Charges

A crime may be charged, as either a felony or misdemeanor. Generally, a felony is a crime for which the punishment may include prison. A misdemeanor is a crime which can result in a county jail sentence of up to one (1) year, but 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 charged alternatively as either a felony or misdemeanor. The latter are called “wobblers” in the criminal courts. Wobblers have statutory penalties which give the alternative option of either state prison comitment or a county jail sentence. An example is a so called “felony drunk driving charge” (Vehicle Code Section (VC) 23153) , which can actually be charged as either a felony or a misdemeanor.

The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor at the time set for a Preliminary Hearing/Examination, or at the time of Sentencing in certain cases. (Penal Code Section (PC) 17(b)

Pleas

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:

• Guilty
• Not guilty
• Nolo contendere or “No Contest”, subject to the approval of the court.

Proceedings

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 enter a Plea. A defendant pleading “not guilty” will be given certain options at arraignment, including  a new court date to allow investigation of the charges, and whether to assert their speedy trial rights. 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 pursuant to a ( Penal Code Section (PC) 977 waiver). Defendants charged with a misdemeanor, who are represented by counsel, are typically not required to personally appear in court. Domestic violence cases are an exception to this rule, as defendants must appear at the arraignment and sentencing hearings in order to be served with a Criminal Protective Order (CPO).

After arraignment, the case will usually be set for a hearing called a “pretrial conference” or equivalent. This proceeding is similar to a civil settlement conference. A misdemeanor will usually proceed from the pretrial conference phase, directly to a readiness hearing and trial.

A felony charge usually requires a “preliminary hearing” at some point following the arraignment, unless waived by the defendant. The preliminary examination is an evidentiary hearing to determine if the evidence is sufficient to support further felony prosecution on the felony charges. A victim will often be required to testify at the preliminary hearing. On sufficient proof, the defendant is then “held over” to answer the charges in Superior Court. After being held over, the defendant is arraigned again and the case is then set for a motions date and trial.

As with civil proceedings, during the course of the criminal proceedings, various motions and other procedures can intervene.

Criminal Defense Glossary

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 the County 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 offense.

“Harvey Waiver” – Permits Court to consider dismissed counts in sentencing. and restitution orders.

“Hitch” or “Trombetta” or “Youngblood Motion” – These three all refer to a motion claiming the prosecution failed to preserve scientific evidence” i.e destruction of 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 for a new attorney, claiming he is not being represented adequately by Counsel.

“Major Moving Violation” – Indicates a driving related misdemeanor which results in two (2) points against your DMV driving record.

“Mover” – Indicates a driving related infraction, which normally carries one (1) point against your license.

“Pitchess Motion” – A motion by the defense to review the personnel/complaint records of the arresting officer.

“Romero Motion”- Motion to Strike a Prior Serious or Violent Felony Conviction pursuant to the “Three Strikes Law” 

“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 charged as either a felony or a misdemeanor.

“977 Waiver” – The court has waived the requirement the defendant be present in felony cases.

“995 Motion” is a motion to dismiss charges or the entire case, heard after completion of a Preliminary Hearing.

“1538.5 Motion” – A motion to suppress evidence illegally gained after an illegal vehicle stop, arrest,  search.

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 or circumstances.

Probation and parole are sometimes confused. Parole refers to the conditional release of a prisoner before the date set for his release from incarceration in Prison. Probation is typically granted on any criminal case that results in less than one ( 1 ) year in the County Jail. Parole may be granted now at both the county jail and state prison levels pursuant to the 2011 sentencing guidelines found in Penal Code Section (PC) 1170 (h). Defendants now convicted of certain Felony charges, must serve their  Prison sentence in the County Jail instead of State Prison..

DUI- Drug- Marijuana-Expungements

With certain exceptions, under Penal Code Section (PC) 1203.4 and 1203.4 (a), a defendant may have his or her record expunged after the probation period has expired, so long as the defendant; did not violate probation and is not now 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 (PC) 1203.4. Despite the broad language of the statute, the courts have interpreted the effect of expungement narrowly. Our San Jose Criminal Expungement Lawyers can also file Marijuana Expungements pursuant to Proposition 64, and Drug Expungements and Record Clearances pursuant tp Propostion 47.

Juvenile Proceedings

It is important to understand the distinction between criminal proceedings and juvenile proceedings. Juveniles are not convicted of crimes, they typically admit to a crime that is filed in a Petition. The proceedings in which juvenile charges are handled are civil proceedings, not criminal. In Juvenile cases, the Minor does not have a right to a Jury Trial, only a Court Trial before the Judge. Our Juvenile Defense Lawyers have over thirty-five years of experience handling these matters, and have succesfully avoided  allegations/charges being filed against our clients on multiple occasions.

Procedures

The lawyers at the Law office of Roberts | Elliott Law Corp. offer this free summary of legal information on California Criminal Procedure and California Criminal Court procedures. Call us now for a Free consultation! (408-275-9800)

Arrest

An arrest is the taking of a person into custody in a lawful manner. Custody may be an actual or constructive seizure of the person. No formal statement is required if custody takes place.

An investigative detention (like an initail DUI stop) is not an arrest. An investigative detention is a limited restriction of the personal mobility of a person for a brief period of time, usually in public, and usually without moving the person to another location. A DUI investigative stop and detention may include brief questioning, performing phyisical coordination tests and even the option of taking a Preliminary Alcohol Screeing (PAS) Test.

Attorney-Client Privilege

Subject to exception, a client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and his or her lawyer. ( California Evidence Code 954). The privilege may be waived. When applicable and timely asserted, the privilege is absolute.

A “lawyer” within the meaning of the attorney-client privilege is any person actually authorized, or reasonably believed by the client to be so authorized, to practice law in any state or nation. (California Evidence Section 950).  A “client” within the meaning of the attorney-client privilege is any person who consults a lawyer for the purpose of retaining the lawyer or securing legal services or advice in the lawyer’s professional capacity.( California Evidence Code 951 ).

Bail

Bail is a right, and may be denied only in extremely limited circumstances.

Bail cannot be denied unless the prosecution can establish (a) Capital crimes when the facts are evident or the presumption great, (see People v. Superior Court (Kim) (1993) 20 CA 4th 936), (b) Felony offenses involving acts of violence on another person when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others, or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. (Cal Constitution, Article 1, Section 12).

In order to Deny Bail, the prosecution must establish:
Felony offenses involving acts of violence on another person when the facts are evident or the presumption great, and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others, or the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released…
“‘Clear and convincing’ evidence requires a finding of high probability.” See In re Nordin (1983) 143 CA3d 538,543, and  In re Angelia P. (1981) 28 Cal.3d 908, 919 [171 Cal.Rpt. 637, 623 P.2d 198].) The evidence must be “‘so clear as to leave no substantial doubt’, ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’ (emphasis added) Sheehan v. Sullivan (1899) 126 Cal. 189, 193 [58 P. 543], In re Angelia P., supra, 28 Cal.3d 908, 919.) . “It is met only where the prosecution musters convincing proof that the arrestee. . . presents a demonstrable danger to the community. Under these narrow circumstances, society’s interest in crime prevention is at its greatest.” U.S. v Salerno (1987) 481 U.S. 739. It must comport with a need to deny bail for only the strongest of reasons,. Sellers v U.S. (1968) 89 S Ct 36, 38

“Substantial likelihood” must be determined on a case by case basis and the decision of the court in denying bail is subject to independent review. In re Hochberg (1970) 2 Cal.3d 870, 874, fn. 2, 87 Cal.Rptr. 681.

Charges

Criminal charges may be brought by the Government as felonies, misdemeanors or infractions. 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 but can result in up to one year in the County Jail. Infractions are punishable by fines only and probation is typically not allowed. All crimes which have an unspecified sentence are misdemeanors. (California Penal Code Sections (PC) 17 and Penal Code (PC) 650.5).

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, California Vehicle Code 23153, which can actually be either a felony or a misdemeanor.

A wobbler charged as a misdemeanor in the complaint by the District Attorney is a misdemeanor. California Penal Code (PC) 17(b)(4).

Additionally, a wobbler charged as a felony, but which results in a sentence not including prison, is a misdemeanor. California Penal Code (PC) 17(b)(1). This is not to be confused with a suspended sentence. Failure to impose any sentence whatsoever on a wobbler results in a felony. U.S. v. Robinson (1992) 967 F2d. Imposition of a suspended sentence even with imposition of jail time, also results in a felony. Jamison v. Hickey (1988) 199 CA3d 595, 244 CR 859, People v. Banks (1959) 53 C2d 370, 1 CR 669.

The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor after the Preliminary hearing and or original sentencing, in certain cases. California Penal Code (PC) 17(b)(2), (3) and (5). See, for example, People v. Soto (1985) 166 CA3d 770, 212 CR 969.

Courts

Since the states are independent sovereigns with their own laws and elected officials, each state maintains its own court system. Accordingly, each state has co-existing Federal and State Courts. The State Courts enforce the state laws and the Federal Courts enforce the federal laws. Federal Courts also sometimes hear state law cases.

Discovery

A criminal defendant, once charged, has a right to see the evidence against him as well as any exculpatory evidence.(Brady v. Maryland (1963)  373 U.S. 83) The process of discovery is one of the most crucial aspects of a criminal case.. It is this process that allows the defense, the opportunity to view all of the evidence that will be used against you by the prosecution. Of course, knowing what you are up against is critical to building a defense strategy. (California Penal Code Section (PC) 1054-1054.10)

Discovery not only gives us the opportunity to view the evidence, it gives an opportunity to test the validity of the evidence. You can also utilize the services of an expert criminalist to challenge scientific evidence like DNA or Blood Alcohol Levels, or a private investigator to gather information. If you discover that evidence was illegally obtained, you can file a motion to suppress that evidence. California Penal Code Section (PC) 1538.5)

DMV Hearings

When an individual is stopped and arrested for driving under the influence (DUI), their license is immediately taken by the officer (i.e., stop and snatch law). As a result, an administrative license suspension proceeding is initiated pursuant to the “Administrative Per Se Law”( APS Hearing). The arrestee is given a temporary license (i.e., D.S 367/pink sheet), which advises that they have only ten days within which to request and Administrative DMV Hearing. The temporary license is valid for 30 days, but you must request a hearing within ten (10) days from the date of arrest, to contest the suspension of your driving privilege.

The Administrative Per Se Hearings are informal proceedings held at the DMV by hearing officers that have little legal training. An attorney will have better success winning these hearings by issuing subpoenas for witnesses and documents. As all administrative rules and evidence apply, this is a great opportunity to obtain relevant evidence and further investigate the facts of your DUI case.

If a DMV Hearing is not requested within Ten (10) days from the date of arrest, the hearing is waived and the individuals license is suspended for a period of four (4) months on a first offense, one (1) year on a second or subsequent offense. These administrative per se (APS) hearings are alcohol specific (i.e., they do not result in a suspension if Drugs or Marijuana alone are found in the system).

If an individual “refuses” a chemical test they will face a one (1) year suspension of their license on a first offense and two (2) years on a second offense.

There are many types of DMV Hearings including; Negligent Operator Hearings (i.e., more than 4 points in one year, 6 points in 2 years, or 8 points in three years). There are Medical Re-Examination Hearings for medical conditions, such as loss of consciousness, seizures and drug addiction. Lack of Skill Hearings are set for individuals that are stopped or detained for driving dangerously or poorly  on the roadways. Financial Responsibility Hearings deal with those who are involved in an accident and were not covered by insurance at that time. Our experienced California DMV lawyers from Roberts | Elliott Law Corp. can help win your case and keep your license.

Call us now for a Free consultation regarding your California DMV Hearing! (408-275-9800)

Expungement

With certain exceptions, under California Penal Code Section (PC) 1203.4 and 1203.4(a), a criminal defendant may have his record expunged after his probation period has expired, so long as the criminal 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. If the defendant is still on active Probation, then our San Jose Expungement Lawyers can also file a Motion To Terminate Probation (Penal Code Section (PC) 1203.3). The success on this motion, will then allow the Court to then grant the expungement Motion.

By the terms of the statutes, the conviction of the criminal defendant is expunged and “shall thereafter be released from all penalties and disabilities resulting from the offense…and conviction set aside, and the charges dismissed.” California Penal Code (PC) 1203.4.

Despite the broad language of the statute, the courts have interpreted the effect of expungement to be less broad.Courts have held that an expunged conviction is still a conviction for purposes of subsequent criminal charges. People v. Hairline (1933) 219 C 532, 28 P2d 16. Similarly, courts have also found that expungement does not relieve a defendant in subsequent administrative proceedings. Adams v. County of Sacramento (1991) 235 CA3d 872, 1 CR2d 138.

Despite expungement, the conviction may still be used to impeach the defendant. People v. O’Brien (1949) 92 CA2d 752

Felony

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. All crimes which have an unspecified sentence are misdemeanors. California Penal Code 17 and 650.5.

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.

A wobbler charged as a misdemeanor in the complaint by the DA is a misdemeanor. California Penal Code 17(b)(4).

Additionally, a wobbler charged as a felony, but which results in a sentence not including prison, is a misdemeanor. California Penal Code 17(b)(1). This is not to be confused with a suspended sentence. Failure to impose any sentence whatsoever on a wobbler results in a felony. U.S. v. Robinson (1992) 967 F2d. Imposition of a suspended sentence even with imposition of jail time, also results in a felony. Jamison v. Hickey (1988) 199 CA3d 595, 244 CR 859, People v. Banks (1959) 53 C2d 370, 1 CR 669.

The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor after the Preliminary Hearing or at sentencing, in certain cases. California Penal Code 17(b)(2), (3) and (5). See, for example, People v. Soto (1985) 166 CA3d 770, 212 CR 969.

Forfeiture

A forfeiture proceeding is a civil action or proceeding, even if brought as part of a criminal case.

There are many grounds for forfeiture of assets, including money, personal property (like cars and boats) and even real property, under California and Federal Law.

Drug activity based forfeiture is the most common basis of asset forfeiture.

Under California Law, with certain exceptions, California Health and Safety Code (HS) 11740(f) provides that the following are subject to forfeiture as it pertains to drug activity:
All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, [and] all proceeds traceable to such an exchange

“All moneys, negotiable instruments, or securities used or intended to be used to facilitate any violation of Section 11351, 11351.5, 11352,11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11382, or 11383 of [the Health and Safety Code], or Section 182 of the Penal Code, or a felony violation of [Health and Safety Code] Section 11366.8, insofar as the offense involves manufacture, sale, possession for sale, offer for sale, or offer to manufacture, or conspiracy to commit at least one of those offenses”

With certain exceptions, California Health and Safety Code (HS) 11740(e) provides that the following is subject to forfeiture: The interest of any registered owner of a boat, airplane, or any vehicle…which has been used as an instrument to facilitate the manufacture of, or possession for sale or sale of…[varied minimum amounts of:] heroin or cocaine base…a substance containing…heroin or cocaine base…Schedule I controlled substances…cocaine…or methamphetamine a substance containing cocaine…or methamphetamine, or Schedule II controlled substances.

With certain exceptions, California Health and Safety Code (HS) 11470(g) provides that the following is subject to forfeiture: “The real property of any property owner who is convicted of violating [Health and Safety Code] Section 11366, 11366.5, or 11366.6 with respect to that property.”

Forfeiture may also result from other activities, including, illegal harboring of aliens, copyright infringement, mail fraud, bank fraud, identity theft, heath care fraud, counterfeiting, gambling, smuggling, and prostitution.

Contraband is always subject to forfeiture and or destruction.

Juvenile Cases

It is important to understand the distinction between criminal proceedings and juvenile proceedings. Juveniles are not convicted of crimes .A juvenile “admits” an accusation in a Petition The proceedings in which juvenile charges are handled are civil proceedings, not criminal but can still result in penal consequences such as Prison time (California Youth Authority (CYA), Jail time in Juvenile Hall or the Ranch, fines, counseling and probation.

Miranda Rights

The term “Miranda Rights” refers to an advisement by the Police to inform you of your constitutional rights at the time of your arrest. The Miranda Rights (the right to remain silent, the right to an attorney) only apply to a person placed in custody and then interogated by police. Thus, statements made to the Police during a “Custodial Interogation” may be excluded in Court, if the Police fail to advise the defendant of their Miranda Rights. The term “Miranda” comes from the name of the Defendant who raised the issue in the Courts. See Miranda v. Arizona (1966) 384 U.S. 436, 469-475, 86 S. Ct. 1602, 16 L. Ed. 2d 69. When police officers ”seize” a person within the meaning of the Fourth Amendment, then Police must comply with federal constitutional standards, and a Miranda Warning is required. These advisements are only required when a defendant is in “custodial interogation” and is being asked questions which would tend to incriminate them”. There are lesser contacts with police than custody, such as “investigative detentions” for which no Miranda warning is required. The remedies for violations of your Miranda rights, include the exclusion of evidence against you and the possible dismissal of your criminal case.

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 but can include up to one (1) year in the county jail and a $1000 fine or both. All crimes which have an unspecified sentence are misdemeanors. California Penal Code Sections (PC) 17 and 650.5.

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 charge”,California Vehicle Code (VC) 23153, which can actually be either a felony or a misdemeanor.

A wobbler charged as a misdemeanor in the complaint by the District Attorney, is a misdemeanor .California Penal Code (PC) 17(b)(4).

Additionally, a wobbler charged as a felony, but which results in a sentence not including prison, is a misdemeanor. California Penal Code 17(b)(1). This is not to be confused with a suspended sentence. Failure to impose any sentence whatsoever on a wobbler results in a felony. U.S. v. Robinson (1992) 967 F2d. Imposition of a suspended sentence even with imposition of jail time, also results in a felony. Jamison v. Hickey (1988) 199 CA3d 595, 244 CR 859, People v. Banks (1959) 53 C2d 370, 1 CR 669.

The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor after the original sentencing, in certain cases. California Penal Code 17(b)(2), (3) and (5). See, for example, People v. Soto (1985) 166 CA3d 770, 212 CR 969.

Motions

Generally, a motion is a written application requesting the court to make a specified ruling or order. They are important tools that an experienced Criminal Defense Lawyer can use to strengthen your case or even have the charges against you reduced or dismissed. Of course this depends on the specific facts of your case. Some of the motions that are frequently filed in Criminal cases are:

Motion to Strike Prior Convictions (DUI prior convictions)

Motion to Strike a Prior Serious or Violent Felony Conviction pursuant to the” Three Strikes Law” (Romero Motion)

Motions to Supress Evidence Penal Code (PC) 1538.5

Motion to Dismiss for Delay in Prosecution (Serna Motion)

Motion to Terminate Probation Penal Code (PC) 1203.3

Motion to Expunge a prior Criminal Conviction Penal Code (PC) 1203.4

Own Recognizance

A defendant may seek release on his or her Own Recognizance usually called “O.R.” in lieu of bail. OR release is a written promise to appear at a later date in court. In many counties, including Santa Clara County a defendant can also be released on Supervised own recognizance (SORP). This requires the defendant to contact the office of Pretrial Services and have an officer place conditions on you while your criminal case is pending and you remain out of custody. (i.e Drug testing, reporting, wearing electronic monitor etc)

Any person may be released on their Own Recognizance (O.R.) unless the offense requires Scheduled Bail or the person is charged with a capital offense.

A person charged with a misdemeanor has the right to O.R. unless the court makes a finding that an O.R. release (1) will compromise public safety or (2) will not reasonably assure the appearance of the defendant as required.

A person charged with a felony is not as a matter of right entitled to O.R., but may be released O.R. in the court’s discretion. However, a person charged with a serious or violent felony, may be released on O.R., only after a hearing is held in open court before a judge or magistrate addressing specified issues, after giving notice and a reasonable opportunity to be heard to the prosecuting attorney.

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 or circumstances.

Probation and parole are sometimes confused. Parole refers to the conditional release of a prisoner before the date set for his release from incarceration in Prison. Probation is typically granted on any criminal case that results in less than one ( 1 ) year in the County Jail. Parole may be granted now at both the county jail and state prison levels pursuant to the 2011 sentencing guidelines found in Penal Code Section (PC) 1170 (h). Defendants now convicted of certain Felony charges, must serve their  Prison sentence in the County Jail instead of State Prison.

Restitution

In every criminal case, the court must order restitution for the victim’s out-of-pocket losses and other damages. There is also a “restitution fine” that may be ordered as part of the fines and penalties.

Victims of crime suffering losses are entitled to a restitution order in the criminal case absent compelling circumstances. California Constitution, Article 1, Section 28(b), California Penal Code (PC) 1202.4, California Welfare and Institutions Code Section 730.6, People v. Broussard (1993) 5 C4th 1067, 22 CR2d 278. The defendant’s inability to pay cannot be considered as a compelling and extraordinary reason for not imposing restitution, and it cannot be a consideration in determining the amount of the restitution order. California Penal Code (PC) 1202.4(g), See e.g., People v. Draut (1999) 73 Cal.App.4th 577, 86 Cal. Rptr. 2d 469.

Restitution is required, to the extent possible, to be of a dollar amount sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct. ( See California Penal Code (PC) 1292.4(f)(3), People v. Keichler (2005) 129 Cal.App.4th 1039, 29 Cal. Rptr. 3d 120)  However, the statutory list is not exhaustive, but instead illustrative..

Rights

A person arrested or charged with a crime has a number of constitutional rights, under both the U.S. and California Constitutions.

These rights include the rights against self-incrimination, to a jury trial; to confront and cross examine witnesses, and right to counsel. See Boykin v. Alabama (1969) 395 US 238; Gideon v. Wainwright (1963) 372 US 335, 83 S. Ct. 792; Brady v. U.S. 397 U.S. 747; People v. Howard (1992) 1 Cal. 4th 1132, 5 CR 2d 268.

The term Miranda Rights” refers to reading of available constitutional rights to a person placed in custody by police. The term “Miranda” comes from the name of the Defendant who raised the issue in the Courts. See Miranda v. Arizona (1966) 384 U.S. 436, 469-475, 86 S. Ct. 1602, 16 L. Ed. 2d 69 When police officers ”seize” a person within the meaning of the Fourth Amendment, then police it must comply with federal constitutional standards, and a Miranda warning is required. There are lesser contacts with police than custody, such as “investigative detentions” for which no warning is required The remedies for violations of Miranda rights, include the exclusion of evidence.

Sentencing

Upon conviction, judgment is imposed and the criminal defendant is sentenced.

Generally, a Felony is a crime for which the punishment may include state prison. Penal Code Section (PC) 1170(h). A Misdemeanor is a crime which does not result in a prison sentence, but usually includes a County Jail comittment. All crimes which have an unspecified sentence are misdemeanors.( California Penal Code 17 and 650.5).

For Misdemeanors, sentence is to be imposed in “not less than six hours, nor more than five days” after conviction. (California Penal Section 1449). For felonies, sentence is to be imposed within 28 days of conviction. (California Penal Section 1191).

These time constraints with respect to imposing sentence are routinely waived by the criminal defendant.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.

For Felonies, the Court usually orders a probation report prior to sentence under California Penal Code 1203.10. Probation reports are rarely ordered in misdemeanor cases.

Bench Warrants / Arrest Warrants

Our Criminal Defense Attorneys at Roberts | Elliott Law Corp, may be able to have your Bench or Arrest Warrant recalled by the Court, allowing you to avoid incarceration and/or the need to post expensive bail. We also may avoid you or a loved one, from being taken into jail custody on an Oustanding Bench/Arrest Warrant. 

If you have been charged with a Crime, or there is an Arrest or Bench Warrant out for your arrest, you need experienced representation. Schedule a Free, Confidential Consultation with the experienced San Jose Criminal DefenseLlawyers at Roberts | Elliott Law Corp. by calling us at 1-408-275-9800, emailing us, or filling out our intake form on our Contact Us page.

The information provided is for general information purposes only and is not intended to be legal advice. You should consult a Criminal Defense Lawyer for your specific legal issue.