Month: April 2018


In California, criminal offenses are either infractions, misdemeanors, or felonies. A felony is an offense punishable with death, imprisonment in the state prison, or imprisonment
in the county jail pursuant to section 1170(h), which applies to persons with prior serious/violent convictions.

All other offenses are misdemeanors unless classified as an infraction. Misdemeanors are punishable up to one year in county jail, $1000 fine, or both.

There are offenses that are “wobblers” which can be either a felony or misdemeanor within the discretion of the prosecution.

Depending on the nature of the offense, the possible punishments and procedure differ. Infractions are like traffic tickets. The only permissible punishment would be a fine. You
would receive a citation or ticket from the officer. Follow the instructions on the citation as to how to pay the fine; whether and when to appear in traffic court. There may be consequences from the Department of Motor Vehicles. However they do not count as a criminal conviction.

You have no right to a jury trial or right to appointed counsel for infractions.

The prosecution starts the criminal procedure in the case of felonies and misdemeanors
by filing a Complaint.

Upon arrest for either a misdemeanor or felony, one is booked into the jail and either
released on bail or on your own recognizance, or remains in custody.

The first court appearance on either type of charge is called the arraignment. At this
first appearance, you are informed of the charges filed, advised of your constitutional rights,
including your right to jury trial and appointment of counsel. Usually a not guilty plea is

In misdemeanor cases, the next court appearance is a pre-trial/readiness hearing, at
which your counsel will discuss a disposition to present. Any motions filed by your attorney will be heard prior to trial.

You have the option of waiving a jury trial and have your case heard just by the judge.
If you choose a jury trial, a date will be set for trial to commence. The prosecution, your
defense counsel, and the court select jurors to hear your case. At the jury trial, the prosecution gives an opening statement to the jurors. Your attorney may give an opening statement or wait until the People have presented their witnesses to address the jurors. Evidence is presented, including witnesses and documents. The prosecutor and the defense attorney give their final argument to the jurors. The jurors deliberate and return with a verdict if they agree unanimously.

If found guilty, there will be a sentencing hearing date set.
Appeals from misdemeanor convictions are filed in the Appellate Division of the
Superior court.

In a felony case, following the initial arraignment on the Complaint, the matter must be
set for a preliminary hearing. That hearing is held before a judge, who hears the
prosecution’s evidence and determines whether there is probable cause to believe an offense
has been committed and the defendant committed it. The preliminary hearing is supposed to
be held within 10 days of your arraignment, but often you will be asked to waive this time
because your counsel needs more time to prepare.

The prosecution has the option of seeking an Indictment from a grand jury.

This process is usually reserved for significant felony matters, involving multiple defendants or conspiracies.

The People then file the formal Information of Indictment, which includes all of the
charged offenses, and any prior conviction accusations.

You will return to court to be arraigned on the Information or Indictment. At the
arraignment you will be informed of the charges and of your right to jury trial and appointment
of counsel. If you have not yet been appointed counsel, counsel will be appointed. A plea to
the Information or Indictment will be entered. Then the case will be set for pretrial/readiness

There is usually pretrial preparation to be performed by your attorney, so it is the rare
case that does not require you to waive your speedy trial rights in order to give your attorney
sufficient time to prepare. Negotiations between the prosecutor and your defense counsel will be conducted during this pretrial time period.

You have the right to waive a jury trial. If you do not waive, the case will eventually be
set for jury trial, which will follow the above discussed procedures – selecting the jury, opening arguments by counsel, presentation of evidence, closing arguments, and deliberation.

After the verdict, the case will be set for sentencing. Your counsel will again need
sufficient time to prepare for the sentencing, as in many cases, the judge has discretion in
selecting the appropriate sentence.

Once you are sentenced, you can appeal your conviction and sentence. Your trial attorney has
an obligation to file the Notice of Appeal within the time limits.


In California, a person can be permanently or temporarily be prohibited from possession and ownership of weapons and ammunition. Certain convictions will result in a permanent prohibition. (Pen. Code, § 29800 – persons convicted of any felony in any jurisdiction prohibited possession.)

Temporary prohibitions can be imposed pursuant to a restraining order; a condition of probation; a condition of parole; or as the result of a finding of mental illness. There are also restrictions which result from a conviction of certain federal offenses, including a ten year prohibition for domestic violence offenses. The term “possession” is broadly interpreted, so that a person under a restriction should not be in any place, home, or vehicle in which a firearm is present. There are two kinds of possession: “actual possession” and “constructive possession.” “Actual possession” means you knowingly have direct physical control of an object. (People v. Scott (2009) 45 Cal.4th 743, 748.)

Thus, you are in “actual possession” of a weapon or ammunition if the weapon is in your hands, clothes, purse, bag, or other container. Having the weapon in your actual possession for even a limited time and purpose will constitute “actual possession.” “Constructive possession” means you knowingly have control of, or have the right to control the object, either directly or through another person. More than one person can possess the same object at the same time. Whether you can direct the object’s movement and whether it would be reasonable to think you have such control are factors in determining if you are in “constructive possession.” But you must know that you have control over the object to be legally considered to constructively possess it. For example, you would be in possession of weapons stored in a storage unit leased under your name, even though your father was also on the agreement. (People v. Aleman (2016) 247 Cal.App.4th 660.)

There will be problems if you live with someone who owns firearms, like a family member or roommate, or if you transfer your firearm to someone who resides with you. Although the other person can legally keep their firearms in the home while you are on probation, it will be a problem with the police; because it is very easy to argue that you had access to the firearm. As in the case where you know the combination to the safe; or have a key. Because of this problem, you should remove any firearms in your residence while you are prohibited. If the other person will not cooperate and remove the firearms, you should stay at another location until the prohibition is ended.

There is a provision which allows another person in the household to legally possess a firearm while you are under prohibition, but that law requires that the firearm be in a locked container, disabled by a safety device, or kept within a locked gun safe. (Pen. Code, § 25135) The State has enacted a provision which requires a person prohibited from owning or possessing firearms to relinquish the prohibited items to a law enforcement agency, for sale to a licensed firearm dealer or to storage by a firearms dealer. (Pen. Code, § 29810.). The courts, probation office, or your attorney will direct you through this relinquishment procedure.


It is still illegal to sell marijuana. It is illegal to give marijuana to a person under 21. Persons under 21 are prohibited from all activity involving marijuana. If you are negligent, while impaired from smoking, and harm another, you can be sued for damages.

Your employer can restrict use of cannabis at the work site, and even prohibit use off hours if you are given a drug test as part of your employment and there is evidence of use.

Your landlord or leaser has the right to prohibit use of cannabis in your home and on that property.


Despite the new law legalizing the use and possession of marijuana, there remain criminal penalties for possession of marijuana with the intent to sell. However, the offense was reduced to a misdemeanor. Officers will arrest for this offense if one is carrying an amount over the permitted limits, or the marijuana is packaged in such a manner as to indicate you are selling.

Health and Safety Code 11359, 11360, 11361. The misdemeanor punishment for possession for sale, transport, import, will be county jail for not more than six months or by a fine of not more than $500, or both. If the offender involves a minor in the prohibited conduct, or has a prior serious/violent felony conviction, or prior marijuana convictions, the punishment could include a prison sentence.


Health and Safety Code 11361.8. Anyone with a prior felony offense of Possession for Sale that is now reduced to a misdemeanor under the new law, can petition the court to recall and reduce the felony to a misdemeanor.