Criminal Law News

The law is complex and policies related to criminal prosecutions are constantly evolving. This blog is a source of information about criminal law generally, a commentary on policy, and examines recent developments in the field. Although an attorney writes all the postings, they should not be relied upon as legal advice and it is important to consult with an attorney because every case is unique; what is true for most cases may not hold true for all cases. If you do have questions about the content of a posting, and would like to speak with an attorney, please contact our office for a free consultation.

Recent Developments From the Supreme Court Merit revisiting Warrantless Misdemeanor “DUI” Arrests and Vehicle Code Section 40300.5

Recent Developments From the Supreme Court Merit revisiting Warrantless Misdemeanor “DUI” Arrests and Vehicle Code Section 40300.5

Earlier today, an article written by Attorney Jay Temple was published by California Attorney for Criminal Justice (CACJ) as part of that organization’s Flash updates. The article discusses how recent United States Court cases have impacted California law regarding warrantless arrests for suspected misdemeanor driving under the influence violations and strategies for incorporating these changes as part of a defense in criminal and administrative proceedings. CACJ is California’s largest association of criminal defense attorneys and the Flash publication is disseminated to thousands of attorneys and other defense professionals throughout the State.

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Frequently Asked Questions

What is the typical process in a criminal case?

The typical criminal case proceeds as outlined below; however, some cases progress differently (for example cases that are indicted by a Grand Jury), and the facts of the case can dictate the need for various other hearings. Nevertheless, the process in a criminal case often begins with an arrest or citation. If an arrest is made and bail is not posted, the person arrested must be brought before a Judge or magistrate within three days; some exceptions to this rule occasionally arise. If bail is posted, an arraignment date will be provided upon release from custody. In some cases, a notify letter will be sent by the prosecutor and this letter will list the date of the arraignment. Similarly, in the event a citation is issued the citation will list the arraignment date. At some point a prosecuting attorney will decide what charges to file. The actual charges issued, often differ from the charges a person is arrested on or cited for. In some cases no charges are filed at all, even though law enforcement made an arrest. If charges are issued, the arraignment is the first court hearing.

Arraignment: While most cases begin by the defendant entering a “not guilty” plea, this is not always the case. Under the right circumstances the defense attorney and the prosecutor can negotiate a plea deal and the case can be resolved at this hearing by the defendant pleading guilty under the terms of the deal. Less commonly, another type of plea can be entered; a “once in jeopardy” plea, for example, which is followed by a motion to dismiss the case. If the case is to proceed beyond the arraignment, the Judge will set bail and order release conditions that apply in the event bail is made. Various factors are taken into consideration by the Judge at the arraignment in setting bail and release conditions. Generally, the Judges tend to set high bail amounts in cases where the defendant poses a risk to the community or a specific person and/or he or she is considered a “flight risk.” In terms of the release conditions, the Judge may order a criminal protective order, for example, among other condition. At the arraignment future court dates are set.

Readiness Conference: The readiness conference is a chance for the defense attorney and the prosecutor to attempt to negotiate a plea deal. Of course, the defendant has the final say in deciding of whether or not he or she will accept the deal. The Judge may also weigh in during the negotiation process with an indicated sentence; however, this is only typical in felony cases. The negotiation process is informal and almost never conducted “on the record.” In felony cases, the parties meet with the Judge in the Judge’s chambers, while in misdemeanors the negotiations take place in the courtroom but outside the presence of the Judge. If the case does not settle, it will proceed to a preliminary hearing in felony matters or trial in misdemeanor matters.

Preliminary Hearing: This hearing is only set in felony cases, and is where the prosecutor must demonstrate that the government has sufficient evidence to hold the defendant to answer. The legal standard the prosecutor must meet is much lower than the standard at a trial; however, this hearing can be a critical part of a defense attorney’s litigation strategy. If the prosecutor fails to establish each element of any charge, the Judge can dismiss the charge. Other motions, such as a motion to suppress evidence, can be litigated at this hearing. If the court binds over, on any charges, the trial phase begins.

Trial: A defendant in a criminal case has a constitutional right to a trial. At trial the prosecutor must prove, beyond a reasonable doubt, each element of a criminal charge. The defense can negate the prosecutor’s evidence by presenting its own evidence. Trials are the cornerstone of the criminal court process; however, most cases resolve prior to trial. (The trial phase in a felony case includes another arraignment and often another readiness conference).

Sentencing: After a guilty plea is entered, or a defendant is found guilty at trial, a “probation hearing and sentencing” will be set. Sometimes sentencing occurs at the time of the plea while in other cases the hearing will take place a few weeks after a plea or guilty verdict. Documentation and argument can be presented by the defense (and by the prosecution) to argue for a particular outcome.

What are the alternatives to jail in San Diego?

Certainly the best way to avoid jail is to avoid being convicted and sentenced. If an attorney is involved at an early stage – shortly after the arrest – in certain types of cases, avoiding a conviction could be accomplished by contacting the prosecutor and providing information about why charges should not be filed. Later in the criminal proceedings an attorney may be able to negotiate a dismissal or a deferred sentencing plea agreement. Beyond negotiating for such a result, successful litigation prior to a jury trial can force the prosecutor to dismiss a case; for example, when a motion to suppress evidence based on an illegal search is granted. And, in any misdemeanor or felony case there is a right to a jury trial at which the defendant must be acquitted if the prosecutor does not prove every element of the charged offense.

In some cases however, a conviction may not be avoidable and jail may be one consequence of the conviction. In fact, upon a conviction, certain charges even require the Judge to order a minimum jail sentence. In these cases, it is critical for an attorney to be well acquainted with alternatives to jail. An alternative to jail is a sentence that – while still considered “custody” under the law – is not served in the county jail. In San Diego, the most popular options for alternatives to jail are: CPAC, SCRAMx, Work Furlough, Work Release, and Residential Treatment. (Along with specific eligibility criteria for each program, these alternatives to jail require avoiding a state prison sentence and 1170(h) sentencing).

  • CPAC: The Sheriff supervises this electronic monitoring program which allows a person to serve his or her sentence from home. It is possible to work and participate in treatment while on CPAC. The screening process takes at least 14 days.
  • SCRAMx: A private company runs this electronic monitoring program which also allows a person to serve his or her sentence from home and continue to work or participate in treatment. The screening process for SCRAM is fast and can be completed at any time.
  • Work Furlough: This program is a facility at which a person can serve a custodial sentence and continue to work or attend school during the day. It can be combined with other alternatives such as treatment can be available even after a jail sentence is ordered.
  • Work Release: An option for shorter sentences which involves working during the day to satisfy custody, but with no other monitoring.
  • Residential Treatment: In-patient drug and alcohol treatment programs can be ordered in place of a jail sentence. The duration of these programs vary, as do the costs and criteria for enrollment.
  • A few alternatives to custody can be applied for after being sentenced to jail; however, if possible it is best to make arrangements for an alternative to custody option in advance of sentencing. This is particularly true given that some alternatives to jail must be specifically ordered by the Judge at sentencing. Further, some options are more likely to be approved by a Judge depending on the type of case and a number of other factors. It is also possible to apply for some alternatives while a criminal case is still ongoing in place of, or in addition to, posting bail. This can be beneficial because such alternatives may provide the Judge the necessary assurance to set a bail lower than what he or she would set without also imposing the alternative. (For example, SCRAM can be imposed as a condition of bail in a serious DUI case). Selecting which specific alternative to custody option is appropriate (and most likely to be approved) for a particular case can be difficult. In addition to evaluating all of the other aspects of a criminal matter, having an attorney plan for an alternative to custody can dramatically decrease the impact a sentence will have on a person’s life.

    What are the types of Restraining Orders?

    Many criminal cases overlap with various types of protective orders commonly called “restraining orders.” The Judge in a criminal case can issue a criminal protective order as a condition of bail while a case is pending or as part of a sentence at the end of the case. Often the alleged conduct underpinning a criminal case can give rise to other types of restraining orders such as emergency protective orders, domestic violence restraining orders, and civil harassment restraining orders. Below each type of order is discussed in more depth:

    • Criminal Protective Order (CPO): CPOs are issued by a criminal court judge at the request of the prosecutor, victim, or witness when the judge feels a party may need protection, such criminal cases involving allegations of domestic violence. This type of protective order can be issued at any point in a criminal proceeding, though it is typically issued at the Arraignment phase. These orders can last up to 10 years. A CPO can be limited to a no negative contact order, or be more comprehensive as a stay-away order, or other orders regarding child custody and visitation of children the restrained party has in common with the protected party.
    • Emergency Protective Order (EPO): EPOs are requested by a law enforcement officer who places a phone call to an on-call judge who then issues the order over the phone. These can be issued based on allegations of physical abuse, verbal abuse, child abuse, threat of child abduction, stalking, and elder abuse. This order lasts 5 judicial business days to 7 calendar days (if a weekend or holiday falls within the 5 days after issuance). An EPO can include a no negative contact order, a stay-away order, and emergency child custody orders, if appropriate. An EPO generally takes precedence over enforcement of all other protective orders in this list.
    • Domestic Violence Restraining Order (DVRO): DVROs are issued by a family court judge at the request of the protected party. These can be issued based on allegations of physical abuse, verbal abuse, emotional abuse, stalking, harassment, sexual assault, or threats—physical harm is not required. This type of protective order can be issued for spouses or former spouses, people who are dating or who previously dated, people who are or were ever engaged to one another, people who have children together, certain types of cohabitants, and people related by blood or marriage to the second degree (includes parents, children, siblings, grandparents, but does not include cousins or uncles/aunts). A Temporary Restraining Order (TRO) is issued first on an “ex-parte” or emergency basis, without notice to the restrained party of the protected parties’ intention to seek a protective order. A TRO lasts for 21 to 25 days, until a hearing for a permanent protective order, known as a DVRO or Restraining Order After Hearing (ROAH). After the restrained party has been served and after a hearing on the issues, the “permanent” restraining order can be issued and can last up to 5 years. A TRO and DVRO can both include a no negative contact order, a stay-away order, and other orders regarding child custody and visitation, move-out orders (ordering the restrained party to vacate a shared home), orders for payment of spousal support or child support, and more.
    • Civil Harassment Restraining Order (CHRO) or Injunction: These are issued by a civil court judge at the request of the protected party. and can be issued based on allegations of harassment, such as violence, stalking, and knowingly or willfully making someone fear for their safety or the safety of others. No special relationship is required between the parties to this type of order—this means a CHRO can be sought for people who are not related to each other, such as neighbors, or certain relatives who would not otherwise qualify for a Domestic Violence Restraining Order (DVRO), such as cousins. Similar to a Domestic Violence Restraining Order, a Temporary Restraining Order (TRO) is issued first on an “ex-parte” or emergency basis; however, unlike the DVRO, a CHRO Temporary Restraining Order can only be issued without notice to the restrained party when certain requirements are met. A TRO lasts for 21 to 25 days, until a hearing for the permanent protective order, known as an Injunction. After the restrained party has been served and after a hearing on the issues, the “permanent” restraining order or Injunction can last up to 5 years. A CHRO can include a no negative contact order and a stay-away order.

    While each type of protective order has its own set of unique terms that can be enforced, there are several commonalities that they share. First, each type of protective order may include a “no negative contact” provision. This provision orders the restrained party to avoid having negative or abusive interactions with the protected party. “Negative contact” can include behavior such as name calling, harassing, or generally scaring another person.

    Next, each type of protective order may include a “stay-away” provision. This provision orders the restrained party to remain a certain physical distance away from the protected party—typically 100 yards. Sometimes, these provisions also can extend to other members of the protected parties’ household or family, including children in common with the restrained party. Finally, the restrained party to a protective order is prohibited by California law from owning or possessing a firearm. While certain exceptions may apply to this rule for certain protective orders, this prohibition can have great consequences for a person who is required to carry a firearm for their employment, such as a law enforcement officer or member of the military.

    Multiple types of protective orders can be issued against a single person by different courts. When this occurs, one judge may take cues from another judge when issuing certain orders within a given protective order. For example, a Judge in Family Court who will be issuing a Domestic Violence Restraining Order (DVRO) will likely look to the terms of the Criminal Protective Order (CPO) issued by a judge in Criminal Court when making their own orders. If the terms of the CPO are very restrictive, the terms of the DVRO (which could last for a longer period of time than the CPO) will likely also be very restrictive, if not more.

    When faced with the potential that a protective order may be issued against you, it is important to consult an experienced attorney who can defend you against the protective order, work out a deal with the other side, or speak with you about your rights.

    What is a Civil Compromise in a criminal case?

    Certain criminal cases can be dismissed, even over the prosecutor’s objection, through the civil compromise process outlined in Penal Code sections 1377 and 1378. It is critical to first note that only an attorney (often with the assistance of an investigator) should attempt to reach a civil compromise in cases where criminal charges are filed or in cases where charges may be filed in the future; this is something that should absolutely not be pursued by someone acting without an attorney.

    There are limitations in terms of the type of charges eligible for dismissal by way of a civil compromise. Generally, only misdemeanor charges can be dismissed this way and there must also be an overlapping civil and criminal remedy available under the law. In other words, when the alleged victim in a criminal case could also bring a civil suit against the defendant based on the same conduct, a Judge can dismiss the criminal charges so long as the victim is found to be satisfied for any civil loss that may have been caused by the defendant’s alleged conduct. The logic behind these laws is that the court (and everyone else involved) can save time and money by informally resolving relatively minor disputes rather than litigating two separate actions related to the same conduct. Of course the benefit for anyone charged with a crime is that the criminal case pending against the person may be dismissed.

    The availability of a civil compromise is dependent on the facts of any case; however, some common examples of misdemeanor cases where there is often an overlapping civil and criminal remedy are: theft, vandalism, battery (although domestic violence is expressly excluded), and hit and run. Other types of cases may also be eligible. Cases involving violations such as driving under the influence or prostitution related offenses, for example, can likely not be dismissed through civil compromise because courts have held there is a public policy behind enforcing such laws that must be vindicated through a criminal prosecution.

    In appropriate cases, the process for civil compromise involves the attorney for the defendant or the suspect contacting the alleged victim and negotiating a civil resolution to compensate for any economic loss that may have been suffered. The alleged victim then signs a declaration in support of the defendant’s request to dismiss the criminal case (and, in some cases, a civil release insulating the defendant from civil liability). This declaration is then filed along with a formal noticed motion and a hearing is scheduled in the criminal case.

    At the motion hearing the Judge will exercise his or her discretion to dismiss the case and in doing so the Judge will consider the nature of the alleged conduct, the defendant’s prior criminal record, and a number of other factors such as positive aspects of the defendant’s life or treatment efforts for example. Since the Judge has the discretion to either grant or deny the request to dismiss, it is important for an attorney to comprehensively outline and argue all of the reasons why the case should be dismissed.

    If a misdemeanor case is dismissed under civil compromise statutes, it can never be re-filed. In most circumstances, the strength of the prosecution’s case is irrelevant to whether the Judge will grant a dismissal; accordingly, a motion for a civil compromise can be a highly effective defense strategy even when there is little chance of the defense prevailing at a jury trial. And, since such a dismissal does not require a plea of guilty nor does it require any admission of wrongdoing by the defendant, this is a very favorable and efficient resolution. In fact, the Judge can even seal the court records and police report after dismissing the case.

    How does felony sentencing work in San Diego?

    Following a guilty verdict or plea of guilty in a felony case, the Judge will schedule a sentencing hearing to determine the punishment and other consequences of the conviction. Felony sentencing can be very complicated, but generally speaking, for most cases the Judge must first decide between granting probation and ordering a prison sentence. When probation is granted, the Judge must then decide what conditions are appropriate, and can order up to a year in jail as one of the conditions of probation. One of the major differences between serving a jail sentence as opposed to a prison sentence is that there are alternatives to jail (such as home detention), which can be ordered, whereas there are no such alternatives to prison. Prison sentences are also typically much longer than jail sentences.

    If the Judge determines that prison is appropriate, then the Judge must decide the duration of the sentence. With the exception of very serious charges, such as murder, the Judge must select between one of three possible terms. Take for example residential first-degree burglary, which is punishable by a prison sentence of either: two years, four years, or six years. Assuming probation is not granted, the Judge must select one of the three terms. The analysis becomes more complicated when there are multiple charges in the same case because there are many special rules that dictate the calculation of the overall term. For example, in some situations, punishment can only be imposed for one charge, even when the conviction is for many charges. In other cases, the Judge can only order one third of the “middle term” on subordinate charges. And, there are enhancements that can add time to a sentence or impact the rate at which the person earns “good time” credits.

    Some cases resolve for a stipulated sentence as part of a plea agreement with the prosecutor, and the Judge then simply follow along with that the agreement; however, the Judge has a great deal of sentencing discretion under many plea agreements (or following a conviction at trial). To help the Judge make the appropriate sentencing decision the probation department will conduct an investigation – which includes an interview of the defendant – and then generate a pre-sentencing report. This report is provided to the Judge, the defense, and the prosecutor. The parties can then file sentencing briefs to argue for a particular outcome at the sentencing hearing.

    The stages of the felony court process that lead up to sentencing – the plea negotiations, the pre-sentencing investigation, the briefing for the sentencing hearing, and the sentencing hearing itself – are each important to the overall outcome in a felony case. Accordingly, it is critical that a defense attorney be familiar with the local standards for plea negotiations, well versant in the rules related to sentencing, and diligent when it comes to investigating and presenting mitigation at the sentencing hearing.