Criminal Law Information
Criminal law offers a maze of foreign procedures, concepts, and language. This page is intended to provide an overview of California criminal law and procedure. It is not intended to replace an attorney or the large body of work available on California criminal law.
A crime may be either a felony or a misdemeanor. Generally, a felony is a crime for which the punishment may include prison. A misdemeanor is a crime which does not result in a prison sentence.
While most crimes provide either an express declaration of classification, or impose sentences which make the crime conclusively either a felony or misdemeanor, other crimes may be either one of a felony or misdemeanor. The latter are called "wobblers" in the criminal courts. Wobblers have statutory penalties which give the alternative option of either prison or jail/fine. An example is a so called "felony drunk driving," VC 23153, which can actually be either a felony or a misdemeanor.
The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor after the original sentencing, in certain cases.
There are six (6) pleas available to a criminal defendant in California . The pleas of "not guilty," "guilty," and "nolo contendere" are the three (3) commonly encountered. The usual practice is for the defendant to plead "not guilty" and then either negotiate terms of a different plea, or proceed to judgment.
The six pleas are:
Both felonies and misdemeanors start with a procedure called an arraignment. After that, they have less in common.
The arraignment ostensibly is to advise the defendant of the charges against him and to give him an opportunity to plead. A defendant pleading "not guilty" will be given certain options at arraignment, including whether to assert his speedy trial right. A case wherein the defendant is not asserting his speedy trial right, will be referred to in the system as a "time waived" case.
In felony cases, the defendant must personally appear at all hearings unless the court waives the requirement. Defendants charged with a misdemeanor, represented by counsel, are not required to personally appear.
After arraignment, the case will usually be set for a hearing called a "pretrial" or equivalent. This proceeding is similar to a civil settlement conference. A misdemeanor will usually proceed from pretrial directly to trial.
A felony usually requires a "preliminary hearing" at some point following the arraignment unless waived by the defendant. The preliminary hearing is an evidentiary hearing to determine if the evidence is sufficient to support further felony prosecution on the felony charges. A victim will often testify at the preliminary hearing. On sufficient proof, the defendant is then "held over". After being held over, the defendant is arraigned again and set for trial.
As with civil proceedings, during the course of the proceedings, various motions and other procedures can intervene.
Criminal cases tend to be more oriented toward oral pleadings than civil cases. This has caused the language of lawyers and judges within the criminal system to evolve into abbreviated terms, giving criminal proceedings a language of their own. The following is a nonexclusive list of the more common references:
"Arbuckle Waiver" - Where the defendant waives his right to be sentenced before the same judge who accepted his plea.
"Bottom" - Opposite of "Top." The defendant will not be sentenced to less than a specified amount of time in exchange for a plea.
"Bullet" - One year in jail.
"Concurrent Punishment" - The defendant receives punishment of more than one form, or on more than one case, at the same time.
"Consecutive Punishment" - The defendant receives various punishments added onto each other.
"Deuce" - A DUI.
"Harvey Waiver" - Permits Court to consider dismissed counts in sentencing.
"Hitch" or "Trombetta" or "Youngblood Motion" - These three all refer to a motion claiming the prosecution failed to preserve scientific evidence.
"Johnson Waiver" - The defendant waives the maximum jail sentence, permitting a jail sentence in lieu of prison.
"Marsden Motion" - A motion made by the defendant claiming he is not being represented adequately.
"Major Mover" - Indicates a driving related misdemeanor.
"Mover" - Indicates a driving related infraction.
"Pitchess Motion" - A motion by the defense to review the personnel/complaint records of the arresting officer.
"Time Waived" - The defendant has given up some right for something to happen in a specified period.
"Top" - An offer by the court to not sentence the defendant in excess of a specified length of time in exchange for a plea.
"Wobbler" - A crime which may be either a felony or a misdemeanor.
"977" - The court has waived the requirement the defendant be present in felony cases.
"995" - A motion to dismiss.
"1538.5" - A motion to suppress evidence illegally gained.
Upon conviction, judgment is imposed and the defendant is sentenced. For misdemeanors, sentence is to be imposed in "not less than six hours, nor more than five days" after conviction.
These time constraints with respect to imposing sentence are routinely waived by the defendant.
For felonies, the court usually orders a probation report prior to sentence. Probation reports are rarely ordered in misdemeanor cases.
Probation and Parole
Probation is "the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community . . ."
Every misdemeanant, and most felons are eligible for probation. Certain felons are excluded for public policy reasons, subject to a showing of "unusual" facts.
Probation and parole are sometimes confused. Parole refers to the conditional release of a prisoner before the date set for his release from incarceration. Parole may be granted at both the county jail and state prison levels.
With certain exceptions, under Penal Code Section 1203.4 and 1203.4a, a defendant may have his record expunged after his probation period has expired, so long as the defendant did not violate probation and is not facing any new charges or is not serving time for, or on probation for any new offenses at the time of application.
By the terms of the statutes, the defendant "shall thereafter be released from all penalties and disabilities resulting from the offense . . . and conviction set aside, and the charges dismissed." Penal Code Section 1203.4. Despite the broad language of the statute, the courts have interpreted the effect of expungement narrowly.
It is important to understand the distinction between criminal proceedings and juvenile proceedings. Juveniles are not convicted of crimes. The proceedings in which juvenile charges are handled are civil proceedings, not criminal.
In every criminal case, the court may order restitution for the victim's out-of-pocket losses and other damages. You have a right to an attorney and formal hearing to determine the amount of restitution and whether or not you can afford to pay it.
Bench Warrants / Arrest Warrants
Our attorneys may be able to have your warrant recalled by the court, allowing you to avoid incarceration and/or the need to post bail and be remanded into custody. We also handle motions to modify sentences after judgment, including motions to reduce a felony to a misdemeanor and expungements to dismiss charges and cleanse your record.
We also defend clients on charges of assault, battery, theft, and fraud. We are experienced at filings motions to modify sentences after judgment, including Penal Code § 17 and Penal Code § 1203.4.
NOTICE: This general information sheet is not intended to guide you in the defenses of your particular case or provide legal advice as to your particular case. Each case is different. For legal advice on the particulars of your case, you should consult an attorney. To speak to an experienced attorney please contact Roberts & Elliott, LLP at 1-408-275-9800
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Roberts & Elliott, LLP
Phone: (408) 275-9800
Our criminal defense attorneys at Roberts & Elliott, LLP defend clients throughout California's South Bay area and Silicon Valley, including the cities of San Jose, Fremont, Oakland, Hayward, San Mateo, Redwood City, San Francisco, Santa Clara, Campbell, Cupertino, Sunnyvale, Mountain View, Los Gatos, Gilroy, Morgan Hill, Milpitas, Palo Alto, Pleasanton, Livermore, and Hollister charged with a crime. Our experienced criminal defense lawyers also defend clients throughout the following California counties charged with a criminal offense: Contra Costa County, Alameda County, San Francisco County, San Mateo County, Monterrey County, San Benito County, Santa Cruz County, and Santa Clara County. Whether you need a San Jose criminal defense lawyer or a California DUI attorney, we can help.
Zealously Protecting Your Rights Since 1981
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