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Criminal Defense

Your Rights

The United States Constitution guarantees you the following rights, throughout the process:

Right to a Criminal Defense Lawyer - You have the right to a criminal defense attorney throughout your legal proceedings.

Right to a Jury Trial - You have the right to a speedy, public jury trial. At the trial, you are presumed innocent, and cannot be convicted unless 12 impartial jurors have been convinced of your guilt beyond a reasonable doubt.

Right to Confront Witnesses - You have the right to confront and cross-examine all witnesses testifying against you.

Right Against Self-Incrimination - You have the right to remain silent, to prevent self-incrimination, and the right to testify on your own behalf.

Right to Produce Evidence - You have the right to present evidence and to have the court issue a subpoena to bring into court all witnesses and evidence that may help you.

How it works

While police officers are responsible for gathering evidence, it is the duty of the District Attorney's Office to decide if charges should be filed and if so, which specific charges should be levied. Since prosecutors tend to "dig in" once they have decided to file certain charges, it is advantageous to hire an attorney early on in the process so that he may contact the Deputy District Attorney responsible for your file and attempt to dissuade him from filing charges in the first place.

If charges are in fact filed, then they are articulated on a document called a "complaint." The complaint is formally read at the first hearing known as the "arraignment." At the arraignment, the defendant must plead "no contest," or "guilty," (both pleas have the same legal effect in a criminal law context), or he may plead "not guilty." If a not guilty plea is entered, then discovery is obtained, which is all of the evidence and documentation intended to be utilized by the prosecution to obtain a criminal conviction. The matter is then set for a readiness conference, which provides the defense attorney an opportunity to discuss the merits of the case with the prosecutor. If no resolution can be reached, then subsequent readiness conferences may or may not be necessary. The Defense may file various motions prior or subsequent to the readiness conference and may also retain the services of a private investigator and/or forensic toxicologist in order to better understand the facts and evidence.

In a felony case, the prosecution would need to put on a "preliminary hearing," where the District Attorney's Office must introduce evidence and prove that there is probable cause that the crimes alleged actually occurred. The DUI preliminary hearing carries a different set of evidentiary rules and a much lower burden of proof than a jury trial.

If a dismissal or plea bargain cannot be achieved in either a misdemeanor or felony case, then the matter would be set for a jury trial.

In many misdemeanor cases, if you hire a Criminal Defense Attorney prior to your arraignment you will never have to personally appear in court as your attorney may file a "waiver of defendant's personal presence" under California Penal Code Section 977. This helps to alleviate some of the anxiety of the criminal defense process as you will be able to continue your normal activities and routines, while only corresponding directly with your Defense Attorney.

Misdemeanors vs Felonies

Misdemeanors

Misdemeanors are punishable by a fine or a term in the county jail, or both. For most misdemeanors, that means up to six months in jail and up to $1,000.00 fine. Examples are petty theft, prostitution, and driving under the influence (DUI) as a first offense. For some misdemeanors, the maximum punishment is a year in county jail and a fine of $1,000.00. Examples of these are criminal threats, forgery, and driving under the influence as a second offense. Still, for other misdemeanors, the maximum fine can be much more substantial. For example, battery ($2,000), domestic violence with injuries ($6,000) and vandalism ($50,000) all carry substantial maximum fines.

Certain misdemeanors carry a minimum jail term, such as 48 hours for driving under the influence as a second offense, 15 days for domestic violence with injuries as a second offense, 45 days for prostitution as a second offense, and 90 days for brandishing a firearm.

Many defendants instead elect to be placed on summary or informal probation, and the court retains jurisdiction over the case and the associated punishment. In practice, the court suspends imposition of the statutory sentence and instead conditionally releases the defendant back into the community, upon specified conditions geared to rehabilitate and reform. During the probationary term, the judge may require the defendant to report to provide the court with regular status updates and in other cases no further court appearances are necessary, assuming all terms and conditions have been completed satisfactorily.

Felonies

Felonies include more serious allegations and provide for imprisonment in state prison as opposed to county jail and may even prescribe lifetime incarceration or the death penalty in certain case. The life of a felony case is generally as follows:

  1. Arraignment
  2. Bail Review
  3. First Readiness Conference
  4. Discovery
  5. Law and Motion
  6. Subsequent Readiness Conferences (if necessary)
  7. Preliminary Hearing or Waiver
  8. Arraignment
  9. Pretrial Conferences
  10. Law and Motion
  11. Trial (if necessary)
  12. Sentencing Hearing

Appeals

A criminal conviction can have lasting negative consequences and therefore it may be prudent to retain a criminal appellate lawyer to review your case in its entirety and attempt to overturn the conviction. On appeal, no new evidence is introduced. Instead, the court of appeal focuses on legal arguments in the context of the facts already presented at the trial court.

The first step of a criminal appeal involves reviewing all evidence and documentation in your case, including transcripts from any hearings and the jury trial, if applicable. After meticulous review of the record, an appellate lawyer will then speak with the trial attorney to flesh out the facts further. After the appellate lawyer has a clear picture of the facts and procedural posture, he then conducts legal research and searches for any legal issues that may be examined by the Court of Appeal. These issues are analyzed and argued in a document called, "Appellant's Opening Brief" (AOB). After filing the AOB, the Attorney General's Office, which advocates on behalf of the prosecution, addresses the AOB's arguments in a "Respondent's Brief." Finally, the appeals lawyer can then file a rebuttal to Respondent's Brief, before deciding whether to request oral arguments in front of the appellate court. After considering all arguments, the appellate court renders a decision and can overturn the conviction, grant a new trial (or hearing), or simply uphold the conviction.

Expungement (Record Clearing)

An expungement is a process by which your case is retroactively dismissed.

A criminal conviction may restrict your employment opportunities or other privileges. Under California Penal Code Section 1203.4, you may expunge your DUI conviction as long as you have complied with all terms and conditions of probation and have no new or open criminal cases at the time you seek your expungement. If you need to have your record expunged prior to the completion of your probationary period, you may first seek an early termination of your probation, followed by a separate motion for expungement. In Santa Barbara, early termination of probation is generally granted if you have completed all terms and conditions of probation and if you can show the court a good-faith reason for your request (job application, security clearance, etc.).

If probation was not part of your plea bargain or conviction, then you may still apply for expungement under California Penal Code Section 1203.4a. In the event that you were convicted of a felony, you should first make a motion to reduce your felony to a misdemeanor pursuant to California Penal Code Section 17b. Only then should you seek an expungement. This ensures that your record will reflect the retroactive dismissal of a misdemeanor rather than a felony.

Generally, your early termination of probation, 17b motion, and expungement are handled by the same attorney at the same time. Feel free to contact our office to discuss your Santa Barbara expungement. We also handle expungements in San Luis Obispo, Ventura, and other California Counties.

Criminal Charges

There are many different crimes that may be charged. The following is a sampling, however, it should be noted that this list is not exhaustive:

• Arson • Assault
• Assault with a Deadly Weapon • Auto Burglary
• Battery • Battery on a Peace Officer
• Bribery • Burglary
• Carjacking • Child Abuse
• Child Endangerment • Child Pornography
• Criminal Threats • Disturbing the Peace
• Domestic Violence • Driving on a Suspended License
• Driving Without a License • Drug Crimes
• Drunk in Public • DUI
• DUI of Drugs • Elder Abuse
• Embezzlement • Expungement
• Extortion • Failure to Register as a Sex Offender
• False Imprisonment • Firearm Offenses
• Forgery • Fraud
• Grand Theft Auto • Hit and Run
• Indecent Exposure • Kidnapping
• Lewd Acts with a Minor • Mayhem
• Marijuana possession • Marijuana sale
• Murder • Nursing Home Abuse
• Probation Violation • Prostitution
• Rape • Receiving Stolen Property
• Resisting Arrest • Robbery
• Sexual Battery • Stalking
• Statutory Rape • Theft
• Three Strikes • Trespassing
• Vandalism • Vehicular Manslaughter
• Warrants  

Domestic Violence

While every category of crime carries its own challenges and nuances, domestic violence cases tend to be quite unusual in that often times the "victim" is not cooperating with the prosecution. Instead, the District Attorney's office conducts an independent evaluation of the facts as represented by the police report, and files charges accordingly.

Under California law, domestic violence is broadly construed to mean causing or attempting to cause bodily injury, and/or sexual assault against a spouse, a former spouse, a person you are dating, a person with whom you are living, a person with whom you used to live and/or a person with whom you had a child. Domestic violence can involve physical injury, or domestic violence can occur merely by threatening words.

The legal definition of an "intimate partner" for purposes of domestic violence includes husbands or wives, boyfriends or girlfriends, and same-sex partners. Therefore, any intimate partner, no matter the sex, can be a victim of domestic abuse. The law is very broad in terms of how the relationship giving rise to domestic violence is defined.

"Abuse" is likewise legally defined in very broad terms. Each of the following actions, among others, can lead to prosecution for domestic violence or intimate partner violence: hitting, slapping, punching, kicking, threatening with a weapon, threatening without a weapon, hitting with an object, hair pulling, burning, cutting, biting, stabbing and stalking. No matter how slight the physical touching was, the accused can still be prosecuted. Some types of domestic violence charges do not even require any physical touching, such as stalking.

Drug Crimes

While drug charges vary greatly, the most important factors in determining the specific charges and the resulting punishment are:

  1. The type of drugs involved
  2. The quantity of drugs involved
  3. If the drugs were utilized for personal use or with the intent to distribute
  4. The involvement (or lack thereof) of minors
  5. Your criminal record
  6. Any other crimes that may be associated with the underlying drug charges

Sex Crimes

Sex crimes can be extremely serious, making it imperative that you contact an experienced criminal defense attorney immediately. If convicted of a sex crime, you may spend time in jail or prison, where convicted sex offenders are generally viewed unfavorably by inmates convicted of other crimes. As a result, time spent in jail or prison is potentially much more dangerous than for other crimes.

Many sex crimes convictions make you ineligible for probation, and most sex crime convictions require registration as a sex offender pursuant to Penal Code Section 290. Sex offender registration may substantially limit where you can live and may also preclude you from visiting parks, schools, and other public areas. In addition, under California's version of Megan's Law, which is the penal code applicable to registered sex offenders, your name, address, and photograph are available to the public.

If convicted, you would need to register here: http://www.meganslaw.ca.gov/

As you can see, a sex crime conviction can be a life altering event. The following is a sampling of representative sex crimes:

  • Rape
  • Statutory rape
  • Lewd acts
  • Prostitution
  • Possession of child pornography
  • Sexual abuse
  • Sexual assault
  • Child sex crimes
  • Date rape
  • Spousal rape
  • Indecent exposure
  • Failure to register

Theft Crimes

There are many types of theft crimes and the consequences can vary greatly depending upon the value of the alleged theft, your criminal history (or lack thereof), and a multitude of aggravating or mitigating circumstances.

While ignorance of the law is never a valid defense to a theft crime, an honest mistake of fact may be a defense, especially if the factual mistake appears to be reasonable in light of the circumstances. Below is a sampling of various theft crimes:

Auto Burglary: This involves breaking into a vehicle with the specific intent of stealing the vehicle.

Burglary: Entering a structure with the specific intent to commit a theft or any felony. This includes homes and businesses. If the structure is a home or "inhabited dwelling," you may be charged with residential burglary and you may be subject to a "strike" pursuant to California's Three Strikes Law.

Carjacking: The taking of a vehicle by force. Robbery of a vehicle.

Embezzlement: Stealing of property while you had physical possession. An example would be when a bank teller that was given permission to handle the bank's cash decides to steal.

Grand Theft: This involves the taking of property valued over $950.

Grand Theft Auto: This is automatically grand theft, even if the value of the vehicle is determined to be below $950.

Grand Theft of a Firearm: Stealing a firearm always constitutes grand theft, regardless of value. This conduct is always a felony.

Petty Theft: Stealing of property of value up to $950. While this is a misdemeanor, prior offenses may lead the prosecutor to file this as a felony.

Receiving Stolen Property: Purchasing or receiving property in which one knows has been stolen.

Robbery: Using violence or force to take property from another. This is a "strike" under California's Three Strikes Law.

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