Criminal Law

The English jurist Blackstone famously observed that it is far better to let 10 guilty men go free than punish one innocent man.

This belief is at the core of our criminal justice system. This is why the government has the burden of proof in a criminal trial, and why it is the highest standard known in the entirety of the legal system: Proof beyond a reasonable doubt. If even one juror has one doubt about one element, the defendant’s liberty should not be taken. We hold liberty — our freedom — to be that precious.

Therefore, the real job of the criminal defense lawyer is Government Prosecution Quality Control.

Criminal defense attorneys exist to make sure that no one is ever convicted unless the government can truly prove each element of the crime charged, beyond a reasonable doubt. If there is any doubt based in reason as to a single element, the accused is entitled to an acquittal.

Those are the rules of the game. We didn’t make them up, but we certainly believe in them, and we are here to protect your rights by making sure those rules are enforced. We exist to tip the scales of justice in your favor.

What’s at Stake- Direct and Indirect Consequences

When someone is accused of a crime, there are both direct and indirect consequences.

Direct consequences include time spent in jail or prison, being placed on probation or parole, being ordered to pay fines, attend classes, paying restitution, or any other conditions imposed by the court.

Because freedom is so prized, the severity of the crime is determined by the amount of time in custody a person faces if they are convicted.

Infractions, such as a speeding ticket or other moving violation, are punished by a fine only. Note that for some people, such as commercial drivers, the indirect consequences of an infraction can be severe, and often mean that the case should be fought as if a much more serious matter.

Misdemeanors are, by definition, crimes that are punishable by up to one year in County Jail. Not every misdemeanor conviction carries this maximum punishment; it simply means that no misdemeanor crime can carry a punishment of greater than one year in County Jail.

Felony crimes carry a maximum punishment of more than a year in State Prison. Certain very severe felonies, such as certain sex offenses and homicides, carry possible term of life in prison, both with and without the possibility of parole. The most aggravated first-degree murder cases (those involving “special circumstances”) are eligible for the death penalty under both California state and Federal law.

Indirect consequences can be even more far-reaching. These are the collateral consequences that happen to you because of a criminal court conviction. They can include the suspension or revocation of various kinds of licenses, including your:

  • Driver’s license (such as with a DUI arrest).
  • Professional license, such as
    • real estate salesperson’s license
    • real estate broker’s license
    • doctor
    • nurse
    • teacher
    • financial services professional, or
    • any other licensed California professional.

A criminal court conviction can also have:

  • Immigration consequences, including removal from the United States, or being denied entry, naturalization or U.S. citizenship.

Unfortunately, the potential for collateral consequences is only increasing over time. With the vast reach of the Internet, the potential for a past transgression to impact the future is enormous and is yet one more reason why any kind of criminal case should be treated very seriously.

The Criminal Court Process

Most people are only made aware of a law enforcement after they’ve been arrested. (If by chance you are aware of a current investigation, you should immediately retain a lawyer to guide you.)

-Release from Custody

After someone is arrested, they are usually taken to the local police or sheriff’s station for booking and processing. They are usually held there until the first court appearance. Or, after booking they may be brought to County Jail until they are brought to court the first time.

The most urgent concern following an arrest is to get release from custody, if possible. Each county in California has its own bail schedule, which is a list of each crime and the correlating amount of bail that is required for release. Once the amount of bail is determined, the options include:

  • Posting cash bail
  • Using a bail bondsman to post bail
  • Seeking release on Own Recognizance (“O.R. release”)

Consulting with an attorney right away can be very helpful. For example, it may be possible to avoid having to post bail and instead getting released on your own recognizance (where you simply sign a promise to appear, just like a traffic ticket). There are other cases, such as after a domestic violence arrest, where the penal code and bail schedule forbid release on less than $50,000 bond without a court hearing. A lawyer can help you quickly understand the situation in your unique case.

There are some situations where bail is NOT allowed, most notably where someone is on probation or parole, where there is an immigration hold, or in capital murder cases. Generally, unless there is an exception, people who are charged with a crime are entitled to a reasonable bail amount.

-Cash Bail or Bail Bondsman?

If it’s not possible to be released O.R., then the options are to remain in custody until a judge can hold a hearing on the issue, or to post bail either in cash or through a bail bondsman.

Cash bail is where certified funds in the full amount of the bail are deposited with the law enforcement agency that has custody of the defendant, most typically the County Sheriff. The money remains in the Sheriff’s account until the case is over, at which time the full amount is returned. There is no cost associated with posting cash bail. However, you do lose your use of your money during the entire time the case is pending, and there is significant risk: If the defendant does not appear in court when ordered to for any reason at all, the entire amount of the bail is forfeited.

Because of the amount of money required and the risk involved, most people choose to use a bail bondsman. A bail bondsman posts the bond and then assumes the risk if the defendant’s non-appearance. However, the bail bondsman charges a fee for doing this (usually 10%, sometimes less), and this fee is never returned, even if the defendant makes every appearance. This is simply their fee for taking the financial risk involved. Also, the bondsman may require some form of security, but this is something else your attorney can help with.

What Happens in Court?

The process by which a criminal case goes from start to finish will vary, depending on how serious the charges are. There are different procedures for:

  • Infractions (maximum punishment is a fine)
  • Misdemeanors (maximum punishment is up to one year in jail), or
  • Felonies (maximum punishment is over one year in state prison, including life or death)

All cases begin with an appearance called the “arraignment.” The arraignment is simply where the person accused (or their lawyer) is told of the charges against them, and they have the chance to then enter a “plea” (their response) to those charges. A plea of “not guilty” simply puts the burden on the government to prove the case and allows it to move forward as described below.

If the charge is an infraction, the case is set for trial. At a trial for an infraction, there is no jury. The judge will listen to the evidence and decide whether the prosecutor has met their burden.

If the charge is a misdemeanor, usually there will be a series of pre-trial conferences, where lawyers file various motions (asking the court to order something) and negotiate about possible case settlement. If the case cannot be settled, the defendant has the right to a jury trial.

If the charge is a felony, the defendant has the right to a Preliminary Hearing before trial. The Preliminary Hearing is a mini trial, where live witnesses are brought in to testify and be cross-examined without the presence of a jury. Only a judge is present to decide whether there is enough evidence to allow the case to go forward to trial. If there is enough evidence to proceed, then there will be another arraignment, a series of pretrial conferences, and then trial.

Once a case gets to either a misdemeanor or felony trial, it can be decided by either a court or jury trial. A court trial is where the judge listens to the evidence and decides whether the prosecutor has proved each element of each charge beyond a reasonable doubt. A jury trial is where 12 citizens from the community are selected to hear the evidence and to deliberate on the same question: Did the prosecutor prove each and every element of each and every charge beyond a reasonable doubt?

The The law is explicit: If there is a reasonable doubt as to any element of a charge, the defendant is entitled to an acquittal on that charge.

This is to be distinguished from civil cases, where people are merely fighting about money. In cases where only money is at stake, and not a person’s freedom, there is a lower standard of proof. There, an injured person need only prove their case by a preponderance of the evidence. This preponderance of the evidence standard has been defined as “50% plus a feather,” or just barely enough to tip the scales of justice in one direction or another.

A criminal case can be settled at any time up until the time of the jury trial. Settlement can include reduction of the charges, or reduction in the punishment. Everyone charged with a crime does have the absolute right to force the prosecution to prove it at trial.

A trial includes several stages, including jury selection, opening statements by both sides, direct and cross-examination of all witnesses, closing arguments, jury instructions, and jury deliberations. At their trial, the defendant in a criminal case has an absolute right to remain silent, or to testify on their own behalf. If a defendant does choose to remain silent, the prosecutor is forbidden from commenting on it in any way.

There are generally three outcomes at a criminal jury trial:

  • If all 12 jurors agree that the case has been proved beyond a reasonable doubt, the defendant is convicted
  • If all 12 jurors agree that the case has NOT been proved beyond a reasonable doubt, the defendant is acquitted
  • If some jurors say proved beyond a reasonable doubt, and some say not proved to that level, means a “hung jury” and a mistrial.

Because a person’s liberty is at stake – a freedom so prized by our Founders as to require government prosecutors to get over the highest burdens known to the law – unless all 12 jurors agree unanimously that every element has been proved beyond a reasonable doubt, the defendant is entitled to an acquittal.

In the case of a hung jury, the prosecution could elect to refile charges, in which case the process begins again. But, as a practical matter, when there is a hung jury most times the case is either dismissed or settled on favorable terms.

Parallel Administrative Proceedings

Many criminal charges will trigger a parallel administrative proceeding. There are generally two situations in which this will arise:

  • The defendant was charged with a DUI arrest and DMV Hearings
  • The defendant has a professional license

DMV Hearings in DUI Cases

In every DUI arrest, there is a DMV process. At the time of the arrest, the defendant’s driver’s license is taken away, and they are given a pink piece of paper called a Notice of Temporary License and Administrative Per Se Action. (If your license wasn’t taken, this was either a mistake or you have an out of state license, which California doesn’t have authority to take.) On the pink form, in tiny boilerplate language, the person arrested is told that they have only 10 days from the day of their arrest to request a special hearing with the DMV or their license is automatically suspended.

It’s vital to know that the pink Notice mis-advises you to call a Sacramento phone number, where a DMV clerk will often give erroneous legal advice that you do not need to request the hearing. This is wrong! The best practice is to send the hearing request in writing via fax to the DMV Driver Safety Office closest to the location of the arrest.

Ultimately there will be a hearing in front of an administrative hearing officer of the DMV. At stake in the hearing is whether the person arrested will have their driving privileges suspended for a period of time. The length of the suspension will vary, depending upon whether the driver, at the time of their arrest:

  • Was over age 21 or not
  • Submitted to a chemical test or refused to test, and
  • Had prior convictions or related actions for DUI or similar offenses

It may be possible to shorten or avoid a DMV suspension entirely, but talking to a lawyer is vital.

If the DMV does take an action against the driver’s license, there are ways to fight the DMV by filing a legal action – a writ of mandate – in the appellate department of the superior court.

Beyond what is at stake for the driver in terms of their license, the DMV Administrative Hearing process is potentially highly valuable in the criminal court. Since there are no depositions allowed in criminal cases, the administrative hearing process represents an important opportunity to cross-examine witnesses under oath and create a transcript for later impeachment use in criminal court.

Professional License Holders

In California, there are more than 100 licensed professionals, from accountants to vocational nurses and everything in between. Whether you are a doctor, nurse, teacher, real estate professional, or hold any other kind of professional license, a criminal charge can put your entire career and reputation at risk.

When law enforcement officers learn that they’ve arrested a licensed professional (which may arise through the nature of the investigation, through questioning, or through the booking process), they will alert the licensing body. That licensing body will then begin its own disciplinary process, usually by sending a letter to the address on file. There are always important time limitations to act, so please do not delay in seeking legal advice.

While the details of the process will vary from one licensing body to another, generally there will be an administrative proceeding at the Office of Administrative Hearings. There are also rights to appeal by way of a legal action – a writ of mandate – filed in the appellate department of the superior court.