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State Crimes - FAQ Continued

 

Q. What happens when someone is charged with a felony?
 
A. A felony is a serious criminal charge which is defined in terms of possible punishment. It is defined in the California Penal Code as "any crime that is punishable by death or by imprisonment in state prison." In most cases, a felony prosecution starts with an arrest. Written police reports are presented to the District Attorney's Office which then decides what charges, if any, should be filed and whether those charges will be felonies or misdemeanors (which are less serious crimes punishable by no more than a year in county jail and/or a possible fine).

Felony charges may also be filed even though there has not been an arrest. For example, the police may conduct an investigation of a crime and identify a suspect. Rather than arresting that person, the police may present their investigation to the District Attorney, who may file charges with a court and get an arrest warrant. The District Attorney may also present evidence to the Grand Jury, which has the power to charge a person with a felony.

The first step in the criminal court process is called an arraignment. Usually, this is the first time the defendant appears in court. He or she is informed of the charges, and is offered legal representation if he or she cannot afford to hire a private attorney. The defendant then enters a plea of guilty or not guilty.

The preliminary hearing is the court proceeding at which the District Attorney's Office must present enough evidence to convince a judge that there is reasonable cause to believe a crime has been committed -- and that the accused is the person who committed the crime.

This hearing is not heard by a jury, and at this point in the criminal process, the prosecution's case does not have to be proved beyond a reasonable doubt. The primary purpose of the preliminary hearing is to eliminate charges that are obviously groundless. At a preliminary hearing, the prosecution may use police officers to present the statements of victims and witnesses to demonstrate to the judge that there is enough evidence to justify sending the case to a court for trial. The vast majority of defendants are "held to answer" after the preliminary hearing.

Understandably, this can be terribly frustrating for a client who wants to "fight" aggressively to win his case early, rather than later. Unfortunately, this is not always possible, nor wise. However, it is always important to remember that delay in a court case does not mean defeat. Effective and thorough legal defense takes time to prepare.

The case then moves to a trial court where the defendant is once again arraigned; however, this time a trial date is set. Generally speaking, the trial has to occur within 60 days from the date of this new arraignment, although felony cases frequently require more time so that the defense can conduct a complete, independent investigation, interview witnesses, consult with expert witnesses, and evaluate all evidence presented by the District Attorney.

The defense attorney may also make various motions in order to get the case dismissed on legal grounds, such as a motion to get certain evidence excluded because the police acted improperly when seizing this evidence, or a motion to dismiss because the evidence presented at the preliminary hearing was not strong enough to warrant a trial. The defense might also make motions to force the District Attorney or the police to disclose other pieces of evidence which could prove that the client is not guilty of the charge.

While the case is ongoing, the defendant may decide he or she does not want to go to trial but wants to settle the matter. Just as often, a District Attorney might offer the defendant a case settlement, referred to as a "plea bargain," to plead guilty to a less serious charge or agree to ask for reduced incarceration time at sentencing.

Settlement may occur at any time, from the first court appearance at the initial arraignment up to, and even during, trial. Case settlement usually involves the defendant pleading "guilty" or "no contest" for an agreed sentence or to an agreed-upon charge.

Another kind of "settlement" may be possible in certain felony cases involving non-violent drug offenses. Individuals who have been charged with first-time drug offenses, as well as certain defendants who suffer from the disease of drug addiction may be eligible to attend classes or other rehabilitation programs. If they successfully complete all required programs, they can have their case dismissed in a process which is known as "Deferred Entry of Judgment" -- commonly referred to as DEJ or drug diversion. Still other defendants who commit non-violent drug possession offenses may be eligible for sentencing according to the Proposition 36, which generally favors long-term drug treatment as an alternative to incarceration. DEJ is available only upon a plea of "guilty," whereas Proposition 36 sentencing is available upon conviction -- whether a defendant pleaded guilty or was found guilty after a trial.

An adult criminal defendant has the right to a trial by jury. This is where 12 jurors, who are called "the finders of fact," listen to all the evidence presented by both the prosecution and the defense and decide what is proved and what is not. The judge's job at a jury trial is to make sure that both the prosecution and the defense adhere to all the rules of evidence when presenting their case to the jury.

At trial, the prosecution must prove the client's guilt beyond a reasonable doubt. All 12 jurors must agree in order to either convict or acquit. If the jury cannot agree, a "mistrial" will be declared by the court, and the case may be tried again before a different jury, it may be dismissed, or a case settlement may be agreed upon by the prosecution and the defense.

A defendant can also decide to have a judge hear the case, instead of a jury; this is called a "court trial." For this to happen, the prosecution must also agree. In a court trial, the prosecution must still prove the case beyond a reasonable doubt, but this time, the judge is the "finder of fact" and must decide whether or not the defendant is guilty, while also making certain that both attorneys are abiding by all the rules of evidence.

If a defendant is found guilty, the judge will then impose a sentence. The possible range of sentence, which is set by various laws, may range from no jail and probation, to imprisonment in the state prison. Sentencing can be a very complex process, depending on the severity of the crime for which the defendant has been convicted.

In the most serious of cases, referred to as special circumstance prosecutions, the defendant faces a sentence of life imprisonment without the possibility of parole, or even the death penalty. If a defendant has been convicted of such an offense, then there is a separate proceeding, called a penalty phase, at which both sides present evidence either in aggravation or mitigation of penalty. The jury determines the appropriate penalty. If the jury determines that the defendant should be executed, the judge still has the power to overrule that determination and to sentence the defendant to life imprisonment without the possibility of parole. However, if the jury agrees that life imprisonment is the appropriate punishment, the judge does not have the power to impose the death penalty.

Defendants who have been convicted after a trial have the right to appeal their conviction. This process is started by the trial attorney who, upon request of the client, will file a notice of appeal in the trial court within 60 days of the imposition of sentence.
 
Q. What happens when someone is charged with a misdemeanor?
 
A. A misdemeanor is defined as a crime that is punishable by fine and/or imprisonment in a County jail for one year or less. As in most criminal cases, a misdemeanor prosecution starts with an arrest. However, unlike of a felony arrest, most persons charged with misdemeanors are detained only for a short time before they are released by police after promising to appear at their next court date by signing a citation that is known as a "promise to appear."

The police reports alleging illegal acts are then presented to the District Attorney or to a City Prosecutor who decides what charges, if any, should be filed. For Los Angeles Police Department arrests, if the District Attorney determines that a felony filing is not appropriate, the charges may be referred to the Los Angeles City Attorney, who prosecutes misdemeanors within the City of Los Angeles. On the other hand, the Los Angeles Police Department may take a case allegedly involving a misdemeanor directly to the City Attorney for possible filing of charges. Occasionally, instead of filing misdemeanor charges, the prosecutor may choose to file a complaint alleging an infraction. Individuals who are accused of infractions cannot be sentenced to jail, nor are they entitled to the appointment of counsel at public expense.

Any person who has been arrested and then released from custody and given a court date and time must appear in court on that date, at that specific time! Failure to appear will result in the issuance of a warrant and possible arrest. You cannot assume that the court will understand that you had to work that day, you overslept, or your child was sick.

Once a case has been filed, the first step in the criminal process is arraignment. This is usually the time the defendant first appears in court, is informed of the charges, and enters a plea. The usual pleas are "not guilty," "guilty," or "no contest." If you are in custody at arraignment on a misdemeanor charge, your lawyer may make a motion to dismiss based on failure of the police reports to establish that a crime has been committed. If you have been charged for something you simply did not do -- or the charges are far more serious than the offense for which you are actually responsible -- or your attorney believes there is insufficient evidence to convict you, he or she might advise you to take the case to trial.

In misdemeanor cases that are not likely to go to trial, it is not unusual for your attorney to settle the case on your behalf and with your consent. Some misdemeanor cases settle for a fine and probation, without any jail time. However, some misdemeanor charges can carry a sentence of as much as one year in the county jail (a few have a mandatory minimum jail sentence) as the possible punishment.

Only by knowing the particular facts of your case, your prior criminal record, if any, and your current situation, is it possible to accurately predict how your case will settle.

A misdemeanor case that is not going to be resolved with a plea must generally go to trial within 30 days if the defendant was in custody at the arraignment -- or within 45 days if the defendant is out of custody. Cases are often continued to allow defense attorneys to gather the necessary evidence and interview any possible witnesses. Before trial, the defense attorney may make various motions, including a motion to suppress unlawfully obtained evidence by the police and motions for the prosecutor or the police to disclose evidence which might help the defense."

An adult criminal defendant has the right to a trial by a jury. This is where 12 jurors, who are called "the finders of fact," listen to all the evidence presented by both the prosecution and the defense and decide what is proved and what is not. The judge's role in a jury trial is to make sure that both the prosecution and the defense adhere to all the rules of evidence when presenting their case to the jury.

At trial, the prosecution must prove the client's guilt beyond a reasonable doubt. All 12 jurors must agree in order to either convict or acquit. If the jury cannot agree, a "mistrial" will be declared by the court, and the case may be tried again before a different jury, it may be dismissed, or a case settlement may be agreed upon by the prosecution and the defense.

A defendant can also decide to have a judge hear the case, instead of a jury; this is called a "court trial." For this to happen, the prosecution must also agree. In a court trial, the prosecution must still prove the case beyond a reasonable doubt, but this time, the judge is the "finder of fact" and must decide whether or not the defendant is guilty, while also making certain that both attorneys are abiding by all the rules of evidence.

If a defendant is found guilty, the judge will then impose a sentence. The possible range of sentence, which is set by various laws, may range from no jail and probation, to confinement in the county jail for up to one year.

Defendants who have been convicted after a trial have the right to appeal their conviction. This process is started by the trial attorney who, upon request of the client, will file a notice of appeal in the trial court within 30 days of the imposition of sentence.

 
Q. Who is eligible for drug treatment within the criminal justice system under Proposition 36?
 
A. There are a variety of ways to get drug treatment when a person is charged with a crime. Los Angeles County has drug courts, in which people who are addicted to drugs can enroll in an intensive drug treatment program, without having to plead guilty or go to trial. Successful completion of such programs results in dismissal of the case. Proposition 36 requires the state to offer drug treatment instead of incarceration if a person is convicted of certain drug possession offenses or drug use offenses. Under some circumstances, a person who is convicted of certain crimes and is addicted to drugs can be committed to the California Rehabilitation Center (CRC) for drug treatment.

 
Q. How do Drug Treatment Courts differ from regular criminal courts?
 
A. The traditional adversarial system of justice, designed to resolve legal disputes, has been determined not to be highly effective at addressing alcohol or drug abuse. Indeed, many features of the court system and the roles the justice system professionals play might actually contribute to alcohol or drug abuse instead of curbing it: traditional defense counsel and prosecutor functions and court procedures often reinforce the offender's denial of an alcohol or drug abuse problem. The offender may not be clinically assessed until months after arrest, if at all. Moreover, the criminal justice system is often an unwitting enabler of continuing drug use because few immediate consequences for continued drug use are imposed. When referrals to treatment are made, they can occur months or years after the offense and there is little or no inducement to complete the program from a legal standpoint.

The mission of Drug Courts is to stop the abuse of alcohol and other drugs and related criminal activity. Drug Courts offer a compelling choice for individuals whose criminal justice involvement stems from drug use: participation in treatment. In exchange for successful completion of the treatment program, the court may dismiss the original charge, reduce or set aside a sentence, offer some lesser penalty, or offer a combination of these.

Drug Courts transform the roles of both criminal justice practitioners and drug treatment providers. The judge is the central figure in a team effort that focuses on sobriety and accountability as the primary goals. Because the judge takes on the role of trying to keep participants engaged in treatment, providers can effectively focus on developing a therapeutic relationship with the participant. In turn, treatment providers keep the court informed of each participant's progress so that rewards and sanctions can be provided. Drug Courts create an environment with clear and certain rules. The rules are definite, easy to understand, and most important, compliance is within the individual's control. The rules are based on the participant's performance and are measurable. For example, the participant either appears in court or does not, attends treatment sessions or does not; the drug tests reveal drug use or abstinence. The participant's performance is immediately and directly communicated to the judge by the treatment provider, who rewards progress or penalizes noncompliance. A Drug Court establishes an environment that the participant can understand - a system in which clear choices are presented and individuals are encouraged to take control of their own recovery.

Cases involving defendants charged with personal possession who are potentially eligible for Drug Court treatment are identified by the District Attorney's Office by the date of arraignment. The Probation Department may confirm such eligibility information. This information is given to the Public Defender on that date. During the initial interview, the attorney advises the client of all legal options including Drug Court treatment. If the client decides to participate in intensive drug treatment, the case is transferred that same day to the Drug Court judge. The treatment provider's court liaison will conduct a thorough interview of the client to determine the client's suitability for treatment as well as to identify any special needs this particular client might present. The focus of this case processing is to provide early intervention during this window of opportunity that the shock of arrest and incarceration creates. In the normal course of events a defendant can be participating in treatment within a week of his or her arrest.
 
Q. What happens when someone under the age of 18 is charged with a crime?
 
A. A child who is charged with committing a crime, with habitual truancy, or with incorrigibility, comes within the jurisdiction of the juvenile delinquency court. After a child is arrested, the child may be released to a parent and cited into court at some future date -- or transported to a juvenile hall. The police then submit their reports to the District Attorney's Office. If the District Attorney's Office decides to charge the child with a crime, the matter is set for arraignment in juvenile court.

An attorney should represent the child at the arraignment. Usually the court will also order the probation department to prepare a report which details the child's history at home and at school and will help determine whether court intervention in the child's life is necessary. If the matter is not resolved at that time, the case is usually calendared for trial or adjudication.

If the charges are admitted or found true at trial, another hearing, called a disposition hearing is held, at which the judge decides what must be done to rehabilitate the minor. The judge could order the child to be returned home on probation, sent to a group home, sent to a county-run juvenile camp, or in extreme cases, sent to the California Youth Authority. In all juvenile cases, the courts try to consider the unique needs of the child and find ways to turn his or her life around -- before it is too late.

Throughout the proceedings, a minor should be represented by his private attorney or by counsel appointed by the court. As in the adult court, if there is a conflict of interest between the minor and some other minor or an adult, which makes it improper for the Public Defender to represent the minor, the court will appoint other counsel. If the minor is represented by a Deputy Public Defender, that attorney will have the benefit of the input of psychiatric social workers employed by the Office of the Public Defender to assist the attorney in presenting treatment plans to the Juvenile Court for its consideration. If the offense with which the minor is charged is serious, the District Attorney might seek an order to have the minor treated as an adult. The court makes the ultimate decision whether the minor is "fit" to be treated within the juvenile court, or will be transferred to the adult criminal court for prosecution. The Juvenile Dependency Court has jurisdiction over cases involving abused, neglected or abandoned children. The Public Defender is not appointed on dependency cases, but rather, such matters are handled by attorneys who specialize in this area of law.
 
   
 
 





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