Criminal Procedure
Southern California Defense Attorneys
Orange County, Los Angeles Premier Criminal Defense Lawyer
Legal procedures are often alien and overly complex to those who have never experienced them. Whether you have been charged with a state or federal crime, the experienced criminal defense attorneys at the Law Offices of Michael L. Guisti can guide you through the process and explain your rights.
California Criminal Procedure Questions:
- Q: How is a felony different from a misdemeanor?
- Q: Is it possible to "settle" the charges against me?
- Q: Will the prosecution honor any plea bargains I made with the police to have the charges reduced?
- Q: Do criminal charges have a Statute of Limitations regarding their filing?
- Q: For whom does a public defender assigned to my case work? How closely does he work with the prosecution?
- Q: Why is it that some defendants are released without bail, and others must post bail to be released?
- Q: What are the differences between a preliminary hearing and an arraignment?
- Q: What is a 'pre–trial release'?
- Q: What does it mean to plead 'no contest'?
- Q: If I choose deferred prosecution, am I admitting to having committed the crime?
- Q: If I am put on probation or assigned community service, will it appear on my record?
- Q: What does the term 'double jeopardy' mean?
How is a felony different from a misdemeanor?
Misdemeanor offenses are relatively minor crimes, while felonies are more serious crimes. Whether a crime is a misdemeanor or a felony has a big impact on the potential punishment if convicted. Generally speaking, the maximum punishment for a misdemeanor is one year in prison, while a felony conviction carries the potential of many years in jail. Both a felony and misdemeanor conviction also carries the possibilities of fines and/or probation.
Is it possible to "settle" the charges against me?
In a civil litigation case, the parties involved may agree to settle a case based on mutually negotiated terms. While there technically is no such thing as a "settlement" in a criminal case, the prosecutor may offer a "plea bargain" that reduces the seriousness of the charge against the defendant and/or the number of charges brought against the defendant, in exchange for a guilty plea to avoid going through a trial, as well as an agreement to cooperate on other matters.
Will the prosecution honor any agreements I made with the police to have the charges reduced?
Legally, prosecutors are not bound to honor them, since law enforcements officers do not have the authority to make binding plea agreements or sentencing concessions. The only person that can execute a binding agreement regarding any charges or sentences against you is the prosecutor.
Law enforcement officials can say that they will inform the prosecutor of your cooperation, or recommend that you receive a more lenient sentence, or that some of the charges against you be reconsidered; however, they just do not have the authority to negotiate agreements with you that are binding on the prosecutor or the judge. If you are made such a promise by a police officer, be sure to consult with a criminal defense attorney to confirm that the prosecutor will agree to honor it.
Do criminal charges have a Statute of Limitations regarding their filing?
There is no statute of limitations for a homicide or murder case. All other crimes do come with a statute of limitations, which often varies widely from crime to crime and state to state.
For whom does a public defender assigned to my case work? How closely does he work with the prosecution?
Public defenders are paid for by the state, just like prosecutors and district attorneys. However, that is where the similarities end. The prosecutors represent the interests of the state and its citizens in prosecuting crimes. A public defender's obligation is solely to assist his client defend himself from the charges against him. There is no need to be worried about whether your public defender's loyalties are divided between you and the government, or whether perhaps he may be "in cohoots" with the prosecutor in trying to get you convicted.
It is to be expected that there is an appearance of teamwork on the part of the district attorney and the public defender, since they often see each other almost every day at the courthouse. Since these two often work together to negotiate plea bargains, this can be expected. Any concerns about the loyalties or the professionalism of a public defender are unwarranted; the vast majority of public defenders perform at least as well as privately retained attorneys, and for much less pay and recognition.
Why is it that some defendants are released without bail, and others must post bail to be released?
The judge determines the amount of bail to be posted on any particular case, taking into account the type and seriousness of the alleged crime, the accused's previous criminal record (if any), whether the defendant has a history of failing to appear in court, and any family or other connections that he has within the community. In certain cases, the judge may not require bail to be posted, especially if it is a minor offense, or if the defendant is a public figure or official that is very unlikely to flee the area.
What are the differences between a preliminary hearing and an arraignment and an arraignment?
The purpose of the preliminary hearing is for the judge to see whether there is enough evidence for the accused to stand trial on the charges that have been alleged. The prosecutor must establish 'probable cause' that a crime was committed, and that the defendant is the likely culprit.
The purpose of the arraignment is for the defendant to formally hear the crimes for which he is charged, as well as an opportunity for him to enter a plea of either guilty, not guilty, or no contest. In some courts, the arraignment immediately follows the preliminary hearing. In others, the judge sets a future date for the arraignment.
What is a 'pre–trial release'?
A 'pre–trial release' is roughly the federal criminal court system's equivalent to bail proceedings in state criminal courts. When someone is arrested on federal criminal charges, a pre–trial release officer is assigned to the case. This officer will review the defendant's personal history, such as prior criminal records, employment history, and whether he has any family in the community. The pre–trial officer will make a recommendation to the federal criminal court as to the appropriate bail amount for that case.
Unlike the criminal justice system at the state level, where bail is virtually always set, the government can request that no bail at all be granted to someone charged with breaking a federal law, such as drug offenses, under the grounds that the defendant is a flight risk, or that he poses a significant danger to the community.
Since the pre–trial release officer acts independently of the prosecutor and court, it is usually in your best interest to be honest and cooperative with him, as it may lead to your being released on bond. Nevertheless, it is always a good idea to have your federal criminal defense attorney present when providing information to him.
What does it mean to plead 'no contest'?
Someone charged with a crime has three options when it comes to entering a plea – guilty, not guilty, or no contest. Pleading 'no contest' means that, while you do are not admitting guilt, you do not contest the charges against you, and that you are submitting yourself for sentencing. In practice, there is no functional difference between a plea of 'no contest' and a guilty plea.
Some people are adamant that they have not committed a crime, and as such refuse to plead 'guilty'. Pleading 'no contest' allows them to avoid going to trial on a crime for which they would likely be found guilty by a judge or jury, while at the same time allowing themselves to 'save face' by not having to admit guilt to the crime. The 'no contest' plea is often made in conjunction with a plea bargain with the prosecution for a reducing of the charges or punishments that you are facing.
The 'no contest' plea is similar to a guilty plea in that, by pleading as such, the defendant waives the right to a jury trial, the right to confront and cross–examine witnesses, and other constitutional rights. Also, the court will still sentence you for the crimes with which you are charged, and a criminal conviction will go on your record.
If I choose deferred prosecution, am I admitting to having committed the crime?
No. With a deferred prosecution, the criminal case proceedings are suspended for a set period of time, perhaps one year, with certain conditions. The usual condition is that the defendant not be charged or convicted of any new crimes during that time period. If, at the end of the set time the conditions have not been violated, then the initial charges that were put on deferred prosecution are dismissed. No guilty plea or judgment of conviction is entered into the record. On the other hand, if the conditions are not met, then the prosecution moves ahead with the trial.
In the case of a deferred judgment, the defendant must enter a plea of guilty, at which point the case is suspended for a period of time (as in a deferred prosecution), usually with similar conditions being established. If the conditions are met, then the charges are withdrawn and no guilty plea or judgment of conviction is entered into the record. On the other hand, if the conditions are violated, then the guilty plea is considered binding, and the case moves on to sentencing.
As can be guessed, a defendant would much rather prefer a deferred prosecution to a deferred judgment. This option is offered only on rare occasions by the prosecution. Any decisions on whether to accept deferred prosecution or judgment should be made only on the advice of a qualified criminal defense attorney.
If I am put on probation or assigned community service, will it appear on my record?
Both probation and community service are types of sentences stemming from a guilty plea or conviction, and as such, will appear on your record. However, in most instances, if the terms of probation are met, and community service is completed on time, you may petition for the conviction to be removed from your record.
What does the term 'double jeopardy' mean?
According to the Fifth Amendment of the Bill of Rights (also known as the double–jeopardy clause), individuals cannot be tried twice for the same crime by the same governmental agency. It protects an individual from being prosecuted twice if he was previously acquitted or convicted of the same crime, as well as being punished repeatedly for the same crime.
For instance, a criminal act may have multiple elements such as burglary, rape, or kidnapping. Each element may be prosecuted separately or jointly, since these are differing crimes stemming from the same incident. However, once a judgment is reached on these elements, then the double jeopardy clause protects you from any further attempts to prosecute you. The double jeopardy clause does not apply for cases that ended in a mistrial or hung jury.
These are but a few of the complex legal questions that can be answered by one of our experienced Southern California criminal defense attorneys. Please call the Law Offices of Michael L. Guisti at (714) 530–9690 for a free initial consultation with an attorney regarding your case.
