B. Introduction

If you are accused of a crime in California, it will harm you for the rest of your life.  Once accused, you can never win.  The charges may be reduced.  The charges may be dismissed.  You may be given a dismissal in exchange for better treatment, or you may receive some other minimal sentence.  You may even be found not guilty, but before your case ends you will suffer fear, stress, and possibly an extended incarceration.

If you have money, you will probably be required to spend it.  Your friends and family may shun you, and you will constantly have to answer the question, “what did you do?”  If you are innocent, few people will believe you.  Even your attorney may presume you are guilty.

If you don’t fight for your rights, your attorney may pressure you into a quick plea bargain so he is free to move on to the next case.  Worse yet, you might not even be given an attorney.  If you don’t hire an attorney or ask for one, the court might pressure you into a quick plea bargain.  There are countless sad examples of what can happen to a defendant who does not take the time to understand the legal system and assert his rights.

Michael is a sad example.

Michael, a professional photographer, was rapidly snapping pictures of an underage girl when she flung open her top, exposing her breasts.  Michael deleted the last few frames he had shot, instructed the girl to clothe herself, and went on with the photo shoot.  Later in the day, the girl demanded that Michael give her the pictures so she could share them with her boyfriend.  Michael could not comply since the pictures had been deleted, so the girl called law enforcement and reported the theft of her pictures.

A police raid and extremely thorough search ensued, but no nude pictures were found on Michael’s cameras, on Michael’s computers, or anywhere at all.  There were no nude pictures – no nude pictures of the girl who was accusing him, no nude pictures of anyone at all.  Nevertheless, Michael was arrested and charged with Annoying or Molesting a Child, Penal Code §647.6, a misdemeanor sex offense.

Michael hired an expensive out-of-town attorney, but the attorney didn’t show up for court.  An associate came to court and asked for more time to prepare for trial.  At the next hearing, a different attorney showed up and again asked for more time.

No one was actually preparing for trial.  The attorneys were simply “seasoning” the case, a common practice in which attorneys stall and delay until the defendant finally gives up and accepts a plea bargain.

After a bit more seasoning, Michael’s attorney finally came to court.  Even though Michael had not committed a crime, the attorney convinced Michael that a trial would be risky and expensive.  The high-dollar-huckster went on to minimize the consequences of a conviction, and told Michael that the attorney had negotiated a fantastic deal.

Under the guiding hand of learned counsel, Michael pled guilty as charged.

It was later that Michael learned his conviction would require him to register as a sex offender for the rest of his life.

Brianna is a sad example.

Brianna’s father began giving her alcohol at a very young age so she wouldn’t resist as much when he raped her.  She didn’t finish high school because she was usually too drunk to learn, and her father often kept her home to use for his own pleasure.  After many years, Brianna’s father was arrested and sent away forever, and Brianna was a chronic alcoholic.

It was inevitable that Brianna would eventually be picked up for Driving Under the Influence (DUI); she was always under the influence of alcohol.  Her first two DUI cases seemed to go favorably.  At her arraignments, her “attorney” told her that he had a great deal: no jail time if she pleads guilty.  Brianna didn’t realize that the person she believed to be her attorney was actually a probation officer.  Some jurisdictions have probation officers come to arraignment to assist defendants, but the assistance is often simply convincing defendants to take a quick plea and lessen court congestion.  Brianna took the deal each time.  She lost her driving privileges and had to spend a few days picking up trash in the county’s work release program.

Brianna was an alcoholic, and the criminal justice system made little effort to help her recover.  There was no inquiry into the reason for her alcoholism.  Even before finishing her work release time, Brianna again had a bottle in her hand.

For her third DUI, Brianna lucked out and got a real attorney – a real good attorney.  Her public defender was fairly new and inexperienced, but he made up for it in effort.  He studied her case.  He studied the law.  He realized that there were problems with Brianna’s first two cases.  A probation officer can’t masquerade as an attorney to lure defendants into pleading guilty.  It is enough of an error to have both convictions overturned.

He also realized that having the convictions overturned might do little more than set Brianna up for three back-to-back DUI trials.  If he had the cases overturned, there was a danger that the District Attorney would take all three cases to trial.  He used this knowledge to strike a sweet deal for Brianna.  By statute, Brianna faced a minimum of 120 days in jail, but the prosecutor asked for 180 days.  This skilled public defender convinced the prosecutor to agree that Brianna’s first DUI was invalid.  Brianna entered a plea to a second time DUI and was sentenced to “time served.”  Her only time in jail was the time she waited to enter her plea.

Brianna’s luck ran out with her fourth DUI.  She was assigned a “public pretender.”  It would be generous to say Brianna’s attorney glanced at the file, but she probably didn’t even do that.  Instead, the attorney told Brianna that, as a hopeless drunk with a high blood alcohol level, there was no hope.

Brianna told the attorney about the earlier agreement that her first plea was invalid, but the attorney didn’t want to be bothered with an actual defense.  Each successive DUI carries harsher punishment, and the attorney told Brianna to plead guilty to a fourth time DUI, even though Brianna legally could have, at most, been convicted of a third time DUI.  A fourth time DUI is a felony, so the conviction will haunt Brianna for the rest of her life.  Brianna went to prison, and she will never again enjoy all of her civil rights.

There is no good excuse for Brianna’s conduct.  She was drunk and she drove – at least four times.  There is also no excuse for what the criminal justice system did to Brianna.  Even an alcoholic is entitled to a defense.  Every defendant is entitled to a defense.

Jason is a sad example.

One rainy day, a small car was speeding down the highway when a large truck pulled up along the passenger side.  The driver of the truck stuck a gun out the window and fired one shot.  The bullet went through the car passenger’s eye and into his brain.  Death was instant.

A tip, most probably from the real killer, led the police to Jason.  An eyewitness, the driver of the car, was given a photo lineup with Jason in the cherished number two slot.  Other people in the lineup were in regular clothes.  Jason was in prison garb and was standing in front of a column of height numbers.  The driver still didn’t identify Jason as the shooter.

The police showed the driver a photograph of Jason, and then did a live lineup.  The driver still didn’t choose Jason.

At trial, the driver positively identified Jason as the shooter.  There was almost no additional evidence to implicate Jason.  The case was based almost entirely on the driver’s in court identification, but Jason’s attorney made no mention of the driver’s inability to identify Jason during earlier attempts.  The attorney also didn’t mention that it was raining on the day of the shooting, and the attorney didn’t even realize that because of the height difference between the car and the truck, it would have been nearly impossible for the driver of the car to have seen the perpetrator’s face.

The passenger in the shooter’s truck had previously testified and identified the actual shooter, which was not Jason, but Jason’s attorney didn’t bother to call the passenger to testify at trial.  Jason’s attorney didn’t put on any affirmative defense whatsoever because he was so sure that he had won Jason’s case.  The attorney lost the case, but it was really Jason who lost.

Jason was convicted and sentenced to life in prison.

Raise your hand!

In each of these sad examples, the defendant could have done something to protect his or her rights, but each passively sat by as the attorneys failed them.

Michael knew that he was innocent.  Michael knew that his attorney wasn’t prepared.  Had Michael raised his hand and asked for a new attorney, his name probably wouldn’t be in this book.

Brianna knew that one of her prior convictions had already been deemed invalid.  Brianna’s attorney knew it too, but instead of informing the court, the attorney demeaned Brianna and told her to plead guilty so she could get help.  Brianna didn’t get help; she got convicted.  Had Brianna raised her hand and told the judge that at least one of her convictions was invalid, perhaps the judge would have at least asked the attorney about it.  It is unlikely that the attorney would have said, “yes, her earlier conviction was invalid, but she’s a drunk, so let’s not worry about it.”

Jason knew about the failed eyewitness identification, and Jason knew about the eyewitness who had cleared him.  Jason knew that his attorney wasn’t going to put on any defense, but Jason sat idly by and watched it happen.  If Jason had raised his hand and told the judge what was happening, perhaps the judge would have stepped in and informed the jury that the eye witness had never before identified Jason as the shooter.  Perhaps the judge would have asked Jason’s attorney why he had not called the other eyewitness to clear Jason.

If you went to the doctor with the sniffles and the doctor told you he wanted to amputate your arm, you wouldn’t stretch out your arm and ask him to be quick about it.  If you went to the mechanic for a simple oil change and he told you he needed to change your entire engine, you wouldn’t reach for your wallet just yet.  If your barber wanted to try to cut your hair with his new lawnmower, you would probably be a bit hesitant to start, yet no matter how poorly an attorney performs, many defendants keep silent and go along with whatever the attorney advises.

Purpose

This book is written for the defendant wishing to help in his own defense.  It discusses the general progression of cases, common terms that are used, and it contains examples of common pretrial motions that that are often used to further the defense.

Much of the information here can easily be found on the Internet, but the book is written under the presumption that most readers will be in custody and not have Internet access.  The book, therefore, also has blank sections for notes.  However, a defendant who is in custody should use caution in taking notes because the book may fall into the hands of guards or other inmates.  Don’t write anything that can be used against you.

Many sample documents are included.  The samples as a general guide as to some common types of motions your attorney might bring.  Motions are largely case specific, and there are many different ways to state the same motion.  The motions in this book are not a rigid formula that will always succeed.  In court, there is nothing that always succeeds, and the prejudice against defendants is so extreme that any attempt at justice will be an uphill battle.

This book is intended to provide accurate and authoritative information about the subject matter covered, but it is in no way a comprehensive guide.  Use of this book does not create an attorney-client relationship with any of the authors or contributors, and this book is distributed with the understanding that the authors, publishers, and distributors do not render legal advice through this book.  If legal advice or other expert assistance is required, seek the services of a professional.

Persons using this book in dealing with specific legal matters should exercise their own independent judgment and conduct their own independent research.  Because the law changes on a daily basis, this book, like almost every other law book, is out of date.  Every effort has been made to ensure the accuracy of this book on the day of printing, but there is simply no way the printed word can morph to keep up with an ever-changing legal system, and no one can predict with certainty what any given court will do on any given day.

Additional Help

Consider obtaining copies of other books by these same authors, such as California Criminal Defense Motions in Limine, Sex Registration Guidebook, or Criminal Defense Guide to Facebook.

Both authors are available for consultation on a variety of topics.  Roger Lampkin may be reached at 661-633-1234 or by e-mail at Attorney@RogerLampkin.com, and J. Anthony Bryan may be reached at 661-861-8050 or by e-mail at Attorney@JAnthonyBryan.com.

Major contributors to this book are also available for consultation.

  • Bill Slocumb – (661)324-1400
  • Joe Whittington – (661)322-5833
  • David Faulkner – (661)324-4777
  • Elliot Magnus – (661)395-0240
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