trees-with-question-mark

Frequently Asked Questions

Court Process

What is the difference between misdemeanors and felonies?

Misdemeanors are charges that may lead at most to a county jail sentence. Some misdemeanors are punishable by only a fine. Felonies may lead to state prison. Some charges are known as “wobblers” – they may be charged either as misdemeanors or felonies.

What to expect with misdemeanor cases?

The first court appearance is known as the arraignment. Arraignment is when the judge tells you what charges have been filed against you and the deputy district attorney hands over the police reports in your case. In most cases, if you have an attorney, you do not have to go to court for the arraignment your attorney can appear for you. The exception to this rule is a domestic violence case. Judges require defendant’s to appear so orders to stay away from victims may be made directly to the defendant.

At the arraignment, the case is usually continued for a pretrial – conference. This is when the judge, district attorney and your attorney meet and discuss the facts of the case. Most cases are settled at this point.

The DA is the person who decides what charges he/she wants the defendant to plead to; the judge controls what the sentence will be. If no disposition is arrived at, then the case is set for jury trial. Sometimes you need to set cases for trial to force the DA or judge to be reasonable. Many cases are resolved on the eve of trial. As pointed out above – this is why a trial attorney is an important ingredient for mounting a strong defense.

What to expect with felony cases?

Like misdemeanor cases – the first court appearance is known as the arraignment. Not guilty pleas are entered and a preliminary hearing is set – usually about two weeks later. At the preliminary hearing the DA must put on enough evidence to satisfy the judge that you are “probably” guilty of the charge. This of course is a lower burden on proof than what a jury must find to convict someone – “proof beyond a reasonable doubt.” Many felony cases are resolved before or at the preliminary hearing.

If the case does not settle and after hearing the evidence the judge finds that there is enough evidence to believe you are “probably guilty”, the case moves to the next level for trial purposes. Another arraignment date is set – along with a date for arguing motions such as a motion to suppress evidence.

What to expect with a jury trial?

Jury trials usually take two or more days and sometimes weeks or even months. Typically, trials last two to three days in misdemeanor cases. The vast majority of cases settle before trial.

A trial begins with jury selection. The jury is sworn in after both sides say they are satisfied with the group after hearing their answers to questions about their background – or after the sides have used up their 10 challenges.

The DA puts on his/her case first with the defense cross-examining the witnesses. Then the defense has the opportunity to put on its case. Sometimes the defendant testifies – sometimes not.

After the evidence is concluded, the attorneys argue the case to the jury: first the DA; then the defense; then the DA gets the final “rebuttal” (The theory is that because the DA has the burden of proof beyond a reasonable doubt, he/ she gets the last say). Finally the judge reads jury instructions to the jury and then they deliberate.

Arrests-Bail

What to do if I get arrested?

Do not make a statement to the police. While all of us have seen and heard this advice all our lives – I have seen so many cases where smart people decided to talk to investigating officers thinking they would help themselves. Too late they learn their statement was what the DA needed to convict them. Always be respectful – but firm: you can explain to the officers that you look forward to talking to them after you speak with your attorney.

Remember too that phone calls from the jail are routinely tape recorded by the Sheriff. Jail visits with friends are conducted over phones and those too are routinely tape-recorded by the Sheriff. PEOPLE IN CUSTODY SHOULD NEVER DISCUSS WITH ANYONE, OTHER THAN THEIR ATTORNEY, THE FACTS OF THEIR CASE. Occasionally an inmate will “snitch off” another inmate in hopes of making a deal with the DA. Sometimes even a small amount of information is enough to give a snitch enough to sound credible when making up a “jail house confession.”

Sometimes police ask the person arrested to “cooperate” and help them “bust” someone else. From my perspective, this is a terrible choice – it nearly always works out badly for the informant. Informants are known as “snitches.” Obviously, they are unpopular folks – in jail they are often attacked if left in the general population. Police frequently promise more than they can or will deliver to snitches. Sometimes they promise not to file the snitches’ case or to keep their identity secret. There are many ways the identity of a snitch can come out. I do not represent snitches. Do not call me if you want to work with the police as an informant.

How to bail out of jail?

Most people arrested are released on “OR” (“own recognizance”). This means they are not considered a danger to the community or a flight risk. If bail is required, then there are three principal ways to get out of jail:

  • The entire amount may be posted which is then returned after the case is concluded. (Frequently bail will be returned earlier once the Judge is satisfied the defendant will come to court);
  • A bail bondsman will post the full amount after he or she is paid their fee and given collateral for the full amount. The fee is often 10% of the bail amount and that is not returned to the defendant (Note that this percentage can be negotiated!);
  • A property bond is posted. This requires that real property worth twice the bail be transferred to the county as collateral for the bail. This third method is somewhat rare and can take time because of the need for property value assessing, but useful in high bail cases.

Police Complaints

Should I file a lawsuit for police misconduct?

Many reasonable people have concluded that the best response to police abuse is to sue them. It is often hard to get an attorney to be interested in a case. This can be for a lot of reasons. The cases take a lot of time and money and the amount of recovery may be small. One remedy open to people who cannot get an attorney’s help is filing in Small Claims court. There the officer and his or her agency can be sued for up to $7,500.00. Here is a link to a State of California self help site re. small claims.

It is essential to keep in mind that a claim must be filed with the governmental agency for whom the officer works within six months of the incident. For example, if it is a sheriff deputy, the claim must be filed with the county within six months; a city cop – with that city; a CHP – with the state.

Assuming the claim is denied (certainly what happens 99% of the time) then a lawsuit must be filed within one year of the incident. That rule is absolute also.

A sample claim form (which can be used no matter where you intend to file your law suit) is available here.

What is the complain process for police abuse?

Gannett News Service published results of a survey a few years ago. From 1985 to 1993, in 100 cases in which law enforcement agencies lost more than $100,000 in police brutality lawsuits — only eight of the 185 officers named in the lawsuits were disciplined. Of the remaining, 17 were promoted. Go figure.

Santa Cruz County law enforcement officers are like most law enforcement groups – in fact like any group – there are great individuals and lousy ones. Personally, I would like to see our cops paid more – attract and keep the best and send the others packing.

In my view, Santa Cruz County law enforcement is better than most, but that is because we as a community do care and insist on high standards of conduct for people we entrust with so much power.

Complaints: the City of Santa Cruz had a Citizens Police Review Board for several years beginning in 1995. This board was created by the City Council after almost five years of community organizing and political lobbying by many concerned citizens. A group called the Coalition for a Police Review Commission established in 1991, led the movement. I was a member of this organization. Unfortunately the Commission was shut down due to budget cuts. I believe the knowledge that citizens have independent oversight over police helps keep officers from going over the line.

Without a civilian review board — we are left with the police agency’s own internal affairs department. If you want to complain about an officer’s behavior, whether it relates to excessive force, lying in a police report, racial or gender intolerance, whatever, you must go to the police/ sheriff department involved and ask for a complaint form. You then can file that form with their internal affairs department. They must accept and keep your complaint — even if they don’t find your complaint about the officer is valid — the complaint stays in the officer’s file. If enough complaints are lodged, pretty soon the department has to begin paying attention. More importantly, sometimes, an attorney for someone else who has been similarly abused can “discover” or get your complaint and use that to help her/ his client. Remember though: if you have a case pending, you shouldn’t file a complaint until clearing it with your attorney. It is usually better to wait until a case is done before filing a complaint. Talk with an attorney to best understand this process.

Investigations

What to do if you are being investigated?

If you believe you are being investigated for a crime – you should call an attorney immediately. You should not talk to the police without first consulting an attorney. Sometimes an attorney can help gather evidence that helps persuade an investigating officer or District Attorney evaluating a case that there is no case worth pursuing.

Most cases are investigated by a police officer or sheriff deputy who then sends their report to the DAs’ office for review. Some DAs are assigned to do nothing but review police reports and make filing decisions. The DA can add or delete charges suggested by the arresting/investigating officer – or decide not to file any charges.

On many occasions I have had success contacting the DA before a case is filed and persuading the DA not to file the case or to file less serious charges.

If you are contacted by an investigator – always be polite. How you act can be very important – both because of the impression you make on the investigator and with how a DA, judge or jury relates to you later. But while being polite — be firm and do not answer any questions. Explain that you will gladly speak with the investigator after talking with an attorney. Too many people are wrongfully convicted after trying to help themselves by talking to the “nice policeman.” “Just say no.”

Clearing Your Record

How do I clear my record?

Penal Code Section 1203.4 and 1203.4a are the main Penal Code sections that deal with record clearance (also known as post conviction “dismissal” or “expungement”). If your situation requires more than what is provided here – visit the NOLO PRESS website: www.nolo.com.

Note that you can get either a felony conviction or a misdemeanor conviction cleared.

This often is a very easy process. To be eligible for an automatic dismissal upon petitioning, you must have completed probation successfully (no probation violations and all restitution and fines paid); and you cannot have a criminal case pending against you. No court date is needed in most cases.

If your probation is over but you had some criminal charges against you during your probation, then you may still get the dismissal, but a judge will have to decide whether you are entitled to it. The district attorney or probation department may argue you shouldn’t receive the benefit of the dismissal- but the judge is the one who decides. You may in this situation have to appear in court to try and persuade the judge. Obviously, an attorney’s help may pay off if you are in this category.

Currently, (May 2014), Santa Cruz County Clerks Office charges $180.00 to process your petition. You can mail your forms/ check or money order to: Santa Cruz County Superior Court Clerk’s Office 701 Ocean Street Santa Cruz, Room 120 California, 95060. If your sentence included “formal probation”, that is, if you had a probation officer (at least to begin with) than you must first file forms with the Santa Cruz Probation Office (PO Box 1812 Santa Cruz, CA 95061-1812). If you are petitioning within six months of the end of your probation, there is no charge- if after six months then you must send them a $50 check to cover their “investigation” costs. Here is a link to the forms currently used by the probation department and the court with instructions.

Advantages of cleaning up your record include:

  • you may answer that you have not been convicted of a crime on many applications for school or work;
  • your conviction cannot be brought up in later civil trial relating to your arrest; and,
  • if you are a non — citizen, getting your conviction dismissed may prevent deportation.

What getting your conviction dismissed will not accomplish:
DUIs: Although there are positive reasons to take advantage of the easy steps to clear your record – some of the negative aspects of the conviction remain. The fact of the conviction is still seen and used against you by DMV, insurance companies and the courts if you suffer another arrest. The conviction counts against you for seven years as a “prior” and the prior means you are sentenced more harshly. Remember, a cab fare is always cheaper than a DUI.

Increasing numbers of cases lead to registration with local law enforcement (e.g. certain narcotic convictions) and this can last longer than probation.

Increasing numbers of cases lead to deportation regardless of record clearances.

Increasing numbers of cases lead to ten-year prohibitions on possession or use of firearms, again notwithstanding getting your record cleared. If you had probation – you must admit on a government license application or government job application you were convicted. (Your “record clearance” may still help.)

Felony Convictions — Reduction to Misdemeanor:
If your felony conviction was for a charge which could have been filed as a misdemeanor (known as a “wobbler”) you should request at the time of your petition for dismissal that the charge be reduced to a misdemeanor. (Penal Code Section 17 (b). If that request is granted, the original conviction will thereafter always be considered a misdemeanor. Remember, a “dismissal”, “expungement”, “record clearance”, will not disappear from the Department of Justice records (see above). The advantages to this reduction are so important you may want to seek an attorney’s help. To request the reduction, you simply check mark the box on the PC1203 petition form.

Misdemeanor Convictions with Probation Remedy
If you suffered a misdemeanor conviction as an adult and were placed on probation, then there is a good chance the following will assist you in obtaining a dismissal of your case. There are only five requirements for the dismissal in nearly all misdemeanor cases:

  • you must have successfully fulfilled the conditions of your probation;
  • you cannot be currently serving a sentence for another conviction;
  • you cannot currently be on probation for another case;
  • you cannot currently be charged for another offense; and,
  • you must pay the Court’s administrative fee while filing your petition.

Remember, as noted above, getting your misdemeanor charges dismissed is nearly always worth it. But the “dismissed charges” may still be considered for:

  • public employment consideration (you must tell them);
  • professional license applications (you must tell them);
  • driving record review by DMV;
  • increased punishment in criminal court;
  • right to possess weapons; and,
  • if you are required to register for your conviction, then you must continue (certain drug and sex crimes).

Misdemeanor Convictions without Probation Remedy
If you suffered a misdemeanor conviction as an adult and were not placed on probation then there is a good chance the following will assist you in obtaining a dismissal of your case. There are only five requirements for the dismissal in nearly all misdemeanor cases:

  • you must wait at least one year from the sentencing date;
  • you cannot have been convicted of another crime committed in the year following your sentencing date;
  • you cannot currently be serving a sentence or be on probation for another conviction (after you complete probation successfully in the new case then apply);
  • you cannot currently be charged for another offense (resolve the case then apply); and,
  • you must pay the Court’s administrative fee while filing your petition.

Currently, Santa Cruz County charges $180.00 to process your petition.

Remember, as noted above, getting your misdemeanor charges dismissed is nearly always worth it. The advantage of the 1203.4a dismissal over 1203.4 (probation granted cases – above) is that there is no requirement for you to divulge to a government employer or private employer the fact of your conviction). But the “dismissed charges” may still be considered for:

  • professional license applications (you must tell them);
  • driving record review by DMV;
  • increased punishment in criminal court;
  • right to possess weapons;
  • and if you are required to register for your conviction, then you must continue (certain drug and sex crimes).

Marijuana Records
If you were either arrested or convicted of a marijuana charge after 1976, that record should automatically be destroyed two years after the conviction. Those charges covered by this law do not include:

  • sales,
  • possession for sale, or
  • cultivation.

If you were either arrested or convicted of a marijuana charge before 1976, you can probably get your record destroyed. Those charges include:

  • possession of marijuana in any amount or giving away less than 28.5 grams of marijuana or transporting less than 28.5 grams of marijuana,
  • possessing smoking paraphernalia,
  • being in a place where marijuana was being used, and
  • smoking or being under the influence of marijuana.

To make sure that your records have actually been destroyed, it is recommended that you request a copy of your record and double-check.

Getting a Copy of Your Record
You can go to the Santa Cruz Police Department with identification and pay them to run your record for you. You may also get a copy of your criminal record if you fill out the form “Application to Obtain Copy of State Summary Criminal History Record” and send it to the Criminal Department of Justice along with a $25 fee and a set of fingerprints. If you cannot afford to pay the $25 fee, also send the Fee Waiver form.

Using Freedom of Information law to access government materials — Here is a sample form.