San Diego Criminal Defense Attorney Blog

So you've been arrested and charged with a misdemeanor. What happens next? Here is a very brief overview of the legal proceedings in a misdemeanor case.

What is a misdemeanor? A misdemeanor is a crime that is punishable by a year or less in jail. Common misdemeanor offenses include DUIs, drunk in public, and possession of marijuana for personal use.

An arrest usually triggers further legal proceedings.

1. Arraignment. An arraignment is ordinarily your first court appearance in front of a judge, where you enter a plea of guilty or not guilty. This hearing must take place "without unnecessary delay," which usually means that, once arrested, you must be taken before a magistrate within 48 hours, with some exceptions (Sundays, holidays, etc.).


2. Pre-trial conferences. Between arraignment and trial, there will usually be at least one more court appearance, called a pre-trial conference or pre-trial hearing, where the district attorney (in San Diego, the city attorney) will offer you a plea bargain. This means that, in exchange for pleading "guilty" or "no contest," the DA/CA can drop a charge and/or lessen the punishment for the crime. You can elect to accept the plea bargain or continue to trial.


3. Motions. In some cases, it may be appropriate to file a pre-trial motion. There are different motions that may be filed and you will need to consult with your attorney.


4. Trial. You have a constitutional right to a jury trial, as well as what is called a "speedy trial." For a misdemeanor defendant in custody--meaning a defendant in jail--at the time of arraignment, the trial must occur within 30 calendar days after arraignment. For an out-of-custody defendant, the trial must occur within 45 days after arraignment. You may waive this right to allow your attorney more time to prepare your case.

At trial, you have the right to confront and cross-examine all witnesses against you and present evidence on your behalf. At the close of trial, a jury will deliberate and give a verdict.

Continue reading "Arrested For a Misdemeanor - Now What?" »

Pauletta Santaua of El Cajon was convicted this week of one count of committing a lewd act on a child under the age of 14 (Pen C 288(a)).  The San Diego Union Tribune quotes the judge in the case, Peter C. Deddeh, who confirmed that Santau's involvement was limited to the one incident and that a psychologist determined Santaua was NOT a sexual predator.

So, why was Pauletta Santaua sentenced to register as a sex offender for the rest of her life?  The California Penal Code requires that every person convicted of a lewd act on a child under the age of 14 to register (Pen C 290(c)).  Judge Deddeh had no discretion to waive the registration requirement, even though he took notice of the fact that Santaua was not a sexual predator.

The whole purpose of sex offender registration is to provide law enforcement with up to date and accurate information regarding the location and propensities of people who are likely to reoffend.  An added benefit to the registration system allows every concerned parent to search a national registry for predators in their neighborhood.  When people like Santaua are forced to register, the whole system is watered down.  You can't tell Ms. Santaua's blip on the map of your neighborhood from the serial molestor two doors down. With all these dots, how are the police or concerned parents supposed to keep track of the dangerous predators?

Unlike many criminal defense lawyers, I think there is a place for sex offender registration in our community.  But the way the law is written now, the registration system is completely useless.  Many people don't realize that when Ms. Santaua is 89 years old and confined to wheel chair at the Shady Pines (assuming they will take a registered sex offender) - she will still be required to register.  The law is just ridiculous.

If you have been charged with an offense that has even the slightest of sexual undertones, you need to proceed with your case very carefully.  You will want to work with a skilled San Diego criminal defense lawyer who is very familiar with sex offender registration in California.  Many times a plea agreement can be negotiated with the prosecutor allowing you to plea to an offense which does not carry the mandatory registration requirement.

The United States Supreme Court handed down a decision this month that changes the rules regarding when a police officer may search a vehicle incident to the arrest of a vehicle occupant.  Prior to this decision, a San Diego Police officer or California Highway Patrol officer could search a vehicle after arresting a recent occupant of the vehicle for the purpose of securing the officer's safety.  You can read the opinion here: Arizona v. Gant.

The Fourth Amendment to the Constitution of the United States protects people from unreasonable searches and seizures.  In many instances, that means police must get a warrant prior to conducting a search.  The warrant requirement is subject to several exceptions.  There is a well used exception for vehicles, no warrant is required.  Police can search a vehicle as long as they have probable cause.

So what does the new decision change?  Let's say you are stopped for not having current vehicle registration and then arrested for drunk driving (DUI).  After your arrest, you are placed in the back of the police car.  It used to be that the police could search your car while you are safely locked up in the back of there's.  If they just happened to find a kilo of cocaine - your arrest just got more serious. 

Under the new rule in Gant, the police cannot search your car under those circumstances without probable cause.  And if they have probable cause that they will find an open container, for instance, that will not support a search for drugs in the trunk.

The California Penal Code provides for a hearing to determine whether the evidence in your case was legally obtained by the police.  If the judge at this suppression hearing finds that the police acted illegally, then the evidence might be thrown out. If evidence is thrown out, the prosecution may not have enough evidence to move forward with the case against you.  Even if there is still sufficient evidence to support the charges, your success at a suppression hearing will likely lead to a better plea offer.

The rules that protect you from unreasonable searches under the Fourth Amendment are extremely complex.  If you've been arrested and the police searched you, your house, your car or your belongings, you need a skilled California criminal defense lawyer who is familiar with the complex body of search and seizure law.

Continue reading "Supreme Court Limits Police Search of Cars" »

Once upon a time you did something stupid and managed to get charged and convicted of a crime in San Diego.  Once you have completed your probation, California Law allows you to petition the court to dismiss the original charges brought against you. This is sometimes called expungement. 

You can petition the San Diego Superior Court yourself to have your conviction expunged by downloading and submitting the appropriate forms (here for misdemeanors and here for felonies) and representing yourself at a hearing... or you can hire a criminal defense lawyer to help you.

To complete the forms, we will need to know the court file number and date of your conviction.  If your case is more than 10 years old, the courthouse probably won't have a record of your conviction.  In that case, you will need to provide a certified copy of the complaint, conviction, and clerk's minutes. But you probably don't have and can't get these documents.  Don't sweat it, you can get your criminal record from the California Department of Justice (DOJ).  The record is free, but you will have to pay up to $20 to have your fingerprints taken at a LiveScan location.

The court can charge you up to $120 for the services related to the petition, but that might be waived if you can demonstrate financial need.

Expungements are not overly complicated but they do have some significant limitations and involve jumping through some hoops.  If you are interested in cleaning up your criminal record but are intimidated by the prospect of representing yourself at a hearing in front of a judge - consider hiring a skilled California criminal defense attorney to complete the paperwork and appear on your behalf. 

You've done your time - let us help you put your past mistakes behind you.