GENERAL CRIMINAL LAW 

In California there are three types of crimes:

INFRACTION:            punishable only as a fine-not subject to incarceration.  (i.e. speeding,                               littering)

MISDEMEANOR:     maximum penalty is one year in local county jail and a $1,000. fine. (i.e.                                  Driving under the influence, battery)

FELONY:                    punishable for more than one year in state prison and a $10,000. fine.

The police investigate an alleged crime and prepare a report.  That report is then forwarded to the District Attorney Office (DA) for review.  It is the DA that decides what charges, if any, should be filed.  The DA is looking to see if there is enough evidence to convince a jury ‘beyond a reasonable doubt’ of that the offense occurred.  Crime victims do not decide to press charges or not, only the DA. The DA will however consider the wishes of the alleged victims but those preferences are not controlling.

After an arrest the police must book the accused into jail.  If the accused is not a danger to himself or others and is not a flight risk, they will be released on their own recognizance (OR).  The person is given a date upon which they must appear in court.  Missing the appearance date will result in the issuance of an arrest warrant.  Sometimes at arrest the jail sets bail.  The bail amount is the amount of money which must be given to the court ti insure the accused will appear in court if released from custody.  Citizens have a constitutional right to a reasonable bail amount in every except when the charge is murder, the person arrested is on a prior grant of probation from any court and certain types of domestic violence upon a noticed hearing.  Upon the completion of the case, cash bail which was posted at the beginning of the case will be returned to the person who posted it.

Bail amounts can vary from a few hundred dollars for an infraction to several hundred of thousands of dollars for felonies.  In the most extreme of cases bail can be millions.  Bail is initially set by a standardized ‘’bail schedule’.  Every jail has a bail schedule then look up the crime for which the person was arrested and set the appropriate bail.  Anyone can post bail for an accused; friends, relatives and even bail bondsmen.  When the accused has insufficient funds to post the entire amount of bail in cash, every county has bail bondsmen who will post the bail and receives a fee for that service.  For example, a person is arrested and bail is set at $10,000.  A bail bondsman would require a fee, generally 1% or $1,000.  and something of value as collateral for the remaining $9,000.  Bail bonds is a business separate and apart from the court or jail.  They will put up the money for release and wait until the end of the case to get it back.  Compensation for that service can be negotiated and depending on the situation and the individual to be released can make what ever arrangements they feel sufficient to compensate them for the risk of putting up the money.  While the bail money is returned at the end of the case, any fees paid to a bail bondsmen are the cost of the service and not returned.

Unlike TV courtroom dramas, cases do not instantly proceed to trial.  Before a jury is called in there are several court appearances, numerous settlement discussions and pre trial motions.  Only about 2% of all cases file go to trial however a good defense attorney must assume every case is going to be in that 2% and prepare accordingly.

Our criminal justice system is based on the concept of adversarial parties.  The DA’s Office represents the People of the State of California.  Individuals accused of crimes should be represented by a competent attorney who is acting completely in their clients’ best interest.  Persons who can not afford to have their own attorney are entitled to appointed counsel and will be represented by a Public Defender.  You can get more information about the Public Defender’s Office through the Napa County Website www.co.napa.ca.us and searching for ‘Public Defender’.

A person charged with a misdemeanor offense need not personally appear in court, they may arrange for an attorney to appear for them (California Penal Code Section 977).  Persons charged with a felony offense must be personally present in court at all appearances.  The first court appearance for any crime is an ARRAIGNMENT.  At Arraignment, the Judge will provide a copy of the charging document, called a Complaint.  Sometimes on misdemeanors a plea bargain offer will be attached to the Complaint.  In the case of common crimes like Driving Under the Influence (California Vehicle Code Section 23152 (a)/(b)) the penalty for a first time offense is standard in most cases.  The Judge will explain the standard resolution and ask if you would like to resolve the case in that manner.  It is perfectly acceptable to ask the Judge for time to think about the offer or consult with an attorney.  The case is then scheduled for a future date called a settlement conference or trial management.

In all cases, the accused has a right to a speedy trial.  In a misdemeanor where the accused is not in custody, the case must proceed to trial within 45 days.  In a felony where the accused is not in custody, there is a right to a hearing called a Preliminary Hearing within 10 court days of the arraignment.  In most cases, a person who is out of custody benefits from waiving the right to a speedy trial also referred to as “waiving time”.

Arraignment is usually when the court determines a persons custodial status.  Generally in a misdemeanor case, the police or the jail schedule a date to appear in court and the accused is released on their own recognizance (OR).  It is at the arraignment that the judge reviews the accused custodial status.  A person’s conduct while the case is pending can affect custodial status.  An OR release can be revoked if there is a new crime, a violation of the terms of the release or a missed court appearance.  A person on bail may have the bail amount reviewed by a judge who can increase bail ,decrease bail or grant an OR.

A case will have several appearance dates prior to a jury trial.  At a jury trial the People, through the District Attorney’s Office, must bring in evidence to prove to all twelve jurors that the accused is the person who committed a crime.  The evidence must be sufficient that all twelve jurors must believe the accused guilty and that belief must be ‘beyond a reasonable doubt’.  While it might sound impossible, it’s not.  People get convicted because a jury found them guilty beyond a reasonable doubt every day in courtrooms all over the United States.

If a jury finds the accused “not guilty’ also referred to as an acquital, the case is done.  If the jury finds the defendant ‘guilty’, the case moves on to sentencing.  A sentencing hearing is where the Judge listens to information about the person themselves not just the facts of the case, and decides what punishment to impose.  Most misdemeanors carry a maximum penalty of six months or one year.  If the courts put everyone convicted of a crime in jail for the maximum sentence, the jails would be filled beyond capacity.  To solve this, the courts can grant a period of probation.  A person granted probation would have the maximum confinement stayed while they perform certain conditions which may include jail, fines, counseling or orders restricting certain conduct.

After a finding of guilt either by jury or by plea, the judge imposes sentence.  Sentencing hearings can be routine as in the case of a standard disposition like a DUI.  Sentencing can be contested and both parties may present evidence and argument to persuade the judge to impose a certain sentence.  Juries decide sentences only in cases where the crime is punishable by death.

Most every county has a probation department.  Sometimes the judge can order the probation department to prepare a report and recommendation for use in sentencing.  The probation department supervises persons granted formal probation to make sure there is compliance with the terms.  Summary probation otherwise known as informal probation, does not require the defendant to report to a probation officer.