I’ve been handling Criminal cases in Sacramento County Superior Court and other regional northern California courts for over 20 years. I’ve handled thousands of cases over the years, and I haven’t lost a jury trial in over 15 years. Integrity and good communication are what clients expect.
I personally handle every case and give my clients the attention and care they deserve.
Felony vs. Misdemeanor Charges
Some criminal offenses can be filed as misdemeanor or felonies. These crimes are referred to as “wobblers.” In most cases, the nature and scope of the crime or injuries to another (if any), the defendant’s criminal history, the information in the arrest report, statements from other witnesses, and the subjective viewpoint of the prosecutors involved factor into whether the DA files a “wobbler” as a misdemeanor or felony.
If you are convicted of a Felony the court could sentence you to State Prison. If you’re convicted of a misdemeanor, you face the possibility of county jail time, or alternative sentencing, which may include work project, Home Detention (ankle bracelet – either work-related or medically necessary), or community service. So, whenever my clients are charged with a “wobbler” offense, my top priority is to convince the DA or judge to reduce the charges to misdemeanors.
At some point in the proceedings, after working on the case, reviewing discovery, doing investigation, discussing options, and negotiating with the DA’s Office to find a reasonable fair offer to settle the case, there will be a choice whether to set the case for a Preliminary Hearing, or set if for trial. There can be advantages or disadvantages to a Preliminary Hearing – a mini-trial where the judge hears evidence and then decides whether or not the DA has shown probable case to hold the defendant over for trial. If the charges are “wobblers”, the Defense will try to convince the judge to reduce the charges to misdemeanors.
Penal Code Section 17(b) – Reducing Felonies to Misdemeanors
California Penal Code 17(b) gives a judge the discretion to reduce a “wobbler” from a felony to a misdemeanor. A judge may agree and override the wishes of the District Attorney if he or she believes it’s warranted in a particular case, before plea bargain agreements after negotiations by your attorney, at a Preliminary Hearing, or after conviction.
Will I Need To Pay An Investigator To Help With My Defense?
Investigation can be the vital in some cases. The investigator I’ve been working with the past couple of years is not only good at his job, his testimony has helped me win motions and jury trials.
If there are any witnesses involved, it’s important you do not talk with them about the facts of the case, whether you know them or not. This will protect you from any argument from a prosecutor that you “got your story straight” or somehow collaborated with the witness to your benefit. However, it is important to obtain contact information if possible – law enforcement may or may not get that information and record it in the arrest and/or collision report.
Time can affect memory, and witnesses may move away, or may be more difficult to locate later on. If a particular witness is potentially helpful to the defense, I will likely recommend retaining my investigator so he can take a statement and write a report about the witnesses observations or personal knowledge of the incident, or other relevant evidence that may change the outcome of the case. The statement or report we obtain that may or may not be submitted to the DA’s office. The investigator is a third-party witness at that point and could be called to testify in the event a witness or witnesses change their story later after the investigator has taken and recorded their statements. But, unless there is a danger the witness may not be available later on, I usually wait until after I’ve had a chance to review the report before taking their statements, because questions may come to mind after I read the arrest report and I get a better understanding of the case.
Officers tend to ask questions that support their initial viewpoint or belief when they first arrive on scene. Over the years, I’ve won many jury trials in cases where the officers on scene failed to take statements from witnesses who later provided the insight and facts that make a difference to jurors understanding and the outcome of a case, whether in negotiations with the DA, in law and motion, or at a jury trial.
Who Has The Burden Or Proof?
The District Attorney’s Office has the burden of proof in criminal cases – to prove each element of the alleged crime(s) beyond a reasonable doubt. Breaking down assumptions, prejudice, misunderstandings, presenting facts and making a strong argument are critical to defending criminal charges.
Illegal Search & Seizures
If it appears law enforcement may have obtained evidence in violation of your Constitutional Rights protecting you from illegal searches and seizures, I’ll first recommend and order investigative services to obtain more information before advising you whether your case warrants filing a Suppression Motion (PC section 1538.5). Your case may come down to your word vs. the officer, or officers involved. Or, it could be a legal issue, like a bad traffic stop in a DUI case only where the officer cites reasons for the stop that are not justified under the law (Click to see Avoiding a Checkpoint).
The recent addition of law enforcement body cameras, and the number of people who have cell phones with cameras, has given Criminal Defense attorneys another tool to help get some cases thrown out of court. Suppression Motions (PC§1538.5) are Pretrial motions that are like “mini-trials” heard by a judge, with testimony from law enforcement and any other witnesses deemed relevant to the traffic stop or search. The DA’s Office and the Defense file written legal motions prior to a scheduled hearing, before coming to court to have the motion heard. If the Defense prevails, the judge will exclude the evidence and the case or relevant charges will be dismissed.
I’ve won the majority of motions I’ve filed in the past decade or so, and I’ve won every case I’ve set for jury trial in the past 15 years, including cases that were dismissed on the first trial date. But, I’m careful to avoid recommend my clients invest money and time into litigating these issues until I’ve reached the conclusion we have a reasonable or good chance of prevailing. I don’t charge my clients up front for possible motions, like so many attorney do now. My job is to work on your case, research the facts and legal issues specific to a particular to your case, and make sure you’re fully advised so you can make an informed decision. Ultimately, the decision about how to proceed in your case is yours, and yours alone.
Bailing Out Of Jail
Courts initially rely upon a Bail Schedule that lists particular bail amounts for each type of crime: Felony And Misdemeanor Bail Schedules
However, depending on the facts of the case, as understood by the DA at the time, they may ask for a bail amount that is higher than the listed bail schedule. On the other side of the aisle, the Defense will usually request a bail hearing to try to lower the bail amount, or to convince the judge to release the defendant on their own recognizance (ROR) with no bail payment being necessary.
The issues at a bail hearing are:
- Is The Defendant A Flight Risk?If there are Failures to Appear on the client’s criminal history, or other reasons the DA argues the defendant may not appear for their next court date if they are released, the judge may decide to raise the amount of bail higher than the schedule. The judge will also consider the defendant’s ties to the community: how long the defendant has lived in the area, whether they have family here, whether they have a job in the area?
- Is The Defendant A Danger To Society?Judges have to assume the charges are true when determining the amount of bail, or whether to release the defendant on ROR. Here the alleged facts or history play a role in that determination. The defense will have the opportunity to present arguments to mitigate the facts to try to have the defendant released without paying bail, or for the lowest amount possible.
Most bail bondsman offer a 20% discount for defendants who retain a private attorney within 30 days of their release on bail (from a 10% fee to an 8% fee).
If you don’t bail out, you’ll be brought to court usually within 72 hours of your arrest so a judge can either arraign you or advise you no charges have been filed in your case. In some cases, the charges against you may be dropped due to lack of evidence. In other cases, the District Attorney’s Office will investigate the case and file charges later. If you bail out, you’ll get paperwork that will list the date, time and location of your arraignment, usually within 3 to 30 days after your arrest.
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