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FELONIES - A felony is a crime punishable by death or one or more years in State Prison or a Federal Penitentiary. Arrests must be based on probable cause. Although there is no simple definition of probable cause, the police must rely on what they believe to be good information. As your highest rated San Diego Felony Defense Attorneys, at Samuel Spital & Associates, our felony criminal defense lawyers handle San Diego Assault, Battery, Burglary, Grand Theft, Kidnapping, Domestic Abuse, Car Jacking, Robbery, Hit and Run and other types of felonies, including:
- Arson in San Diego County
- Armed Violence
- Assault crime San Diego
- San Diego Drug Charges
- San Diego Battery Defense
- Burglary in San Diego County
- Car Jacking
- Escape
- San Diego Grand Theft charges
- Hit and Run in San Diego County
- Kidnapping crimes
- San Diego Robbery charges
- Terrorist Threats
- Fraud defense
MITIGATING FACTORS:
Our role as your skilled, experienced and effective San Diego Felony Crime Defense Attorneys is to present a persuasive defense as well as to establish all of the facts in mitigation, such as the following and, of course, more:
•· Actual or potential harm to the public;
•· Prior overall criminal record, if any;
•· Level of compliance with sentence and terms of probation;
•· Prior arrests of record;
•· Number and/or variety of current San Diego County felony violations or charges (counts);
•· Nature and severity of the offenses or San Diego felony crimes under consideration;
•· Rehabilitation and remorse;
•· Time passed since the underlying act and felony offense in San Diego County;
•· The financial benefit to the defendant, if any;
•· Whether the conduct demonstrated cruelty;
•· Whether the defendant was suffering from a mental or physical condition that significantly reduced culpability for the San Diego County felony crime;
•· Whether the defendant is ineligible for probation;
•· Whether the defendant made restitution to the victim;
•· Whether the felony charge crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness &/or callousness;
•· The defendant was not armed with or used a weapon at the time of the commission of the San Diego felony crime;
•· The defendant did not induce others to participate in the commission of the felony charges or occupied a position of leadership or dominance of other participants in its commission;
•· The defendant did not induce a minor to commit or assist in the commission of the felony charges or felony crime in San Diego County;
•· The defendant was not convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed.
•· The manner in which the San Diego felony crime was carried out does not indicate planning, sophistication, or professionalism;
•· The San Diego felony offfense did not involve an attempted or actual taking or damage of great monetary value;
•· The defendant did not take advantage of a position of trust or confidence to commit the San Diego felony crime;
•· The defendant has not engaged in violent conduct which indicates a serious danger to society;
•· The defendant has not served a prior prison term;
•· The defendant was not on probation or parole when the felony arrest or San Diego felony crime was committed
CONSEQUENCES OF A CRIME:
- County jail or state prison incarceration
- A permanent criminal record
- Significant fines
- Probation or Parole
- Mandatory courses, classes and counseling
- Losing your right to own a deadly weapon
- Unable to obtain &/or difficulty with employment
- Lifetime revocation of your California Driver's License
- Being subject to denial of a State Board license or having your professional license suspended or revoked (see http://www.spitalaw.com/ - Professional Licensing)
This is considered a misdemeanor in California. However, when the battery caused serious bodily injury, it can be charged as a misdemeanor or a felony, depending on the circumstances. If you are charged with a felony battery, you should obtain the highest rated San Diego felony defense attorneys on your side as the penalty is up to four years in prison and it will later count as a strike for "three-strike" purposes should you be later charged with another crime.
Please note that as your San Diego Felony Defense Lawyers, we want to develop a winning strategy and effective defense so you can avoid far greater penalties in San Diego for battery against any of the following individuals:
- Your spouse, girlfriend or anyone else under the "domestic violence" laws
- Elder or dependent adult
- Police officer
- Probation or parole officer
- Fireman or emergency medical technician
- Physician or nurse performing emergency medical care
- Anyone on the grounds of a hospital, school or park, or on public or private transit
At Spital and Associates, we want to ascertain whether the felony charges or felony case arose from a physical conflict in which both sides share some blame; then, as your top San Diego Felony Defense Attorneys, we can argue the battery was an act of "self-defense" by our client. In other cases, we can defend the charges of battery by establishing the touching was "accidental."
As your personal and top San Diego Felony Defense Lawyers, we will argue the prosecution must prove the touching was "willful" to win a conviction. As the top rated felony defense attorneys in San Diego County, we will develop a strategy and defense to show there is a lack of intent to commit battery and request the charges be dropped.
If we cannot obtain a dismissal of the charges as your experienced San Diego Felony Crime Defense Attorneys, we will seek to negotiate a felony charge down to a misdemeanor. In the sdame manner, we seek to drop misdemeanors to lesser charges. Ultimately, we want to obtain the best result for our San Diego County felony crime clients
Under California Penal Code 211, robbery is the taking of money or property of another against their will and by actual force &/or implied force by threats, intimidation or other means of violence. If the robbery is not completed, it is an "attempted robbery". Both of these crimes are deemed felony strikes (see towards middle of page below). We want to be your personal San Diego Robbery Defense Attorneys and ask that you call for a Free consultation with our Managing Lawyer to help evaluate your case and the defense strategies we can employ on your behalf.
If you are a convicted felon with a PRIOR STRIKE you face a doubled prison sentence for any future strike convictions. "Strikes" stay on your record forever, there are greater punishments and when there are two or three strikes the consequences are even more severe. If a weapon is involved, the prosecution alleges "special allegations," which if you are convicted may involve additional years to your prison sentence. If the prosecutor adds "gang allegations," this can mean an additional ten years to your sentence. These are some of the reasons you want to retain our highest rated San Diego Robbery Defense Attorneys to level the playing field and obtain a winning result.
The prosecutor can charge Robbery as varying degrees of felonies, 1 st , 2 nd and 3 rd degree, all of which are based on the severity of the offense. Of course, each degree has greater fines and penalties.
First degree Robbery carries a state prison sentence from 3 to 9 years. First degree robbery involves the robbery of a home, condominium, townhome, apartment or other inhabited residential dwelling, as well as of a motor vehicle or trailer (for example, carjacking). Obtain effective legal counsel with the top San Diego Robbery Defense Lawyers on your side.
Second degree Robbery is punishable in the state prison from 2 to 5 years. Carjacking carries a state prison sentence of 3 to 9 years.
As your San Diego Robbery Defense Lawyers, we are aware that if there is a deadly weapon used during the course of a robbery you are subject to a mandatory minimum 10 year prison sentence. We take ourwork seriously. If the weapon was fired during the robbery, there is a minimum 20 year prison sentence. If someone is physically harmed by the weapon there is a minimum sentence of 25 years to life. Second degree robbery includes all other forms of robbery (for example, strong arm robbery or mugging).
Regardless of the value of the item stolen, robbery is a felony if it was taken from someone's person. If a weapon was used during a robbery and have used a weapon, you can face a prison sentence. Under these circumstances, you cannot afford not to retain our experienced and winning San Diego Robbery Attorneys; call us now for a free consult.
You need an effective and aggressive legal defense team to represent you when investigated or charged with Robbery in San Diego County. Call the highest rated San Diego Robbery Defense Lawyers and speak with Sam Spital, the Managing Attorney at Spital and Associates for a free consultation now @ 619.583.0350.
There are nine basic proceedings in a felony case:
1. Arraignment
2. Bail Review
3. First Readiness Conference or Disposition Conference or Setting of Preliminary Hearing
4. Preliminary Hearing
5. Arraignment on the Information
6. Pretrial Readiness Conference
7. Motion Hearings
8. Judge or Jury Trial and 9. Sentencing
An Arraignment is the very first court appearance you will have and it is the process by which a person is brought before the court to hear and answer the criminal charges that have been filed against a defendant. Unlike misdemeanor offenses, your personal presence is required in San Diego County. The process in San Diego Robbery charge cases that occurs at arraignment are the following:
1.) The defendant is advised of his/her constitutional rights;
2.) If the Public Defender is appointed, he or she announces their appearance on the record;
3.) The robbery charges are read to the defendant, and a copy of the robbery complaint is provided to counsel. We hope you have selected us as your San Duiego Robbery Defense Lawyers. We want to be part of the team that is on your side;
4.) At this time, the defendant enters a plea to the charges, most commonly "not guilty" until the evidence is analyzed and robbery defense counsel advises the defendant of the options available to him or her;
5.) Bail is determined, which may be different than the presumptive bail amount that was previously set at the time of booking on the robbery arrest, or the defendant may be released on their own recognizance. If bail is not satisfactory, your robbery defense legal counsel can request a bail review hearing within 3 days of the arraignment;
6.) The San Diego Superior Court judge then sets a date for the defendant's next court appearance. As discussed more in depth below, that next date may be a preliminary hearing in San Diego County if at least one of the charges is a felony, or a pretrial hearing if the theft charges are misdemeanors only.
The Bail Review Hearing is the next step in the legal process for a felony in San Diego County if the issue of bail was not previously satisfactorily and reasonably set at the arraignment. Bail allows you to be released from the San Diego County Jail, unless you receive an O.R. (release on your own recognizance (payment is waived on condition you promise to appear in court). As your highest rated San Diego Felony Defense Attorneys, we will fight for the bail to be reduced to the absolute lowest amount, if at all to avoid you paying the bail in cash or via a bail bondsman.
In general, defendants who are charged with a felony in San Diego County and are released on "O.R. status" must have strong ties to the community, making them unlikely to flee. The factors we use as your San Diego Felony Attorneys to convince a judge to grant an O.R. release include the following:
- You have little or no past criminal record, or any previous criminal problems you had were minor and occurred many years earlier.
- You have other family members (most likely parents, a spouse or children) living in the San Diego community.
- You have resided in San Diego County for many years.
- You have a job in San Diego County.
- You have been charged with previous crimes, but have always appeared as required (in other words, there have been no prior arrest warrants or "failures to appear").
You may either pay the bail amount with a cashier's check, credit card, or cash equivalent (real estate). In the alternative, you can use a bail bondsman who works with a surety company to provide a bond (insurance) to the court that will guarantee you will make your future court appearances. If we are your San Diego Felony Defense Lawyers, we will assist you to appear in court at the proper time so that the Superior Court Judge refunds the bail (we will also remind you to discuss the details with your bail bondsman).
Please note that if you do not show up, the San Diego Superior Court keeps the bail and the judge will issue a warrant for your arrest. We handle many felony cases in Sanc Diego County involving arrest warrants and clients retain our services to go to court to have the warrant recalled, discharged or released. We will do the same for you if we are employed as your Felony Defense Lawyers in San Diego.
Under the California Penal Code, the bail amount must be stated in a court order or on the arrest warrant. There are published or standard bail schedules for most jails for each alleged violation. You can usually buy a bail bond for between 8% - 10% of the amount of your bail; this premium is the bond seller's fee for taking the risk you do not appear in court. A bail bond may cost you more in the long run. If you pay the full amount of the bail with cash or the equivalent, you will get that money back (less a small administrative fee) as long as you make your scheduled court appearances. On the other hand, the 8%-10% premium you pay to a bailbondsman is not refundable. In addition, some bailbondsmen may also require "collateral." This means you (or the person who pays for your bail bond) must give the bailbondsman a financial interest in some of your valuable property. The bailbondsman can cash-in this interest if you fail to appear in court.
At Spital and Associates as your Ssan Diego Felony Defense Attorneys, we willrepresent you at the bail hearing, seeking releases without posting bail (O.R.) &/or we will file a written motion and go to court to obtain a bail reduction consistent with our client's ability to pay, likelihood of appearances at court hearings and the alleged crime.
In federal court, a person taken to jail must be brought "without unnecessary delay before the nearest available . . . magistrate." In state court proceedings, you can be brought to court for a bail hearing within 48 hours (not counting weekends and holidays) of the time of your booking. As your San Diego Felony Defense lawyers, we handle Superior Court and Federal Court cases.
There are restrictions on how high bail can be set. The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means bail should not be used to raise money for the government or to punish a person for being "suspected" of committing a crime. The purpose of bail is to give an arrested person their freedom until convicted ofa crime, and the amount of bail must be no more than is reasonably necessary to keep a person from fleeing before their case is over. Some judges allow and/or set a high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. This is often referred to as bail set for "preventative detention," it is thought by some to violate the Constitution, even though this practice has continued in many courts.
Next, is the Readiness Conference, preliminary hearing setting or settlement conference. This is generally the first opportunity to obtain discovery in your San Diego felony charge case (police report &/or other investigation performed by law enforcement). This Superior Court proceedings in San Diego County may need to be continued so that your Felony Defense Legal Counsel can better evaluate the felony charges and potentially negotiate with the prosecution to resolve the felony case.
As your San Diego Felony Defense Counsel, we know that one of the mitigants in the sentencing process that works favorably for our clients in reducing punishment is when the defendant enters into a plea bargain before the next step, the Preliminary Hearing.We will discuss all of the alternatives so you make an informed decision as to how to proceed with your felony case.
After the readiness conference if the felony case is not resolved, the next San Diego Superior Court appearance is the Preliminary Hearing . If you are charged with a felony in San Diego County, you are entitled to a preliminary hearing within 10 court days of the arraignment, unless this time is waived (There is no preliminary hearing in misdemeanor cases). As the highest rated San Diego Felony Defense Attorneys, we are well aware that because felonies are more serious, the law requires there be a preliminary hearing in order to assure the Superior Court Judge the case is in fact sufficiently strong and/or meritorious. The legal standard that is required for felony charges is for the prosecuting attorney to show there is a strong suspicion a crime has been committed and this defendant is the one who is probably guilty.
The standard of proof or evidence is relatively minimal and clearly far less than the "beyond a reasonable doubt" evidentiary standard for a criminal trial. In other words, the case can proceed to trial with evidence that would otherwise be insufficient to sustain a conviction at trial. The preliminary hearing is generally relatively short, often one or more hours unless it is a complex case (e.g. embezzlement) that can take much longer, perhaps several days. We want to be your felony defense lawyer to use this hearing as appropriate to strategize our deefense case.
If the prosecution attorney makes the required evidentiary showing at the preliminary hearing, the defendant is said to be "held to answer," which means they must proceed to a trial on the charges. As your highest rated and top San Diego Felony Defense Attorneys, we will argue and hopefully convince the San Diego Superior Court that it should conclude the evidence is not sufficient and the judge will then dismiss some or all of the felony charges.
If we are successful as your felony defense lawyers and all of the felony charges are dismissed, the defendant is discharged and, if he or she is in custody, they will be immediately released. However, the prosecutor may re-file the charges, in which case the defendant will be re-arrested and a new preliminary hearing will be scheduled. If we prevail as your felony defense attorneys in San Diego and the charges are dismissed a second time, the prosecution attorney may not (absent a few exceptions) re-file the charges a third time. If only some felony charges are dismissed, however, the defendant will be prosecuted ("held to answer") on the remaining charges.
In some cases, a criminal charge can be filed as either a felony or a misdemeanor. Also, in the appropriate case we argueas your San Diego felony defense attorneys at the conclusion of the preliminary hearing that the Superior Court should reduce the felony to a misdemeanor. In that situation, the originally filed felony case then proceeds as a misdemeanor charge.
After the preliminary hearing, if the felony charges are not dropped, the defendant will be arraigned in San Diego Superior Court and the next settlement conference date is set along with the trial date. Often, this is the time we use as your San Diego Felony Defense Attorneys to file motions; and, in some cases when we are your felony defense legal counsel we will demand additional discovery. Once the preliminary hearing is concluded and the defendant is held to answer to a felony charge, the prosecution attorney files an "Information," which contains the felony charges. The next step is an arraignment on the information, which is 15 court days after being held to answer.
At the Arraignment on the Information, the same procedures set forth above that occurred at the first arraignment occur again in San Diego County. At this time, however, the Superior Court sets a pretrial hearing, and also schedules the trial date. Unless the defendant requests or agrees to a longer time, the Superior Court trial must commence within 60 days of the arraignment on the Information. At this time, the prosecution attorney may offer the defendant a "plea bargain" to resolve the case without a trial. As your experienced Felony Defense Lawyers we will confer with our client to help him/her evaluate the options and If you accept the "deal," then a guilty plea is entered and the matter is set for a Probation and Sentencing Hearing; this Superior Court proceeding in San Diego Countyis generally 2 to 4 weeks later to allow the Probation Department to produce its probation and sentencing report with their recommendation for the sentence.
The next Superior Court appearance is the second Pretrial Readiness Conference at which time as your felony defense legal counsel we will determine if a satisfactory settlement can be achieved. If the felony case is not resolved at the pretrial hearing, the Superior Court Judge may set additional pretrial hearings. At this time, the prosecution attorney and we as your San Diego felony defense lawyers will also discuss any issues relating to their readiness for trial, such as the availability of witnesses. If the felony case is not settled at this time, the criminal case will likely go to trial.
After the preliminary hearing, there is an opportunity for Motion Hearings in which we may as your San Diego felony defense legal counsel challenge the sufficiency &/or legality of the evidence. By filing a motion pursuant to Penal Code section 995, your felony defense counsel can attack the sufficiency of the evidence and the Superior Court trial judge will review the transcript of the preliminary hearing. If the San Diego Superior Court sustains the earlier decision, the judge will deny the motion, and the case proceeds to trial. On the other hand, if we are successful as your Felony Defense Lawyers and the Court determines sufficient evidence was absent, the motion is granted and the Information or a part of it is dismissed.
As your San Diego Felony Defense Attorneys, we may also file a motion to suppress the evidence pursuant to Penal Code section 1538.5. In this motion, as your defense counsel we will argue the defendant was stopped, arrested or searched in violation of their constitutional rights (e.g. the law enforcement officer did not have a warrant and otherwise lacked probable cause for the stop, arrest or search).
The Judge or Jury Trial is the next proceeding. Defendants must be brought to trial within a specified time period. For felony cases in San Diego County, when weare your felony defense legal counsel, we generally consent or agree to the trial date being extended, albeit the required time period is within 60 days of the Arraignment on the Information. For misdemeanors, unless we as your felony defense lawyers consent or agree to a later date, the trial must be held within 30 days of arraignment on the felony complaint (when the defendant is in custody), and within 45 days from the arraignment (when the defendant is out of custody).
The following are the basic parts to a jury trial: voir dire (questioning of the jury panel) and selection, opening statements, the presentation of evidence (divided into the prosecution's case, the defense case, and then the prosecution has an opportunity for a rebuttal), the closing arguments, the jury verdict and finally the sentencing.
On the date that is set for the trial of a felony complaint in San Diego County, the judge will hold a conference with the attorneys. At this conference, the parties will present (a) brief outline of the nature of the case; (b) identify witnesses; (c) the prosecution's theory of liability and as your felony lawyers we will present our defense theories; and (d) how jury selection shall begin. Occasionally both parties will waive a jury, in which case the Superior Court judge will determine whether the defendant is guilty or not. Otherwise, a jury must be selected to make that determination.
In San Diego County, jury selection begins when the court clerk calls the jury assembly room to have a panel of prospective jurors sent to the courtroom. In a typical San Diego felony crime case, the panel is composed of 30 to 35 prospective jurors. Prospective jurors are obtained from the property tax rolls in San Diego County, California Department of Motor Vehicle driver rolls, and the registered voter rolls. Persons summoned receive a court order to appear for jury duty, unless disqualified or excused. Everyone is eligible to be a trial juror, except non-residents of California, non-residents of the County of San Diego, non-citizens, minors (under age 18), convicted felons, persons who do not possess a sufficient knowledge of English, persons already serving as a trial grand juror, and persons who are the subject of a conservatorship.
Once the panel of prospective jurors are brought into the San Diego Superior Court room (entitled "Department"), they are seated, welcomed by the judge and then administered an oath to truthfully answer all of the questions concerning their qualifications to be a juror. The initial group is composed of 18 prospective jurors: twelve in the jury box and six seated in front of the box. Once the first group of prospective jurors are seated, the Superior Court judge gives a brief introduction to the felony case by introducing the attorneys, the court staff, the defendant and the witnesses; then, the judge explains the charges, the burden of proof and how voir dire will proceed. The judge then orally examines each juror individually in open court on the record. Once that is completed, the judge allows the attorneys to examine the prospective jurors. As your San Diego Felony Attorneys, this is an important aspect of the case as who eventually becomes the members of the jury may make the ultimate difference in the determination that client is not guilty.
After this process is completed, the attorneys approach the judge; this is the area called "side bar," and the conference takes place outside the hearing of the prospective jurors. There, the attorneys offer any challenges "for cause" to any of the prospective jurors. As the top San Diego Felony Defense Lawyers, we may challenge "for cause," which means the juror does not meet the qualifications to serve as a juror because (s)he has a bias against the defendant, has pre-judged the case, has a bias for or against law enforcement officers, lives in another country, or other grounds for believing the juror cannot be fair and impartial.
After the challengers are made, the Superior Court judge will issue a ruling. If granted, the prospective juror is excused. Then, the judge and the attorneys return to open court and the parties begin to exercise peremptory challenges. In most criminal cases, each side has 10 peremptory challenges (in death penalty and life imprisonment cases, each side has 20). Once both sides are either out of peremptory challenges or accept the 12 prospective jurors, the 12 jurors are sworn in. The judge and attorneys also select one to four alternate jurors (in complex trials, there may be more than four alternate jurors), who will also be seated and hear the evidence, but they will not participate in deliberations unless one of the 12 regular jurors is excused from the panel.
When all of the introductions are made, the prosecution begins its "case-in-chief," with the prosecutor calling his/her witnesses. Percipient witnesses are those witnesses who saw, heard or experienced the facts that are relevant to the defendant's guilt or innocence. A typical example is the victim or eyewitness to the crime. Expert witnesses testify about subjects that are considered technical or scientific, but can also testify on any subject that is not within the common experience of most individuals, but are qualified by their education, training or experience. The witnesses are first questioned by the prosecution attorney.
As your San Diego Felony Defense Counsel, we will object to any question we believe is not allowed by the rules of evidence. The prosecutor gets a second time to examine witnesses, but the examination is limited to the scope of the cross-examination by defense counsel. This second examination of the witness is called "re-direct" examination. This During the case-in-chief, the prosecution attorney may also introduce exhibits. Exhibits are tangible things such as the results of a lab test of blood for the presence of drugs or alcohol, a lab test on a illegal substance in defendant's possession to establish illegal narcotics, or a gun or other object.
After the prosecution attorney completes the presentation of its evidence, it rests. At this point, if we are your Felony Defense Counsel, we may make a motion for a judgment of acquittal pursuant to Penal Code section 118. In bringing this motion, the defendant is claiming the evidence before the court at that time is insufficient as to one or more counts. If granted, the particular charge is dismissed. If the motion is denied, the defense phase of the case begins.
It is a basic premise in the law that a defendant does not have to prove his/her innocence. In fact, the defendant does not have to testify at all, does not have to say anything, do anything or prove anything. The burden of proving the defendant's guilt beyond a reasonable doubt is the role of the prosecution attorney. At this time, we may present our witnesses and exhibits as your felony defense lawyers, with the prosecution attorney being able to object and cross-examine. In limited situations, the defendant may decide to waive his/her constitutional right to remain silent and testify, subject to cross-examination by the prosecution attorney.
In some cases, we will determine as your highest rated San Diego felony defense attorneys that "the defense rests" without presenting any evidence. This usually takes place when we believe the prosecution attorney has not proved their case beyond a reasonable doubt.
If we put on felony defense evidence, the prosecution attorney may then offer rebuttal evidence. Once both sides have rested, the Superior Court judge will instruct the jury on the applicable law by reading jury instructions; these are standardized instructions and include such topics as how to evaluate the evidence, the elements of each charge that has to be proved, the standard of proof required, and some guidelines on how the jury should conduct its deliberations.
Finally, each side begins their closing argument, where they state what they believe the evidence shows and what inferences the jury must draw from the evidence. The prosecution attorney is allowed two arguments (opening and rebuttal argument). Because we, as your San Diego Defense Counsel only get to argue once, in rare cases we may waive this argument and, therefore, the prosecution attorney is not allowed rebuttal. When all arguments have been completed, the case is submitted to the jury for a verdict.
The jury is required to decide the case based only on the evidence presented at trial, reasonable inferences drawn from the evidence and the applicable law. The jury is not allowed to conduct a further investigation, or consult other sources or persons. To insure there are no outside influences, the jury is brought to a private room to conduct their deliberations. First, they select a foreperson, who then leads the discussion. Any member of the jury may be the foreperson. Then, the jury decides the charges, one at a time. Once deliberations are completed, if the jury has reached a unanimous verdict one way or the other on each charge, the foreperson advises the bailiff and is conducted back into court.
Once back in court, the judge has the clerk read the verdict(s). If there is a guilty verdict to some or all of the charges, defense counsel usually asks that the jurors be polled individually. If polled, the clerk asks each juror, by juror number "Juror No.1, is that your verdict?" and the juror answers "yes" or "no." If there is a not guilty verdict as to all of the charges, the jury is not usually polled. Occasionally, the jury cannot reach a unanimous verdict on some or all of the charges. In this situation, the jury is deadlocked or this is called a hung jury. When the foreperson advises the judge that the jury cannot agree on a verdict, the judge may inquire of each juror whether any further deliberations or if additional instructions would be helpful, would be helpful. If the foreperson indicates which charge the jurors cannot agree upon, the judge may even allow the attorneys to reopen their closing argument and reargue as to a particular charge. If the jury still cannot unanimously agree upon a verdict, the judge will declare a "mistrial," and then discharge the jury. The judge has the discretion to reset the case for a new trial or dismiss the charges.
At this time, the Sentencing portion of the case begins. The Superior Court can either pronounce the sentence immediately, or as your personal and experienced San Diego Felony Defense attorneys, it is more often the case, we request the time for sentencing to be scheduled at a later date. If out of custody, the judge may remand the defendant into custody, pending the sentencing hearing.
If this is a death penalty case, the sentencing is called the penalty phase. This is where the prosecution attorney presents evidence as to why the defendant should receive the death penalty. If you choose us to be your San Diego Felony Defense Counsel, we will present mitigating evidence as to why our should not be sentenced to death. The jury then decides if the sentence should be death or life imprisonment without the possibility of parole.
Most crimes are punishable by a specified term in the San Diego County Jail or State Prison. Sentencing for misdemeanors are punishable by a fine &/or a term of incarceration in the County Jail. For most misdemeanors, the term is up to 12 months in jail and fines that range to $1,000.00 or more. For some misdemeanors, there is a minimum jail term, such as 48 hours for a second driving under the influence offense in ten years.
In most misdemeanor cases, the defendant is placed on summary or court probation (informal). This means the court suspends imposition of the sentence and instead conditionally releases the defendant upon specified terms and conditions. During the term of probation, the judge may require the defendant to report back to court periodically for a progress report. In this situation if the defendant completes all of the conditions of probation, at the end of probation there will be no statutory sentence imposed. If defendant fails to complete the conditions of probation, then the judge may terminate probation and impose a sentence of jail up to the maximum allowed by law.
For some felonies, the defendant may be granted a term of formal probation, where the defendant is supervised by the county probation department. The defendant is often assigned to a specific Deputy Probation Officer, to whom the defendant is usually required to report monthly. The probation officer is responsible for supervising the defendant and reporting to the Court any violation of the conditions of probation established by the Court.
For a number of offenses, such as the most serious and violent felonies (such as when a gun is used), probation is not allowed and the judge's only choice is to sentence the defendant to a specified term in State Prison. In California, we have the Determinate Sentencing Law ("DSL"), in which each felony has three specific terms for the sentence: a low term, mid term and a high term. For example, first degree robbery is punishable by a low term of 3 years in State Prison, a mid term of 4 years, and a high term of 6 years. The presumptive sentence is the mid term unless there are aggravating or mitigating factors, which would justify either the high or low term.
In addition to the term applicable for the specific crime, there often are sentencing "enhancements," when one has a prior conviction, or there is great bodily injury, or the defendant used a gun.
Once sentence is pronounced, the defendant is remanded to the Sheriff for custody in the County Jail or with an order to deliver the defendant to the California Department of Corrections ("CDC"). The CDC is empowered to decide which State Prison and under what conditions the defendant will be housed.
In cases where the punishment is death, there is an automatic appeal to the California Supreme Court. In all other cases, if the defendant believes the court committed an error of law, (s)he must file an appeal and the case will then be heard in the Court of Appeal. However, the Court of Appeal normally does not retry the case or re-decide the facts. Instead, it determines whether the law was applied correctly by the trial court. We handle appeals and writs in both State Superior Court as well as the Federal Court (see our practice area of Appeals).
THE "3 STRIKES" CASE
Under California law, if you have two prior convictions that are "serious or violent felony" offenses, you face the possibility of "25 years-to-life" in prison on the conviction of any third felony offense . The third felony does not have to be a serious felony to qualify as the "third strike." A prior juvenile conviction can be used as one or more of your strikes. As your San Diego Three Strikes Defense Attorney, we will argue one or more of your prior strikes should not be considered.
Thus, if a defendant has a prior conviction for residential burglary (a serious felony), and a prior conviction for robbery (a violent felony), and the defendant is then convicted of another felony offense, the mandatory minimum punishment is 25 years to life, absent other major &/or complex issues raised by experienced legal counsel. This is in sharp contrast to a defendant with only one (1) prior serious or violent felony, wherein the punishment for the third felony would depend upon that which is specified by the DSL..
Under the existing law (the present Los Angeles County District Attorney has come out in favor of "relaxing" the current 3-strikes law and there are others also continuing to push for such new legislation), convictions such as residential burglary, robbery, armed and otherviolent offenses, serious criminal threats and certain cruel &/or serious assault and battery charges, and other cases in a defendant's criminal past can result in potential 25 years to life sentences for "any" subsequent felony conviction.
All "strike" convictions have severe consequences: they require among other things, the potential for future life sentence enhancements even on a first conviction of a serious or violent felony, a presumptive prison sentence and reduction in credits for incarceration in state prison (a defendant usually is entitled for good behavior to credit of 50% in state prison, but in cases involving a third strike, the credit is not more than 15%).
THE "ONE STRIKE" CASE
Certain offenses can be punished by "life in prison" even though you have no prior convictions. Many sex crimes and crimes involving the use of firearms are punished by "life in prison" on the first offense.
On the "first"strike conviction, the defendant is generally sentenced to state prison (this will depend upon a number of factors, legal arguments and defenses raised by legal counsel) and the mandatory minimum is double for the "second" strike. The "third" strike can be anything from writing a bad check, a felony drug offense, or even a petty theft with a prior. The "third" strike does not have to be a serious or violent felony; any felony charge could give that defendant a life sentence in California.
Why jurors vote for manslaughter rather than murder.
It is not uncommon for defense counsel to ask jurors to vote for manslaughter rather than murder by focusing on the defendant's emotions that took over the defendant's reason at the time of a homicide. In other words, a jury characterizes the defendant's emotions as a mitigating circumstance to reduce a murder charge to a verdict of manslaughter, focusing on the following factors:
(1) Defendant's history of violence with the victim. A defendant having a history of frequent and intense arguments and/or violence with the victim is more likely to be convicted of murder. Unexpected events, however, increase chances of a manslaughter verdict.
(2) When defendant's actions are perceived as unintentional. Intentional actions are more likely to result in murder convictions. Defendants who pull out a gun they always carry without thinking about the situation are more likely to be convicted of manslaughter.
(3) Defendant's particular emotion. Among jealousy, anger, sadness and fear, a defendant who was motivated by jealousy has the greatest likelihood of a murder conviction, and a defendant feeling fear the least; anger is slightly more likely to result in a murder conviction than sadness.
(4) When defendant dwells on or purposely reflects on his or her emotions. Defendants dwelling on their emotions and allowing them to intensify are more likely to receive a murder conviction. When defendants become overwhelmed and "just snap," or when they did not intend to feel as they did, they are more likely to be convicted of manslaughter.
For jurors, no prior history of violence, not thinking, and being overcome with fear point to manslaughter, and a prior history of violence, feeling jealous, and dwelling on that feeling point to murder.
Defendants who show emotion during a trial are less likely to be convicted.
Research studies report that defendants who are cold and unemotional are convicted more often and punished more severely. In other words, the amount of emotion displayed by a defendant influenced conviction rates. A defendant displaying a high level of emotion are judged less guilty and more believable (assuming the evidence against the defendant was not strong). When the evidence was compelling and beyond a reasonable doubt, even in the situation where the defendant displayed a high level of emotion, there was little or no effect on the conviction rate. When the evidence is weak, a stronger display of emotion by a defendant results in the defendant being perceived as more honest, there are likely to be fewer guilty verdicts, and shorter rather than longer sentences. When a defendant appears bored &/or emotionally uninvolved, jurors are more likely to impose a death sentence. When a defendant appears sincere and remorseful, jurors either favored a life sentence or were undecided about punishment. In summary, jurors find unemotional defendants guilty more often, and punish them more severely.
If you or a family member or friend is investigated, arrested or charged with any misdemeanor or felony, whether Assault with a Deadly Weapon, Battery, Burglary, Grand Theft, Kidnapping, Car Jacking, Rape, Robbery or Murder, or Hit and Run, contact us so we can be your San Diego Criminal Defense Attorney NOW at 619.583.0350 or send an e-mail now so that we can help.
Samuel Spital & Associates
Main Offices
8880 Rio San Diego Drive
Suite 800
San Diego, CA 92108-1642
Telephone: 619-583-0350
Banker's Hill Associate's Office
Of Counsel - Russell Babcock, Esq.
1901 First Avenue, Suite 138
San Diego, Ca. 92101
Downtown Associate's Office
Of Counsel - Bill O'Connell, Esq.
110 West C Street, Suite 1300
San Diego, Ca. 92101-3978
Call 7 days a week at any hour or send an e-mail now.
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