13 minutes reading time (2547 words)

When the Phone Rings in the Middle of the Night: Basic Emergency Help in Criminal Matters

handcuffs

Once we get our bar cards, people think we know everything about everything, and pepper us with questions on all aspects and arenas of law.

So, what do you do when you get a call from a friend in jail, Court is tomorrow, and there’s no time to consult with another attorney? Can you help?

“In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to, or association or consultation with, another lawyer would be impractical. Assistance in an emergency must be limited to that reasonably* necessary in the circumstances.”1

This article should familiarize you with the basic themes in criminal court: felony vs. misdemeanor, arraignment, types of plea, time waivers, reading and advisement of the charges, and review of custody status.

The prosecutor is from the District Attorney or City Attorney’s office, and refer to themselves as “The People”.

The case can be in state court or in federal court. If the matter is in federal court, a federal defender and probation will have met with the client ahead of the arraignment.

In state court, the Public Defender’s Office won’t speak to an accused until the office has been appointed by the Court. Your friend/family member needs to know to ask the court for the public defender’s assistance at the arraignment.

A person can be facing a misdemeanor, where the maximum punishment is one year in the county jail, a fine, or both.2 They can also be facing a felony, where the punishment is more than a year in the county jail or state prison, and a fine.3 There are also some statutes, like driving under the influence or domestic violence, that “wobble.” meaning they can be a misdemeanor or a felony.

The court will likely ask if you are generally appearing on behalf of the defendant. A “general appearance” means you are counsel of record.4 A “special appearance” means that you are present for that appearance, but you are not counsel of record. You are not generally appearing. Even if the Court does not ask, make it very clear that you are only specially appearing with the defendant.

The first appearance in criminal court is called an arraignment. The arraignment is when the accused is told of the charges against them and a plea can be entered. The document with the charges is called the Complaint. The Complaint is usually very basic, generally alleging the statute that was violated and the date of the violation. It is uncommon for any facts to be plead in the Complaint, though police reports are sometimes incorporated by reference.

An accused has the right to have the court read the pending charges and advise them of some of their rights (like to have an attorney appointed to represent them). In the interest of expedience, and because you can tell the accused what the charges are, counsel often waive formal reading of the complaint and advisement of the charges. This is especially important if the accused is in custody, and charged with crimes of a sensitive nature, like a sexual act involving a minor. These types of allegations expose the accused to the risk of retaliation by others in custody.

Some courts allow a party to continue the matter to another day without entering a plea at this stage. Other courts require the party to enter a plea. The most commonly used pleas are Not Guilty, Guilty, and No Contest.

“Guilty” and “No Contest” both result in a conviction, and the accused will then be sentenced. “No Contest” is different from “Guilty,” in that a plea of “No Contest” cannot be used against the accused to prove liability in a related civil matter.

If the accused wants to fight the case, the only plea to be made is “Not Guilty”. The entry of this plea triggers various different deadlines.

Since you are unfamiliar with criminal law, defenses, legal arguments, sentencing schemes, and you probably don’t have most of the discovery (police reports, body worn cameras, etc.), you cannot advise whether any plea offer is good or bad.

In a misdemeanor matter, an accused has the right to have a speedy trial within 45 calendar days if they are out of custody, or within 30 days if they are in custody at the time of the entry of the plea.5 Failure to try a misdemeanor (not charged together with a felony) matter within the time allotted requires a dismissal of the Complaint, and is a bar to filing future charges for the same conduct.6

In a felony matter, an accused has the right to a preliminary hearing.7 At a preliminary hearing, the government has to show the magistrate that there’s enough evidence, right now, to secure a conviction at trial.8

Both an accused and the People have the right to have a preliminary hearing within 10 court days from the time of arraignment, or entry of the plea, whichever is later.9 If the accused is in custody, and the People show good cause for a continuance of the preliminary hearing after the 10 days had passed, the court shall release the accused from custody, absent the accused “waiving time” or other very specific circumstances.10 If the court does not find good cause for the continuance past 10 days, then the court shall dismiss the Complaint, again, with some specific exceptions.11 Some examples of “good cause” are when the charges are for child abuse, child neglect, or sexual assault of a child, and the prosecutor has already begun a trial, preliminary hearing, or motion to suppress in another matter, or the illness of counsel.12

The People and an accused facing felony charges also have the right to conduct the preliminary hearing within 60 calendar days.13 The failure to conduct the prelim within the 60-day time period requires dismissal of the Complaint.14 The dismissal does not mean the case is done, because the People can refile the charges at least once and keep the accused in custody.15

You should discuss the decision to enter a plea with the accused, and be very cautious about waiving time. Once time is waived, you cannot withdraw that waiver and insist on a speedy preliminary hearing within 10 or 60 days.16

If the Court will allow a continuance without entering a plea, recommend to the accused to seriously consider not entering a plea, so that they can obtain their own counsel without waiving their speedy preliminary hearing rights. This can be difficult if the accused is in custody because their main focus usually is release from custody. (We’ll come back to discussing motioning and release from custody.)

If the Court insists on entering a plea at this first arraignment and asks whether there will be a time waiver, the accused should decide whether or not they want to waive their 10-day right. It’s a toss-up: don’t waive the time, and be pressed to find an attorney very quickly, or waive the time and be sitting in custody. Sometimes, these competing interests can be met with setting a further hearing in a couple days, and not waiving time. The retained attorney can address the issue when they appear.

Whatever the accused decides with regard to the 10 days, you should advise against waiving the 60-day time for a preliminary hearing. Sixty days is plenty of time to hire an attorney, and for that attorney to take over and plan the litigation strategy with the accused.

When your friend or family member is in custody, there is increased pressure to obtain their release from jail.

Every county in the State has a “Bail Schedule” that is set by the judges of that county. An accused can post bail, or obtain a bail bond, to get out of jail based on the charges they were arrested for. However, The People can file charges that are different from those alleged at the time of the arrest. That means that when an accused shows up in Court, the District Attorney can ask for an accused person to be remanded back into custody based on the filed charges being more serious than those of the arrest.

If the accused cannot afford bail and appears for the first appearance in custody, you can seek the Court’s order for release on their own recognizance, or with a reduced amount of bail.

In San Joaquin County, the Probation Department, Pretrial Services, conducts an interview with each accused about their personal circumstances, i.e. work, marriage, assets, residence, children, etc. Pretrial Services then prepares a Pretrial Report for the Court. Both the People and the defense are given a copy of this report. Pretrial Services employs the Virginia Pretrial Risk Assessment Instrument (VPRAI) to assign each accused a “score.” The score is to help the Court assess the accused’s risk of pre-trial failure, either failing to appear or to be accused of additional crimes, if allowed out of custody while this accusation is in litigation.

Regardless of the VPRAI score in the Pretrial Services Report, the Court retains their discretion to release an accused on their own recognizance, reduce the bail, or hold them in custody on “no bail.”

In theory, anyone charged with a California criminal offense can be granted an own recognizance release, unless they are facing capital charges.17 The Court can also impose conditions of own recognizance release, like GPS ankle monitoring, transdermal alcohol monitoring, waiver of 4th Amendment search right during the litigation, and attendance in drug or alcohol counseling.18

The Court can also order bail, and you should be prepared to argue for the court to set an amount that the accused can actually pay.19

In deciding to release a person from custody, the Court is making a two-fold analysis on the accused’s likelihood of appearing before the Court, and the risk to public safety.20 An arrestee may not be held in custody pending trial unless the court has made an individualized determination that detention is necessary to protect victim or public safety, or to ensure the arrestee's appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests.21 California law is in line with the federal Constitution: “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”22

Pretrial release has been particularly litigious since the issuance of the In re Humphrey opinion. It may be best to inquire for the Court’s thought on the accused’s custody status, but be clear you’re not arguing for their release at this time. The court may release them without argument. Or, the court may hold the defendant in custody. If you are not prepared to argue a full motion to release the accused, then the inquiry without argument will allow the defense attorney to make the argument at the next appearance.

If you are going to argue for release, you should be versed in facts enough to address the accused’s ties to the community to counter an allegation of flight risk, i.e. marital status/significant other, parents and siblings in the area, children, real estate ownership, and employment. You should also be prepared to make an argument that the accused is not a danger to the public, and the Court can impose other conditions to assuage their concerns.

The accused is only allowed to make this argument once unless there are a change of facts or circumstance later in the litigation.23

The District Attorney will also sometimes bring a copy of “paper discovery” at the first arraignment. This will contain the police report and the accused’s criminal history, called a Record of Arrests and Prosecutions “RAP” sheet. Not all entries will belong to your client, especially if they have a common name. Look at the section for names and identifiers on the first page, and determine if there are other people. You should review this criminal history and the allegations in the police report if you are going to argue for release or bail reduction. The People are going to present their version of the facts to the Court, usually asking for the accused to be held in custody.

In general, what do you do when you get there? Show up before the calendared time. Ask the clerk or the bailiff if they want you to check in. Then ask how to get your case called when you’re ready. Some courts simply go down the docket list, some wait for you to put in a paper slip with the clerk, some have you stand in line behind counsel table and jump in when the defense seat becomes empty. They’re all different. Clerks are usually very busy, and the bailiff might have more time to answer your questions.

If the Court calls your case and you’re not ready (still reading the report or discussing the matter with the district attorney), ask the Court if they can drop the matter for a few minutes, that you’re not ready yet.

The prosecution table is closest to the jury box. There is deputy district attorney there handling the whole calendar, but there might be a specially assigned district attorney for your case. Ask the deputy who has the case. When you find them, ask if they have discovery for you to review. The district attorney’s office charges for discovery, but they’ll often let your review it while in court. Tell them you’re specially appearing just for today.

If your client is in custody, ask the bailiff how you can speak to them for a few minutes. There should be a room where you can talk. Expect that these rooms are not sound-proof, and that everyone else can hear your conversation. You’re not going to have a half hour meeting in here, but you’ll be able to discuss the charges, basic allegations, and the plan for setting a further date and to get another attorney.

If you’re totally lost, grab another attorney and ask for procedure of that particular courtroom. Many district attorneys, public defenders, and private attorneys have helped me out when I was new to the courtroom. Good luck!


1 Rules of Professional Conduct, Rule 1.1 (d).
2 Cal. Pen. Code §§19,18.5
3 Cal. Pen. Code 17 (a)
4 Cal. Code of Civ. Proc. § 1014
5 Cal. Penal Code § 1382
6 Cal. Penal Code § 1387
7 Cal. Penal Code § 859b
8 Cal. Penal Code § 859b
9 Cal. Penal Code § 859b
10 Cal. Penal Code § 859b (b)
11 Cal. Penal Code § 859b
12 Cal. Penal Code § 859b (b)
13 Cal. Penal Code § 859b (b)
14 Cal. Penal Code § 859b (b)
15 Cal. Penal Code §§ 1387; 871.5
16 People v. Love (2005) 132 Cal.App.4th 276
17 Cal. Penal Code § 1270
18 Cal. Penal Code 1318; see also In re York (1995) 9 Cal.4th 1133.
19 In re Humphrey (2021) 11 Cal. 5th 135, 156
20 Pen. Code § 1270.1(c)
21 In re Humphrey (2021) 11 Cal. 5th 135, 156
22 United States v. Salerno (1987) 481 U.S. 739, 755
23 Cal. Code Civ. Proc. § 1008

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