Hey everybody! It's Andy and welcome again to my office in Modesto, California. I'm
an attorney licensed to practice law in California as well as New York and in
this video I'm going to try to go over California misdemeanor arraignments. Yeah
this is gonna be a criminal defense, criminal procedure sort of video. As of
right now this is only, like, this is my first one basically like in the
future I might have additional criminal defense,
you know, slash procedure sort of videos. This is my first one, though, so we'll see
how it goes. So the reason why I wanted to give this kind of, you know, a try,
I suppose, is I go to criminal court, not every day like, you know, a couple times a
week, I guess. It is not the dominant practice area that I have, but I go
there often enough and I see a lot of defendants basically facing misdemeanor
charges who, for lack of a better word, are completely clueless about what's
going on. And, I mean, I'm sure there are exceptions to this, but I would struggle
to kind of come up with, you know, good reasons, you know, examples of areas in
life where it pays really to be uninformed. Particularly when it comes to
court and you're facing a fine, jail time, you know, a criminal record, etc. There
really is no reason I think to be kind of uninformed about the process. Now not
every, you know, criminal defendant is uninformed. If you have, you know, your own
lawyer, hopefully your lawyer is doing a good job of explaining things to you, but
the vast majority of defendants who either don't have a lawyer or who have
the public defender, for instance, there really just is not the time to really,
you know, explain, you know, the process, I guess, to the defendant one-on-one. The public
defender, for instance, just does not have the time to actually do that and again,
like I said, I just go back to the fact that, you know, if you're facing charges,
you're, if you're facing a fine and jail time, there really is no good reason why
you should be uninformed. Hopefully this video helps. Yeah so anyway, all of that
background stuff said let's go ahead and try and get started. So in my experience
misdemeanor arraignments in California generally go over well, I guess in the
worst case, probably five different areas. Five different areas. Not every area is
going to be present in every case. I'll explain as we go.
So of the five areas, number one I think is going to be advising the defendant of
what rights they have, number two is going to be reading the complaint. That
may or may not happen depending on the situation, but the reading of the
complaint, you know, can happen. Number three is getting court-appointed,
you know, counsel, getting a court-appointed [eye roll] getting a
court-appointed attorney. There you go. So, again, that may or may not happen
depending on the case. It might be necessary, it might not be. Number four is
going to be entering the defendant's plea and number five is going to be, you know,
bail release or an own recognizance sort of release. So those are the five areas.
Not every area is going to be present in every case so for a couple of them, you
know, if it's talking about, you know, court-appointed counsel, if you're a
defendant and you have your own lawyer, obviously the court is not going to
worry about that stuff so that's not going to pop up during the course of
your particular arraignment. So anyway let's go ahead and try and get started.
If this video gets to be too unwieldy, I'm going to go ahead and put time codes
down below, like you know if you're only interested about appointment of counsel
let's say, watch from here to here. If you're only interested in the plea part,
from here to there, etc. So yeah. We'll see how that goes. Anyway so the first
area that we're going to talk about is the advisement of the defendant's rights.
So if you are in California, there's going to be some parts of this that will
vary slightly depending on how your county happens to do it. California law
is, obviously, you know, the same all throughout California so the substance,
the idea of what I talk about should be the same regardless of county. If you
happen to live outside of California, what I talk about is probably going to
apply in a very, very, very, very general way to you like, I guess, in the United
States, the rights that a criminal defendant might have, the procedure and
so forth, a lot of it's dictated by state law, but a lot of it is federal also. And,
obviously, if you live outside California but in the US somewhere else, then you
know, federal law will apply to you anyway. So yeah hopefully that made sense.
So anyway back to number one so it's the advisement of the defendant's rights. By
my count there's generally going to be seven rights that the criminal defendant
in California facing misdemeanor charges will have. I'm going to try and see if I
could fit all of them over here, but if not, I might try to, you know, paste and
link it down below, for instance, depending on what room I have. So anyway
so the first right generally is going to be the right to an attorney.
So I mean, I'm going to talk about more, I'll talk about this more later on when
I talk about court-appointed counsel, but the right to an attorney is one. If you
want to look over all these rights, they're going to be in the California
Constitution, specifically article 1 section 15, which I will try my best to
link down below, I guess, again depending if I have room, but anyway, so the
right to a court-appointed attorney is number one. The right to a speedy and
public trial is number two. There's going to be deadlines for that. To keep things
simple I'm not going to go into that, but if you want to look up, let's say, Penal Code
section 686, 1382, etc., those deadlines will be specified there. The third one is
going to be the right to a trial by jury of one's peers. That one you've probably
heard of before, but in California there actually is case law, for example, that
says that that is a defendant's right. The fourth one is going to be processes of
the courts, you know, the right to use the court for your defense. That one's a
little harder to explain. The basic idea, I think, is going to be that the
defendant has the right to use the power of the court to help them prove their
case. The best example that comes to mind, the most common one is that if you are a
defendant and, you know, you know there are witnesses out there who will
exonerate you, for instance, if you, um, if you ask them and they say 'Hey, you know, I
really don't want to get involved' and stuff, you can use the courts power to
compel them to come testify on your behalf, for instance. Yeah so the court
won't help you but at the same time will, I suppose, if that sort of makes
sense, but court processes, you know, you have the power to, you know, the
right to use court processes in your defense. The next one which i think is
number six, possibly five or six, is basically you as a defendant have the
right to confront and cross-examine witnesses against you. So, for instance,
let's say that you are facing misdemeanor, I don't know, robbery charges,
let's say, and suppose that the police have a witness who says that they
claimed to have seen you use a knife to rob this person and, you know, you have
the ability to confront this witness, cross-examine them to make sure that,
rather to elucidate, I guess, for the court that, for instance, this person
really could not have seen what they claimed to have seen, for instance. You do
have the power to do that. The next one is going to be the right to remain
silent. In California that's Evidence Code sections 930 and 940. If you have seen
the Miranda warning on TV, you know, you know, 'you have a right to remain silent,
you know, anything you say can and will be used against you' that's basically
there also. The last one, which I will talk about more later on when I talk
about bail and OR release, is that a criminal defendant facing misdemeanor
charges in California has the right to release on reasonable bail in most
instances. In terms of Penal Code sections in California, that's 1271 and
1458. So hopefully all that sort of made sense. Those rights, like this is one area
in which Cal, like the counties in California will differ. Some counties,
for instance, will actually have the judge advise each defendant kind of
individually that way. Some counties that are bigger, that have more cases, fewer
judges, etc, a lot of times they will have defendants basically, you know, advised en
mass like, you know, they'll basically tell you all this stuff in a group via
a video tape, audio tape, etc. So hopefully that made sense. That's number one
advisement of defendant's rights. Yeah, one of five sections we're going to talk
about. Number two is basically going to be the reading of the criminal complaint
for the defendant. I have never actually seen this done, to be honest. Reading of the
complaint is literally what it sounds. The judge and the court will read it to
you. If you are the defendant and you have your own lawyer, almost every lawyer
that I've ever seen will waive the reading. It's just not necessary. If
you're a lawyer, you can read the complaint yourself. You don't need to
have the court or the judge read it to to you. The idea basically is that if, for
instance, a defendant is illiterate, doesn't speak English or something, like
you know, they really can't read the complaint themselves, they might get
stuck on the language, not understand terms, etc. If that's the case in
your situation, the idea is that if the court reads the complaint to you, you'll
be fully kind of aware of what charges you're facing. Yeah, so in general
although I have never seen it done, it's something where, you know, everybody just
reads it themselves. So on the topic actually of defendants who don't speak
English. In the California Constitution
actually, if you don't speak English you are actually entitled to a
court-appointed interpreter also. That's article 1 section 14. Yeah. So, anyway,
so that's number 2 the reading of the complaint. Number 3 is going to be the
appointment of counsel. Again if you've seen the Miranda warning on TV before,
you know, you've seen the, or you heard rather, you've heard the warning like
'okay, you know, if you cannot afford an attorney, one will be provided for you,
blah, blah, blah.' So, in, I guess, earlier on in the video I also mentioned that
federal law applies here also. So under the US Constitution this is the Sixth
Amendment right to counsel. So I guess lest any of you think that,
you know, the right to counsel is, you know, without restriction I suppose,
the, the courts in California are actually authorized to inquire into the
financial status of a particular defendant to see whether or not they
really are, you know, indigent or they really are, you know, suited, I guess, for
public defense, er, sorry for public defender representation. And that's Penal
Code section 987(c) in case you're interested, but yeah
and the courts in California can also inquire, er, sorry can also make a defendant
rather, possibly pay back the cost of the public defender at the end of the case,
you know, if that defendant actually does have the means to do it.
Yeah. So in the same sort of idea as appointment of counsel, you know, there's
the idea of waiving counsel also. In California that's called a
Faretta waiver. Faretta is F-A-R-E-T-T-A.
It's a case in California where this idea sort of started. So under the Sixth
amendment, you are actually able to waive your counsel and proceed on your
own in a criminal defense sort of, you know, scenario also. Whether or not that's
a good idea, maybe maybe not. You know each case is different, but the
idea behind waiving your right to counsel, however, is that number one, it
has to be something that you are doing voluntarily, you're aware of the
consequences, it's intelligent, knowing. Yeah like you just can't waive it
randomly. You actually have to be pretty purposeful and you have to know
what you're doing, etc when you decide to waive. Number two is that if
you are going to waive your right to counsel, it's something where you have to
waive it unequivocally. You can't just sort of, you know, I guess, be half-hearted,
I guess, you have to be very clear 'Yes I want to waive', 'No I don't want to waive,'
like to use language that's sort of in the middle, I guess, in the middle like
this, really is not helpful, like you need to be very clear, and lastly there is,
there's a time requirement. You have to waive your right to counsel kind of
within a reasonable amount of time prior to trial. So that's the Faretta waiver.
Yeah and that's the appointment of counsel sort of section. So number four, I
think, is what we're up to is basically bail or own recognizance release. So I
don't know if this will surprise, surprise any of you, but if you are
charged with a misdemeanor in California, you are not necessarily in police
custody or in jail sort of custody when that happens. Some people who are
arrested, you know, for misdemeanors are actually released prior to, you
know, their arraignment, for instance. So if that's the case, then obviously bail, OR
release really is not that big a
deal. If, however, you know, your particular
situation, you know, results in the court or the prosecutor whoever wanting you to
stay in custody, that's more kind of what I'm talking about now. If you are in custody for a
misdemeanor offense that you're facing, then its Penal Code section 1270
that basically says that, you know, you are generally entitled to either, you
know, er, sorry to a Own Recognizance release, like basically to let you out
with a promise that you won't do anything bad, that you'll come back to
court, etc or, you know, later on, you can also seek a bail sort of release, if
you want. I'll talk about bail in just a second, but the basic idea is that, you
know, if you're, if you're in custody and you're facing misdemeanor charges, you
are generally entitled to an Own Recognizance release. If the situation in
your case really makes that kind of an unwise sort of idea, like if you get
released you'll, you'll flee the country or you'll hunt your victims and kill
them or something, the prosecutor does have the right to ask the judge to deny
you an OR release. If that's the case, you know, public safety, you know,
is going to be the basic idea, you know, the basic rationale. If for whatever
reason, you know, the judge decides to grant that, maybe there's a bail argument
that can be made by your attorney also. So on the topic of bail, right now it's
like, you know, mid, you know, 2018. Bail is kind of in flux right now, like
you know, there's a lot of talk about how, you know, the bail system is basically,
you know, discriminatory against the poor how, you know, bail really is not tied to
public safety, it's tied to basically how rich the defendant is. Currently at least,
a lot of California counties will have bail schedules. So the thing is,
you know, for a given offense, you know, there's going to be a kind of set amount
for whatever bail is. You know $50 million, $10 million, $1,000, whatever.
So the bail schedule for Santa Clara County, at least, I'm going to go ahead and link
that down below. Yeah so go ahead and take a look at that if you want to, like if you
are interested, but if you are denied an OR release, for example, your lawyer
might argue under, I think it's Penal Code 1289, that you are entitled to, you know,
reduced bail. 1289 also allows a prosecutor to argue for an increased
bail if, if the situation sort of warrants it. So one thing about the
OR release thing, which I guess some of you might be wondering, if you are charged
with a misdemeanor, er, sorry if you're charged with a domestic violence related
sort of offense, there is an exception under Penal Code 1270(a), er, sorry 1270.1
rather (a), where if you're charged with one of the
listed, you know, DV-related, DV-related offenses, you generally are not entitled
to automatic kind of OR release. There has to be a hearing, you know, the DA will
probably argue that you should not be OR released, blah, blah, blah. So OR release, the
entitlement in a DV-related situation is not nearly as straightforward, I suppose.
So, what else? I think that's it for bail and OR
release. The last part I'm going to talk about, number five, is basically entry of
the defendant's plea. Now if you are the defendant and you're ready
to plea at your arraignment you certainly can. A lot of times, you know, if
the case is somewhat complicated, you know, you might not want to plea, to
plead right away. Maybe, you know, you might have your lawyer do some more
discovery or something, but there's a logic behind why you should plead
early, you know, whether or not you can plead early, etc., but if you want, if
you're kind of interested in the plea related sort of statutes, that's
Penal Code section 988, 989, 990, in that sort
of range. So I will tell you actually that a lot of times people, er defendants
rather, let's be specific, defendants facing misdemeanor charges will
generally try to plead 'no contest'. I'm not sure if they really understand why
they should plead no contest or shouldn't, like I don't think they
understand what it means. If you plead no contest to a misdemeanor charge in
California, the next thing that will come out of the judge's mouth basically is a
statement that you know 'And, sir, you understand that pleading no contest is
the equivalent of pleading guilty.' So in Criminal Court, no contest and
guilty are the same thing. The only kind of difference is that, you
know, no contest basically means that later on in a civil suit, your criminal
kind of, you know, case cannot be used against you. In some instances if you are
likely to be sued for whatever crime you committed
maybe that's beneficial. In some cases, you know, if you're, if the
likelihood of a lawsuit is very low, you can plead no contest, it really doesn't
buy you anything, I think. Yeah, but the basic idea is going to be that, you know,
if you decide to plead no contest or, sorry, if you decide to plea anything - no
contest, guilty, etc. - then it's something where the judge has to make sure that
number one you understand what you're doing, you're doing this, you know,
willingly, voluntarily, you understand the pros, the cons. Generally you're going to
have to give up certain rights also in order to plea. So you're going to give up
the right to a jury trial, right to confront witnesses, the judge has to
basically, you know, make sure you understand that too. Yeah. If you're
interested in that, I guess the case for that, there's a case, a US Supreme Court
case called Boykin B-O-Y-K-I-N that goes over kind of like, you know, I guess the,
the plea process and knowing, voluntary that kind of thing. The last thing that
kind of comes to mind actually is that if you decide to plea to something, it's
going to be a situation where you basically have to be advised of the
direct consequences of your plea. So if it's something where, for instance, you
are pleading no contest to, you know, a sex offense or something or you're
trying to, you're going to plead no contest to DUI, one consequence of that
would be that you are going to lose your driving privileges or have them revoked
or suspended or something. If you plead no contest to a sex offense, you might be
subject to sex offender registration for the remainder of your life. Penal Code
290. Yeah, so the judge has to kind of advise you of those things to make sure
that you really are sure that you want to go and go ahead and enter, you
want to go ahead and make this particular plea. The one that I see
actually the most, I don't know this is California specific or, you know, Northern
California specific, or whatever but, I want to say it's Penal Code section 1016,
1016, 1016.5 thereabouts, where the court basically will
have, will basically tell you that if you are in the United States,
you know, either on a green card or you're here without lawful status or
something, by pleading no contest or guilty to this offense, that could
trigger a lot of immigration sort of consequences. So if you're here, you know,
sorry, if you're a US citizen rather, pleading guilty or no contest
really doesn't affect you a whole lot in this way, but if you are here on, you know,
on green card, for example, having a conviction on your record could be
something that prevents you from getting citizenship later on, could be grounds to
not renew your green card. If you are here without lawful status, if you're
illegal, undocumented and so forth, if you have a conviction, that could be
grounds for your deportation also. By law in California, judges cannot ask whether or
not you're a citizen or not, but they basically give this warning to everybody.
You know, if you're here in the US not a citizen, pleading guilty including no
contest could subject you to a lot of bad immigration sort of consequences. So
hopefully all that helped. This video was actually quite long. 20 almost 21 minutes
now. But the basic idea, kind of in quick
summary: a criminal misdemeanor arraignment in California, advisement of
the defendant's rights, reading of the complaint, often times this is waived you
don't have to waive it, getting a court-appointed attorney in the
situations that require it, discussing bail and/or Own Recognizance
release and lastly, lastly entering the defendant's plea, you know, be it no be it
guilty or no contest, etc. So hopefully all of that helped. I don't mean to rush
through this, but misdemeanor arraignments are, are not complicated, I
guess, if you do them with some frequency, but this video hopefully is going to be
something that if you're facing charges and you watch this, it's going to be
something that really helps you understand and, you know, not just be sort of,
you know, deer in the headlights sort of scared, I guess. Yeah, so for all
the stuff that I mentioned or as much as I can fit down below in the
description, I'm going to go ahead and link to statutes and code sections and so
forth so go ahead and take a look at that if you are, you know, trying to prepare
for your arraignment let's say. But, yeah. So hopefully all that helps. Go ahead and
share, comment, like, subscribe, etc., and I will talk to you guys next time.
Thanks.
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