If you are arrested for a felony in California and are taken into custody, you have a right to be brought before a judge within 48 hours, excluding weekends and holidays. This initial appearance is the arraignment. If you make bail or otherwise are not in custody, your arraignment will generally be set within a reasonable time, usually within a few weeks.
At the arraignment, you will be informed of the charges and any sentencing enhancements filed against you. If you are in custody, bail will also be set at that time. You will have the option to enter a plea of guilty or not guilty, or you may request a continuance of your arraignment to seek counsel or as part of a potential plea which may only be offered by the prosecution prior to arraignment.
Following a not guilty plea at the arraignment, the vast majority of cases in California proceed by way of a preliminary hearing, which you are entitled to have held within 10 court days. Preliminary hearings are a kind of “mini trial” put on before a judge with no jury. Unlike a jury trial in which your guilt must be proved beyond a reasonable doubt, in a prelim the prosecution must put on enough evidence only to show that there is “probable cause” to convince the judge that you committed the crimes of which you are accused – a much lower standard. The purpose of a prelim is to weed out charges that are completely unsupported by the evidence without the expense of a full-blown trial. Generally, only a few witnesses will testify for the prosecution at a prelim, and what the defense can present is severely limited. Therefore, prelims rarely last more than a few hours or so.
The prelim is the first chance for the judge to see the evidence in the case. After getting this “preview” of the evidence, the judge will decide if there is in fact the necessary probable cause to believe you have committed the crimes charged. The judge may dismiss or reduce charges at this point.
Following the prelim, the prosecution will be able to review the evidence as well. If a particular witness did poorly on the stand, or if other evidence is shown to be weak, it is possible the prosecution may reduce or dismiss charges. However, they may also decide the evidence presented at prelim justifies additional or even higher charges. A defense attorney may challenge any of the charges based on the evidence presented at prelim thought a 995 motion. A 995 motion is a challenge to the sufficiency of the evidence and is brought before a different judge than the one who conducted the prelim.
If you are held to answer on any of the charges (meaning the judge found probable cause you committed the crime), you will be arraigned a second time within 15 calendar days. Again, you would be presented with the charges against you and given an opportunity to enter a plea. You have a right to a trial to begin within 60 calendar days of this arraignment.
Once your case is assigned to a trial court, your attorney can file additional motions, such as to suppress evidence or demand discovery. This is also an opportunity for your attorney to negotiate with the prosecution and attempt to settle the case.
If you have been accused of committing a felony, it is important that you understand your rights and are protected every step of the way. Contact criminal defense attorney Scott R. Ball today for a free and confidential consultation.
Showing posts with label Caselaw. Show all posts
Showing posts with label Caselaw. Show all posts
2/24/11
Bad Law! Password Protect Your Cell Phone!
The Fourth Amendment of the U.S. Constitution protects every person from being free from unreasonable searches and seizures by law enforcement. This means the police must have either a warrant, or some other legitimate reason to be able to search anything in which a person has a “reasonable expectation of privacy”.
One of the reasons often used by police to search a person is when the search is “incident to an arrest” – meaning, if you are lawfully arrested, police may search your clothes and any purse, backpack, etc. with you at the time of your arrest. The point of the search is to determine if you have a weapon or other contraband with you before they take you into custody. Obviously, this sort of search is necessary, and makes sense as an exception from the requirements of the Fourth Amendment. It is not unreasonable for your pockets or backpack to be searched for weapons if you have been legally arrested.
However, in the recent decision in People v. Diaz, the California Supreme Court took this exception to the warrant requirement a step further. In Diaz, the defendant was arrested for his involvement in a drug deal. After being arrested and questioned for approximately 90 minutes, a detective looked through Diaz’s cell phone and found text messages regarding a drug transaction. Diaz challenged this search of his cell phone as a violation of his Fourth Amendment right – obviously he would not be allowed to possess the cell phone in jail, and so it could not contain a weapon or other contraband. Further, if the police wished to search the phone, they could easily have obtained a warrant without any threat of evidence on the phone being deleted, as the phone was no longer in Diaz’s possession.
But the California Supreme Court instead took a dangerous step towards eroding our Constitutional rights by declaring the search legal as “incident to the arrest”. This case appears to open up a host of other privacy issues – can the police now search a person’s iPad in a backpack? What about a laptop in a suitcase? What if the device is password protected? What if the arrest is for something (like a DUI) completely unrelated to potential evidence that could be found on a phone? What if an officer justifies looking through texts or email on the basis of a sham excuse of looking for evidence of the crime, like texts about which bar to meet up with friends?
Very likely, this case will be appealed to the U.S. Supreme Court. Hopefully, the legitimacy of this sort of invasion of privacy will be struck down. Until then, however, it’s a good idea to password protect your phone, iPad, or laptop. If police ask for your password, remember your Fifth Amendment right to remain silent. Always protect yourself!
If you have any questions regarding this or any other criminal law issue, contact criminal defense attorney Scott R. Ball today. Consultations are completely confidential and always free.
One of the reasons often used by police to search a person is when the search is “incident to an arrest” – meaning, if you are lawfully arrested, police may search your clothes and any purse, backpack, etc. with you at the time of your arrest. The point of the search is to determine if you have a weapon or other contraband with you before they take you into custody. Obviously, this sort of search is necessary, and makes sense as an exception from the requirements of the Fourth Amendment. It is not unreasonable for your pockets or backpack to be searched for weapons if you have been legally arrested.
However, in the recent decision in People v. Diaz, the California Supreme Court took this exception to the warrant requirement a step further. In Diaz, the defendant was arrested for his involvement in a drug deal. After being arrested and questioned for approximately 90 minutes, a detective looked through Diaz’s cell phone and found text messages regarding a drug transaction. Diaz challenged this search of his cell phone as a violation of his Fourth Amendment right – obviously he would not be allowed to possess the cell phone in jail, and so it could not contain a weapon or other contraband. Further, if the police wished to search the phone, they could easily have obtained a warrant without any threat of evidence on the phone being deleted, as the phone was no longer in Diaz’s possession.
But the California Supreme Court instead took a dangerous step towards eroding our Constitutional rights by declaring the search legal as “incident to the arrest”. This case appears to open up a host of other privacy issues – can the police now search a person’s iPad in a backpack? What about a laptop in a suitcase? What if the device is password protected? What if the arrest is for something (like a DUI) completely unrelated to potential evidence that could be found on a phone? What if an officer justifies looking through texts or email on the basis of a sham excuse of looking for evidence of the crime, like texts about which bar to meet up with friends?
Very likely, this case will be appealed to the U.S. Supreme Court. Hopefully, the legitimacy of this sort of invasion of privacy will be struck down. Until then, however, it’s a good idea to password protect your phone, iPad, or laptop. If police ask for your password, remember your Fifth Amendment right to remain silent. Always protect yourself!
If you have any questions regarding this or any other criminal law issue, contact criminal defense attorney Scott R. Ball today. Consultations are completely confidential and always free.
7/2/10
Ruling Revolutionizes Red Light Camera Tickets
While it might not be on the level of Roe v. Wade or Brown v. Board of Education, a recent ruling by an Orange County appellate court may be just as groundbreaking… in the world of red light camera traffic tickets.
In People v. Khaled, a panel of judges in Santa Ana reviewed a conviction of the defendant on a red light violation. The evidence presented consisted of a video of Khaled driving through an intersection after the light had turned red and the testimony of a Santa Ana police officer. While the officer regularly testified on these types of cases (in fact, is common for these officers to do so dozens of times in a single day), the camera itself was installed and maintained by a private company which had contracted with the city to issue red light tickets. This formula of private company installation and maintenance of the camera plus a police officer testifying to the placement and accuracy of the device has resulted in literally tens of thousands of convictions since red light cameras were invented.
However, the rules of evidence, which are often somewhat ignored in traffic courts, require that for video or photographic evidence to be admissible, a proper foundation must be laid. This means there must be testimony from someone with personal knowledge to say under oath that the camera was in proper working order at the time the picture was taken and that the picture was taken at the place and time alleged.
And this is where the court found the problem on appeal. The officer called to testify against Khaled had no personal knowledge of how the system was maintained or how the date and times were verified, and could only offer general information on how the system worked. Without any evidence to lay the proper foundation, the evidence of the video was inadmissible. And without the video, there was no evidence against Khaled, and his was conviction was overturned.
For now, the ruling will only be binding on courts in Orange County. However, the legal reasoning is sound and may be soon followed in other counties as well. County officials are planning to appeal the decision to the California Supreme Court.
The effect of the ruling is still largely unknown. Some cities in Orange County have begun simply dismissing tickets. Others are pressing forward with prosecutions; most likely hoping defendants haven’t become aware of the decision in Khaled. If the ruling holds up, several solutions are possible, all of which will raise the cost of red light enforcement by municipalities. Potential reactions could include requiring the testifying officer to receive much more in depth training, or having a representative from the company that installed the camera testify as well.
For now, everyone cited for a red light camera violation, for which a conviction results in a fine around $450 plus a point on a person’s driving record, should fight the charge. For those in Orange County, a dismissal should be just about guaranteed. For those outside the county in California, while dismissal will not be automatic, the influential value of Khaled should be extremely important.
For more information regarding how you can fight your red light ticket, contact the Law Office of Scott R. Ball today at 714-973-2024 or attorneyscottball@gmail.com.
In People v. Khaled, a panel of judges in Santa Ana reviewed a conviction of the defendant on a red light violation. The evidence presented consisted of a video of Khaled driving through an intersection after the light had turned red and the testimony of a Santa Ana police officer. While the officer regularly testified on these types of cases (in fact, is common for these officers to do so dozens of times in a single day), the camera itself was installed and maintained by a private company which had contracted with the city to issue red light tickets. This formula of private company installation and maintenance of the camera plus a police officer testifying to the placement and accuracy of the device has resulted in literally tens of thousands of convictions since red light cameras were invented.
However, the rules of evidence, which are often somewhat ignored in traffic courts, require that for video or photographic evidence to be admissible, a proper foundation must be laid. This means there must be testimony from someone with personal knowledge to say under oath that the camera was in proper working order at the time the picture was taken and that the picture was taken at the place and time alleged.
And this is where the court found the problem on appeal. The officer called to testify against Khaled had no personal knowledge of how the system was maintained or how the date and times were verified, and could only offer general information on how the system worked. Without any evidence to lay the proper foundation, the evidence of the video was inadmissible. And without the video, there was no evidence against Khaled, and his was conviction was overturned.
For now, the ruling will only be binding on courts in Orange County. However, the legal reasoning is sound and may be soon followed in other counties as well. County officials are planning to appeal the decision to the California Supreme Court.
The effect of the ruling is still largely unknown. Some cities in Orange County have begun simply dismissing tickets. Others are pressing forward with prosecutions; most likely hoping defendants haven’t become aware of the decision in Khaled. If the ruling holds up, several solutions are possible, all of which will raise the cost of red light enforcement by municipalities. Potential reactions could include requiring the testifying officer to receive much more in depth training, or having a representative from the company that installed the camera testify as well.
For now, everyone cited for a red light camera violation, for which a conviction results in a fine around $450 plus a point on a person’s driving record, should fight the charge. For those in Orange County, a dismissal should be just about guaranteed. For those outside the county in California, while dismissal will not be automatic, the influential value of Khaled should be extremely important.
For more information regarding how you can fight your red light ticket, contact the Law Office of Scott R. Ball today at 714-973-2024 or attorneyscottball@gmail.com.
9/4/09
Landmark Case For Stoners
A fairly recent California Appellate Court decision should be hailed as a landmark case for pot smokers. In People v. Hua, (158 Cal. App. 4th 1027) a court ruled that law enforcement must have a warrant to enter a private residence when the only evidence of a crime being committed is for simple possession of marijuana.
In Hua, two police officers walked up to an apartment in response to a complaint of a noise violation and saw, through a window, four college kids sitting around a table passing around a couple of blunts. The police officers knocked on the door and asked to come in. The kids said no but the officers entered anyway. In the apartment, the police found 46 marijuana plants. The young man who lived at the apartment, Hua, was arrested and charged with cultivation of marijuana.
A little legal background info at this point: As you may know, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, meaning police must have a warrant to enter any private area. Any evidence obtained from an illegal police search is suppressed, and may not be used against a defendant in court. However, there are several exceptions to the warrant requirement. For example, if the police reasonably believe that evidence will be destroyed if they don’t enter immediately, they may legally do so.
And that was the excuse the officer in Hua used; if he had not entered immediately (and without a warrant), the evidence of pot would have been destroyed. However, possession of less than 28.5 grams of marijuana is at most a misdemeanor (and often charged as merely an infraction), and a non-jailable offense. The Appellate Court cited the 1984 Supreme Court Case Wisconsin v. Welsh (466 U.S. 740), which stated that “entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor.” The court in Hua reasoned that possession of marijuana was exactly the sort of minor crime described in Welsh.
The officers in Hua, when looking through the window, saw evidence of only the crime of possession of less than 28.5 grams of weed (they did not notice the dozens of marijuana plants when they first peeked in). The court determined that the minor seriousness of the crime was outweighed by the protection given to citizens by the Fourth Amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The entry by the officers was illegal, and thus all evidence seized from the illegal search was thrown out. Despite being found with 46 pot plants, Hua got off scot-free.
What does this mean? Well, it basically means you can smoke weed on your balcony while smiling down at a cop and he can’t do a thing, short of leaving to find a judge to sign a warrant. This case is truly a landmark victory for pot smokers everywhere.
However, that doesn’t mean that smoking pot in plain view of an officer is a good idea; always use common sense! Just because a warrantless entry by law enforcement is illegal doesn’t mean it won’t be done. And while you may have law as determined by the Hua court on your side, it’s definitely not worth going through the legal process to be proclaimed innocent. So if you choose to smoke marijuana, be sure to do so carefully. And if you are ever arrested for any sort of drug related crime, you should contact the Law Offices of Scott R. Ball today.
In Hua, two police officers walked up to an apartment in response to a complaint of a noise violation and saw, through a window, four college kids sitting around a table passing around a couple of blunts. The police officers knocked on the door and asked to come in. The kids said no but the officers entered anyway. In the apartment, the police found 46 marijuana plants. The young man who lived at the apartment, Hua, was arrested and charged with cultivation of marijuana.
A little legal background info at this point: As you may know, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, meaning police must have a warrant to enter any private area. Any evidence obtained from an illegal police search is suppressed, and may not be used against a defendant in court. However, there are several exceptions to the warrant requirement. For example, if the police reasonably believe that evidence will be destroyed if they don’t enter immediately, they may legally do so.
And that was the excuse the officer in Hua used; if he had not entered immediately (and without a warrant), the evidence of pot would have been destroyed. However, possession of less than 28.5 grams of marijuana is at most a misdemeanor (and often charged as merely an infraction), and a non-jailable offense. The Appellate Court cited the 1984 Supreme Court Case Wisconsin v. Welsh (466 U.S. 740), which stated that “entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor.” The court in Hua reasoned that possession of marijuana was exactly the sort of minor crime described in Welsh.
The officers in Hua, when looking through the window, saw evidence of only the crime of possession of less than 28.5 grams of weed (they did not notice the dozens of marijuana plants when they first peeked in). The court determined that the minor seriousness of the crime was outweighed by the protection given to citizens by the Fourth Amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The entry by the officers was illegal, and thus all evidence seized from the illegal search was thrown out. Despite being found with 46 pot plants, Hua got off scot-free.
What does this mean? Well, it basically means you can smoke weed on your balcony while smiling down at a cop and he can’t do a thing, short of leaving to find a judge to sign a warrant. This case is truly a landmark victory for pot smokers everywhere.
However, that doesn’t mean that smoking pot in plain view of an officer is a good idea; always use common sense! Just because a warrantless entry by law enforcement is illegal doesn’t mean it won’t be done. And while you may have law as determined by the Hua court on your side, it’s definitely not worth going through the legal process to be proclaimed innocent. So if you choose to smoke marijuana, be sure to do so carefully. And if you are ever arrested for any sort of drug related crime, you should contact the Law Offices of Scott R. Ball today.
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