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Know and Protect Your Rights in a Criminal Defense Matter



Download Our Free Guide

Know and Protect Your Rights in a Criminal Defense Matter





Is It Ever Possible To Have Violent Crime Charges Reduced?

It is possible to have violent crime charges reduced, and there are many of different ways to do this. You can do it through negotiation. Every felony has kind of a mini-trial half way through, called a Preliminary Hearing. This is similar to a bench trial where there is no jury – just a judge determining if there is probable cause. The evidence is taken and the judge decides if there is sufficient evidence to believe that a felony has been committed. If the charges are wobblers, or if there is a lesser included that could function as a wobbler, then you can make a motion at preliminary hearing for the charge to be reduced to a misdemeanor. That’s one way and we’ve achieved this goal many times throughout our careers as Oakland criminal defense attorneys.

California’s laws on serious violent felonies are a bit complicated, because there is a preclusion against plea-bargaining in some of them. What you have to do is you have to persuade the prosecutor to dismiss and re-file different charges. The theory is that prosecutors cannot overcharge for purposes of getting the defendant to plead to a lesser offense or as charged with a lower sentence – since plea bargaining is not allowed before preliminary hearing.

This was actually put into law because people were angry that serious cases were getting plea bargained down and they sought a tougher disposition on the punishment of crimes. It did also have the effect of requiring prosecutors to be more careful with how they charge cases. They don’t charge the non-bargainable charges unless they really think it’s proven by the evidence they have. Defense attorneys and prosecutors have a professional adversarial relationship, as they should, due to the nature of our system. Undoubtedly, there are irresponsible prosecutors out there, but for the most part we like to hope that they comply with the high ethical standards they are held to.

Are Most Violent Crimes Prosecuted As Felony Charges?

Most violent crimes are classified as felonies. There are a couple of misdemeanors, such as simple battery, which is the unlawful use of force against another person. When it is pushing or shoving, or throwing something at someone, it could be a misdemeanor. It depends on the level of force used. From there up, there are misdemeanors and there are what are called felonies. It’s mostly what you think of violent crimes, including assault with a deadly weapon and sex crimes. California has a specific category for serious and violent charges such as robbery and carjacking.

There are some really serious crimes like mayhem, which is disfiguring another person, or torture – which would be a felony. Then there are what are called wobblers. These are “Alternative Felonies” which means they can be charged and prosecuted either as felonies or as misdemeanors. The DA can also start it off as a felony and it can later be reduced to a misdemeanor. Some common wobblers are PC 245(a)(1) (assault with a deadly weapon), PC 273.5 (corporal injury), PC 243.4 (sexual battery), VC 2800.2 (evading police).

What Would Be Considered A Violent Crime In California?

Several years ago, the California Legislature, partially as a response to the under-funding of the system, reclassified a bunch of crimes. Anything less serious than a narcotics offense where weapons are not involved, including theft, are not considered violent offenses. Violent offenses are assault, battery, many related sex offenses, and murder.

Why Is It Critical To Hire An Experienced Attorney To Handle My Violent Crime Case?

Its critical to hire an experienced attorney because the implications are serious and the punishments that you may be facing are serious. You could be looking at jail time, prison time, and a serious effect on your record. When the consequences are serious, you need a skilled professional to address them. Experience is the best way to deal with violent cases. Having the experience dealing with serious and violent crimes we know how to not overreact to the claims being made, we know how to question in a way that gets what we need out of the witnesses, we know what a good deal looks like, and we know when to strategically advise you to go to trial.

It takes a lot of skill to know what questions to ask of witnesses and what evidence needs to be developed. There is forensic evidence, eyewitness and other kinds of evidence. Forensic evidence meaning fingerprints, blood, fiber, DNA, and other related things. You want an attorney who is going to be able to handle them appropriately in court and understand the science involved. A skilled and experienced attorney will know how to manage the witnesses involved and ask the right questions in front of the jury. There are several factors that are written into the jury instructions in California that deal with the credibility of witnesses, if they are being honest and truthful, and whether they are reliable. When you hire the right attorney they will be able to either build up or tear down the credibility of the witnesses.

The human mind is not a camera, it doesn’t take a picture of people and then just recall the photograph when it sees the person again. It actually just remembers little details, such as the nose or the color of their hair or other similar feature and there are countless factors that go into whether this eyewitness identification is accurate. Was the person under stress, was it day or night, did the person have something in their hands? A skilled attorney will understand Cross Ratio Problems in identification – for example, people of one race are generally not very good at identifying people of another race. Eyewitness identifications are not as reliable as people think and a skilled and experienced defense attorney will capitalize on those questionable areas.

One quick example is when a person says, “I am sure, I’ll never forget that face. This is one of the most important things I’ve ever been involved in and I swear, I guarantee you, I feel so strongly about this,” it turns out that studies show that if they express it that way, they’re really no more likely to be correct than if they just say, “Yes, I’m pretty sure that’s him,” or, “I think that’s the person.” The strength of your belief in your correctness has nothing to do with being correct. You would think that if somebody is that sure, they must be right but it turns out they aren’t. It is not always because they are being dishonest – but many times they are just mistaken in their belief.

Several of our trials have started with the statement that it is a “case of mistaken identity.” Someone made a mistake, they thought they had the right person, and they didn’t. Jurors can relate to a story where you’re standing in line at the grocery and you see somebody a couple of lines over and you think “that’s Sally from high school.” You recognize her, you know her really well, and you used to do all kinds of stuff together so you are going to go up to see, “Sally”, and then – it’s not Sally, it’s somebody else. It looks a lot like Sally, it seems like Sally, but it’s just not. Now, are you being dishonest or are you just making a mistake? Is there any one of us who hasn’t had an experience like that? How many times have you had to say to somebody, “I thought you were somebody else, I am sorry about that?”

These are just a couple key examples of what a skilled and experienced criminal defense attorney can do for you – from interpreting forensic evidence, consulting with expert witnesses, and attacking eyewitness identifications – you an attorney who is creative in their approach and thoughtful about the evidence.

Can Violent Crimes Ever Be Pardoned Or Expunged?

The ultimate end goal with any criminal case is to be found factually innocent, seal and destroy your records, get a pardon, get a certificate of rehabilitation or petition for a dismissal by way of the expungement process.

Technically, in California, there is no such thing as an expungement. What really happens is there is the section of the code that says that after you complete your probation or your sentence, you can apply to the court for a dismissal. The California violent crimes expungement process is tricky, and therefore, it requires the services of an experienced violent crimes expunction lawyer in Oakland, CA.

For most case types you are entitled to it as a matter of law so long as you’ve completed your probation, met all the terms and conditions of your probation (like counseling, classes, restitution, or fines, and completed any jail sentence that was ordered. You will not be eligible to apply for a petition to dismiss your conviction if you were sent to state prison and there are a few specific charges that cannot be expunged:

  • Misdemeanor Vehicle Code section 42002.1: Failure to Stop Vehicle for Inspection with prior evading conviction
  • Any violation of Penal Code sections:
    • 286(c): Sodomy – victim under 14 (more than 10 years older)
    • 288: Lewd or Lascivious conduct
    • 288a(c): Oral Copulation with a minor under 14 (more than 10 years older)
    • 288.5: Continuous sexual abuse of a child
    • 289(j): Forcible sexual penetration of a minor under 14 (more than 10 years older)
    • 311.1: Distribution of child porn
    • 311.2: Sale/Distribution of Child Pornography
    • 311.3: Sexual Exploitation of a Minor
    • 311.11: Possession of Child Pornography
    • Felony violation of Penal Code 261.5(d) – Unlawful Sex with a Minor

There are very few exceptions to it, but that doesn’t mean that everything goes away unless you receive a pardon or a Finding of Factual Innocence, which is a process whereby you say not only was I not guilty of this, I never should have been dragged into court in the first place. Under those two circumstances can you actually eliminate the record of what’s taken place. Then the record is sealed and destroyed under a Finding of Factual Innocence. The records are not necessarily sealed and destroyed under a pardon, but it shows that you were ultimately pardoned.

A pardon doesn’t mean you didn’t do it; a pardon essentially means you may have committed a crime but you’ve since cleaned yourself up and deserve to be forgiven. With the exception of the Finding of Factual Innocence, which is 851.8 of the Penal Code, there is no delete button in the great computerized world of the court system that somebody can ever push to make all the records go away. There is no giant massive shredding machine where they take every piece of paper that ever was associated with the case and drop it through there so nobody can ever see it. That doesn’t happen rather with an expungement, it changes the language of your conviction to say that it was dismissed rather than saying that you were convicted. This is definitely still beneficial in terms of hiring especially with the recent changes in the Fair Employment laws (i.e. ban the box).

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THE NIEVES LAW FIRM
Oakland Criminal Lawyer