FAQ

There are specific circumstances in which the police can make an arrest, including:

• The arresting police have probable cause to think that you committed the crime.
• The police observed you committing the crime.
• The police have a judge-issued arrest warrant.

Please note that the police cannot arrest you because they have a hunch that you violated the law or because they feel like it. The officers should verify the arrest using evidence that indicates probable cause.

The arrest procedures and rules law enforcers should follow while making arrests vary with jurisdictions. An arrest occurs when a suspect reasonably thinks they cannot leave. The law enforcers need not use a police cruiser or handcuffs, but they use tactics and tricks to protect themselves.

The officers are not responsible for reading Miranda rights during the arrest. Nevertheless, the officers should read you your constitutional rights before interrogations, so most police departments recommend that the Miranda warning be read during the arrest. That way, they can question you immediately and use all the details you volunteer against you.

Law enforcers are only permitted to use the minimum force necessary to safeguard themselves and take you into custody. That is why you should not argue with the officers or resist your arrest, even when they think it is unlawful. If you believe an arrest is illegal, you can challenge it later with a criminal defense lawyer and, if warranted, file a civil rights case. Resisting an arrest is a crime in itself.

Finally, while officers will always tell a suspect why they are under arrest, they are not legally obligated to do so. It depends on the arrest circumstances and jurisdiction.

After an arrest, the police will take you into custody and book you. During booking, the officers will take your personal information about the crime, evidence, and criminal record. The booking process involves the steps below:

1. Recording crucial information — A police officer will gather your name, the nature of the alleged crime, the time of the offense, and contact details.
2. Mug shot — Next, you will collectively stand for a series of photographs. The shots will highlight your height and include other details related to the criminal activity.
3. Personal assets and clothing ceased — Following the mugshot, the police will provide you with an incarceration uniform and relinquish your belongings and clothing. The jurisdiction will hold your property until your release unless it finds contraband evidence.
4. Fingerprints — The officer will then take an impression of your fingerprints, all fingers from side to side. If the alleged offense has fingerprint evidence, the police will match your fingerprints to eliminate or match you. The police can also ask for your DNA samples, like hair or saliva.
5. Full body search that requires removing all clothing — The search ensures you do not bring drugs or weapons into the holding cell. Please note that the police will search you regardless of whether the alleged crime is minor.
6. Checking warrants — The police will search their database for your outstanding warrants. Sometimes law enforcers solve other offenses by chance when they pick a person for an unrelated offense and find a match.
7. Health check — The jurisdiction personnel will conduct a general health screening to ensure you do not have a medical condition that can be transmitted to other defendants or police officers. It involves blood tests and diagnostic tests.
8. Incarceration — The police will place you in a holding cell as you await your trial. You can post bail to secure your release.

Per the United States Supreme Court case Miranda v. Arizona, when police take an individual into police custody for questioning, they should inform the suspect of their 5th Amendment right against self-incrimination. The police officers should read you your Miranda rights, which include the following:

• You have the right to remain silent.
• Anything you say will be used against you in court.
• You are entitled to a criminal defense attorney.
• If you cannot afford a lawyer, the court will appoint one for you.

Since silence is ambiguous, you should use an affirmative, unambiguous statement to verify you are using your right to remain silent. You can pledge this right by saying, “I invoke my right to remain silent, and I want to see my defense attorney.”

After invoking your right, law enforcers should stop the questioning immediately. If the officers continue questioning you, they have violated your Miranda rights and cannot use any subsequent statement you make against you in court.

An arraignment is an initial formal court hearing in the criminal justice process after an arrest and the filing of criminal charges. During the proceeding:

• The judge will charge you with an offense and inform you of your constitutional rights,
• Your criminal defense lawyer will argue against pending orders applying to the criminal case, like a protective order,
• You will engage in plea bargain negotiations.

Typically, arraignments last two minutes if the court charges the defendant and the accused enters a plea. However, they last longer if the defendant requests that the judge lower their bail amount or rule on other issues.

If charged with a California felony, you should make court appearances for all proceedings, including your arraignment. However, there are exemptions that either:

• Excuse your presence if you execute a waiver and the court accepts your written waiver.
• Permit you to attend through a two-way video or audio conference (video court).

If you are charged with a California misdemeanor, you can allow your lawyer to appear on your behalf unless the alleged crime is:

• Domestic violence.
• Violation of a restraining order.
• Aggravated crimes involving driving under the influence, like DUI causing injury (VC 23253) or Vehicular manslaughter while intoxicated (PC 191.5 (b)).

The prosecutor calls the grand jury together to investigate an offense. They do this by listening to testimonies and analyzing documents, police reports, and other evidence.

The prosecution team is the grand jury’s advisor and presents the evidence.

Unlike a trial jury, a grand jury only considers proof from the prosecution’s perspective. If the grand jury is investigating you, you must have legal representation. However, your defense lawyer will neither be permitted in the grand jury room nor present any evidence.

The purpose of a grand jury is to determine whether the prosecutor has sufficient evidence to file criminal charges. It is known as an indictment.

Penal Code sections 664, 663, and 21a are the statutes that define California's attempt law.

Before convicting you, the prosecution team should prove the following elements of the crime:

• Intent to violate the law.
• A direct but ineffective step toward the commission.

A direct step goes beyond preparation or planning and demonstrates that the defendant can implement their plan. It demonstrates a clear and definite intent to commit the offense.

Discussions or mere preparation are not direct steps.

The penalties for the crime of attempt are less severe than they would be for the completed offense. Every defendant who attempts to commit an offense but fails or is intercepted at its preparation faces one-half the incarceration term that applies to a conviction for the attempted crime.

A California felony is more severe than a misdemeanor. It carries over a year of incarceration and at least $10,000 in fines. Depending on the facts of the case, it can lead to the death penalty or life imprisonment. Sometimes, the judge can impose felony or formal probation instead of lengthy incarceration.

Some examples of felonies include the following:

• PC 187 (murder).
• PC 261 (rape).
• PC 664 (attempted murder).
• HS 11352 (sale of controlled substances).
• PC 288 (lewd conduct with a minor).
• PC 211 (robbery).
• Penal Code 192(c) (vehicular manslaughter with gross negligence).
• Mayhem.
• PC 207 (kidnapping).
• PC 215 (carjacking).

On the other hand, a misdemeanor is a less severe crime than a felony. Two (2) types of California misdemeanors are gross and standard. A standard misdemeanor carries six (6) months in jail and $1,000 in fines. An aggravated or gross misdemeanor attracts a year in jail and a one-thousand-dollar minimum fine. The judge can also sentence you to summary or informal probation instead of jail.

Some examples of misdemeanors include:

• Driving without causing injury (VC 23152(a)).
• PC 273.6 (violating a protective order).
• Petty theft (PC 484).
• Shoplifting (PC 647(b)).
• First-term indecent exposure (PC 314).
• Drunk in public (PC 647(f)).
• Drug possession (HS 11350).

Some crimes are wobblers. The prosecutor can charge the offense as either a misdemeanor or a felony, depending on:

• The accused’s criminal history, and.
• Circumstances surrounding the alleged criminal case.

Examples of wobblers include the following:

• Elder abuse.
• Assault with a deadly weapon.
• Brandishing a weapon.
• Statutory rape.
• Vandalism.
• Sexual battery.
• Grand theft.

Most people will want to be bailed out of jail immediately to maintain their employment, build their defense, and care for their loved ones. Sometimes the criminal judicial process can take months, and it is understandable why defendants would not want to put their lives on hold.

Bail is the amount the defendant posts to the court to be released from detention and remain in the community as they await their trial. It guarantees you will attend all the scheduled court hearings and comply with your release conditions and terms.

You can post bail in cash, use property bonds, or via a bondsman.

If you fail to make a court appearance, the court will forfeit your bail amount and rearrest you. If you adhere to your court conditions, the court will refund your bail money once your case is closed.

Generally, the judge sets the required bail amount at the arraignment.

Some factors the judge considers when determining the bail amount include the following:

• The severity of the alleged crime.
• The defendant’s criminal history.
• The defendant’s community ties, like whether you run a business in the community, employment status, and relatives living in the community.
• Previous court appearances.
• Whether the accused poses a risk to the community.
• Whether the defendant is a flight risk.

The 8th Amendment to the United States Constitution bans judges from imposing excessive bail. Bail should neither be a punishment for committing the crime nor a way to raise funds for the government.

Defendants can post bail and secure their release immediately after paying the bail amount outlined in the bail schedule. Most California jurisdictions have posted bail schedules specifying the amount for most offenses.

If you retain a defense lawyer, you can discharge your attorney without court approval. Whether the breakdown in the relationship stems from communication challenges or disagreements about strategy, you do not have to show good cause or justify the decision to discharge your lawyer.

Following the discharge of an attorney, you can engage another or represent yourself. The decision to change legal counsel can be expensive. On top of paying your new attorney, you must also pay the previous attorney the fees they have earned.

Your entitlement to change defense attorneys should be weighed against the prosecution team's ability to keep your case on schedule. For instance, you cannot change lawyers on your trial's eve.

While your defense attorney can advise you on the pros and cons of trialing your criminal case, the attorney cannot decide. Under the judicial system's stress, taking the prosecutor's initial offer is tempting. However, as with all negotiations, you should ensure you get the best deal before accepting.

Some of the advantages of pleading guilty include the following:

• It is cost-effective — If you have hired legal representation, you can save money by pleading guilty.
• Time — A trial can take months or years to be scheduled and tried. During this duration, you can feel that you are in limbo as you dread your trial's commencement.

Some of the cons of taking a plea include the following:

• Social consequences — If convicted of a crime, you will face collateral consequences after serving time. For instance, a criminal history can make finding employment challenging.
• Sentencing — If you plead guilty, you will not have enough time to wait for your sentencing since your case will quickly move through the California judicial system. It is not the best, especially if you require time to get your affairs right.

They say, “A man representing himself in court has both a fool as a client and a fool as a lawyer.” They are correct, and here is why:

• California's judicial system is complicated — Just because you can walk into a courtroom does not mean you can represent yourself effectively. Navigating a courtroom and its procedures is daunting. The judge will not give you a pass because you are inexperienced and not a lawyer. The judge is a tie-breaker and will remain impartial even if you lose your case.
• Emotions could cloud your solid arguments and affect your objectivity — Self-representing individuals can get nervous and defensive under pressure. Instead of presenting evidence, you could make emotional arguments, reducing your effectiveness. Throwing yourself at the court’s mercy is not a substitute for valid legal defenses or strategies.

The best time to retain a defense lawyer is immediately after learning about the criminal charges against you. The sooner you seek legal representation, the sooner your attorney can build your case's defense. The legal professional will also offer legal advice and guidance on navigating the complicated judicial process.

A competent defense attorney should:

• Offer you a thorough case evaluation,
• Explain the California legal process and possible case results,
• Recommend the course of action,
• Offer sound legal guidance and advice, and
• Negotiate with the prosecution on your behalf.

Additionally, they should know California laws and legal proceedings and have experience in courtrooms.

You should feel comfortable with your attorney since they have your best interests at heart, and whatever you share with them is protected by client-attorney privilege.

The length of criminal cases depends on numerous factors, including case complexity, available resources, and the court’s backlog. Typically, most criminal cases take months or even years to resolve.

Your seasoned defense lawyer should tell you the expected duration of your criminal case.

Under PC 290, you should register as a sex offender if convicted of specific sex offenses. Registration means informing law enforcement agencies of your whereabouts, provided you live, attend school, or work in California.

The California sex registration system has three (3) tiers, namely:

• Tier one is punishable by a ten-year compulsory sex offender registration.
• Tier two carries a mandatory twenty-year sex offender registration.
• Tier three is punishable by lifetime registration.

Even if you have hired a competent defense lawyer, you can only expect them to defend you with your help and cooperation. You and your lawyer are a team, and you can follow the following guidelines to obtain the most favorable case outcome:

• Tell your counsel about your legal goals.
• Talk about the attorney fees.
• Be honest with the lawyer.
• Avoid talking to police officers.
• Stay off social media.
• Maintain constant communication with the attorney.
• When you attend court hearings, make a good impression on the judge by dressing appropriately and being respectful.
• Abide by the lawyer’s advice.
• Be punctual on court hearings and proceedings.

A crime will stay on your criminal record forever if you do nothing about it. The only way to remove it is through expungement.

Expungement means the public cannot access your records even after conducting a background check. That means you do not have to admit your expunged conviction or arrest if asked about your criminal history.

Some of the benefits of expungement include the following:

• You can quickly obtain professional licenses.
• You do not have to reveal your conviction on job applications.
• Qualification for public funds or grants like scholarships.
• You can find affordable housing.

Please note that expungement will not:

• Overturn your driver’s license revocation or suspension after a drunk driving conviction.
• End your sex offender registration requirements.
• Stop police officers and the prosecution team from using your previous conviction as a sentence enhancer for your subsequent conviction.
• Restore your firearm rights.

The three strikes law enhances sentences for repeat offenders.

If you have a previous strike on your criminal record and are subsequently charged with another felony, you will be punished as a second striker. You will face twice your maximum sentence for the underlying offense.

You are a third striker if:

• You have two prior convictions for violent or serious felonies, and
• You are later charged with another violent or serious felony.

In this case, you will be subject to 25 years or life imprisonment for the current criminal charge.