Preparing Your Criminal Defense Case to Win! by J. White
You or a loved one has been arrested and are now facing criminal charges. Anxiety levels are high. Jobs are in jeopardy. Families are in disarray. Funds are limited. Your head is swimming and you don’t know where to turn. Do we post bail? Do we hire a lawyer? What does our future hold?
You should know that there is no such thing as an impossible case. Some cases are tougher than others, but there’s almost always a solution to be had. Your goal should be to obtain the best solution for your particular situation. That might mean fighting your case all the way to trial. It may mean obtaining a dismissal of the charges based on violations of your constitutional or procedural rights. Or it might mean obtaining the most favorable plea bargain possible.
A skilled and experienced Criminal Law Specialist can certainly help you define and achieve your goal. The old adage says, “knowledge is power.” Applying that adage to your case, the more you know about the way a serious felony case moves through the court system and the more you know about possible consequences, the more equipped you will be to make informed and rational decisions. The purpose of this book is to do just that, to give you a general overview of the way serious felony cases are handled in California. It is my hope that with this information you and your lawyer can work together to achieve the best result for your case.
Chapter 1: Bail
Every county in California is required to establish a bail schedule for felony and misdemeanor crimes. You can usually find your county’s bail schedule online through a Google or similar search. The bail schedule will tell you the standard amount of bail that will be set for the charges you have been arrested for.
Before posting bond, you need to know if you have any holds. A hold means that a law enforcement agency has instructed the jail not to release you even if you post bail. Commonly, non-citizens who are in the United States illegally will have an immigration hold. So if that person posts bail with the county jail, he will be transferred into immigration custody, were bail may or may not be set. If you have a separate open case, or if you are on active probation or parole in another case, you may have a hold generated by that case. This means that you will remain in jail even if you post bail on your new arrest until that hold is removed.
Another hold that is frequently applied in drug cases is a Penal Code section 1275 hold. If prosecutors believe that funds derived from drug dealing will be used to post bail, they can apply to the court for an order requiring you to prove that any money used to post your bail came from a legitimate source. If you can satisfy the court that your bail money was not derived from illegal activity, the hold will be lifted and you will be eligible to be released on bail.
Methods for Posting Bail
By far the most common method of securing your pretrial release is the bail bond. You will need to contact a bail bondsman, who will assess the risk of your jumping bail and/or financial stability. If he is satisfied that you will make all of your court appearances, he will post a bond for you, securing your release from jail. Typically, bondsmen charge around 10% of the bond amount. So if your bond is set at $100,000, the bondsman will require $10,000 to write your bond. This fee is to compensate the bondsman for taking the responsibility of making sure you make all of your court hearings. If you jump bail, the bondsman is responsible for paying the full bail amount to the court. The upside to using a bail bondsman is that bondsman can post your bond and get you out of jail in a matter of hours. The downside to using a bondsman is that the bondman's fee is nonrefundable.
You may also secure your pretrial release by posting the full cash bail with the jail. So in our example of a $100,000 bail, you would be required to post $100,000 with the jail and upon doing so you will be released from jail. The upside to posting a cash bail is that the entire amount will be returned to you at the conclusion of your case (assuming you comply with all the terms of your bail conditions).
You can also post a property bond. Typically, courts will look to see if the property has enough equity to cover the bond. Equity is determined by subtracting the amount of liens against property from the fair market value of the property. Property bonds can be complicated and time-consuming. You must be able to convince the court of the value the property (usually through an appraisal or comparable sales data), show proof of all liens against property, and you must show that you are current on all payments and taxes. If the property satisfies the court, you will be required to record a deed giving the county a lien against the property. If you violate the terms of your bond, the county can sell the property to recoup the bail amount. If you comply with all terms of your bail condition, the county will re-convey the property to you at the conclusion of your case.
If you believe your bail is set too high, you can ask the court to reduce it. Typically, you can make this argument at your arraignment (see the quote “arraignment" page 11). If you are unable to get your bail reduced at your arraignment, you can schedule a more formal bail review hearing, where you will have had more time to put together a good argument to support your bail reduction request.
In addition to considering the bail schedule, the court must consider the danger you post to the public if released and the likelihood that you will show up for all of your court hearings when setting reasonable bail. You can present virtually anything you want to convince the court that you aren't a danger to the community and that you will make all of your court hearings. Letters of recommendation, awards or commendations, work history, and your educational background can be persuasive to convince a judge to reduce your bail. Having your supporters attend your bail hearing in court can be similarly effective. If you have a drug or alcohol problem or suffer from a mental illness, you can increase your chances of a bail reduction if you have a plan in place to get you healthy as soon as you are released from jail.
CHAPTER TWO: Arraignment
The arraignment will typically be your first significant court hearing. The prosecutor will have prepared a charging document, most commonly called a "complaint." The complaint will list the specific charges being filed against you as well as any special allegations.
Your lawyer will review the complaint with you before you see the judge to make sure you understand the charges and the potential punishment you are facing. You also be advised of your constitutional rights, including your right to remain silent, the right to have a lawyer represent you at all stages of the proceedings, your right to have the court appoint a lawyer to represent you if you cannot afford one, and your right to subpoena witnesses and present evidence on your behalf.
You and your lawyer will then appear before the judge for your arraignment. Your lawyer will do virtually all of the talking, and will typically enter a plea of "not guilty" for you. After entering your not guilty plea, the court will allow your lawyer to address the issue of bail if you haven't already bailed out. Occasionally, if you have already bailed out, the prosecutor will ask the judge to increase your bail. You should discuss this with your lawyer to see if this is a risk in your case. If the court does increase your bail, you will most likely be placed back in jail until you post the new bail. If the bail is not successfully resolved in your favor, you can request a formal bail review, where you can provide additional information to the court in an effort to convince the judge that your bail should be lower. (See bail section above.)
Setting Future Dates
At the conclusion of the arraignment the court will set two additional hearings, a disposition conference and a preliminary hearing.
CHAPTER THREE: Discovery
What is Discovery?
"Discovery" refers to the process where the prosecution provides the defense with the evidence it intends to use at trial. It used to be that the defense didn't have to provide the prosecution with any evidence it planned on using at trial. But those days are long gone and today California’s criminal justice system requires both sides to provide each other with the evidence they intend to use at trial. In other words, discovery is reciprocal.
Prosecutors have a constitutional and ethical duty to provide you with all of the evidence that supports the case against you if they intend to use that evidence at trial. But they also have an obligation to provide you with any evidence they have that is helpful to your case. For example, if the prosecution has evidence indicating that you are innocent, they are required to give that evidence to you. Or if they have evidence that negatively affects the credibility of their witnesses, they must likewise give that evidence to you.
The defense is also required to disclose to the prosecution any evidence it intends to use at trial. One exception concerns impeachment evidence. Impeachment evidence is evidence that affects the credibility of a witness. Let's say that one of the prosecution's witnesses testifies at trial he is sure that you were the one who committed the crime because he was present at the time and saw you do it. Now let's say that your lawyer has uncovered another witness who says that she was vacationing overseas with the guy at the time the guy says he saw you commit the crime. This witness, and any documents that may support her claim, such as airline tickets and hotel receipts, would be impeachment evidence that the defense is not required to provide to the prosecution in advance of the trial. Impeachment evidence can be very powerful for your case. So how does the defense generate impeachment evidence? By conducting a thorough investigation.
Investigation is necessary in virtually every serious criminal case, and you can rarely obtain a favorable outcome to your criminal case without conducting a thorough investigation. Often, you will need a private investigator to locate and interview witnesses and to uncover other evidence that may be favorable to your defense. The facts contained in the police reports don't always accurately reflect what really happened. As the saying goes, "there's always two sides to every story." It's your story that needs to be discovered, supported by evidence, and effectively told.
CHAPTER FOUR: Settling Your Case Early
Felony Disposition Conference
The first significant court hearing after your arraignment is usually the felony disposition conference. This is a plea bargain session. Your lawyer will meet with a prosecutor and a judge to discuss your case. The prosecution will tell the judge its version of the case, and your lawyer will present your side of the story. In most cases, the prosecution will make an offer, requiring you to plead guilty to one or more of the charges, or to a reduced charge. Depending on the circumstances of the case, and depending on the judge, the judge may give your lawyer an idea of what type of punishment will be imposed if you plead guilty.
There are times when the prosecution's initial offer is fair and reasonable and your lawyer may recommend that you take advantage of the offer. Other times, the prosecution will make an unreasonable offer and your lawyer will attempt to persuade the prosecution to change the offer to make it more reasonable. If the prosecution is unwilling to change its offer, your lawyer may advise that you should reject the offer and continue fighting your case.
So how do you tell if you're being offered a good deal or a bad deal? To properly evaluate the deal, you must consider the strength of your defense and the likely consequences you will face if you go to trial and lose. That is the subject of the next chapter.
CHAPTER FIVE: Evaluating the Deal
The first step in evaluating a settlement offer is to assess whether you can weaken the prosecution’s case after a preliminary hearing. We have an entire chapter devoted to preliminary hearings, but for purposes of our discussion at this point, we will assume that our assessment is that your case will not improve after a preliminary hearing. So the next step is to consider the likely consequences of going to trial. You will need to balance the chance of beating the charges at trial against the likely punishment you will receive if convicted at trial.
To make this assessment, you need to understand the maximum punishment you face if convicted at trial. California's sentencing laws can be extremely complex and entire books have been written on the topic. An in depth analysis of California's sentencing laws is beyond the scope of this book, but it may help you to have a general understanding of how sentences are calculated, which is the topic of the next chapter.
CHAPTER SIX: California’s Sentencing Scheme
Determinant and Indeterminate Sentences
One of the first things you need to know is how much time you are facing. Determining this can become fairly complicated due to some of California's complex sentencing schemes. But in most cases it's pretty easy to determine the maximum time you are facing. First, you need to determine if you are facing a determinant or indeterminate term.
A determinant sentence is one that has a fixed period. For example, a sentence that carries three years is a determinant sentence. You are guaranteed to get out of prison after serving your three year term. An indeterminate sentence, on the other hand, has no specific end. For example, a sentence of 25 years-to-life is an indeterminate sentence, meaning you may be eligible for parole after serving 25 years, but there's no guarantee. In fact, if you are denied parole you could wind up serving the rest of your life in prison. If a sentence carries the word "life" you know it's an indeterminate sentence. Fortunately, most crimes in California carry determinant sentences.
California uses a three-tiered sentencing scheme, consisting of a low-term, a middle-term, and an upper-term. A common sentencing range for California felonies is a 16-2-3 sentence. In other words, the low-term is 16 months in State Prison, the middle-term is 2 years in State Prison, and the upper-term is 3 years in State Prison.
If you are charged with only one crime, say one carrying a range of 16-2-3, it’s easy to calculate the maximum time you face in prison--3 years. But the analysis gets a little more complicated if you are charged with more than one crime. In that situation you will need to understand the following concepts.
Principle and Subordinate Terms
If you are charged with more than one crime, the court will be required to select a principle term to sentence you to. The principle term will be the crime that carries the longest sentence. Let's say you are charged with residential burglary, taking a vehicle without the owner's consent, and evading a police officer. Residential burglary carries a sentencing range of 2-4-6, meaning two years, four years, or six years. The vehicle theft carries a range of 16-2-3, and so does the evading charge. So in this example, the residential burglary charge would be the principle term, with a maximum of 6 years. The two other charges would be considered subordinate terms.
Whereas the principle term carries the exact amount of time outlined in the three-tiered sentencing scheme, subordinate terms can only add additional time at the rate of 1/3 of the middle-term. So in our example, the vehicle theft and the evading charges would add 8 months each to the principle term (8 months is 1/3 of 2 years). So the maximum possible sentence in this example is 7 years, 4 months. Visually, it looks like this:
Residential Burglary 2-4-6 Principle Term 6 years
Vehicle Theft 16-2-3 Subordinate Term 8 months
Evading 16-2-3 Subordinate Term 8 months
Maximum Sentence 7 years, 4 months
As a side note, your lawyer may tell you that one or more of your charges may be "654 barred." What this refers to is under California law you cannot be punished more than once if your conduct violated more than one law. Let's say that you stole a vehicle. The prosecutor could charge you under two separate penal code sections, grand theft and taking a vehicle without the owner's consent. Those are two different crimes, each carry a maximum punishment of 3 years. But your vehicle theft was really only one action. Under section 654 of the Penal Code, you can only be sentenced for one of those crimes, and the other crime cannot add more time to your sentence. So your maximum sentence would be 3 years, not six.
A concept related to Penal Code 654 is the issue of concurrent versus consecutive sentences.
Concurrent versus Consecutive
If you are facing multiple counts, you need to know if the punishment for each count will be imposed concurrent or consecutive to the principle term. "Concurrent" means the time for two or more counts run at the same time. "Consecutive" means that the punishments for two or more crimes are stacked upon each other. Take this example: Count 1 (principle term) carries a maximum of 3 years. Count 2 (subordinate term) carries 8 months. If Count 1 and Count 2 are run concurrently, the maximum time you face is 3 years. If the counts run consecutive, you face 3 years, 8 months.
In addition to the principle/subordinate term sentencing scheme, California allows the prosecutor to file "special allegations." Special allegations attach to certain crimes and increase the punishment. For example, if you are charged with a violation of Penal Code section 245 (Assault with a Deadly Weapon or with Force Likely to Create Great Bodily Injury), the prosecutor may file a special allegation of Penal Code section 12022.7, actually inflicting great bodily injury. That "GBI" enhancement increases the punishment by an additional three years. The Penal Code contains numerous special allegations that can affect the maximum sentence. You must consider any special allegations when calculating the maximum time you face if convicted.
Certain prior crimes constitute what are commonly call "nickel priors" because they add an additional five years to any sentence you are facing. You have to be very careful if you have any prior offenses that fall within the nickel prior category because once the prosecutor files them against you the judge is obligated to impose those additional five years. Unlike many other sentencing enhancements, the judge has no discretion to disregard them. The list of nickel priors is contained in Penal Code section 1192.7(c), which lists charges considered to be "serious felonies" in California. (You can find this list in the Appendix.)
What distinguishes a felony from a misdemeanor is the potential punishment. Felonies are punishable by prison. Misdemeanors are punishable by county jail. Some felonies are considered "wobblers," meaning they can be classified as either a felony or a misdemeanor. In other words, they "wobble" between being a felony or a misdemeanor. You can tell if a felony is a wobbler by looking at the way the Penal Code expresses the punishment for the crime. If the Penal Code says the crime is punishable by prison, the crime is a straight felony and can never be reduced to a misdemeanor. But if the code says the crime is punishable by prison or by county jail, the crime is a "wobbler" and can be either a felony or a misdemeanor.
Various factors determine whether you will be able to have your wobbler felony reduced to a misdemeanor. Some typical factors that weigh in favor of the crime being a misdemeanor are the lack of a criminal record, having engaged in relatively inoffensive conduct, and the presence of mitigating circumstances (such as mental illness, drug-induced behavior, post-offense rehabilitation, and any other creative arguments you can present to the prosecutor and judge).
Even if you are initially sentenced to a wobbler as a felony, it may be possible to later have the court reduce the conviction to a misdemeanor. Courts are frequently willing to do this if you can show that you have successfully taken care of the problem that led to the conviction and that you have gotten your life on the right track.
Felony convictions carry innumerable consequences apart from prison time. These consequences are referred to as "collateral consequences." Depending on the nature of the crime, some of the more common consequences include:
Loss of driving privileges
Lifetime registration as an arson, sex, narcotic, or gang offender
Prohibition against owning or possessing firearms or ammunition
Requirement to give a blood test or saliva sample
Increased punishment for future offenses
Additional time for future crimes based on the fact that you have been to prison before
Mandatory imprisonment; mandatory State Prison
Presumptive State Prison
Sexually Violent Predatory Law
Possible or mandatory hormone suppression treatment; reduced conduct or work credits while in custody
Loss of public assistance
CHAPTER SEVEN: Plea Bargaining
Nature of Plea Bargaining
Now that you understand the maximum punishment you face if you are convicted at trial, you are in a better position to evaluate the plea bargain. Your main question will be “What sentence will I receive if I plead guilty at this stage in the proceedings?” Often, the judge will give you an indication of the sentence you are likely to receive. Here are some possible options.
Many people mistakenly believe that probation means they will serve no jail time. What probation means is that you will not go to State Prison. But you may still serve time in the county jail even if you are granted probation. The maximum county jail time with a grant of probation, however, is limited to one year. If the prosecutor makes a probation offer, sometimes referred to as a "NOLT" (meaning "No Opposition to Local Time"), you know you are not going to State Prison. But that doesn't answer the question as to whether you are going to have to serve time in the county jail. To answer that question, the judge may respond with various options.
Read and Consider
The court may simply indicate that it will "read and consider" the probation report (discussed elsewhere) and any additional information either side presents at the sentencing hearing before committing to a particular sentence. With the judge indicating that the court will "read and consider," you face a range of sentencing from no jail time at all to the maximum punishment for the crime.
The court may indicate a "lid," meaning an upper limit of the sentence it will impose. If the court indicates, say a 180 day lid, you know that the maximum sentence you are facing is 180 days. But, depending on the additional information the court receives from your probation report and from you, you may receive a sentence less than 180 days.
If the court feels it has enough information about you and your case during the plea bargaining session, it may indicate a firm sentence. So if the court indicates a 180 day sentence, you know that you will be sentenced to 180 days, absent a change in circumstances.
Alternatives to Custody
The court may consider alternatives to custody, meaning that it will impose some form of punishment other than actual jail time. Work furlough, public work service, and volunteer work are all alternatives to custody. If the court indicates that it will impose, say 180 days but will consider alternatives to custody, you know that you may still be able to avoid going to jail.
The stipulated sentence gives you the most certainty in the way your punishment will be. Here, you and the prosecutor agree, or stipulate, what your sentence will be. So if you and the prosecutor agree that in exchange for your guilty plea you will stipulate to a sentence of 180 days, you know exactly what your sentence will be--180 days, no more, no less.
CHAPTER EIGHT: The Change of Plea Hearing
Settling Your Case
If you and the prosecutor have reached an agreement to settle, your case will progress to the next stage, the change of plea hearing. Before that hearing, you will have reviewed, initialed, and signed a form--called a change of plea, or COP, form--with your lawyer. The COP form contains the exact charge(s) and sentencing enhance(s) you are pleading guilty to and any sentencing agreements you have reached. The COP also contains numerous provisions advising you of other potential consequences of your guilty plea, as well as waivers of a number of your rights.
Change of Plea Hearing Procedure
The change of plea hearing starts off with the court clerk administering an oath that you swear to tell truth during the hearing. After that, the judge will begin what we call the plea colloquy. Every judge handles the plea colloquy slightly differently, but the points they cover are common. The judge will ask you if you have read the change of plea form, if the initials and signature on the form are yours, if your lawyer has answered all of your questions, and if you desire to plead guilty. The judge will tell you what charge(s) and allegation(s) you are pleading guilty to and will also tell you what, if any, sentencing agreements have been reached. You will be asked if what the judge says is your understanding of the deal. The judge will also ask you if you waive the rights contained in the form, and if you have been advised of other possible consequences of your plea. After answering all of the judge's questions, you will be asked the ultimate question: "How do you plead, guilty or not guilty?" If you agree with the plea bargain as the judge recited, your answer will be "guilty." The court will then set a date for sentencing.
You have a right to be sentenced within 20 court days (weekends and court holidays don't count). You can usually set a sentencing date beyond the 20 court day period by waiving that right. This is called a "time waiver."
CHAPTER NINE: The Preliminary Hearing
The Preliminary Hearing--A Mini Trial
The preliminary hearing is like a mini trial. The district attorney is required to produce evidence in the form of live witnesses prove to the judge that there is probable cause to believe that the charged crimes have been committed and that you are likely guilty of those crimes. Your lawyer has the right to cross-examine the prosecution's witnesses.
Since this is merely a probable cause hearing, the prosecution's burden of proof is quite low, a burden that is far below the "proof beyond a reasonable doubt" standard required at trial. At the preliminary hearing, the prosecution merely has to present some evidence connecting you to the charged crimes.
If the court determines that the evidence is insufficient to connect you to the crime, it can dismiss any charges that are not supported by the evidence. Otherwise, the court will allow the charge to stand and will allow your case to proceed to trial. In legal terms, you will be "bound over" or "held to answer” to the charges.
Defense Evidence is Limited
The defense is limited in its ability to call witnesses at a preliminary hearing. The defense can only present witnesses and evidence if it establishes an affirmative defense. An affirmative defense consists of facts or laws that establish your innocence. For example, you may have an alibi. Proof in the form of witnesses and or documentation establishing that you were, say, out of the country at the time the crime was committed would be affirmative evidence and would be admissible at a preliminary hearing. Or, evidence establishing charges were was brought after the applicable statute of limitations would likewise be admissible as an affirmative defense. But in the typical case the defense does not produce much if any affirmative evidence at a preliminary hearing.
Benefits of a Preliminary Hearing to the Defense
Many cases can benefit from a preliminary hearing. Subjecting cases that involve conflicting facts or unreliable witnesses to a preliminary hearing can give you an opportunity to show the prosecution that its case isn’t as strong as they initially thought, thus increasing your chances of a more favorable plea bargain down the road.
At a minimum, a preliminary hearing allows your lawyer to force witnesses to commit to their statements. Everything a witness says at a preliminary hearing will be transcribed by a court reporter. You will be provided with a copy of the transcript of the entire preliminary hearing after the hearing is completed. So if a witness later changes his story, your lawyer can point that out by referring to the preliminary hearing transcript. The effect of witnesses changing their stories can significantly weaken the prosecution's case and greatly benefit your defense.
Of course, the opposite can happen too. Additional facts not previously known to either the prosecution or the defense may come out during a preliminary hearing. If the new facts support additional charges you may be facing even more time in custody. Most experienced criminal defense lawyers will be able to tell you if going to a preliminary hearing has the real potential for making your case worse. This is something you need to know to factor into your evaluation of the pre-preliminary hearing plea bargain.
CHAPTER TEN: Motions
What are Motions?
Any motion is essentially a request for the judge to issue an order. Motions can be made by either the prosecution or the defense at any point throughout the case. Although the number and nature of motions is virtually unlimited, there are several motions that are more common than others. This section discusses some of those more common motions.
Motions for Discovery
In many cases the defense will file a discovery motion to make sure that the prosecution has turned over everything it is required to. Discovery motions can be helpful for the defense. For example, by filing a discovery motion you can be certain that the prosecution is not hiding the ball and you can avoid being surprised by new evidence being produced at trial. If the prosecution tries to introduce evidence that it had not provided to you during the discovery period after being ordered to do so, you will have grounds to exclude that evidence from being used against you at trial. Or, if you are convicted at trial and if your appellate lawyer discovers that the prosecution had evidence favorable to you that it was ordered to turn over to you but didn't, you may have a stronger argument to have your conviction reversed.
Motions to Suppress Evidence
Motions to suppress evidence are used when the defense believes that law enforcement obtained evidence against you illegally. Under the Fourth Amendment to the United States Constitution, you have right against unreasonable search and seizure. The more personal the area searched--for example your home--the stronger the protection. If the court rules that your Fourth Amendment rights were violated by the search, it will suppress the evidence, meaning that the prosecution cannot use that evidence against you.
The general rule is that a search without a warrant is illegal. There are numerous exceptions to this rule, so it's not automatic that a warrantless search will result in the evidence being suppressed. Whether a warrant was required for any particular search depends on the specific facts of the case and each situation will be different. A knowledgeable lawyer will be able to tell you if the search in your case violated your Fourth Amendment rights.
Motions to Suppress Statements
One of the key pieces of evidence the prosecution likes to use is a defendant's own statement. Confessions are very powerful evidence and often lead to convictions. For this reason, the police generally work very hard to extract confessions. Fortunately, two legal principles can be used to exclude a confession: Miranda and voluntariness.
Your Miranda rights come from the case of Miranda v. Arizona, a legal case from the 1960s. Miranda stands for the proposition that a defendant's statement can only be used against him if it was made knowingly and intelligently. So over the years law enforcement developed "Miranda Warnings" to read to suspects before they question them. These are the rights you hear on almost every law and order type of T.V. program: "You have the right to remain silent. Everything you say can and will be used against you at trial. You have the right to have a lawyer present before any questioning. If you cannot afford a lawyer, the court will appoint one for you."
Miranda, however, only applies if you are in custody and if the officer is asking you questions that are designed to elicit an incriminating response.
Even if you waived your Miranda rights, your statement must have been made voluntarily. So, for example, if your interrogator threatened you or otherwise coerced you into waiving your Miranda rights, you may be able to keep your statement out of your trial if you can prove that your statement was not made voluntarily.
Motions to Dismiss
A 995 motion is used when the judge hearing your preliminary hearing held you to answer to charges that you believe were not supported by the evidence. You can think of a 995 Motion as a type of appeal. You will be asking another Superior Court Judge to review the transcript of the preliminary hearing, consider the facts produced at that hearing in light of the relevant law, and dismiss the charge or charges. You are essentially asking a different judge to overrule the judge who heard the preliminary hearing. Any charges where a 995 Motion has been granted will be dismissed.
Motions to Sever
If you have been charged with co-defendants you may want to consider a motion to sever defendants. For example, if the evidence of guilt is overwhelming against your co-defendant, but relatively light against you, you may want to avoid "guilt by association" by severing defendants. In your severance motion you will be asking the judge to order separate trials, one for your co-defendant and a separate trial for you.
If you have no co-defendants but have been charged with multiple crimes that involve either different alleged victims or time frames, you may consider a motion to sever counts. Like the motion to sever defendants, you are asking the court to order separate trials. For example, if you have been charged with having committed crimes against three different victims in three separate instances, you may want to ask the court to give you three separate trials. That way, you may be able to avoid a conviction based on the sheer number of alleged victims.
Motions In Limine
Motions in limine are motions you make to the judge who will be hearing your trial. The purpose of these motions is to have the court rule either that certain evidence will be excluded from your trial or that certain evidence may be used at your trial. The range of potential in limine motions is extremely broad and will be limited only by the particular evidence and facts of your case. Either side, prosecution or defense, may make in limine motions.
CHAPTER ELEVEN: Experts
Purpose of Experts
With the ever-increasing role forensic sciences play in criminal cases, we are seeing more and more experts in felony cases. The expert's role is to explain evidence that is beyond the common juror's experience. There are numerous types of evidence that require expert witnesses. Depending on the nature of the evidence in your case, you may need experts in the areas of forensic psychology, neuropsychology, DNA, computers, cell phones, ballistics, pathology, pharmacology, alcohol analysis, biomechanics, or any number of other disciplines that may be relevant to your defense. Expert witnesses can significantly increase the cost of your defense, but they can often make the difference between a conviction and an acquittal.
CHAPTER TWELVE: Trial
Should You go to Trial?
There are a few good reasons for going to trial: you are innocent; you are guilty of some but not all of the charges against you; or the prosecution’s settlement offer is too high compared to the sentence you might receive after trial. Statistically, more than 90% of criminal cases resolve without going to trial. If your case is among the small percentage of cases going to trial, you can decrease your anxiety by understanding the various stages of a jury trial. This chapter discusses the typical flow of a jury trial.
Purpose of a Jury
At a jury trial, the prosecution is required to prove your guilt beyond a reasonable doubt to 12 jurors. The jurors must reach a unanimous decision. If all 12 agree that the prosecution has proved you’re guilty beyond a reasonable doubt their verdict will be guilty. If all 12 agree that the prosecution have failed to prove your guilt beyond a reasonable doubt, their verdict will be not guilty. If one or more jurors disagrees with the others, preventing the jury from reaching a unanimous decision, the court will consider the jury to be "hung" and will declare a mistrial.
Jury of Your Peers
Under the United States Constitution, you are entitled to a "jury of your peers." That's a nice concept, but in reality what you consider your "peers" is often far different from what the courts consider to be your "peers." Your jurors will be drawn from the community at random and you will have very little control over who will become your jurors. This, unfortunately, is an unavoidable risk that comes with a jury trial.
Role of Judge and Jury
The judge and the jury play distinctly different roles. The judge in a jury trial is akin to a baseball umpire--he just calls balls and strikes. The judge controls the proceedings and decides whether evidence is legally admissible or not. The judge does not assess the credibility of witnesses and does not determine your guilt or innocence.
Jurors are the judges of the facts. They do not make any strictly legal decisions. The judge tells them what the law is and they must follow it, even if they disagree with the particular law. Jurors are required to assess witness credibility, evaluate the facts, and decide if the prosecution has proved guilt beyond a reasonable doubt.
The Seven Stages of Trial
You can think of a jury trial as involving seven different stages. First, motions in limine. Second, voir dire, or jury selection. Third, opening statements. Fourth, presentation of the evidence. Fifth, jury instructions. Sixth, closing arguments. And lastly, jury deliberation. Here's a look at each of the stages.
Stage One - Motions In Limine
Before the prospective jurors arrive in the courtroom, the prosecution and the defense will have a chance to ask the judge to make advance rulings on whether certain evidence will be admissible in the trial. These motions are called motions in limine. (See Chapter 10 for more discussion.) Motions in limine are extremely important because they can affect the parties' trial strategies.
Knowing in advance whether certain evidence will be admitted or excluded at trial allows your lawyer to have a better idea of what questions to ask potential jurors during the jury selection process. Advanced rulings on the admissibility of certain evidence can shape what your lawyer can or cannot say in opening statements, in addition to knowing limits of what areas he can or cannot go into during the course of the trial. Sometimes in limine rulings can be very helpful to the defense. But they can also be destructive to your case.
After the motions in limine have been heard, the court will order the prospective jurors into the courtroom to begin the jury selection, or voir dire, process.
Stage Two - Jury Selection
Jury selection is also known as voir dire. Many judges will tell the prospective jurors that voir dire is an old French phrase meaning to tell the truth. What the judges are trying to tell the jurors is that they are going to be asked several questions and they must tell the truth, even if the questions are embarrassing or require them to reveal things about themselves that they may not be proud of.
The main purpose of the voir dire process is to select 12 fair and impartial jurors. Any juror who has a bias in favor of one side or the other should not serve on your jury. The court wants jurors who will evaluate the facts of the trial without having any prejudgment.
The reality, though, is somewhat different. When we go to trial we want to win. We increase the likelihood of winning by selecting jurors who we think will be open to our defense. So we don't necessarily want jurors who are completely blank slates. How we identify those jurors has been the subject of countless books. The truth is, jury selection is part skill and part luck. Remember, we're dealing with human beings and we have only a brief time to get to know them before we select them as jurors. This is one of the most difficult aspects of a jury trial--and one of the most significant.
Typically, the judge will begin the voir dire process introducing the parties and reading the charges against you. The judge will then ask the jurors to answer a simple list of questions, asking the jurors to state their name, what part of the county they live in, whether they are married and have children, what they do for a living, whether they have ever been a victim of a crime, and whether there is anything about this case that would prevent them from being fair and impartial. These questions give us very limited information, not nearly enough to make an informed decision about which jurors we want on our jury.
After the judge finishes asking his questions, he will give the lawyers a chance to question the jurors. Most judges strictly limit the time the lawyers have to ask questions, anywhere from 10-20 minutes in the simple case, and up to an hour or more in a complex case. Usually the lawyer for the defense will go first.
Attorney-conducted voir dire is a skill that develops over time. Every lawyer handles it differently. Some use jury consultants to assist them. Others use computer programs. Some ask questions to one juror at time. Others ask questions of the entire group. The best lawyers at selecting jurors are honest, forthright, respectful, and unafraid of any answers the jurors might give. Above all, they are great listeners, listening to both the words the jurors speak and their body language.
Challenges for Cause
After all questioning has been completed; the judge will ask if any side has "challenges for cause." Lawyers "challenge for cause" when they believe there are grounds to exclude potential jurors who they believe have a bias or prejudice that will prevent them from being fair and impartial. There is no limit on the number of "for cause" challenges each side can make.
Unlike challenges for cause, either side can dismiss a potential juror for virtually any reason. But each side is limited in the number of jurors they can excuse without cause, usually 10 per side (this number may be affected when you have co-defendants or if you are facing a life sentence or the death penalty).
Swearing of the Jurors
After each side has exercised all of its challenges to prospective jurors (or decided not to use all of its peremptory challenges), the court will swear in the jury panel of 12 jurors, making each of them promise to judge the case fairly and follow the law. The parties will then select alternate jurors, who will listen to the evidence along with the 12 jurors but who will only participate in the deliberation process if one of the initial 12 jurors becomes unable to complete their jury service. The next stage of the trial process is opening statements.
Stage 3 - Opening Statements
Opening statements are meant to give the jurors a brief overview of what the case is about. Although the jurors have heard the judge read the charges, they haven't heard any of the facts of your case. The prosecution will deliver its opening statement first. Although neither side is permitted to argue their case at this point, both sides will attempt to frame the case through their points of view. Remember, there are always two sides to every story. The prosecutor will tell his side and your lawyer will tell yours.
When the prosecution has completed its opening statement, the court will allow your lawyer an opportunity to give an opening statement. Your lawyer can then tell the jurors what the evidence will show from your point of view, a point of view that is consistent with innocence. The opening statements will be followed by the presentation of evidence, starting with the prosecution.
Stage 4 - Prosecution's Case
The prosecution has the burden of proof, so it will go first. The prosecutor will call witnesses to the stand in an effort to establish guilt. Keep in mind, every crime has what are called "elements." Think of baking a cake. You need flour, oil, sugar, and yeast. You bake the mixture and you create a cake. But if you bake the mixture without having added the yeast you won't end up with a cake. It might be something else, but it won’t be a cake. Same with elements of a crime. If the prosecution fails to prove even one element of the crime, it might have proved something, but it won’t be a crime. The jury must find you not guilty.
Because the prosecutors have to prove multiple elements, they will typically call numerous witnesses and introduce various pieces of physical evidence into the trial in an effort to prove your guilt. Because numerous witnesses may be needed to prove only one element of a crime, evidence at trial doesn't always come in chronological or even logical order. But both sides can sum up the evidence, or lack of evidence, during their closing arguments.
The prosecution's initial questioning of its witnesses is called "direct examination." On direct examination, the lawyer asking the witness questions is prohibited from asking leading questions. A leading question is a question that contains or suggests the answer. For example, "You saw the defendant pointing a gun at the victim, didn't you?" is a leading question. A non-leading question would be, "What did you see the defendant doing?" In addition to this main rule, there are numerous other rules of evidence that will apply throughout the prosecutor's presentation of the evidence. Your lawyer will be paying close attention to the prosecutor's questions and decide if an objection is appropriate.
Objections must be made before the witness answers. The lawyer making an objection must state his legal objection, for example, "Objection! The answer calls for hearsay." If the judge sustains the objection the witness will not be allowed to answer it. If the judge overrules the objection, the witness can answer the question.
Let me say a word about objections. There are various schools of thought. Some lawyers believe you should handle all of your objections during the in limine motion hearing and rarely, if ever, object in front of a jury, reasoning that it looks like you have something to hide. Having something to hide signals to the jurors that you are afraid of the truth. If you're afraid of the truth, the truth must mean that your client is guilty.
Others criminal trial lawyers take a contrary view. This school of thought stresses making timely and appropriate objections whenever the objections are proper and needed to control the amount of information the jury receives. There are two good reasons supporting this school of thought. One, the less evidence the jury has the greater likelihood they will not find proof beyond a reasonable doubt as to each element the prosecution has to prove. Second, if you don't make an objection you waive it. This can hurt the case if there is an appeal after a conviction; if the lawyer fails to make a valid objection during trial the appellate court will generally consider the issue waived for purpose of appeal.
Cross-examination is the heart of a good criminal defense trial lawyer. The defense lawyer's chance to undermine the prosecution's witness comes after the prosecution finishes his direct examination. Unlike direct examination, where the lawyer cannot ask leading questions, cross-examination mainly consists of leading questions. Leading questions allow your lawyer to expose the untruthful, biased, or mistaken witness. Remember, one of the key jobs of the jury is to assess witness credibility, so your defense is strengthened when your lawyer can show the jury that any particular witness is not credible and that they should therefore disregard their testimony.
Motion to Dismiss During Trial
After the prosecution has called all of its witnesses it will announce to the judge that the prosecution "rests." When a prosecutor rests he is telling the judge that he has presented all the evidence he has to prove guilt beyond a reasonable doubt. At this point, the defense will have an opportunity to present any witnesses or physical evidence it may have. But first, the defense lawyer will usually make a motion to dismiss the charges under Penal Code section 1118.1.
Under Penal Code 1118.1, the court can dismiss any charges after the prosecution rests if the prosecution failed to prove its case. (These motions can be made at any point of a trial, but the common practice is to make them at the closing of the prosecution’s case.) If the court determines that no reasonable juror could find the defendant guilty beyond a reasonable doubt based on the evidence that has been presented, it will dismiss the charge or charges. Defense 1118.1 motions are rarely granted, but occasionally they are.
After the prosecution has rested and after any 1118.1 motion has been heard and ruled on, the judge will ask the defense if it has any evidence to present. If your defense consists of witnesses, now is the time to have them testify. In some cases, you may want to present witnesses who observed the incident take place, witnesses who can testify about your good character, or expert witnesses to explain complicated evidence to the jury. In other cases, you may not want to call any witnesses at all, choosing instead to rely on the deficiencies in the prosecution's case.
One right you always have is the right to choose whether you want to testify or not. This is your right and your lawyer cannot make that decision for you. Of course, you and your lawyer should thoroughly discuss whether it is in your best interest to testify or not, but in the end it's your choice. You and your lawyer should discuss the pros and cons of you testifying well before the trial. Most judges will ask your lawyer at some point during the trial if you intend to testify or not. If your lawyer tells the judge that you have elected to exercise your right not to testify, most judges will ask for your confirmation.
Here's an important point. You have a Constitutional right to remain silent, which includes your right not to testify before a jury. And if you exercise that right, the prosecutor cannot comment on the fact that you exercised that right. So, for example, the prosecutor can't tell the jury that "If the defendant is really innocent, why didn't he take the stand and tell you that himself?" Obviously, prosecutors are well trained to not make such blatantly improper arguments, but sometimes they slip and make comments that really say the same thing. Your lawyer must pay very close attention to the prosecution's closing argument and make sure to object if the prosecutor makes this type of improper argument. Such an objection could be grounds for an appellate court to grant you a new trial if you are convicted.
If your defense consists of witnesses, your lawyer will begin by calling them to the witness stand. Again, the rules of direct versus cross-examination apply. Your lawyer will be conducting a direct examination of your witnesses, requiring him to ask only non-leading questions. At the conclusion of your witness' direct examination, the prosecutor will be allowed to conduct a cross-examination. Here, the prosecutor will try to do what your lawyer did to his witnesses--expose them as biased, untruthful, or mistaken.
After presenting all witnesses and evidence to support your case, your lawyer will inform the judge that "the defense rests." The judge will then ask the prosecutor if he has any rebuttal evidence.
In criminal cases, rebuttal evidence is evidence that contradicts, or rebuts, the defendant's evidence. This is best illustrated by an example. Say you are charged with assault and your lawyer presents witnesses who testify that you are a peaceful and non-violent person, supporting your defense that you weren't the one who committed the assault. In rebuttal, the prosecution would be entitled to present its own witnesses who knows you to be a hot-tempered and violent person (assuming they have such a witnesses). You can think of rebuttal evidence as the prosecution's chance to further discredit your witnesses. If the prosecution presents rebuttal evidence, the judge will give you a chance to present surrebuttal evidence.
In criminal cases, surrebuttal evidence is evidence that contradicts, or rebuts, the prosecution's rebuttal evidence. Continuing with our assault example, where the prosecution calls a rebuttal witness to testify that you are a hot-tempered violent person, let's say that your investigator had interviewed a witness who said that the prosecution's rebuttal witness had earlier announced his intention to say whatever he had to to get you convicted, even if it wasn't true. Your lawyer could call this witness in surrebuttal to discredit the prosecution's rebuttal witness.
In theory, this tit-for-tat can continue back and forth. But in reality, judges will allow you to only go so far. At some point, this type of evidence becomes less and less valuable to the jury and the judge will put an end to it. In practice, prosecutors present rebuttal evidence against only small percentages of defense witnesses. Defense surrebuttal evidence is rarer still.
Stage 5 - Jury Instructions
After all the evidence has been submitted, all witnesses have been called and all exhibits have been admitted, the evidence portion of the trial is over. Two stages remain before the jury begins its deliberation: jury instructions and closing arguments.
Jury instructions tell the jury what the applicable laws are that pertain to your case. They tell the jury how they are to go about their deliberations, what rules they are to use to evaluate the evidence, and describe the elements of the charged crime(s) that the prosecution must prove.
Stage 6 - Closing Arguments
After the jury has been told what the relevant law is and the elements of the crimes are, the prosecution will be given a chance to give its closing argument, also known as its summation. The prosecutor will highlight the relevant portions of the charges and argue that it has proved each element beyond a reasonable doubt. The prosecution will conclude by asking the jury to find you guilty.
The defense attorney's summation follows the prosecutions. Like the prosecutor, your lawyer will talk about the law and the evidence. But unlike the prosecutor, your lawyer will argue that the prosecution didn't prove each element of each crime beyond a reasonable doubt. And having reasonable doubt, the jury must find you not guilty.
Since the prosecution bears the burden of proving you’re guilty beyond a reasonable doubt, it is allowed to have the final word. So this means that the prosecution will be given an opportunity to respond to your lawyer's closing arguments. The prosecutor's goal at this stage is to persuade the jury that they should not acquit you based on the points your lawyer raised.
The judge will read some concluding jury instructions to the jury after the prosecution's final closing argument, and the jury will be taken to a deliberation room to begin its deliberations.
Stage 7 - Jury Deliberations
Jury deliberations are secret and you will have no way of knowing how they're leaning. If they have questions, they can send the judge a note asking for clarification. If that happens, the judge will usually have you, your lawyer, and the prosecutor to come into court to discuss the note. If the question will be answered, the judge and the lawyers will often agree on the answer that should be given. If the parties cannot agree, the judge will make the decision.
In addition to asking specific questions, the jury can ask to have certain testimony re-read to them. The court reporter will have transcribed all of the proceedings and can read the testimony to jury. You and your lawyer have a right to be physically present in open court during testimony read-back. But it's not necessary and if you and your lawyer decide not to be present during read-back, you can waive your presence.
If the jury is unable to reach a unanimous decision, it will be considered "hung," and the judge will declare a mistrial. That means that the jury will be discharged and you will have to face trial again with a different jury.
If the jury reaches a unanimous verdict, it will inform the bailiff, who will in turn notify the court. You, your lawyer, and the prosecutor will be asked to go to court to hear the reading of the verdict. Once the parties are seated and ready, the court will bring the jury into the jury box. The court will ask the foreperson if the jury has reached a decision. The foreperson will then hand the verdict forms to the court. The judge will look at the forms to make sure they were filled out properly, and will usually hand them to the clerk to read out loud.
A verdict of Not Guilty means you have been acquitted and are free from that charge, forever. A verdict of Guilty, though, means you will be entering the sentencing phase of your case.
CHAPTER THIRTEEN: Sentencing
You have the right to be sentenced within 20 court days of your conviction (weekends and court holidays don't count). If your lawyer needs additional time to be prepared for your sentencing hearing, he may ask you to waive your right to a prompt sentencing. Your lawyer may want to consider grounds to file a motion for a new trial, or he may simply determine that it's best to proceed directly to sentencing. In any event, the probation department will want to interview you before your sentencing.
The Probation Report
The Probation Department will prepare a report for the judge before your felony sentencing hearing. You will be required to meet with a probation officer before your sentencing hearing to be interviewed. Probation officers make sentencing recommendations to the judge, so they want to know as much about you as possible. Their job is to recommend a sentence they feel is appropriate for your case and, if they recommend probation, recommend terms of probation that will help their office keep track of you and prevent you for committing crime in the future. Until the probation interview, the probation officer only has the paperwork that indicates your guilt. They don't yet know you as a person. So the way you present yourself to the probation officer is very important.
Of course, you want to present yourself in your most positive light. You should be appropriately groomed and on time. You want to show that you are taking this interview seriously. Remember, the probation officer you are meeting with will be the one recommending to the judge whether they think you should go to jail and if so for how long.
Acceptance of Responsibility
No one wants you to be a repeat offender. Everyone hopes you have learned from your mistake, that you have done whatever you need to in order to get your life back on track, and that you never find yourself in the criminal justice system again. One of the chief things probation officers look for during their interview is whether you accept responsibility for your actions. The belief is that rehabilitation starts with acceptance of responsibility. Those who don't accept responsibility for their actions aren't likely to change because they don't believe they have done anything wrong--it was all someone else's fault. So rule number one is accept responsibility for what you have done.
Courts and probation officers want to know how you feel about what you did that brought you into the criminal justice system. If you have remorse for what you have done, if you feel bad about it, you are more likely to think twice in the future about repeating that behavior. Remorse goes hand-in-hand with acceptance of responsibility. You want to make sure the probation officer knows that you are truly sorry for your actions and that you are firmly committed to avoiding similar actions in the future.
Having a Plan
Having a plan in place by the time of your probation interview can make the difference in whether your probation officer recommends jail or not. For example, if your crime resulted from your addiction to drugs or alcohol, showing your commitment to address your substance abuse problem by having enrolled in a drug or alcohol treatment program shows the probation officer--and the judge--that you have not only accepted responsibility for your actions, but that you are being pro-active in addressing the issue that led to your commission of the crime.
The more support you have, the better. Remember, no one wants you to re-offend. And statistics show that the more support a person has the better chance they have of remaining law abiding. Showing that you have the support of your community can add to your chance of a more favorable sentencing recommendation from probation. Having your supporters submit letters of recommendation can be very helpful to show your positive traits to the probation officer and the court.
Statement in Mitigation
Your lawyer may want to file a statement in mitigation with the court, a legal document that highlights your positive traits, and weaves the facts of your case with the applicable sentencing laws, all with the goal of convincing the court to give you the lightest sentence possible.
Addressing the Court
You have the right to address the judge personally at your sentencing hearing. This is officially called "allocution." If you choose to talk to the judge, you will need to be contrite, accept responsibility for your actions, and show sincere remorse. There have been cases where judges who were planning on sending a client to prison changed his mind after the client spoke to the judge.
Under California law, certain felonies are considered to be "strikes." Strikes are either serious or violent crimes. The law lists exactly which crimes are "serious" and which crimes are "violent." You can review those lists in the following section.
For someone who has no prior felony record, a "serious" strike has no practical offense on the case. The "serious" strike only comes into play for someone who commits another felony in the future. But a first-time "violent" strike does have immediate consequences: loss of custody credits. Custody credits refer to the time a person actually serves in State Prison. Ordinarily, a prisoner is entitled to "good time credits" of up to 50% of their time. So, for example, someone sentenced to six years in the State Prison could be released after serving only three years. But if that person had been sentenced to prison for a first-time "violent" strike, he would be entitled to a maximum of 15% good time credits. So on that same six year sentence, he would have to serve just over five years.
If you have a prior strike conviction--either "serious" or "violent" (we refer to these as "strike priors")--the consequences are significant. First of all, State Prison is mandatory. Second, the possible sentence you are facing on the current case is doubled. For example, for a crime that carried a maximum punishment of three years imprisonment, you would now be facing six years. And you would have to serve at least 80% of that sentence before being eligible for release.
The effects of the Three Strikes law is most dramatic if you have two strike priors and are now facing a third strike. In that case you are facing a sentence of 25 years-to-life.
"Serious Felonies" are listed in Penal Code §1192.7(c). Here's the list:
(1) Murder or voluntary manslaughter.
(4) Sodomy by force violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person.
(5) Oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person.
(6) Lewd or lascivious act on a child under 14 years of age.
(7) Any felony punishable by death or imprisonment in the state prison for life.
(8) Any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm.
(9) Attempted murder
(1) Assault with intent to commit rape or robbery
(11) Assault with a deadly weapon or instrument on a peace officer
(12) Assault by a life prisoner on a non-inmate
(13) Assault with a deadly weapon by an inmate
(15) Exploding a destructive device or any explosive with intent to injure
(16) Exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem
(17) Exploding a destructive device or any explosive with intent to murder
(18) Any burglary of the first degree
(19) Robbery or bank robbery
(21) Holding of a hostage by a person confined in a state prison
(22) Attempt to commit a felony punishable by death or imprisonment in the state prison for life
(23) Any felony in which the defendant personally used a dangerous or deadly weapon
(24) Selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code
(25) Any violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person
(26) Grand theft involving a firearm
(28) Any felony offense, which would also constitute a felony violation of Section 196.22
(29) Assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220
(30) Throwing acid or flammable substances, in violation of Section 244
(31) Assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245
(32) Assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5
(33) Discharge of a firearm at an in habited dwelling, vehicle, or aircraft, in violation of Section 246
(34) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1
(35) Continuous sexual abuse of a child, in violation of Section 288.5
(36) Shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100
(37) Intimidation of victims or witnesses, in violation of Section 136.1
(38) Criminal threats, in violation of Section 422
(39) Any attempt to commit a crime listed in this subdivision other than an assault
(40) Any violation of Section 12022.53
(41) A violation of subdivision (b) or (c) of Section 11418
(42) Any conspiracy to commit an offense described above
"Violent Felonies" are listed in Penal Code §667.5(c). Here's the list:
(1) Murder or voluntary manslaughter
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262
(4) Sodomy as defined in subdivision (c) or (d) of Section 286
(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288
(7) Any felony punishable by death or imprisonment in the state prison for life
(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Section 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55
(9) Any robbery
(10) Arson, in violation of subdivision (a) or (b) of Section 451
(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289
(12) Attempted murder
(13) A violation of Section 18745, 18750, 18755
(15) Assault with the intent to commit a specified felony, in violation of Section 220
(16) Continuous sexual abuse of a child, in violation of Section 288.5
(17) Carjacking, as defined in subdivision (a) of Section 215
(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1
(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code
(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code
(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary
(22) Any violation of Section 1022.53
(23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person