trial and our |
| To this end, we write the prosecutor a letter under | | | | opinion as to the best course of action based upon all |
| Penal Code section 1054. This is an informal letter | | | | of the facts and circumstances at hand. |
| requesting additional items of information that we | | | | TRIAL. |
| require to defend you throughout the case. For | | | | There are two types of trial, a court trial and a jury |
| example, if the police report says, "ambulance number | | | | trial. YOU HAVE THE CONSTITUTIONAL RIGHT TO |
| 53 responded to the scene (ambulance incident report | | | | GO TO TRIAL. This is true in both misdemeanor and |
| number 2008-99-66432)," our request to this would be | | | | felony cases. A court trial is a trial where the only |
| that the prosecutor provide us "any and all reports, | | | | decision maker is the judge: the judge listens to all of |
| notations and recordings in any form, with regard to | | | | the evidence and decides if there is proof to show |
| ambulance number 53's incident report number | | | | your guilt beyond a reasonable doubt. A jury trial is |
| 2008-99-66432." | | | | where twelve members of the community are |
| There are also times when we seek information | | | | selected to listen to all of the evidence and to decide |
| without the prosecutor's assistance directly through the | | | | guilt or innocence. |
| agency that we believe holds the documentation that | | | | NOT GUILTY. |
| we seek: for example, subpoenas to a casino for | | | | This is obviously what we want to hear the clerk of |
| video surveillance tapes or to a hospital for medical | | | | the court pronounce when reading the verdict forms |
| records. | | | | at the end of trial. The case is then DISMISSED and |
| THE PROSECUTOR'S OFFER. | | | | our client is DISCHARGED. |
| The offer is an offer to settle the case short of going | | | | GUILTY/SENTENCING. |
| to trial. The offer is to plead guilty or no contest to a | | | | After this pronouncement, either our client is sentenced |
| particular charge with particularized and statutory | | | | immediately or a date is set in the future for |
| terms and conditions of probation. | | | | sentencing. If there is no legal cause why judgment |
| OUR COUNTER OFFER. | | | | should not be pronounced, the judge imposes |
| Perhaps right after the prosecutor's offer or, more | | | | sentence, either probation with terms and conditions or |
| likely, on a future pretrial conference court date, we | | | | state prison. |
| make a counter offer if appropriate. For example, in a | | | | APPEAL. |
| DUI case where the breath test results are .09, .10, and | | | | This is a plea to a higher court, the Court of Appeal, to |
| the prosecutor's offer is to plead no contest to a | | | | overturn the conviction and/or sentence of the lower |
| standard DUI, we may make a counter offer for a no | | | | court, the trial court. An appeal is a lengthy, |
| contest plea to a reduction to a DUI charge, a "wet | | | | labor-intensive process and we can be hired |
| reckless" for example, or even a dry reckless or two | | | | separately for the handling of an appeal. |
| traffic tickets. If the prosecutor wants a plea to a petty | | | | NOTES. |
| theft, we may propose a counter offer for a disturbing | | | | 1 We cannot and will not guarantee any particular |
| the peace or a trespass charge. | | | | result in a criminal case. The following outline is for |
| HIGHER UPS. | | | | informational purposes so that you understand the |
| If the prosecutor in court is unreasonably inflexible and | | | | generalities of the structures and proceedings that we |
| we feel it appropriate, we will schedule an in person or | | | | see every day in our practice of criminal defense law. |
| a telephone meeting with a higher up prosecutor to get | | | | 2 An example of such a rare case: our client is only |
| a second opinion and to try to get the higher up to | | | | charged with a first offense DUI when we know that |
| authorize a plea agreement consistent with our | | | | he or she actually has three prior DUIs within the |
| counter offer. | | | | relevant ten year time period. |
| YOUR DECISION. | | | | 3 There are certain exceptions to this: for example, for |
| At the "end of the road," when we have gone | | | | an arraignment on a domestic violence case, our client |
| absolutely as far as we can to achieve the best | | | | must appear with us. And there are times when the |
| possible proposed resolution, the discovery process is | | | | judge orders that you are present for some hearings. |
| complete and the prosecutor has extended its best | | | | 4 There is a document called a WAIVER OF |
| offer, you have a decision to make. WILL YOU | | | | PERSONAL APPEARANCE under Penal Code |
| RESOLVE THE CASE SHORT OF TRIAL | | | | section 977B which is applicable in felony cases and |
| THROUGH A PLEA BARGAIN OR WILL YOU GO | | | | we can in certain circumstances ask the judge to |
| TO TRIAL? We will guide you throughout this process | | | | allow us to appear in court for you. This waiver has |
| and be very straight and honest with you in terms of | | | | limitations, though, and even if the judge allows the |
| the likelihood of success at trial and our opinion as to | | | | waiver, you must appear for your arraignment and all |
| the best course of action based upon all of the facts | | | | other significant court appearances like the preliminary |
| and circumstances at hand. | | | | hearing, the taking of a plea and other proceedings |
| FELONIES. | | | | during which someone testifies under oath. |
| Felonies are "high grade" offenses. Examples are | | | | LET US PROTECT YOUR RIGHTS! |