Speedy trial rights – 10 day trailing period

What are the rules for a speedy trial in California?

 

There are actually a couple of different speedy trial rules.

The first question is whether you are charged with a felony or a misdemeanor. If it is a misdemeanor, you have a right to a trial within 30 days of your arraignment (initial not guilty plea) if you were in custody at the time of arraignment or 45 days if you was out of custody. Those time frames apply based on whether you were in custody at the time of the arraignment, even if you later bailed out or were taken into custody for some reason.

If you were charged with a felony, you had a preliminary hearing first, then were arraigned on the information (the charging document filed after prelim). You then have a right to a trial within 60 calendar days of the arraignment on the information.

For either a felony or misdemeanor, if you waived your right to a trial within those time frames, you then have a new trial date set on a specific date. The trial must begin on that day or within 10 days after. The day trial is set is “day zero” and the next day is “day one”, etc.

If the prosecutor is unable to proceed to trial in the appropriate time frames, the case will be dismissed. There are a few exceptions for an additional trailing period for a very few types of cases.

That’s the 10 day rule in a nutshell.

 

To discuss your Orange County criminal case, give me a call or send an email.

Joe Dane, Orange County Defense Attorney

info@joedane.com

714.532.3600

 

For more information, see the following posts:

What happens at your first court date (arraignment)?

What is a preliminary hearing?

What are the stages of a felony case?

If you consent to a police search, can you limit where they can search? Orange County criminal defense attorney

If the police ask if they can search, can you put limits on where or how they can search?

 

The answer is yes… and no.

If the police search is based on consent, the person giving consent can set limits as to the scope of the search. For example, you could give consent for the police to search for a stolen washing machine, but that would not allow them to look in places were a washing machine could not be found. You can also limit the areas. You could allow a search of your garage, but not the main house or vice versa. You can put whatever limits on the consent you give. It could be by location, for particular items, time, etc.  You could (for example) allow the police to search your car’s passenger compartment but not the trunk. You could allow a five minute search. Whatever the terms are must be adhered to by the police or they are exceeding the scope of consent.

If the police exceed the scope of consent, unless they have probable cause or a warrant or other independent grounds to have legal access to search any evidence found is subject to being suppressed in court.

Once given, consent can also be withdrawn. Once consent is withdrawn unless the police have independent grounds to search, the search is over and anything found after consent is withdrawn is subject to being excluded.

That’s the “yes” part of the answer.

The “no” part comes from whether or not the scope of consent is clear or whether or not during the authorized search the police develop independent grounds to either continue searching, freeze the location and get a warrant or do other things that lead to unintended results. So if in your limited consent search, if the police gather enough information to have probable cause to search, they could (potentially) continue to search beyond where you tried to limit them or they could get a warrant and come back to continue the search.

Granting consent for any portion of a search can snowball with unintended results.

Can you fight a “consent search” in court?

Keep in mind that just because you gave consent or the police say you gave consent to search, it doesn’t necessarily mean game over.  Consent must be freely and voluntarily given in order to be valid.  Many police departments have their officers wear recording devices, so every word said by both the officer and you can be examined.

If you’re facing criminal charges based on a search that you may or may not have consented to, give me a call or send an email.  I practice in all Orange County courthouses.

 

Joe Dane

info@joedane.com

714.532.3600

 

For more information about searches and suppressing evidence, see these links:  How is evidence suppressed in court? and Search and Seizure

All about search warrants – Orange County criminal defense attorney

What is a search warrant?

A search warrant is an order in writing, commanding a peace officer to search a particular person or place for specific listed items and return them to court.  Right off the bat, note that a warrant only allows the police to search.  A citizen cannot obtain a search warrant.  Although a warrant is typically issued in writing, the police can get a telephonic warrant that is later followed up (following applicable statutes) with a written document and a recording of the proceedings in obtaining the warrant.  A search warrant is preferred in court, as a search done pursuant to a warrant is presumed to have been a valid, legal search.  Without a warrant, the police (and prosecution) would have to justify any search.  They would have to prove consent, exigency or one of the recognized exceptions to the necessity for a search warrant.

The police must establish probable cause to search. That means they must demonstrate, based on the facts and information they know, that evidence of criminal activity exists in the location where they want to search.  They must demonstrate a “fair probability” or a “reasonable chance” that the evidence is where they want to search.  It’s less than absolute certainty, but more than just a hunch.  The bottom line is the judge has to be persuaded that the conclusions and request to search is reasonable.

What can they do with a warrant that they couldn’t otherwise?  Intrude upon a person’s reasonable expectation of privacy and search.  It’s essentially judicially authorized probable cause and permission to search.

How do the police obtain a warrant?

Under the Fourth Amendment of the US Constitution, a search cannot be done except upon probable cause.  To obtain a warrant, the police must submit their information under oath to the magistrate (aka judge).  The officer must describe in an affidavit what their probable cause is.

Let’s use an example of a typical drug search warrant.  Let’s say a patrol officer arrests somebody for possession of drugs.  That person provides information about their dealer.  The officer could use that information and do their own surveillance of the suspected dealer’s house to see if there is a typical pattern of activity consistent with narcotics dealing (heavy foot traffic, visits that only last a few minutes, known drug users frequenting the location, etc.).  Or – the officers could send in an undercover officer to buy from the location or use an informant to go buy from the suspected dealer.

The would then use all that information in their application for a search warrant.

First – they would have to have a legal basis for a search warrant.  In California, there are only certain categories (Penal Code 1524) under which an officer could obtain a warrant.  Some examples are:  Evidence of a felony exists; evidence relating to child exploitation, a search for stolen property.  The affiant that is swearing out the warrant to the judge then would describe their training, education and experience that is relevant to the case.  In our hypothetical drug search warrant, the officer would describe their training in the academy, any additional narcotics courses, search warrant courses, etc.  They would also include their experience in drug cases – the number of cases, arrests, etc.  They would also include what sort of things they have learned in that experience.  For example through talking to persons arrested for selling drugs, they may have learned how drugs are packaged, sold, cut, manufactured, hidden, etc.  Once they establish their background, they would then describe what information they have that leads to the request to search.

In our example, they would lay out [and some of this may be done in a sealed or secret portion so as to protect identities] the information they got from their snitch, what they did in response, the undercover buy…. everything that leads to their conclusion that they believe they’re going to find drugs possessed for sale at the target’s house.

 

That’s a basic overview of search warrants and how the police get them.  If you’re the subject of a criminal investigation or the police searched your house with (or without) a warrant, it’s time to get a lawyer.  In Orange County, call me to set up a confidential consultation to discuss your case and your options.

 

Joe Dane

info@joedane.com

714.532.3600

 

For more information about search warrants, see the following:  Illegal searches and search warrants and Search warrants and Miranda rights

Shoplifting laws and defenses after Prop 47 – Orange County theft defense attorney

With the recent passage of Proposition 47, there were some significant changes to the laws related to shoplifting.

 

Repeated Petty Theft is now only a misdemeanor.

The biggest is that now, no matter how many prior convictions for theft you have, a shoplifting petty theft is a misdemeanor.  Previously, if you had one prior theft conviction, a second theft – no matter how low the dollar amount – could be charged as a felony under Penal Code 666.  The law then changed to require three prior theft convictions (with a few exceptions), then a fourth could be charged as a felony.

 

Now, after Proposition 47, petty theft is a misdemeanor.  Period.  Yes, there are some exceptions for people previously convicted of “super strikes” (the most serious of felony offenses) or sex offenses, but in general, any theft of under $950 is now a misdemeanor.

 

Second Degree Burglary (Penal Code 459) is now only a misdemeanor if it’s a shoplifting burglary.

In the past, the police would arrest a person for a felony charge of second degree burglary for shoplifting.  How?  Because if they believed the person entered a structure (even a store open for business) with the intent to steal, it was burglary.  People were getting arrested for felony burglary, booked into jail and may have had to post bail because they were arrested on the felony charge.  Now, with the passage of Proposition 47, shoplifting burglary is now a misdemeanor.  If you entered a commercial establishment that was open for business with the intent to steal and then did in fact steal something, there is a new crime.  Penal Code 459.5 is now the crime of shoplifting.  The text of that code section reads:

“459.5. (a) Notwithstanding Section 459, shoplifting is defined a entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property is that taken or intended to be taken does not exceed nine hundred fifty dollars ($950).  Any other entry into a commercial establishment with intent to commit larceny is burglary.  Shoplifting shall be punished as a misdemeanor . . .”

It also says that “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting.  No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”

 

The change in the law of petty theft with a prior and second degree burglary doesn’t change the fact that a theft charge of any sort is never a good thing to have on your record.  There may be legal, factual or other defenses to an allegation of theft.  See my other post:  Is petty theft a big deal?

 

If you have been arrested or charged with any sort of theft offense, contact an experienced Orange County defense attorney right away.  There may be things that we do in order to get you in the best position possible for a good outcome.

 

Joe Dane

Orange County Defense Attorney

info@joedane.com

714.532.3600

“Can I get my felony reduced to a misdemeanor because of Prop 47?”

Can your conviction get dropped to a misdemeanor?  Does Prop 47 affect your case?

 

In the past week since Proposition passed, I’ve gotten several calls and emails asking about getting felony charges changed to misdemeanors.  Unfortunately, there are either a lot of false rumors or maybe just false hope going around.

 

Proposition 47 did not affect all felonies.

 

Only a handful of low-level theft and fraud charges as well as three drug charges were affected by Prop 47.  If your current case or old conviction is not one of those listed, Prop 47 didn’t do anything to any other charges.  Here’s what charges were affected:

Burglary

Second degree burglary based on shoplifting.  There is a new Penal Code created by Prop 47.  Now, the crime of shoplifting is listed in Penal Code 459a.  That makes it a misdemeanor to enter a commercial establishment with the intent to commit a theft while the business was open during regular business hours.  It used to be that if you entered a store with the intent to steal, they could arrest you for second degree burglary [Penal Code 459/460(b)].  That charge was a “wobbler” and could be either a felony or a misdemeanor.  The police would always arrest for the felony charge, even if the DA chose later to file only a misdemeanor burglary or a simple petty theft.  If you have a prior conviction for second degree (commercial) burglary based on a shoplifting incident and the value of the property taken was under $950, it would qualify for redesignation to a misdemeanor under Prop 47.  NOTE:  Residential (first degree) burglary or other forms of second degree burglary (such as auto burglary or breaking into a closed business or detached garage) are not affected by Prop 47.

 

Forgery of checks

If you have a felony conviction for forgery of checks that total less than $950, it potentially qualifies for reduction to a misdemeanor under Prop 47.  NOTE:  If you were convicted of identity theft (Penal Code 530.5) along with the forgery, then the forgery charge would NOT qualify.

Insufficient checks

Under Prop 47, if you have a felony conviction for insufficient checks under Penal Code 476a, as long as they did not total over $950, it potentially qualifies for reduction.  However, if you have three or more prior convictions for forgery (PC 470), fictitious instruments (PC 475) or 476 (insufficient checks), you would not qualify.

Grand theft

Grand theft used to be theft over $400.  Recently, the dollar amount changed to $950.  If you have a prior conviction for grand theft as a felony, but the dollar amount was under $950, it would qualify.  Similarly, if you have any other form of grand theft (such as grand theft person, grand theft auto, grand theft of a firearm, etc.), it may also qualify for reduction.  Those three forms of grand theft didn’t have a dollar amount – theft of a firearm of any value was considered grand theft, just like theft from a person (pickpocketing) of any value was grand theft.

Receiving stolen property

If you have a prior felony conviction for receiving stolen property and the value was under $950, that charge is eligible for reduction to a misdemeanor.

Petty theft with a prior

If you have a felony conviction for petty theft with a prior (Penal Code 666), it may be eligible for reduction.  If your conviction was solely because you have either 1 prior theft conviction (or 3 priors once the law changed a few years ago), it is potentially able to be reduced.  If you were convicted for petty theft with a prior and the prior was grand or petty theft from an elder [Penal Code 368(d) or (e)], auto theft under Vehicle Code 10851, burglary (PC 459), carjacking (PC 215), robbery (PC 211) or felony possession of stolen property (PC 496), your charge is NOT eligible to be reduced.

 

What non-drug charges are NOT affected?

If it isn’t one of the listed charges above, it is NOT affected by Prop 47.  I’ve gotten calls and emails asking if felonies such as robbery (211), carjacking (215), manslaughter (191.5), felony evading (2800.2), felony DUI (VC 23153 or 23152), domestic violence (PC 273.5) and other charges can be now reduced because of Prop 47.  Sorry – no.  Prop 47 covers only those listed lower level offenses.  If it’s not listed in the new law, it’s not able to be reduced.

 

 

DRUG CHARGES

Only three charges were affected by Prop 47:

Possession of a controlled substance under Health and Safety Code 11377 (typically methamphetamine and ecstasy) is now a misdemeanor.  If you have a prior felony conviction for possession of meth, you can get it reclassified as a misdemeanor.

Possession of concentrated cannabis under Health and Safety Code 11357(a) is now also a misdemeanor.

Possession of a controlled substance under Health and Safety Code 11350 (typically cocaine and heroin) is now a misdemeanor

 

What drug charges are NOT affected?

Possession for sales of any substance under 11351, 11351.5, 11352, 11378, 11379, 11359, 11360 are NOT affected by Prop 47 and cannot be reduced.

Possession of controlled substances in jail or prison (Penal Code 4573).  Yes, those are typically simple possession charges, but because it occurs in a custody facility, they are NOT included in Prop 47.

 

Keep in mind – if you have a prior “super strike” or sex offense that requires PC 290 (Megan’s law) registration, you may not qualify even if the charge itself does.

 

For more information, please see Prop 47 – reducing a felony to a misdemeanor

If you have a case in Orange County or Southern California that you think qualifies, contact me and let’s see if we can get started clearing up your felony charges.

Joe Dane

714.532.3600

info@joedane.com