The Criminal Defense Process

"To Whom Do You Trust Your Freedom?"

There are over 12000 sections in the California Penal Code! Other crime statutes can be found in the Health and Safety, Business and Professions, Insurance, Welfare and Institutions to name just a few.

No matter what crime is alleged, John M. Kucera has the experience to competently and aggressively defend any charge, in a confidential and courteous manner. He routinely defends and counsels individuals with respect to:

ArsonInsurance Fraud
Assault and BatteryJuvenile Crime
BurglaryJuvenile Defense
Business and White Collar CrimeKidnapping
Certificates of RehabilitationManslaughter
Child MolestationMarijuana Cultivation
DMV HearingsMattress Tag Removal
Drivers License SuspensionPardons
Drug Asset ForfeitureProbation Violations
Drug Violations and LabsRecord Sealing
Drunk DrivingRobbery
Explosives PossessionSentence Modification
Expungement Of RecordsSex Crimes
Firearms and WeaponsTheft
Fish and Game ViolationsThree Strikes Cases
FraudVehicular Homicide
HomicideWelfare Fraud

DISCLAIMER

Criminal defense is a complex and rapidly changing area of the law and this information is not intended to take the place of legal advice that an attorney may give. It does, however, give an overview of the law and procedure as it exists in Shasta County, California.

Types Of Crime

There are 3 types of crimes that can be charged in the State of California: Infractions, misdemeanors, and felonies:

  • Infractions, are crimes that have a maximum punishment of a fine.
  • Misdemeanors are crimes that have a maximum punishment of one year in the county jail.
  • Felonies are crimes that have a maximum punishment of state prison, or in the most serious of charges, death.

The degree of the crime charged depends upon the statute or law allegedly violated and the opinion of the arresting officer and/or the Deputy District Attorney that reviews the case for filing. Some crimes can be charged as either felonies or misdemeanors and are referred to as "wobblers".

Police Reports

Police reports are only available at the first court hearing or sooner through your attorney.

Police Investigation

Criminal prosecution begins with investigation by some law enforcement agency.* When a law enforcement agency undertakes an investigation that does not require an immediate arrest, the investigative reports are taken to the District Attorney's Office within the county where the incident took place. The District Attorney reviews the investigative reports and makes the decision to either file a criminal complaint with the court, return the case to the investigating agency for further investigation or decline prosecution.

There are numerous ways that a person may receive notice of prosecution for a crime. These include:

  1. receiving a citation in person by a police officer or receiving one sent by mail,
  2. being placed under citizen's arrest by a private party through a law enforcement officer,
  3. being arrested by a law enforcement officer without a warrant if the crime is a misdemeanor that occurred in his presence or, if the crime is a felony,
  4. being arrested by a law enforcement officer without a warrant if the crime is outside his presence, but is a felony,
  5. *being arrested by a law enforcement officer holding a valid arrest warrant, after the District Attorney has reviewed and filed a case and requested that arrest warrant from the court,
  6. by receiving a notice in the mail to appear at jail for voluntary booking and release.

Arrest And Booking

Technically speaking, each of these situations is considered an arrest. Once an arrest takes place an officer has the option of either placing the person charged in jail or releasing the person after having that person sign a promise to appear in court in the future.

Once charges are filed, it is not usual for the District Attorney's office to speak with a person charged and they will refuse to do so unless it is through your attorney. It is certainly not advisable for a person charged to speak to the District Attorney or any member of law enforcement after charges have been filed. (See "Your right to remain silent") Police reports are only available at the first court hearing or sooner through your attorney.

Following arrest, a person is "booked". This normally includes having fingerprints and photographs ("mugshots") taken before personal clothing and property are taken and placed into storage. Normally, the jail will give out public information to anyone, which includes the person's date of arrest, charges, bail, visiting hours and court dates.

Right To Remain Silent

Exercise your 5th Amendment right to remain silent. The law states that when a person is charged with a crime that anything that he or she says can be used against them in a court of law. However, the law also states that no person may be compelled to testify against himself. This is called the right against self incrimination. It is advisable that if a member of law enforcement contacts you in any manner as a suspect of a crime that you tell them:

  1. that you do not wish to say anything and
  2. that you want an attorney.

By law, the questioning must cease at that time. The landmark U.S. Supreme Court case of Miranda states that if:

  1. as a result of action by law enforcement, you are* not free to leave, and;
  2. you are being asked incriminating questions, you must be advised:
  • That you have the right to remain silent.
  • That anything that you say, can and will be used against you in a court of law.
  • That you have the right to have an attorney present before any questioning begins.
  • That if you cannot afford an attorney, one will be appointed to represent you.
  • Do you understand these rights?

Understand that after this advisement, most law enforcement agents will not ask you if you want to answer, but merely start asking questions.

Again, no matter what threats, promises or representations are made, you should tell them:

  1. that you do not wish to say anything and
  2. that you want an attorney.

Anything other than those words may be seen as an invitation by you to speak further. Also, realize, that although you have the right to speak to an attorney, one must be readily available to take your call. John M. Kucera is ready to advise you at this critical time.

Further, with respect to individuals who cannot afford an attorney, please understand that the appointment of a Public Defender is not done, except by the Judge at a person's first appearance in court.

Many times individuals being investigated are asked to voluntarily come to the police station to give a statement. The person is told that they are "free to leave at any time" and are often video-taped without their knowledge. Since they are "free to leave at any time", the police do not have to read the person their Miranda rights. (*See above).

Your Attorney

There are many good reasons to obtain an attorney and it is best to retain a competent attorney at the earliest possible time. The best reason to obtain an attorney is to receive professional advice. It is no wiser to represent yourself in court on a serious charge than it would be to treat yourself for serious illness or injury.

Experienced attorneys, such as John M. Kucera, have had the training to determine the validity of an arrest, whether search and seizure law has been properly complied with, to assess risk of criminal liability, to negotiate with the District Attorney, to present defenses when they exist, and if no defenses exist, to present mitigating facts to the court that will help avoid excessive fines, lengthy jail terms and other legal disabilities that accompany a conviction.

Also, depending on the nature of the case and type of hearing scheduled, there are ways that a lawyer may appear in court without the defendant so that work or other obligations are not missed. Keep in mind that you may be represented by a public defender or appointed counsel if you cannot afford to hire a private attorney.

However, you may be responsible for reimbursing the county for services provided by that public defender or attorney once your case is concluded.

Attorney-Client Confidentiality

There is an absolute privilege of confidentiality that exists between attorney and client. This means that an attorney is ethically bound not to repeat anything a client tells him and cannot be forced to repeat it. Accordingly, a person should not speak to anyone other than a attorney to protect that right. Failure to remain silent can force even family members to testify against a loved one.

Once a person has retained an attorney, a "shield" is created between the person and law enforcement and law enforcement must go through the attorney and may not talk to the person charged. You should not speak to anyone but an attorney about the facts of your case.

The Necessity Of Early Representation

If a person believes that they may be charged with a crime or is the target of a criminal investigation, he or she should immediately contact an experienced criminal defense attorney.

Early involvement by the attorney allows the attorney to contact law enforcement agencies and the District Attorney's Office so that an attempt can be made to dissuade the District Attorney from filing charges or to obtain an agreement that there will not be an arrest. This can save undue worry, embarrassment, incarceration and expense resulting from unnecessary charges being filed or imposition of high bail which the District Attorney might otherwise request from the court.

Release On Bail

If the person is taken to jail, the law provides that reasonable bail must be set to allow the person the opportunity to be released. This requires either posting cash with the court in the face amount of the bond or posting a bond supplied by a bail bondsman.

A bail bondsman usually requires collateral for the bond and typically charges a 10% fee of the face value of the bail which, in most cases is non-refundable. Bail amounts on felonies are usually no less than $10,000. Misdemeanor bail amounts widely vary. Once bail is posted (paid), the person charged, (known as the Defendant) is released from custody and is given a date to appear for the first court proceeding.

That first proceeding is called the "arraignment". If a person is in custody, that arraignment must take place within 48 hours not counting weekends and holidays. In circumstances where a defendant is arrested and bails before he is taken to court for arraignment, the date is typically set 30 days from the date of release. A person who "jumps bail" by failing to show up for court will have bail revoked and a bench warrant for arrest will be issued by the Judge.

Arraignment On The Felony Complaint

In a felony case, there are three stages:

  1. the investigation through preliminary hearing "complaint" stage,
  2. the pretrial "information" stage, and
  3. the "trial" stage.

Absent a Grand Jury indictment, which is rarely used, a felony case begins with the filing of a charging document called a "complaint" and there are a minimum of three court hearings that take place at that stage. These include:

The Arraignment hearing — where a defendant is advised of: the charges against them, the right to appointed counsel if an attorney cannot be afforded, the right to a preliminary hearing within 10 court days of the date of a plea, the right to use the power of the court to subpoena witnesses, the right to present evidence, the right to cross examine any witnesses who testifies, and; the right to remain silent.

At arraignment, a plea of "not-guilty" is entered and a plea-disposition hearing and preliminary hearing is requested and set. Whether a person waives his right to a speedy preliminary hearing is usually determined by the strategy being used by the attorney and the client.

Plea-Disposition Hearing

The second hearing in the "complaint" stage is called a Plea-Disposition hearing and it is normally held one day before the preliminary hearing. The reason for the hearing is to determine whether both prosecution and defense are ready to proceed the next day, whether there is a need to continue because of witness availability or other problems, or because the parties have agreed that the case can be settled or should be dismissed.

Preliminary Hearing

The third hearing at the "complaint" stage is the Preliminary Hearing. This hearing is a "mini trial" held for the purpose of "screening" cases to determine whether the case should be considered as being punishable as a felony with the possibility of state prison, as a misdemeanor with the possibility of county jail, or dismissed.

The case at a preliminary hearing is heard before a judge whose sole function is to determine whether in his mind there is a "strong suspicion that the person charged committed the crime". At this point, the judge will do one of three things after hearing the evidence:

One: "Hold the defendant to answer" and "Bind the defendant over" to the "pretrial" stage to be arraigned on charges filed in an "information". This will occur when the Judge found that the evidence presented by the District Attorney gave him a "strong suspicion" that the person charged committed the crime as a felony.

Two: Find that the conduct involved does not rise to the level of a felony and reduce charges to the grade of a misdemeanor, and set it for further settlement conference and trial proceedings.

Three: Dismiss the case based upon insufficient evidence. The District Attorney has the right to "refile" a felony a second time, and sometimes more depending on the type of charges being alleged.

Arraignment At Information Stage

Assuming that a person is "held to answer" felony charges, the case has moved to the second or "pretrial" stage. There are a minimum of four court hearings in the pretrial stage.

The first hearing in this second stage is arraignment on the "information". An "information" is the name given to the charging document at this stage. It will either reflect the same charges as those set forth in the earlier "complaint" charging document, or other charges will be added or subtracted, dependant on what testimony and evidence was produced at the preliminary hearing.

Once again, just as when the person was arraigned on charges in the "complaint" before preliminary hearing, the person is advised of the charges in the "information" filed against him and his Constitutional Rights in that regard. The rights include all of the same rights previously possessed except that there is now a right to have a speedy trial by Judge or jury within sixty (60) days.

At this point a plea of "not guilty" is entered and a motion date, settlement conference, trial readiness and jury trial is set. Again, a person has a statutory right to have a speedy trial within 60 days of his entry of plea of "not guilty" on the "information".

Pretrial Motions

After arraignment on the information, before settlement conferences and normally before trial, there are a wide variety of motions that may be filed depending on the facts and circumstances of each case. Motions have the effect of narrowing the focus of the issues in the case and keeping out irrelevant or illegally obtained information.

  • Motions may include, but are not limited to:
  • Motions to obtain discovery (to gain additional police reports or information)
  • Motions for a lineup (to see if a victim can point out the perpetrator of a crime)
  • Motion to suppress (to exclude illegal arrests, statements or objects from evidence)
  • Motions to seek fingerprint or handwriting exemplars (for comparison)
  • Motions to disclose confidential informants (that gave rise to a search warrant)
  • Motions to strike priors (where the conviction is deficient or insignificant)
  • Motions in limine (to prevent certain evidence from being brought out at trial)
  • Motions to continue (where one party has good cause to do so)
  • Motion to dismiss (for failure to show sufficient evidence at a preliminary hearing; loss or intention destruction of evidence; for not filing a complaint within the applicable statute of limitations; for failure to bring a case to trial in a speedy manner, as well as many others).

Settlement Conference

A settlement conference is an "in chambers" meeting between the defense attorney, the prosecuting attorney and Judge presiding over the case. The prosecuting attorney usually makes an offer to "plea bargain" to resolve the case. "Plea bargaining" is a matter of negotiation between the parties with the goal of resolving the case on terms satisfactory to both sides. A defense attorney attempts to obtain the best possible plea and disposition for the client.

"Plea bargaining" can include dropping counts, adding more appropriate or lesser counts, agreement to reduction of crimes to misdemeanors or infractions, or stipulation to the amount of fine or imprisonment.

Often times, the Judge will become involved by pointing out the strengths and weaknesses of both parties cases and give indicated sentences on proposed settlements before the plea is actually entered.

Trial Readiness

The week before a case proceeds to trial, a hearing is set for the purposes of determining whether a case is ready to proceed to trial or if a further trial date needs to be set.

Oftentimes, motions to continue are made based upon the need for further investigation, newly discovered evidence that must be investigated or witness unavailability. If those problems are not present, the case is assigned to a Judge in a trial department for the following week. Normally, at this point in time, the parties also must determine whether the Judge that has been assigned to hear their case should sit on the case or whether the Judge should be disqualified and another Judge appointed.

Trial

There are two types of trials: A Court trial where a sole Judge hears the evidence, or a Jury trial where 12 individuals from the community ("a jury of your peers") hears the evidence.

The benefit of a trial by jury is that an accused has twelve people determining innocence or guilt as opposed to one judge in a court trial. Furthermore, a jury decision (verdict) must be unanimous...that is to say, all twelve jurors must say that an accused is guilty or innocent. Accordingly, a majority vote of 11 jurors voting "guilty" and 1 juror voting "not guilty" is not a verdict, but rather a "hung jury". A "hung jury" can result in a retrial of the accused.

Trials are complex matters that only experienced attorneys, skilled in the area of criminal defense should attempt. Self representation is definitely not advised. As it is often said:

"He who represents himself as an attorney has a fool for a client..."

Sentencing

If a determination of guilt has been made by either a Judge or jury at trial, a sentencing hearing is held to determine how the person convicted should be punished.

Punishment depends on numerous factors, including whether the crime is a felony, punishable by state prison, a misdemeanor punishable by up to a year in county jail, or in the case of an infraction, a fine.

The mitigating or "good" things about a person and his case are weighed by the sentencing judge against the "bad" or aggravating facts about a person and his case.

This is usually visualized as the "scales of justice" at work. If the case has been referred to the probation department for a report and recommendation to the court, the accused has a meeting with a probation officer who reviews the accused social history, prior criminal history, if any, as well as the accused version of the facts of the case.

From that meeting, the probation officer, as an employee of the Judge, prepares a presentence investigation report that makes a sentencing recommendation to the judge. A copy is given to the attorney for the accused as well as the prosecutor. At the sentencing hearing, each has the opportunity to argue whether the presentence investigation report should be adopted or changed.

Based upon the argument given by the defense and prosecution, the Judge considers both sides and announces his sentencing decision in which he has broad discretion. In general, continuances of sentencing hearings are not given and an accused should be prepared to be taken into custody on the day of sentencing.

Those who fare best at sentencing seem to be those who take responsibility for their wrongdoing and do not seek to justify or excuse their conduct or to blame others. It is important to genuinely express the appropriate degree of remorse that is felt as well as to reflect on and describe to the probation officer and Judge the impact the illegal conduct had on the victim and society in general.

Probation can be formal, where the accused is supervised by a probation officer, or informal, where the accused is "on his or her honor" to the court. In either case, probation is the equivalent of being given a chance to prove to the court that the maximum punishment allowable should not be imposed.

Violation of the terms of probation can result in a person being sent to jail or prison for the maximum period of time for their offense minus the amount of time, if any already served. Under appropriate circumstances and for "good cause", probationary terms may be modified if the interests of justice will be met by doing so.

From the point of sentencing forward, the Sheriff is responsible for carrying out the order of the Judge. If a person has been sentenced to state prison, the Judge orders the accused to the custody of the Director of the Department of Corrections.

Transport to prison usually occurs within two weeks.

If the accused has been sentenced to a county jail term, there are alternative means of serving jail time other than actually sitting in jail.

Depending on the programs in place in any particular county, jail time can be served by working off time out of jail (work release), by house arrest through home electronic confinement (HEC), residential drug or alcohol treatment programs, community service or counseling.

Each of these programs involve additional cost but are welcome alternatives to the prospect of being confined in a jail cell. Also, the California Rehabilitation Center

(CRC) is a prison setting alternative to addicted felony drug offenders whom the court deems should be given a chance at rehabilitation.

Other Consequences

In addition to the fines and maximum terms of confinement that flow from commission and conviction of crimes, other consequences, depending on the nature of the crime, can result. These include, but are not limited to the following:

  • Registration as a drug offender
  • Registration as a sex offender
  • Loss of the right to own, possess or control a firearm of any type
  • Loss of the right to vote
  • Loss of driver's license (in some cases for life)
  • Loss of welfare or food stamp benefits for life
  • Use of a prior conviction as an enhancement for future crimes (e.g. Three Strikes Law)

In certain cases, some of these disabilities can be removed by expungement or pardon. We are well-versed in obtaining expungement, certificates of rehabilitation and pardons in the state of California.

Appeal

Once convicted and sentenced, an accused has the right to have his or her case reviewed by a higher court. There are strict time limitations for the filing of an appeal and those times differ depending on whether the case is an infraction, misdemeanor or felony. In any event, the filing of an appeal is the beginning of the process.

The nature of the notice of appeal depends on whether the case was by plea by the accused or verdict by jury. Failure to file this document in a timely manner can be fatal to an appeal. Accordingly, it is best to consult an attorney to determine the best course of action in filing an appeal.

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