California Criminal Defense Law

California criminal law is the system by which state crimes are prosecuted and defended. All criminal laws must be codified (set out) in a particular statute that defines the crime and the punishment for a person convicted of it. Most of these statutes are found in the California Penal Code, the California Vehicle Code, the California Health and Safety Code, and the California Business and Professions Code.

Who prosecutes criminal offenses in California?

District Attorneys (D.A.s) bring most criminal charges. Every county has its own D.A's Office.

Incorporated towns have their own prosecuting agency: The City Attorney's Office. But they oversee only misdemeanors and infractions. The county D.A. handles any felony cases.

The California Attorney General's (A.G.'s) Office prosecutes a few select cases. And the U.S. Attorney General's Office manages all federal cases.

What's the difference between a felony, misdemeanor and infraction?

Felonies are the most serious class of crimes. They carry more than one year in state prison and up to $10,000 in fines. However, it may possible to get probation instead. Five examples of felonies include:

  1. Selling drugs (HS 11352)
  2. Lewd acts with a child under 14 (PC 288)
  3. Robbery (PC 211)
  4. Rape  (PC 261)
  5. Murder (PC 187)

Misdemeanors are less serious offenses than felonies. Standard misdemeanors carry up to 6 months in jail. And gross ("aggravated") misdemeanors carry up to 364 days in jail. The judge can impose a fine of up to $1,000 in addition to - or instead of - jail. Five examples of misdemeanors include:

  1. DUI without injury (CVC 23152(a) and(b))
  2. Domestic battery (PC 243(e)(1))
  3. Drug possession (HS 11350)
  4. Shoplifting (PC 459.5)
  5. Violating a restraining order (PC 273.6)

There are hundreds of crimes that can be prosecuted as either felonies or misdemeanors. Examples of these wobblers include various sex crimes and fraud offenses.

Infractions are less serious than misdemeanors. And they are not technically crimes. The judge may not impose jail. Only up to $250 in fines. Most traffic tickets are prosecuted as infractions. Five examples include:

  1. Speeding (VC 22350)
  2. Driving while texting (VC 23123)
  3. Running a stop sign (CVC 22450)
  4. Jaywalking (VC 21955)
  5. Unsafe passing (VC 21750 – 21759)

A few offenses can be prosecuted as either misdemeanors or infractions. Examples of these wobblettes include criminal trespass (PC 602) and disturbing the peace (PC 415).

How does the criminal court process work?

Most criminal cases start with an arrest. After the defendant gets booked in jail, the judge can do one of three things:

  1. Grant the defendant OR (own recognizance) release. This means the defendant can stay out of jail while the case is pending without paying any bail. This is typical in misdemeanor and low-level felony cases.
  2. Set bail. The more serious the charge, the higher the bail. If the defendant can post bail (either by paying directly or hiring a bondsman), the defendant can stay out of jail while the case is pending. Certain defendants released on bail may have to wear electronic monitoring
  3. Refuse bail. This means the defendant will remain incarcerated during the case. This typically occurs when the defendant is a flight risk or public safety risk.

The first official court hearing is the arraignment. This is where the defendant gets formally charged and enters an initial plea. The prosecution gives the defense attorneys the discovery (evidence). And the judge sets a new court date: A pretrial in misdemeanor cases, or a preliminary hearing in felony cases.

After the arraignment begins a period of negotiation. The defense attorneys will try to persuade prosecutors to reduce or dismiss the charges as part of a plea bargain. If both sides agree to a deal, the court will likely sign off on it. Most criminal charges resolve through negotiation.

If both sides cannot agree, the case will eventually go to trial. Everyone charged with a misdemeanor or felony in California is entitled to a jury trial. (But defendants have the choice to have a bench trial instead, where the judge decides the verdict.) The jury must be unanimous in order to hand down a guilty verdict.

If a defendant is found guilty at trial or pleads guilty (or "no contest") as part of a plea bargain, the judge will sentence the defendant. When the defendant finally completes the sentence, the case closes (ends).

Some cases last a few days or weeks. Others last several months or longer. It depends on the seriousness and complexity of the charges.

Do I need a lawyer if I'm charged with a crime?

Retaining a criminal defense attorney is recommended. There are three reasons:

  1. More negotiating power. Prosecutors tend to give defendants with private attorneys better deals.
  2. More convenient. Defense attorneys can often appear on defendants' behalf in court. This way, defendants do not have to miss work for court appearances.
  3. Better outcomes. The criminal process is confusing and intimidating. And without an attorney, defendants often feel pressured to accept a bad deal just to get the case over with. But a defense attorney fights for the best resolution possible, no matter how long it takes.

Defendants who rely on public defenders are often disappointed with the result. Public defender offices are extremely understaffed and overworked. They simply do not have the time, money, or resources to devote to each defendant that private attorneys have.

Hiring a criminal defense attorney does not have to cost a fortune. Payment plans and reduced rates are often available.

Is it possible to get the charges dismissed?

In several cases, yes. Defense attorneys may be able to convince prosecutors their case is so weak that they drop the charges with no conditions. Otherwise, prosecutors will dismiss eligible defendants' charges if they do a diversion program. Common diversion requirements include paying fines, attending counseling, and abstaining from alcohol.

There are many programs depending on the charges. These include:

An attorney can help defendants get into the right program.

If I'm convicted, can I later clear up my record?

People can get their California felony and misdemeanor convictions expunged ("cleared") if they:

  1. Completed probation, and
  2. Did not serve time in prison (with some exceptions)

Once a conviction gets expunged, future background checks show that the defendant had a conviction that was expunged. But it will not show what the conviction was for.

There are many benefits of getting criminal records expunged. Job applicants do not have to reveal the past criminal record to future employers. It is easier to get a professional license without a criminal record. And in some cases, an expunged record could help immigrants avoid deportation.

People convicted of certain sex crimes involving children are ineligible for expungement.

Note that defendants whose charges get dismissed can get their record sealed. This is different from an expungement. Sealed records do not show up on background checks at all.

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