C. Important Terms
The explanations given here are greatly simplified. Some of the terms have wide use in a legal setting, but the explanations provided are limited to the application in criminal proceedings.
Accessory
Someone who helps another person commit a crime or hide the fact that a crime has been committed. An accessory is usually not physically present during the crime.
Accomplice
Someone who helps a person commit a crime. An accomplice is guilty the same as if he personally committed the offense. Example: a getaway driver.
Appeal
An appeal is a review of a case by a higher court. Felony convictions in Superior Court are reviewed by the Court of Appeal. Misdemeanor convictions in Superior Court may be reviewed by the Appellate Division of the Superior Court or by the Court of Appeal. An appeal can only be taken from a from a final order of the court. Interim orders, such as rulings on motions, are generally not appealable (see Writ). Final orders include rulings such as:
- Verdict after court or jury trial (Penal Code §1237(a))
- Ruling on a contested violation of probation (Penal Code §1237(b))
- Denial of a motion to suppress evidence, but only after the defendant is otherwise convicted (Penal Code §1538.5(m))
- An improper sentence after a valid plea (Rules of Court, rule 8.304(b))
- An improper calculation of custody credits, but only if “the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing [and] the defendant first makes a motion for correction of the record in the trial court” (Penal Code §1237.1)
- A plea bargain, but only if “The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [and] The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (Penal Code §1237.5)
Acquittal
A finding that the defendant is not guilty.
Arraignment
An arraignment is the proceeding where a defendant is advised of the charges against him and he enters a plea to the charges. If the defendant is already represented by an attorney, reading of the charges will usually be waived.
The most common pleas are “guilty,” “not guilty,” and “no contest.” A defendant may also demurrer to the charges or enter a plea of not guilty by reason of insanity. A “no contest” plea is treated the same as a “guilty” plea for most purposes.
The arraignment often involves other matters, such as:
- The court may ask the defendant if he can afford an attorney, and the court will appoint an attorney for the defendant.
- The Public Defender or other assigned attorney may declare a conflict and request that a different attorney be assigned to the defendant.
- The court may play a video recording explaining defendants’ rights and the court process.
- The court may set or change bail.
- The court may set future court dates.
- Defendant or his attorney may request discovery from the court or from the District Attorney, and discovery may be provided.
Arbuckle Waiver
If a defendant enters a plea, the judge who takes the plea must be the sentencing judge unless the defendant waives that right. The waiver of the right to have the plea judge be the sentencing judge is called an Arbuckle Waiver.
Bench Trial
A trial by the judge alone without a jury.
Boykin/Tahl Advisement
Before a defendant enters a plea of guilty or no contest, the court is required to ensure that the plea is knowing and voluntary. The court must (1) advise defendant of his constitutional rights to a jury trial, to confront witnesses against him, and against self-incrimination, and (2) obtain defendant’s waivers of those rights.
These rules were established in the cases of Boykin v. Alabama (1969) 395 U.S. 238, 243-244 (Boykin) and In re Tahl (1969) 1 Cal. 3rd 122, 130-133 (Tahl).
A failure to give these admonishments and obtain waivers may still be harmless if the record shows the plea was voluntary and intelligent under the totality of the circumstances, but most courts orally give the Boykin/Tahl Advisement along with other advisements or the court may require the defendant to complete and sign a form containing the advisements.
Circumstantial Evidence
Evidence that requires an inference. This is generally all evidence other than eyewitness testimony regarding the actual crime. Examples: fingerprints, DNA, a witness who sees the defendant near the crime scene.
Complaint
A Complaint is the initial charging document. It contains a list of the charges and enhancements against the defendant. (See “Information”)
Concurrent Sentence
Sentences for different crimes are served at the same time. Example, a two year sentence concurrent with a four year sentence would only require the defendant to serve the four year sentence.
Consecutive Sentence
Sentences for different crimes are served one after another. Example, a two year sentence consecutive to a four year sentence would require the defendant to serve the four year sentence then serve the two year sentence.
Continuance
A continuance is a request for more time. It is a request that the court move a hearing to a later date.
Conference
Conferences are generally for two purposes – negotiate a settlement and/or set dates for additional hearings. Conferences go by many names, such as Preliminary Hearing Setting Conference, Pre-Preliminary Hearing, Status Conference, Readiness Conference, or Trial Setting Conference.
Cruz Waiver
A Cruz Waiver allows a defendant to be released from jail pending sentencing based on his promise to appear for sentencing. The waiver is made after a defendant enters into a plea bargain. If the defendant fails to appear for sentencing, he may receive a sentence greater than the one agreed to in the plea bargain. The maximum allowable sentence for the charges pled to may be imposed even if that sentence is greater than that allowed by the original plea bargain.
Deferred Entry of Judgment
The defendant enters a plea, but is not sentenced until a future date. If the defendant meets certain requirements by that date (complete a drug program, complete anger management classes, etc.) the case will be dismissed or the sentence reduced depending on the terms of the original plea bargain.
Demurrer
A demurrer (demur for short) is document claiming that the allegations in the document charging defendant (the Complaint or Information) do not properly allege a crime. In other words, a demur claims that the defendant’s conduct is not criminal and the case should be dismissed.
Discovery
The evidence concerning a case is called discovery.
Ducus Tecum
See “Subpoena”
Enhancement
A fact that, if proven, will increase the punishment for a crime. Common enhancements are personal use of a firearm, infliction of great bodily injury, or that the crime was committed for the benefit of a gang.
Ex Parte
A communication between one party and the court without involvement of the other party. As examples, police obtain an ex parte search warrant from the court – the defendant has no say in the matter. The defense obtains an ex parte order appointing a private investigator to assist with the case – the prosecution has no say in the matter.
Exculpatory
Evidence that helps the defendant is exculpatory. Evidence that tends to harm the defendant is inculpatory.
Grand Jury
A group of people appointed to hear evidence and determine if there is probable cause to believe that a crime has been committed and that the defendant has committed the crime. They meet secretly and have evidence presented to them by the District Attorney. Most cases in California are prosecuted using a Preliminary Hearing in front of a judge, but some cases still go before a Grand Jury.
Habeas Corpus
A Writ of Habeas Corpus, commonly referred to as simply Habeas Corpus, is an order to bring a person to court so that the court may determine whether it is proper to hold the person in custody. The document used to request the Writ is a Petition for Writ of Habeas Corpus, commonly called a Habeas Petition. There is rarely a reason to file a Habeas Petition before a defendant has been convicted and had his conviction reviewed on appeal.
Harvey Waiver
When sentencing a defendant, the judge is only allowed to consider the charges the defendant is actually convicted of. The judge cannot give any consideration to charges that have been dismissed. A Harvey Waiver abandons this rule and allows the judge to consider dismissed charges when deciding on an appropriate sentence.
Impeach
To discredit or show that a witness is incorrect. Impeachment may be done by showing the witness has reason to lie, such as asking, “the defendant is your brother, isn’t he.” Impeachment may also be done by showing the witness suffered from a physical disability that prevented him from observing or remembering events accurately, such as questioning the witness about his state of intoxication, his poor vision, or a mental disability that prevents him from remembering. Impeachment may also be done by showing that the witness suffers from felony convictions or other crimes of moral turpitude.
In Limine
A motion made in front of the trial judge shortly before the start of evidence in a trial.
Indictment
A document listing the charges against a defendant following a grand jury hearing.
Information
The charging document filed by the prosecution after a preliminary hearing. A defendant is initially charged using a Complaint. If the judge presiding over the preliminary hearing rules that there is sufficient evidence to believe that the defendant is guilty, the prosecution will be allowed to file an Information listing the charges against the defendant.
Limine
See “In Limine”
Low Term
See “Sentencing”
Mandamus
See “Petition”
Mandate
See “Petition”
Malice
See “Mental State”
Marsden Motion
A Marsden Motion is a request to replace the defendant’s attorney with a different attorney. Unless there are unusual circumstances, it is usually a bad idea to bring a Marsden Motion.
Mental State
It is not enough that a defendant commit an act, he must also have a certain mental state before he can be convicted of a crime. The common mental states are General Intent, Specific Intent, and Malice.
For General Intent, the prosecution must prove that the defendant acted willfully. For Specific Intent the prosecution must prove that the defendant acted willfully and with the specific intent that the crime be committed. For Malice, the prosecution must prove that the defendant acted deliberately with conscious disregard for life.
Mid Term
See “Sentencing”
Motion
A Motion is a request that the court issue an order. As examples, “defendant moves that the Court continue the Trial date” means the defendant requests that the judge set a new date for the trial. “Defendant moves the Court for a discovery order,” means the defendant requests that the judge order the District Attorney to give the defendant evidence concerning the case. The attorney “moves” the court to take some action. This process is known as a “motion.”
Move
See “Motion”
Objection
A complaint to the court that something is being done wrong. As examples, if the prosecution vouches for a witness, the defense may state, “Objection – vouching.” If the defense begins to argue with a witness, the prosecution may state, “Objection – argumentative.”
When an objection is made, the court will rule either “overruled” or “sustained.” Overruled means the court does not find the complaint valid. Sustained means that the court does find the complaint valid.
Own Recognizance
The release of defendant from jail without paying bail based on the defendant’s promise to appear in court when required.
Party
Party refers to the plaintiff and the defendant in a case. In a California criminal matter, the “People of the State of California” are the plaintiff and they are represented by the District Attorney. The “People of the State of California” are a Party, and the defendant is a Party.
With few exceptions, only the attorney for a Party may file motions or other pleadings in a case. For example, the alleged victim is not a Party. The alleged victim cannot dismiss the case or even bring motions because he is not a Party.
Petition
A Petition, like a motion, is a request that the court issue an order. Petitions, however, are generally ruled on without a hearing and are often not directed to the trial court, but instead are directed to a reviewing court. The attorney “petitions” the court to take some action and the court issues a “writ” to cause the action to happen. The following are some of the more common petitions.
Petition for Writ of Habeas Corpus – see “Habeas Corpus.”
Petition for Writ of Mandamus or Petition for Writ of Mandate is a petition asking a higher court to order the trial court to do something, such as mandate that the trial court grant a certain number of custody credits to a defendant.
Petition for Writ of Prohibition is a petition asking a higher court to order the trial court to stop doing something, such as prohibit the trial court from prosecuting the defendant.
Petition to Dismiss is a petition asking the court to dismiss a misdemeanor or a low level felony after the defendant has completed all of the terms of their sentence.
Preliminary Examination
A formal examination to establish whether the prosecution has enough evidence to establish that a crime has been committed and that it was the defendant who committed the crime. Most hearsay is allowed, and the prosecution does not have to prove their case beyond a reasonable doubt. The prosecution only needs to convince a judge that the allegations in the Complaint are probably true. Sometimes called a Preliminary Hearing.
Preliminary Hearing Setting Conference
See “Conference”
Pre-Preliminary Hearing
See “Conference”
Pretrial Conference
See “Conference”
Prior
A prior conviction. The term usually refers to a prior conviction that can be used to give a defendant a longer sentence, such as a “strike” or a prior involving a prison term.
Prohibition
See “Petition”
Readiness
See “Conference”
Removal
An order directed to a warden or sheriff requiring a prisoner to be removed from that person’s custody and taken to court to be a witness.
Romero Motion
A request that the court dismiss sentencing enhancements and give the defendant a lesser sentence.
Sentencing
Entry of an order giving the punishment the defendant will receive. California uses a three level sentence for felonies. A felony prison sentence will be expressed as three levels, such as 2,3,5 – the lower term, the middle term, and the upper term. If the defendant receives the lower term, he will be sentenced to two years plus any enhancements for prior “strike” offenses, prior prison terms, gang enhancements, gun enhancements, etc.
Side Bar
To have a conversation with the judge outside the presence of the jury while the jury is still in the room.
Status Conference
See “Conference”
Strike
Strike is generally given one of two meanings:
- Erase, such as “strike Count One,” meaning the defendant will no longer be charged with count one.
- A serious or violent felony, such as “defendant suffers a strike for a robbery,” meaning that defendant was previously convicted of robbery and that conviction will be used to enhance his current sentence if he is convicted.
Subpoena
An order telling a person that they must come to court to testify or produce evidence.
Suppress
To forbid the use of evidence. Example: defendant’s house was searched without permission and without a warrant. If the court suppresses what was found, it cannot be used at trial and the prosecution is not even allowed to mention it.
Time Waiver
A defendant has the right to a speedy trial. A time waiver is an agreement that a certain amount of time will not be counted towards the time within which the case must be brought to trial.
Trial
The formal presentation of evidence against defendant.
Trial Setting Conference
See “Conference”
Trier of Fact
The person or group of persons who decide whether the defendant is guilty or not guilty. The trier of fact may be the jury, but some defendants opt for a court trial (also known as a bench trial) where the judge alone is the trier of fact.
Upper Term
See “Sentencing”
Voir Dire
Questioning of prospective jurors or experts regarding their eligibility to participate in a case.
West Plea
A plea entered so the defendant can get the benefits of a specific plea bargain, but not admit the conduct that the pled-to charge alleges. The plea is sometimes used for a defendant who claims actual innocence, but enters a plea to avoid the dangers of trial. Named after the case of People v. West (1970) 3 Cal. 3rd 595.
Wobbler
A charge that can be filed as a felony or a misdemeanor.
Writ
See “Petition”