FAQ

Usually, an arrest violates your constitutional rights; therefore, police must have a warrant or another justifiable reason (by law) to arrest you. If they do not have either a search warrant or a legal and justifiable reason to arrest you, the arrest is considered illegal.

Police often obtain an arrest warrant when they have enough information to indicate probable cause that you committed the crime. If the police knowingly provide the magistrate with false information to obtain a warrant, the arrest warrant becomes invalid.

Police officers do not need a warrant to arrest you for a wobbler offense. A wobbler offense can be a felony or a misdemeanor, depending on the alleged offense’s facts.

The officer can arrest you for a misdemeanor offense without a warrant if he or she witnessed the crime.

An officer is allowed to arrest you for a misdemeanor without a warrant and without witnessing the commission of the crime for offenses such as:

• DUI

• Domestic violence

• Some gun charges

• Some assault charges

When police officers arrest you, ask to speak with an attorney immediately. Do not answer their questions about the offense until you have a criminal defense attorney with you. When officers interrogate you, they will use the information you provide against you. Here are some dos and don’ts to remember when you are arrested:

• Call an attorney as soon as you learn you are under investigation or are arrested.

• Insist on having an attorney present during questioning or line-ups.

• Exercise your right to remain silent.

• Do not lie to your attorney (you do not have to admit guilt, but lying about what happened only hurts your case).

• Do not talk to anyone other than your lawyer about your case as they could be forced to testify against you.

• Do not try to influence the victims or witnesses to change their story, as this could lead to additional charges.

• Do not sign anything without your attorney present.

The Fifth Amendment gives defendants protection from self-incrimination and the right to an attorney. Before the police conduct a custodial investigation, they are required to give the Miranda warning, which includes the following rights:

• “You have the right to remain silent,

• Anything you say can and will be used against you in a court of law,

• You have the right to an attorney,

• If you cannot afford an attorney, one will be provided for you.”

Police officers are not required by law to read your Miranda right during the arrest, but they must do so before beginning the adversarial interrogation. If they fail to read the Miranda warning before the interrogation starts, any information you give cannot be used against you in court. However, it is always ideal to avoid self-incriminating information even if you have not heard the warning.

You can choose not to answer any questions the officers ask about the offense. You can also request the presence of an attorney before you answer any questions. You might, however, need to provide your identification and answer basic questions.

The Statute of Limitations states the period within which the prosecution can file charges against an offender once the crime is discovered. The Statute of Limitations ensures fairness for defendants due to possibilities such as evidence being lost or destroyed with the passing of time or witnesses moving and forgetting important details.

Crimes in California have different statutes of limitations. Misdemeanors usually have a Statute of Limitations of one year, while felonies have a Statute of Limitations of three years. California PC 800 states that the Statute of Limitations for crimes punishable by a minimum of eight years is six years. Crimes punishable by death, life imprisonment without the possibility of parole, and embezzlement of public funds do not have a Statute of Limitations. The prosecution cannot file charges for an offense once the statute of limitation expires.

You become a criminal defendant when you are arrested and charged with a crime. Your rights as a defendant begin when you are arrested.

The Fourth Amendment protects against unreasonable search and seizure. This right protects you from illegal searches and the use of evidence obtained through an unlawful search and seizure against you.

The Fifth Amendment also gives defendants the right to remain silent, meaning that neither the police nor the prosecution can force you to testify against yourself. The Fifth Amendment also protects you from being charged or convicted for the same offense twice. The right from double jeopardy, however, does not protect you from:

• Being charged for the same crime in both federal and state courts

• Being brought to a civil court for the same offense

The Sixth Amendment gives you the right to:

• Legal representation

• A speedy trial

• A public jury trial

• Confront witnesses (in court)

The eighth amendment also gives criminal defendants the right to reasonable bail and the right against cruel and unusual punishment.

Parents of minors in the juvenile justice system have several rights and obligations. Some of your rights include:

• The right to be notified of your child’s arrest or detention

• The right to know your child’s constitutional rights

• The right to have your child’s hearing kept confidential (in some cases)

• The right to know where your child is in custody

• The right to counsel your child and to hire legal counsel for your child

• The right to attend your child's court hearings

• The right to inspect your child’s juvenile court file

You also have the responsibility to reimburse the state for the costs of your child care and support in detention and pay victim restitution. If your child is facing charges in California, you should find a juvenile lawyer to defend your child.

In California, an arraignment is the first court hearing in a criminal case. The arraignment hearing involves taking a plea, determining bail, and setting a future court date for the pretrial or the preliminary hearing (for a felony).

The arraignment hearing occurs once the prosecution files formal charges against you. If you are facing charges for a felony offense, you will go through two arraignment hearings. The initial arraignment must happen within 48 hours (excluding weekends and holidays) if the offense requires you to remain in custody.

If you were released on bail for a felony charge, then the arraignment hearing can take place in weeks or months.

Failing to appear for your arraignment could lead to the issuance of a bench warrant. The bench warrant authorizes law enforcement to arrest and bring you directly to court. It could also lead to charges of failing to appear.

The court requires you to enter a plea during the attainment. You can enter one of three pleas in California:

• Guilty (when you enter a guilty plea, the criminal proceedings go directly to the sentencing hearing)

• Nolo contendere/no contest (this is an alternative plea to a guilty plea, but it cannot be used against you in civil court for an offense arising from the incident).

• Not guilty (a not guilty plea leads to the pretrial or preliminary hearing stage of the court process).

It is wise to talk to a criminal defense attorney before you take any plea. Your attorney can examine the circumstances of the case, the possibilities, and your expectations and guide you to making the best decision possible.

A defendant can withdraw a guilty or no contest plea in California under Penal Code 1018. You will file a motion to withdraw a plea before sentencing or within six months of a probation sentence. However, you must demonstrate good cause for withdrawing the plea before the court can allow you to withdraw a guilty plea and enter a not guilty plea. Regretting the decision to take a guilty plea is not a good cause for desiring to change your plea. Some of the situations that demonstrate good cause for withdrawing a guilty plea:

• An attorney did not represent you at the time of the plea

• You were unaware of all the consequences of the plea (mandatory jail time, suspension of licenses, or the immigration consequences of a guilty plea)

• You were coerced into pleading guilty

• Incompetent legal counsel at the time of entering the plea

• A language barrier, which led you to plead guilty to an offense, you previously would not have pled.

We always advise defendants to seek competent legal counsel early in the process to avoid situations such as these. A competent attorney will advise you on the advantages, disadvantages, and consequences of every plea and let you decide from an empowered point of view. When working with an attorney, you can ask relevant questions and get the right help.

Bail is the money you post with the court for an inmate to be released from jail. Bail is set to ensure that the criminal turns up for future court appearances. In California, it is illegal for you to remain in custody because you cannot afford bail. If the police can present enough evidence that you are a danger to public safety, you will not be released on bail.

In most cases, however, the court releases you on your own recognizance. Sometimes, the court will impose certain restrictions and requirements before releasing you. Some of the requirements might include:

• Travel restrictions (you might have to surrender your passport)

• Stay away orders

• Order to surrender your weapons

• Mental health treatment

• Alcohol/substance abuse treatment

• Electronic monitoring

• Home detention

Courts set bail depending on the crime for which police arrested you. Other factors that will determine the bail amount include your criminal history or your flight risk. Ties to the community, your ability to pay (it is unconstitutional for the court to set a bail amount that you cannot pay), and the facts of the crime are also considered.

Note that, failing to appear in court after posting bail will result in the forfeiture of your bail and issuance of a California bench warrant. The court will forfeit the bail you paid in court (cash bail), or if you posted a bail bond, the bail company will seek reimbursement from you and the cosigner.

However, if you appear within 180 days of the bail forfeiture notice and provide the court with a satisfactory reason for your absence, the court might reinstate your bail. Some of the satisfactory reasons for not appearing in court include severe illness, insanity, being in custody in another jurisdiction, and disability.

A bail hearing is a court proceeding where the judge decides whether to grant you bail. The judge will also determine the amount you should pay. You can expect one of four outcomes in a California bail hearing:

• the judge releases you on your own recognizance

• you are required to post bail

• the court releases you subject to other conditions other than bail

• bail is denied entirely (for violent felonies)

When you have an attorney representing you during a bail hearing, you will likely achieve better results. For instance, instead of paying bail, your attorney could convince the court that you will honor bail conditions and appear in court for all future court hearings.

You should note that in some cases, the court will deny bail if it feels that you feloniously obtained the bail through an unlawful transaction or occurrence that constitutes a felony.

The prosecutor is the legal representative of the state (or the People of California) in enforcing laws. Contrary to popular belief, the prosecution is not hungry for as many convictions as possible; instead, they carry out legal proceedings against people accused of violating the California penal code.

That said, the prosecution’s goal is to bring the accused to justice. The prosecution will file charges if it believes you are guilty of the crime. Summed up, the prosecution must protect the innocent, convict the guilty, and respect all persons’ rights (defendants, suspects, victims, and witnesses.

People charged with a crime often find themselves wondering whether they need an attorney. Some mistakenly believe that the courts will believe them since they are innocent and have 'nothing to hide. Others believe that the deal is done because they are guilty.

Regardless of the situation you are in, when the prosecution charges you with a crime, they intend to convict you for the offense. The prosecution charges you with the offense because the evidence they have tells them you are the most likely perpetrator.

They will use arguments in court to portray you as the bad person, regardless of factual guilt or innocence. That is why we advise you to hire an experienced criminal defense attorney after your arrest.

An attorney will help you prepare your defense strategy and represent you in court. They will negotiate the plea deal on your behalf to ensure that you get the right deal based on the evidence the prosecution has against you.

When you hire a good criminal defense attorney, you can expect the following:

• Your attorney will conduct a thorough investigation that includes talking to witnesses, reviewing the available evidence.

• Your attorney will develop a defense strategy that includes the defense theory and the offense’s legal defenses.

• Impassioned negotiations with the prosecution to have your charges reduced or dismissed (or some of the charges excluded from the case).

• Solid trial experience

• You can expect consistent and confidential communication.

You might already know how important it is to work with a criminal defense attorney when you or a loved one is facing criminal charges. But how do you find the right attorney? Here are some tips to help you:

• Ask for recommendations from family, friends, colleagues, or attorneys you have worked with before.

• Do not settle on the first attorney you find. Review a number of them before choosing the one with whom you are most comfortable.

• Look for a criminal defense law firm with experience in your specific crime. Ask the attorney how long they have been practicing. You can also ask a few questions regarding your case to determine if you are comfortable working with the lawyer.

• Read reviews and testimonials from other attorneys and past clients that the attorney has worked with. You can check for their rating as well.

• Look for an attorney who has experience working in the court where your case is pending. Experience with the local court means that the attorney understands how local prosecutors and judges operate, which is a major advantage for you.

• Know if you are hiring a single attorney or a team. Most lawyers who work as a team have better results. Therefore, it makes sense to go for a law firm that works with a team of attorneys.

• Compare the pricing and find a quality attorney whom you can afford. However, do not go for attorneys based only on their affordability. You must also ensure you are working with a qualified attorney who will defend you. Before you sign the agreement with your attorney, ensure that all the details you discussed are included. You should also check for hidden charges that might inflate the cost of your legal counsel.

Chula Vista Criminal Attorney helps you fight any criminal charges against you in California. We handle a diverse range of cases, including:

• DUI and related offenses

• Driving crimes such as driving without a valid license

• Sex crimes such as rape, child abuse, and sexual battery

• Violent crimes such as murder and arson

• Drug crimes, including possession and transportation of controlled substances

• Theft crimes such as petty theft, grand theft, grand theft auto

• Domestic violence

• Assault and battery

• Juvenile offenses

We also help clients with legal matters such as filing for an appeal and having their records expunged.

Crimes can be grouped as felonies or misdemeanors in California. But what is the difference? A misdemeanor in California is a less severe offense. Misdemeanor offenses can be standard or gross (aggravated).

A standard misdemeanor in California is punishable by a maximum sentence of six months in county jail. You might also have to pay a fine of up to $1,000.

A gross aggravated misdemeanor is punishable by up to a year in county jail and a fine of $1,000 or more. The court might award summary or informal probation for a misdemeanor offense in place of incarceration.

A felony is a more serious offense that often attracts a sentence longer than a year in jail or prison. The fines for felony offenses are also higher, with most of them ranging from $10,000. The penalties for a felony will depend on the facts of the case, your criminal history, and the Californian statute. Some felonies such as first-degree murder could result in life imprisonment with or without the chance for parole and the death penalty.

Some offenses can be misdemeanors or felonies, depending on the underlying facts. These are wobbler offenses. The common wobbler offenses in California include assault with a deadly weapon and brandishing a weapon.

Plea-bargaining is a common tool prosecutors and defense lawyers use when neither the prosecution nor the defense is confident that the case will play out in their favor. A plea bargain can be beneficial but should not accept every deal that comes your way.

Instead, examine the details of the plea deal and compare the advantages and disadvantages of taking the plea based on the circumstances of your case.

When the prosecution offers a plea deal, the goal is to get your case through the criminal justice system as fast as possible and secure a conviction. The prosecution is not after protecting your interests.

You should accept a plea bargain when the evidence against you strongly points to your guilt, and the likelihood of a guilty conviction is high when you go to trial. But when the evidence against you is weak or non-existing, a plea bargain does not make sense.

You should also note that by accepting a plea deal, you forfeit your right to appeal your case in the event of an unfair sentence.

California has a law whereby defendants get a 25 to life sentence for a conviction for three violent or serious felonies. The three-strikes law applies as follows:

• The third strike happens when you have two prior convictions for a serious or violent felony and are currently facing another felony charge. In this case, you are a third strike defendant and shall receive a sentence of 25 years to life if convicted. If you have two prior convictions for a felony, but the current charge is neither a serious nor a violent felony, you will receive a double sentence of the current charge. In some cases, you will receive a 25 to life sentence even if the present offense is not a serious felony.

• A second strike defendant has one prior conviction for a strike offense and is facing another felony charge. If convicted, the court will impose double the regular maximum sentence allowed for the offense.

Some of the offenses that count as strikes in California include: murder, voluntary manslaughter, rape, oral copulation, or sodomy by force, kidnapping, arson, extortion, kidnapping, and a felony in which the defendant personally uses a firearm (for example, first-degree-burglary, robbery, and grand theft with a firearm.)

A criminal record will affect your ability to find a job, but can your employer fire you based on your criminal record? It depends.

First, employers have the right to run a background check on job applicants and make hiring or firing decisions based on the background check results. Under the Federal Credit Reporting Act, an employer who wishes to run a criminal background check must:

• Get prior written consent of the employee or applicant,

• Notify the applicant or employee if he or she intends to disqualify or fire him or her based on the results of the background check,

• Provide the applicant with a copy of the background check, and

• Notify the employer or applicant after making the final employment decision based on the results of the background check

The Equal Employment Opportunity Commission also requires employers to consider several factors when they wish to run a criminal background check to avoid illegal employment discrimination:

• The nature and seriousness of the criminal offense

• The time that has passed since the offense

• The nature of the job

An employer does not have the right to ask you about or seek the records related to:

• An arrest that did not result in a conviction

• Sealed, expunged, or statutorily eradicated convictions

• Participation in a diversion program

However, an employer has the right to ask about an arrest for which a legal criminal proceeding is pending.

The Sixth Amendment gives you the right to a speedy trial, but the time it takes for a criminal case to end will depend on whether the crime is a misdemeanor or a felony. California Penal code 1382 expounds further on what a speedy trial means. Based on the statute:

• A defendant has the right to trial within 30 to 45 days of your arraignment for a misdemeanor offense.

• For a felony offense, you have the right to go to trial within 60 days of your arraignment.

You (defendant) also have the right to waive your right to a speedy trial (for instance, when taking a pretrial diversion program). Even if you waive your right to a speedy trial, you can bring a Serna motion with the court if the prosecution takes too long to bring you to trial. A successful Serna motion will result in the dismissal of your criminal charges.

The length of the actual trial depends on the complexity and issues raised during the trial. A simple trial can last a few days, while a complex case could take weeks or months to resolve.

When you are an immigrant, you risk negative immigration consequences if you are convicted of a deportable crime. Such a conviction could result in your deportation and removal from the US, denial of the right to reenter the US, and negation of your ability to become a naturalized US citizen.

Crimes that could result in negative immigration consequences include:

• Crimes of moral turpitude (crimes that display antisocial behaviors such as arson, assault with a deadly weapon, burglary, forgery, grand theft, grand theft auto, kidnapping, murder, rape, repeated felony DUI convictions.)

• Aggravated felonies such as murder, rape, drug trafficking, sexual abuse of a minor, theft crimes with a sentence of more than one year, fraud crimes involving at least $10,000, and illicit trafficking of firearms)

• Offenses involving controlled substances such as possession for sale, simple possession, drug transportation, and manufacturing

• Firearm offenses such as illegal purchase, sale, exchange, possession, use, or carrying of any firearm

• Domestic violence offenses

If you are a legal permanent resident, visa holder, or an asylee in the US and are charged with a crime, you need to work with an attorney who understands criminal and immigration laws. This is because you have more at stake when you are convicted than a US citizen who has committed the same offense as you have.

Find a Criminal Defense Attorney Near Me

Asking questions when you are facing charges can help you feel more confident about the days ahead as you navigate the criminal justice system. Learning as much as you can give you a sense of control and hope and lets you remain involved in your case. If you have questions about your case, contact Chula Vista Criminal Attorney at 619-877-6894 for a free consultation.