[by James Devitt, Attorney at Law]
What’s the difference between a felony and a misdemeanor?
Felonies, such as murder and assault with a deadly weapon, are the most serious crimes. Misdemeanors, such as reckless driving, are less serious. Usually, in California, if a law provides for imprisonment for longer than a year, it is a felony. If the potential punishment is a year or less, then the crime is considered a misdemeanor. Some misdemeanors, such as possession of less than an ounce of marijuana, carry only a fine (usually $100 in Los Angeles County).
Certain cases may be “wobblers,” either a misdemeanor or a felony, because the punishment may be imprisonment for less than a year in some situations, while in other situations a year or longer.
Infractions, such as traffic tickets, are even less serious
What is bail and how does it work?
Bail is the amount of money a judge decides it will take to make sure you appear for court in the future. There is a usual and customary bail schedule, making the judge’s job easy in most cases. The defendant or his family can post the entire amount or call a bail bondsman to put up the money, usually in return for a non-refundable 10% fee (or less). The bondsman may also want collateral. For most non-serious offenses you will be released in 48-72 hours anyway, so you may not need bail.
How do I get money for bail or attorney fees?
Your family or friends may be able to help you. Some attorneys or bondsmen take credit cards or will have you sign a wire transfer from your bank account. Some may even take a lien on your house, if you own it.
How can I tell from reading a criminal law whether I’m guilty of the crime?
All criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the alleged criminal’s “intent.” These are known as the “elements” of the offense. The D.A. must convince a jury that the person charged with the crime did the elements and had the intent described in the statute.
What does it mean to prove guilt “beyond a reasonable doubt?”
In order to win his case, the district attorney must convince the jury hearing the case that the defendant is guilty “beyond a reasonable doubt.” This standard is not easy to meet. This means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. The evidence must be very strong: much stronger than in a civil case asking for money damages. (Remember the two different O.J. trials?)
When do I have the right to a trial by a jury?
The U.S. Constitution gives a person accused of a felony or misdemeanor the right to be tried by a jury. This right has been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (If even one juror disagrees, you have a “hung jury” and the defendant will go free unless the D.A. decides to retry the case).
If I am found guilty, how much time will I do?
Many laws have a “built-in” punishment as part of the law. If they do not have a built-in punishment, the punishment may be in a different law under the same heading.
Other laws have ranges in sentences and fines. Actual sentences may range from time served to the death penalty in California. Many crimes are punishable by three possibilities: low term, mid term and high term. A sentence can also be enhanced for the use of weapons or prior convictions.
The ultimate sentence may depend on the skill of the defense attorney, since some D.A.’s overcharge so they will have something to drop down to later. A good attorney might beat these possibilities by getting the criminal complaint counts reduced — from burglary to trespassing, for example — which will reduce any sentence. The charge might also be sliced or diced down as part of a deal (a plea bargain). Oftentimes, a good attorney working a case will get a much better deal than the public defender.
Can a jury acquit me even if I broke the law?
A jury has the power to decide whether a person is guilty or not guilty of a crime. Believe it or not, jurors can free a defendant even if they think the defendant actually committed the crime. The name for this power is “jury nullification.” (But don’t count on this!) When jurors nullify a law by acquitting a defendant who has obviously broken that law, judges and prosecutors can’t do a thing about it. A jury’s not-guilty verdict is final.
What is self-defense?
An attorney or a defendant may assert “self-defense” as a legal excuse for committing a crime of violence, such as battery (hitting someone), assault with a deadly weapon or murder. The defendant admits that he did commit the crime, but claims that it was justified by the “victim’s threatening actions.” Self-defense (and its cousin, “defense of others”) is based on the principle that people should be allowed to protect themselves and others from physical harm. But you can’t use more force than is reasonable: If someone is going to take a swing at you, you can’t shoot him with a gun and claim self-defense.
Can an alleged criminal go free because he was drunk or high on drugs when he committed a crime?
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. However, normally, voluntary intoxication does not excuse criminal conduct. People know that getting drunk or stoned affects their decision-making process, and the courts hold them legally responsible if they commit crimes as a result of this voluntary use.
(c) 2004-2011 by James Devitt
James (“Jay”) Devitt practices criminal law in Southern California. He can be reached at (310) 456-2494 or (800) 794-2001.
The specific information in Mr. Sullivan’s article applies to California law, but will be similar or identical in other states.
This article is for informational purposes only and may not be accurate or apply in every situation. Please consult with an experienced criminal attorney regarding your case.