Articles Tagged with felony arrest

This is the final installment of a six-part series on what to expect in California if you face felony criminal charges. Take a look at our past posts in the series and get to know the other steps of the felony arrest in California process.

The prior posts are:

The final step of the felony arrest process in California is sentencing. This is by far the most nerve-wracking time for people accused of crimes. By now, you have met the judge and prosecutors on your case, your attorney has kept you informed of the developments and challenges in your case, and you also have a basic understanding of maximum punishments and fines that can be assessed. What is missing, of course, is the judge’s decision.

Step 6: Sentencing

Whether you reach the sentencing phase by plea or after trial, every person charged with a felony in California will be sentenced or have punishment imposed. A sentencing hearing occurs after the trial and before the judge issues his or her sentencing decision. Some judges will provide the accused with a sentencing commitment, which is a preview of the judge’s sentencing decision; others wait until after the sentencing hearing to communicate their decision.

At the sentencing hearing, each side is afforded an opportunity to present and explain what type of sentence or sentence considerations the judge should consider when assessing punishment in the case. From a defense perspective, mitigating circumstances, prior positive community involvement, and lenient treatment are advocated. From the prosecution’s perspective, victim impact statements and harsher penalties are presented for the judge’s consideration.

After hearing both sides, the judge may sentence the criminal defendant to prison for a fixed time-period, a life sentence, or death in capital punishment cases. Other forms of permissible punishment include the assessment of fines, penalties and surcharges, and the assessment of conditions, like parole or mandatory alcohol and drug treatment. Especially in sexual assault matters, the accused person may be required to register in Sexual Offender Registries and have conditions imposed on where they may live after serving time.

Three Strikes Law

For individuals convicted of two or more violent crimes or serious felonies, a third felony conviction will automatically trigger the three strikes law. The three strikes law compels the judge to impose a life sentence, removing all other punishment options at the sentencing phase regardless of any mitigating circumstances.  

Death Penalty

A death sentence is the most severe punishment for someone charged with a felony. According to the Los Angeles Times, the California Supreme Court in August 2017 kept in place a measure passed by voters to speed up executions. Due to delays and legal challenges, the state of California has not executed a prisoner in a decade. Continue reading

This is part five of a six-part series on what to expect in California if you are arrested and charged with a felony. Prior posts are available at Step One: Pre-Arrest Investigation, Step Two: Arrest, Step Three: Arraignment and Bail, and Step Four: Pretrial Proceedings. What follows is an explanation of a felony trial.

Step Five: Trial

If a criminal case cannot be resolved in a plea negotiation or settlement, the case proceeds to trial for determination of guilt. A defendant can receive a trial by jury or a trial by court also known as a bench trial. At the conclusion of either trial, a verdict is reached and it is communicated to the accused person. The judge or jury tells the defendant that he or she is guilty or not guilty.

In a trial by jury, 12 community members listen to testimony from various people. Among the people who can testify are the victim, eyewitnesses, law enforcement personnel, medical doctors, forensics experts, and the defendant. A defendant may continue exercising his or her right to remain silent and not testify at trial. Ultimately, the decision to testify at trial is one made by the defendant’s attorney and the defendant. In addition to listening to the trial testimony from witnesses, the jury also examines evidence, makes factual determinations, and decides whether the defendant is culpable – guilty or not guilty.

In a bench trial, the judge makes all the decisions of the case. He or she listens to the evidence to decide whether the defendant is guilty or not and makes all decisions regarding the law and criminal procedure at issue during the trial.

Post-Trial Motions

If either side is not satisfied with the results of the trial by jury or bench trial, post-trial motions are available to address trial issues. A motion is a formal request to the court to address an issue that arose at trial. Motions can be made by the defendant or state prosecutor. One common post-trial motion, often filed by the defense, is a motion for a new trial. There are certain permissible reasons to obtain a new trial. There can be jury misconduct, an error of law by the court, or new evidence, to name a few of the permissible reasons. Post-trial motions must be made prior to the sentencing hearing. At sentencing, the trial judge assesses the punishment and penalties the defendant will receive.

Check back next week to read the six and last installment of this series – Step Six: Sentencing. Continue reading

We continue the series on what to expect following a felony arrest in California. What follows is an explanation of pre-trial proceedings.

Phase 4: Pre-trial Proceedings

Many felony arrests are resolved at the pre-trial phase of criminal prosecution. Although the accused person is required to attend all court conferences unless excused by the Superior Court Judge, a criminal defense attorney has many tools available to resolve the case at this stage. Common tools are court appearances (conferences and hearings), waivers, motions (requesting court to resolve a dispute about the evidence or charges between the defense and prosecution), discovery issues, and plea bargains or negotiations.

Court Appearances: Preliminary Hearing, Readiness Conference, or Felony Disposition Conference

Following the arraignment, the next most important appearance is the preliminary hearing, known as a “prelim” or “probable cause hearing.” During the preliminary hearing, two issues are before the court: Is there probable cause to believe that a crime was committed; and if so, is there probable cause to believe that the defendant is the person who committed the crime. While rare, the Superior Court Judge may dismiss the charges against the accused person at this point and no further action will be required. More commonly, however, if both questions are answered in the affirmative, the Superior Court Judge will rule that the accused person must “answer for the charges.” This means that the criminal case is sent to the trial court for further pretrial proceedings, like the readiness conference or felony disposition conference.

At the readiness conference the prosecution makes an offer to the accused person to resolve the case before any other activity in the case happens. In exchange for pleading guilty, the prosecution usually offers a reduction in charges or lower sentencing recommendations. Usually negotiated in the judge’s chambers, if resolvable, the criminal defendant accepts the plea and pleads guilty to the charges or reduced charges. If not resolved, the criminal matter continues on the pre-trial track and further proceedings like waivers and motion practice occur.

Waiver of Speedy Trial Right

If you choose to fight the charges, California Penal Code states that the prosecution must bring the case to trial within 60 days of your arrest. At the readiness conference, if the offer is not accepted, the criminal defendant often waives the right to a speedy trial because it is advantageous to his or her defense. The result is that a trial takes a long time to schedule and ultimately resolve. When you waive your right to a speedy trial, the timing of the case is no longer important.

Pre-trial Motions

Pre-trial motions are a set of requests made to the trial judge, by either side, to help reduce the issues for trial. The motions include Motion to Suppress Evidence, Motion to Dismiss Information, Motion for Speedy Trial, Motion to Sever Counts or Charges, and Motion to Compel Discovery. Each of these motions have a purpose and must be made at certain times in the process or the ability to make the motion is waived because the motions are time-limited.

From a defense perspective, there are three powerful motions that can be made during the pretrial phase of the case – the motion to set aside information, the pitchless motion, and the motion to suppress. In a motion to set aside the information, the defense askes the court to dismiss one or more of the criminal charges that have been lodged. A pitchless motion asks the court for permission to review the arresting or investigating police officer’s personnel file. Defense attorneys are looking for prior complaints, excessive force, biases, or other police misconduct to taint the arresting or investigating police officer’s credibility. Lastly, a motion to suppress evidence asks the court to exclude from consideration all illegally obtained evidence. If these motions are successful, they are instrumental in resetting plea negotiations and may lead to the dismissal of all charges because of lack of evidence or credibility concerns

Discovery

Discovery in a criminal proceeding is a phase in which the defense and prosecution exchange evidence regarding the criminal case. Neither party may hide or withhold information from the other party and then attempt to present it later at trial. There is an exception for newly discovered evidence. There are strict rules and time-limits for the exchange and presentment of evidence in criminal proceedings. Continue reading

The following post is a continuation of a series on what to expect following a felony arrest in California. In the first post, the pre-investigation step was discussed and can be accessed here. What follows is a discussion about the arrest phase.

Exercise Your Right to Remain Silent

Do not talk to the police during a pre-arrest investigation without the presence of an attorney. The police are collecting information to assist their investigation. Any information gathered and collected by them will ultimately be used to support their arrest of you. Be courteous to law enforcement officials but remain firm – exercise your right to counsel and your right to remain silent.

The Arrest

The arresting police officer must have probable cause or a reasonable ground to arrest you absent an arrest warrant. Most people have a general understanding of an arrest because of exposure to arrests in movies or television shows. When the arrest is complete, you are physically restrained and become a criminal defendant.

Know Your Rights: Miranda Warnings

Miranda warnings are another part of the arrest process people are familiar with and closely associate with the commencement of a criminal case. The Miranda warning advises an arrested person of his or her right in criminal proceedings before being interrogated. Failure to properly administer Miranda warnings affects the admissibility of statements made to law enforcement officials after arrest. On television, Miranda warnings are often administered simultaneous to arrest, but in reality, the requirement is that they get administered before any questioning starts by the police. The order is not important – focus on requesting your right to an attorney and remain silent.

Know Your Rights: Ask to Speak with Counsel and Remain Silent

Ask for an attorney prior to the commencement of the police questioning or interrogation. Then, invoke your right to remain silent. When you request a lawyer’s assistance, all questioning by police should stop. Anything you get asked and answer after invoking your right to counsel may be excluded from evidence later in the criminal proceedings. The police can still question you. Always remain silent while in police custody. Limit all conversations with other police officers, jail cell or holding inmates, or other personnel in the police station. Keep in mind that telephone calls in police stations and jails are recorded. Remain silent.

Booking Process

Once physically handcuffed, you will be taken to central booking for processing. Processing means getting your photo and fingerprints taken, being searched (may include strip search), and being placed in a holding cell or temporary jail until you see a Superior Court Judge. San Diego County criminal defendants are taken to Downtown or Chula Vista; federal criminal defendants are taken to MCC. Provide answers to questions regarding your identity and identifying information, like name, address, date of birth, height, and weight. Continue reading