The Charging Process
You may retain your own private attorney at any time. It is best to retain an attorney who handles routinely handles criminal investigations and prosecutions when you first learn that there may be an investigation. An attorney can advocate your position to the investigating agency and/or prosecutor in an attempt to avoid charges altogether. Unfortunately, you are not entitled to a public defender or appointed counsel until formal charges are brought against you. A private attorney can best represent you during the charging decision process.
It is a common mistake to believe that private citizens (victims) have the power to “press” or “drop” charges. Only the prosecuting attorney’s office has the power to bring criminal charges.
The police do not file charges. In fact, the charges on which a person is booked by the police are not necessarily the charges that will ultimately be charged by the prosecutor.
Although a “victim” can not drop charges, they can (and often do) influence the prosecutors decisions. Direct contact with a person thought of as a victim by the prosecutor can be dangerous and is often not advised. If you have any questions about this, call an attorney.
In a felony case, the client typically retains an attorney to represent them initially through the ‘preliminary hearing’ stage of the proceedings. If the client is held to answer in Superior Court, a separate retainer agreement is typically negotiated.
After formal criminal charges have been brought against the defendant through information or indictment, he or she appears before the court. A defendant on pretrial release must come to court as ordered. If the defendant is in pretrial detention, jail officers will bring him or her to court. If a defendant has not yet been arrested or detained or fails to appear, the judge issues an arrest warrant if that person is not already in custody. A police officer locates the suspect and places him or her under formal arrest.
The defendant will then have a first appearance in court. At this hearing, the defendant is usually represented by an attorney or the judge appoints one. During this brief appearance, a judge will explain the defendant’s rights and the charges in the complaint. The purpose of the first judicial appearance is to ensure that the defendant is informed of the charges and made aware of his or her legal rights.
The defendant is entitle to “Discovery”. Discovery is a process that allows the parties to learn the strengths and weaknesses of each other’s case by, for example, obtaining the names and statements of witnesses the other side intends to call at trial. Because the defendant in a criminal case has certain constitutional safeguards (such as the right against self-incrimination), discovery in criminal cases is far more limited than in the civil context.
In most states, the defense’s discovery power is much broader than the prosecution’s. Some states, including California, have enacted reciprocal discovery laws, which allow the prosecution to ask the same questions of the defense. In all jurisdictions, however, the prosecution is required to produce all exculpatory material (that which is favorable to the defendant or tends to negate his or her guilt).
For felony cases, the next step for defendants will be a status conference with the court and the prosecutor or a preliminary hearing. A preliminary hearing is a separate proceeding that occurs soon after the first appearance. This usually is a brief hearing during which the prosecutor will call only those witnesses necessary to show the judge that a crime happened and that there is a strong likelihood that the defendant committed it. Often there is just one witness, the police officer who investigated the crime or who arrested the defendant. The accused person must be present at the hearing, though the accused does not introduce evidence in his or her defense.
The preliminary hearing serves some of the functions of the grand jury, in that the judge determines whether there is enough evidence to charge the defendant with having committed a crime.
If the judge concludes that the state does not have sufficient evidence to support the charges, the judge will order the charges dismissed. If the judge believes the evidence is sufficient, as is usually the case, he or she may set the amount of the defendant’s bail or if the charge is serious, deny bail altogether, depending upon the nature of the crime and whether the accused is likely to flee.
Bail is money that you provide to ensure that you will appear in court for trial. If you do not have the money to post bail, a relative or friend can post bail on your behalf (or you can go to a bail bondsman, described below). After the trial ends, the court will refund the bail money, usually keeping a percentage for administrative costs.
Bail is set according to a “bail schedule” published by the Superior Court in each County. Many defendants will receive an “own recognizance” release and will not have to post bail.
Sacramento County Felony Bail Schedules can be found through the following links:
Business and Profession Code
Welfare and Institution Code
Health and Safety Code
FOR ANY FELONY OFFENSE FOR WHICH NO PRESUMPTIVE BAIL IS SET FORTH, BAIL IS FIXED AT $5,000.
Bail reduction motions can first be made at the arraignment. There are also other limited opportunities to bring a motion to reduce bail.
Bail is made with a cash or bond. A bond requires a 10% fee to a bondsman and collateral. The 10% is “spent money” and will not be returned. Cash bail is returns, less a small administrative fee, when the case is over. We can help you find a bondsman who will work hard to arrange bail, including payments on their fee, and eased collateral requirements.
The law does not automatically guarantee you the right to be released on bail. If the judge decides that the nature of your crime or other factors make you a danger to the public, the judge is likely to set a high bail amount or, deny bail. Then you would have to remain in jail until a judge or jury decides the case.
The judge also will consider whether you are likely to flee if the court releases you on bail. Points in your favor include strong family ties in the area, longtime local residence, and current local employment. The judge also will consider any negative information that appears about you in a pretrial release report.
If the judge decides bail is proper, the issue then becomes the amount of money that you must post for your release. Your bail may not be excessive (unreasonably high). However, there are no specific guidelines about what the amount of bail should be. Your attorney is permitted to make a request to the judge to reduce the bail or, possibly, set no bail. The term for that is releasing you on your own recognizance (often abbreviated “O.R.” ). This means you will not have to post any bail money. However, you will have made a binding promise to return to court on a date specified by the judge.
If the court grants you O.R. status or releases you on bail, you must reappear in court as agreed. If you do not appear, the judge could revoke your bail or O.R. status. The judge also could issue a bench warrant for your arrest. The police then will find you, take you into custody, and place you in jail. And you will lose your bail money.
For those charged with felonies–assuming the judge has found enough evidence to support the charges–the case is generally then set for arraignment. When defendants appear for arraignment, the charges are read to them, their rights are explained, and they enter their plea. If the defendant pleads not guilty, the court will set a date for the next step in the process–the trial. (The plea of not guilty is often the first step in plea bargaining with the prosecutor.) If the defendant pleads guilty, a date will be set for sentencing, although probation, fines, or other sentences will be determined immediately for some minor crimes.
The vast majority of criminal cases eventually result in pleas of guilty or nolo contendere. Under either plea, you are guilty of the crime originally charged or of a lesser offense agreed to by the parties. Nolo contendere means “I do not contest [the charge].” On the other hand, a guilty plea is a specific admission of guilt. The practical effect is that the nolo plea avoids automatic civil liability. Let us say a nursing home operator is accused of the crime of abusing patients. If the operator pleads guilty, anyone who sues him or her for civil damages will not have to prove that the abuse occurred. However, if the operator pleads nolo contendere, the civil court will have to decide whether the acts alleged took place.
Plea bargains are legal transactions in which a defendant pleads guilty to a lesser charge or pleads guilty to the original charge in exchange for some other form of leniency. The rationale is based on the notion of “judicial economy”-plea bargains avoid the time and expense of a trial, freeing up the courts to hear other cases. The benefit to defendants is that the process is completed much sooner than it would be if they went to trial. Further, defendants are afforded a sense of certainty; they know what the outcome of their case will be, rather than taking their chances at trial.
Generally such offers are more generous in the early stages of prosecution as an incentive to the defendant to bring the case to an early conclusion. In many cases, the prosecution extends such offers at -the time set for the arraignment. Such an early “disposition” of the case tends to be favored by the prosecution, the defense and the judge because it eliminates several additional court appearances that would have been required had the case continued to trial.
In certain cases, the defense would be better off waiting to thoroughly investigate the case and consider a later offer or possible dismissal of the charges. For example, consider the case of a person charged with attempted murder because he allegedly uttered a death threat when he shot someone in the leg. An early offer might be to plead guilty to assault with a deadly weapon, which is a serious felony carrying a sentence of several years. However, after the victim testifies inconsistently at a preliminary hearing, the prosecutor realizes that he or she would not be a credible witness at trial. Rather than risk an acquittal at trial, the prosecutor may offer to plead the case down to a misdemeanor, such as negligent discharge of a weapon.
If you do not accept the offer when the prosecution first makes it, the prosecutor is allowed to reduce or withdraw the offer.
You do not have a right to have the prosecutor negotiate a plea with you or your attorney. However, prosecutors usually will offer a plea bargain to reduce their heavy caseloads. In most jurisdictions, the court has no obligation to adhere to the bargain the prosecution offers, but in many cases the judge will accept the plea if a legal basis for it is established in court.
The judge is under no obligation to accept all terms of the plea bargain. Before accepting your guilty plea, the judge will explain the maximum time to which you may be sentenced and the maximum fine, if any, that may be imposed. That time may exceed the sentencing recommendation of the prosecution, or the judge could impose a shorter term in the interests of justice. If you do not accept at that point, your guilty or nolo contendere plea will not be entered and you will go to trial. Most often, however, the judge will honor the plea bargain reached between the parties unless he or she feels it is unfair.
Plea bargaining has become extremely commonplace. Today approximately 85 to 90 percent of all criminal cases are settled through plea bargains. The process, however, is not without its critics. Some “victims’ rights” groups feel it is immoral for criminals to serve less time through plea bargaining than they would if convicted of actual crimes committed. In response to citizen pressure, some states, such as California, have passed laws severely restricting or even prohibiting plea bargaining in certain serious or violent crimes.
A plea of not guilty must be accepted. However, a judge cannot accept a guilty plea unless he or she ensures that you understand the rights you are giving up and that you are doing so of your own will (free from coercion or threats). In many states, the judge also must determine that there is a factual basis for your plea; in other words, that you actually are guilty of the offense. Should you decide to plead guilty, the judge will ask you a series of questions in open court to ensure that your guilty plea is valid.
Because of our government’s “War on Drugs,” a large number of the cases filed each year involve the possession of narcotics. As a result, a large part of the firm’s practice involves the defense of those accused of possessing or dealing in illegal drugs.
Most drug offenses in the State of California are now felonies. It is still a low grade misdemeanor to possess a small amount of marijuana. However, possession of even the smallest amount of cocaine is a felony crime. Penalties for drug offenses increase based on the activity involved as well as the quantity of drug involved. In other words, it is more serious if you are charged with possessing, say, methamphetamine with the intent to sell the drug than if you are merely charged with possessing the meth for personal use.
Manufacturing, (labs) possession of drug precursors, and transportation or other trafficking charges are very serious, and can result in lengthy prison sentences.
Government agents have sometimes been known to shade the truth or lie to get results in narcotics cases. Sometimes aggressive defense tactics must be used to reveal such conduct, or attack a search warrant.
Often there is only one viable defense to an accusation of drug possession or trafficking – a motion to suppress evidence, based on the 4th Amendment, arguing that the search that led to the discovery of the drugs was illegal.
Drug Diversion programs, commonly called “1000 PC” for the penal code section that defines the law, may be available to first offenders. This results in the eventual dismissal of charges after an education program, and does not result in a criminal conviction.
Residential drug treatment programs can, in certain cases, be substituted for jail. Drug cases of all types are serious, and a creative approach to them is beneficial to clients.
Sometimes an arrest can be the start of real rehabilitation for those with chemical dependency problems; we have often turned a negative contact with the criminal system into a positive new beginning for our clients
Domestic Violence Cases
If you have been arrested for or charged with a Domestic Violence or Spousal Abuse type of offense, you need to consult with an experienced criminal defense attorney right away.
Bail is usually set high for these charges and we can assist in bail, bail reduction or an “OR” release- posting of no bail. We can be reached 24 hours by phone at our main number by voicemail, or by e-mail.
These crimes are aggressively prosecuted, and even if the victim tells the court and prosecutor they do not wish to “press charges” the case WILL NOT be dismissed. Jail time is routinely sought even in first offense or non-injury cases.