Mashney Law Offices

THE BASICS

THE CRIMES
Felony - A crime punishable by one year or more in State Prison. All felonies begin in Municipal Court, where a preliminary hearing is held. Felonies then proceed into Superior Court.

Misdemeanor - A crime punishable by up to one year in County Jail. Misdemeanors are only dealt with in Municipal Court.

Wobbler - Certain crimes can be charged as felonies or misdemeanors.

IMPORTANT: Even if a wobbler begins as a felony, it may be reduced to a misdemeanor at sentencing, or the completion of successful probation.
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THE ATTORNEY
You may retain an attorney at any time, regardless of how far along your case may have progressed. It is most often best to retain an attorney when you first learn that there may be an investigation.

You may be represented by the public defender (or appointed attorney) if you can not afford to retain private counsel. However, you may be responsible for paying the costs of a public defender (or appointed attorney) at the conclusion of your case.
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THE ARREST
Arrests must be based on probable cause. While there is no simple test to define probable cause, the police must rely on what they believe to be good information.

MISDEMEANOR:
Arrests can only be made for crimes which occur in the presence of the person making the arrest, or with a warrant. For this reason, shoplifting arrests are technically made by a store security guard. (The police actually effectuate the arrest).
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THE BOOKING PROCESS
While going through the booking process, the following should be expected: mug shots, fingerprints, a search and routine questions on background information. (name, address, etc.)

If your case begins with a court appearance and not an arrest, you may still be required to appear at the police station for a book-and-release procedure.

Most jails will give out booking information (arrest date, bail, visiting information, location, court date, charges and booking number). Generally, you'll be asked for the defendant's full name and birth date. Keep the booking number for future reference.
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POLICE REPORTS
The law does not require the police to release their reports. However, we can often convince them to turn the reports over to us. And, in many instances we are able to speak directly to the investigating Officesr for information on the evidence supporting the arrest and the nature of the charges.

The California Codes Regarding Police Reports and the Relevant Expungement are as follows:

CALIFORNIA CODES PENAL CODE SECTIONS 11115-11117

11115. In any case in which a sheriff, police department or other law enforcement agency makes an arrest and transmits a report of the arrest to the Department of Justice or to the Federal Bureau of Investigation, it shall be the duty of such law enforcement agency to furnish a disposition report to such agencies whenever the arrested person is transferred to the custody of another agency or is released without having a complaint or accusation filed with a court. The disposition report in such cases shall be furnished to the appropriate agencies within 30 days of release or transfer to another agency. If either of the following dispositions is made, the disposition report shall so state: (a) "Arrested for intoxication and released," when the arrested party is released pursuant to paragraph (2) of subdivision (b) of Section 849. (b) "Detention only," when the detained party is released pursuant to paragraph (1) of subdivision (b) of Section 849 or issued a certificate pursuant to subdivision (b) of Section 851.6. In such cases the report shall state the specific reason for such release, indicating that there was no ground for making a criminal complaint because (1) further investigation exonerated the arrested party, (2) the complainant withdrew the complaint, (3) further investigation appeared necessary before prosecution could be initiated, (4) the ascertainable evidence was insufficient to proceed further, (5) the admissible or adducible evidence was insufficient to proceed further, or (6) other appropriate explanation for release.

11116.5. Any dismissal and reason therefore provided by Section 11115 or 13151. 1 may be used by the person subject to the disposition as an answer to any question regarding his arrest or detention history or any question regarding the outcome of a criminal proceeding against him.

11116.6. The dispositions provided by Sections 11115 and 13151.1 must be entered on all appropriate records of the party arrested, detained, or against whom criminal proceedings are brought.

11116.7. Whenever an accusatory pleading is filed in any court of this state alleging a public offense for which a defendant may be punished by incarceration, for a period in excess of 90 days, the court shall furnish upon request of the defendant named therein a certificate of disposition which describes the disposition of the accusatory pleading in that court when such disposition is one described in Section 13151.1. The certificate of disposition shall be signed by the judge, shall substantially conform with the requirements of Section 11116.8, and the seal of the court shall be affixed thereto. In the event that the initial disposition of the accusatory pleading is changed, a new disposition certificate showing the changed disposition shall be issued by the court changing the same upon request of the defendant or his counsel of record.

11116.8. The certificate of disposition provided by Section 11116.7 shall describe the charge or charges set forth in the original and any amended accusatory pleading, together with the disposition of each charge in the original and any amended accusatory pleading.

11116.9. The clerk of the court in which the disposition is made shall provide the defendant or his counsel of record with additional certified copies of the disposition certificate upon the payment of the fees provided by law for certified copies of court records.

11116.10. (a) Upon the request of a victim or a witness of a crime, the prosecuting attorney shall, within 60 days of the final disposition of the case, inform the victim or witness by letter of such final disposition. Such notice shall state the information described in Section 13151.1. (b) As used in this section, "victim" means any person alleged or found, upon the record, to have sustained physical or financial injury to person or property as a direct result of the crime charged. (c) As used in this section, "witness" means any person who has been or is expected to testify for the prosecution, or who, by reason of having relevant information, is subject to call or likely to be called as a witness for the prosecution, whether or not any action or proceeding has yet been commenced. (d) As used in this section, "final disposition," means an ultimate termination of the case at the trial level including, but not limited to, dismissal, acquittal, or imposition of sentence by the court, or a decision by the prosecuting attorney, for whatever reason, not to file the case. (e) Subdivision (a) does not apply in any case where the offender or alleged offender is a minor unless the minor has been declared not a fit and proper subject to be dealt with under the juvenile court law. (f) This section shall not apply to any case in which a disposition was made prior to the effective date of this section. 11117. The Department of Justice shall prescribe and furnish the procedures and forms to be used for the disposition and other reports required in this article and in Sections 13151 and 13152. The department shall add the reports received to all appropriate criminal records. Neither the reports required in this article nor those required in Sections 13151 and 13152 shall be admissible in evidence in any civil action.
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CHARGING DECISION
It is a common mistake to believe private citizens (victims) have the power to "press" or "drop" charges. Only the prosecuting attorney's Offices has the authority to bring criminal charges.

The police do not file charges. In fact, the charges on which a person is booked by the police are often changed at a later date by the prosecutor.

Although a "victim" can not drop charges, they can (and often do) influence the prosecutor’s decisions. Direct contact with a person thought of as a victim (by the prosecutor) is not recommended, and is often not advised. If you have any question about this, you should speak with an attorney.
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THE BAIL
Bail is initially set by the arresting Officesr or the watch commander. It is usually set according to a bail schedule published by the Court in each county. Many defendants will receive an "own recognizance (O.R.)" release and will not have to post bail.

Bail reduction motions can first be made at the arraignment. There are also other (but limited) opportunities to bring a motion to reduce bail.

Bail is made with cash or a bond. A bond requires a 10% fee to a bondsman plus collateral. The 10% is the bondman's fee and will not be returned. Cash bail is returned, less a small administrative fee, when the case is over. We often can help you find a bondsman who will work diligently to arrange bail, (often including payments on their fee,) with eased collateral requirements.
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THE CASE

THE ARRAIGNMENT
California law allows the police to hold a suspect for up to 72 hours after the arrest, (unless it is on a weekend or court holiday) and then it can be extended one day. For example, if you are arrested on a Thursday before a holiday weekend, you can spend up to four or five days in jail before you see a judge.

To find out when the first appearance will take place, call the booking information line at the jail, or the arresting agency.

An attorney may make a special appearance (one appearance only) at the arraignment and may be able to request a bail reduction. Special appearances can only be made at the first appearance/arraignment.

In a misdemeanor case, once the law firm appears on behalf of a client, it is committed to the entire case, including trial, (unless it was a special appearance.)

In a felony case, the client may retain the law firm through Municipal Court only, which includes the preliminary hearing.
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THE DISCOVERY
Discovery must be reciprocal in order to be constitutional, which means that the prosecution must provide the defense with evidence they intend to use. The prosecution cannot hide evidence and then surprise the defense at trial. This applies to the defense as well. We must provide the prosecution with evidence which we plan to present at trial.

Discovery includes: police reports, medical records, probation reports, photographs, diagrams, recordings of witness statements and viewing of physical evidence.
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PRELIMINARY HEARING
Preliminary hearings only occur in felony cases.

The purpose of the preliminary hearing is for the judge to determine whether or not there is probable cause to send a case to Superior Court for trial.

Probable cause is usually very simple for the prosecution to prove, because their burden of proof is quite low.
We use the preliminary hearing to flush out the prosecution's case and to lock in their witnesses’ testimony in preparation for trial.

At the preliminary hearing, the District Attorney may add additional charges and may attempt to remand the defendant back into custody, even if he is currently out on bail.

Indictment by a Grand Jury is an alternative to the preliminary hearing, at the sole choice of the prosecuting attorney. Although they are used often in Federal Court and other states, Grand Juries are rarely used in California.
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SUPERIOR COURT
After the preliminary hearing, there is a second arraignment in Superior Court. The procedure is similar to the Municipal Court arraignment in that the defendant enters a plea and bail may be reviewed.
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SUPERIOR COURT ARRAIGNMENT
After the preliminary hearing, there is a second arraignment in Superior Court. The procedure is similar to the Municipal Court arraignment in that the defendant enters a plea and bail may be reviewed.
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PLEA BARGAINING
Plea Bargains are often good, but of course some are not. You NEVER have to accept an offered plea bargain. Even after entering a plea, you can sometimes make a motion to withdraw the plea and go forward with the defense of your case.

Plea bargaining is a process whereby the defense attorney negotiates with the district attorney to obtain the best possible plea for his client. Occasionally, the judge may be involved in the plea negotiation by speaking to the attorneys in an "in chambers" conference. This process may include charging the defendant with a lesser charge, or agreeing to a lesser punishment for the same charge.

Sometimes, the prosecution will drop counts. For example, if a defendant is charged with felony assault and carrying a concealed weapon, a plea bargain may result in the prosecution agreeing to drop the concealed weapon charge and lower the felony assault to a misdemeanor assault in exchange for a guilty plea.
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PRE-TRIAL MOTIONS
Pre-trial motions are important tools for criminal defense attorneys. They can force the dismissal of charges, or put pressure on the prosecutor to change a previously held position.

Common Motions include:

1. Suppress Evidence (illegal search)
2. Dismiss the Information ( Penal Code section 995)
3. Speedy Trial
4. Sever Counts
5. Compel Discovery
6. Strike Counts
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TRIAL
The examination of facts and law presided over by a judge (or other magistrate, such as a commissioner or judge pro tem) with authority to hear the matter (jurisdiction). A trial begins with the calling of the parties to come and be heard and selection of a jury if one has been requested. Each party is entitled to an opening statement by his/her attorney (or the party if he/she is representing himself/herself), limited to an outline of what each side intends to prove (the defense may withhold the opening statement until the defense is ready to present evidence), followed by the presentation of evidence first by the plaintiff (in a civil case) or prosecution (in a criminal case), followed by the defense evidence, and then by rebuttal evidence by the plaintiff or prosecution to respond to the defense. At the conclusion of all evidence each attorney (plaintiff or prosecution first) can make a final argument which can include opinion and comment on evidence and legal questions. If it is a jury trial, the judge will give the jury a series of instructions as to the law of the case, based on "jury instructions" submitted by the attorneys and approved, rejected, modified and/or added to by the judge. Then the jury retires to the jury room, chooses a foreperson and decides the factual questions. If there is no jury, the judge will determine legal issues and decide factual questions and render (give) a judgment. A jury will judge the factual issues and decide the verdict based on the law as given in the instructions by the judge. Final verdict or judgment usually concludes the trial, although in some criminal cases a further trial will be held to determine "special circumstances" (acts which will increase the punishment) or whether the death penalty should be imposed. Throughout a trial there may be various motions on legal issues, some of which may be argued in the judge's chambers. In most criminal cases the exact punishment will be determined by the judge at a hearing held at a later time.
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TRIAL COURT
The court which holds the original trial, as distinguished from a court of appeals.
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SPEEDY TRIAL
In criminal prosecutions, the right of a defendant to demand a trial within a short time since to be held in jail without trial is a violation of the "due process" provision of the 5th Amendment (applied to the states by the 14th Amendment). Each state has a statute or constitutional provision limiting the time an accused person may be held before trial (e.g. 45 days). Charges must be dismissed and the defendant released if the period expires without trial. However, defendants often waive the right to a speedy trial in order to prepare a stronger defense, and if the accused is free on bail he/she will not be hurt by the waiver.
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COURT TRIAL
("non-jury trial"): a trial with a judge but no jury.
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JURY TRIAL
A trial of a lawsuit or criminal prosecution in which the case is presented to a jury and the factual questions and the final judgment are determined by a jury. This is distinguished from a "court trial" in which the judge decides factual as well as legal questions, and makes the final judgment.
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MISTRIAL
The termination of a trial before its normal conclusion because of a procedural error, statements by a witness, judge or attorney which prejudice a jury, a deadlock by a jury without reaching a verdict after lengthy deliberation (a "hung" jury), or the failure to complete a trial within the time set by the court. When such situations arise, the judge, either on his own initiative or upon the motion (request) of one of the parties will "declare a mistrial," dismiss the jury if there is one and direct that the lawsuit or criminal prosecution be set for trial again, starting from the beginning.
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MOTION FOR A NEW TRIAL
A request made by the loser for the case to be tried again on the basis that there were significant legal errors in the way the trial was conducted and/or the jury or the judge sitting without a jury obviously came to an incorrect result. This motion must be made within a few days after the judgment is formally entered and is usually heard by the same judge who presided at the trial. Such a motion is seldom granted (particularly if the judge heard the case without a jury) unless there is some very clear error which any judge would recognize. Some lawyers feel the motion helps add to the record of argument leading to an appeal of the case to an appeals court.
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RETRIAL
A new trial granted upon the motion of the losing party, based on obvious error, bias or newly discovered evidence, or after mistrial or reversed by an appeals court.
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SENTENCING
Prior to the sentencing hearing a probation report is usually prepared which contains a recommendation to the judge on the appropriate sentence. Although the recommendation is not binding on the court, it is an important element.

If probation is not granted, there is usually a range of three prison terms in each felony crime (low term, mid term, and high term.) Lawyers argue about the proper term based on the facts of the particular case. The final decision is within the judge's broad discretion.

Jails are run by the counties within which they are located. Prisons are run by the state within which they are located. CRC (California Rehabilitation Center) is the drug treatment program within the state prison system.

A defendant may be sentenced to probation instead of prison. However, he may be ordered to do some local custody time as a term of probation. Formal probation is when an individual is supervised by a probation Officesr, while informal probation is unsupervised. As a condition to their probation, a person may be subject to drug testing. If a person violates probation, they may be sent to jail or prison.

Sentence modifications occur when a portion of a sentence becomes inapplicable to their case. Suppose a man is convicted of the crime of spousal abuse, and part of his sentence includes that he must stay away from his wife. However, if the man and the wife decide to reconcile, then it would be appropriate to ask the court to "modify" the sentence.

We have been quite successful at arranging jail alternatives. Some of these include: Detox programs, Electronic Home Monitoring, Residential Treatment Centers, counseling, weekend work programs, and community service.
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CONSEQUENCES
Any sentence imposed by the court may have a number of independent consequences, which may include but are not limited to any of the following:

1. Loss of the right to vote.
2. Loss of the right to possess a firearm of any kind.
3. Loss of the right to associate with known criminals.
4. Registration as a sex offender.
5. Increased penalties for future criminal convictions.
6. Registration as a narcotics offender.

Some of these collateral consequences may be removed in certain cases by expungement, or on a motion to the court.
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APPEALS
If convicted, a defendant may appeal. There are strict time limits for the filing of a notice of appeal, which is the beginning of the appellate process. Although a late filing of the notice of appeal may be excused by the court, it is the defendant's responsibility that it is filed in a timely manner.
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EXPUNGEMENTS
This is a process where a person's conviction may be removed from their record.

Some of the collateral consequences of convictions (such as sex offender registration and the prohibition against carrying a firearm) are sometimes not removed by an expungement. Each case and each Penal Code section is different.

The California Codes Regarding Expungement is as Follows:

CALIFORNIA CODES PENAL CODE SECTION 11115-11117

11116.6. The dispositions provided by Sections 11115 and 13151.1 must be entered on all appropriate records of the party arrested, detained, or against whom criminal proceedings are brought.

OTHER COURTS

FEDERAL COURTS
Federal law (as opposed to State law) applies. Some cases may be filed in either Federal or State Court. The decision is solely up to the prosecutors. In very rare cases a person may be prosecuted in both Federal and State court.

Federal Cases are often much more complex and require more time to prepare than State Cases. Sentencing in Federal Court is determined by the Federal Sentencing Guidelines. Federal Judges have much less discretion in determining an appropriate sentence because of the Sentencing Guidelines, often including mandatory minimum sentences.

In Federal Court, there is much less latitude in plea bargaining and the judge (Federal Magistrate) very seldom gets involved.
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JUVENILE COURT
There are many differences between juveniles who are prosecuted for crimes and adults who are prosecuted for the same offenses.

Sentences for juveniles may include the following: home detention, juvenile hall, youth camp, or CYA (the California Youth Authority).

CYA may keep a juvenile until the age of 25, and once this age is reached, the person may then be transferred to State Prison.

Fitness Hearings may be sought by the prosecutor in an attempt to send the juvenile to adult court. At a fitness hearing there is evidence and testimony concerning whether the minor is a fit and proper subject to be tried in juvenile court. If the minor is found to be fit, proceedings against the minor continue in the juvenile court. If the minor is found to be unfit, the juvenile court petition is dismissed, and the prosecuting attorney is authorized to prosecute the minor under adult criminal law.

Juvenile Records are confidential and privileged (except for probation Officesrs, law enforcement, court personnel, the minor, and parents of the minor.)

Records may be sealed five years or more after juvenile court jurisdiction has ended, or after a person has reached 18 years of age, whichever occurs first.

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