Commission of a crime is serious, but when it is a felony it is the most serious of offenses. In California, you can expect that when you are charged with a felony, you have a fight ahead of you. Knowing what a felony means and what to expect can go a long way to helping you understand what you face. Then, finding an experienced, resourceful Los Angeles criminal defense attorney to help you face the charges and fight them will be fundamental to safeguarding your rights and freedoms.
William S. Kroger is an aggressive, smart, resourceful criminal defense lawyer based in Los Angeles, California, but representing clients throughout the L.A. metro region. He is a native of L.A. and has been practicing law here since 1997. He and his legal team are available to speak with you regarding your felony and to discuss the best options available to you. Contact his office today at 323-655-5700.
What constitutes a felony in California?
Crimes in California are categorized as misdemeanors and felonies. In general, it's the penalties that distinguish felonies from misdemeanors. Felonies are judged more severe than misdemeanors and thus carry harsher sentences if a conviction is rendered. In fact, felonies are punishable by incarceration of more than one year in state prison and, in some cases, the death penalty. Sometimes a felony sentence may be served in county jail if the sentence is pursuant to PC 1170(h). If, on the other hand, you are convicted of a misdemeanor, you face less than a year in the county jail.
Felonies encompass a range of crimes that can be violent or non-violent. Felonies are not characterized by any specific traits but are felonies based on the severity of the act. Some misdemeanors, however, can be elevated to felonies, and vice versa. These types of crimes are wobblers. They can be either felonies or misdemeanors depending on circumstances. Not all felonies are wobblers, and these are known as straight felonies.
A straight felony can only be charged, convicted, and sentenced as a felony. Straight felonies tend to be the most serious and violent of crimes and qualify for California's three-strikes law. The three-strikes law means that each qualifying conviction is a strike on your record and once you have
- One prior qualifying felony conviction, your current felony conviction will result in state prison for twice the term otherwise provided for the crime.
- Two or more prior qualifying felony convictions, you qualify for a sentence of 25 years to life in prison regardless what sentencing would have accompanied the current crime.
As mentioned, in straight felony circumstances, the district attorney (DA) lacks the discretion to file a criminal charge as either a felony or misdemeanor because -- if the felony is a straight felony -- it can only be charged as a felony. Examples of straight felonies include:
- Sale of controlled substances (Health and Safety Code § 11351)
- Robbery (PC 211)
- Kidnapping (PC 207, 208, 209, 209.5)
- Assault with a firearm (PC 245(a)(2))
- Rape (PC 261)
- Murder (PC 187)
- Carjacking (PC 215).
A wobbler offense is one where a crime may be charged, convicted, and sentenced as a misdemeanor or felony. In the case of wobblers, the DA has the discretion to charge the crime as either a felony or misdemeanor. When making this decision, the DA will consider two factors:
- What the fact and circumstances were when the offense was committed; and
- Your criminal record, if any. If you have prior convictions of the same or similar offense or prior convictions of other felonies, then the DA will likely file the current crime as a felony. Absent a criminal record, the DA will likely file the current crime as a misdemeanor.
Examples of wobbler offenses include:
- Vehicular manslaughter (PC 192(c)(1))
- Statutory rape (PC 261.5)
- Assault with a deadly weapon other than a firearm (PC 245(a)(1))
- Forgery (PC 470)
- Domestic violence.
What are the penalties for a felony conviction in California?
Penalties come in various forms, from incarceration to probation to fines to collateral consequences.
While many states categorize their felonies according to classes or degrees and then associate penalty ranges to each respective class or degree, California sets penalties according to the crime. Most felonies are accompanied by a low, mid, or high term, with the high term being the most severe sentence.
Deciding which of the three terms the judge will apply to your case is at the discretion of that judge. He or she will take into consideration any aggravating or mitigating circumstances. The more aggravating factors the more likely you will be sentenced to the higher term while the more mitigating factors the more likely you will be sentenced to the lower term. If neither aggravating nor mitigating factors exist, you will likely be sentenced to the middle term.
Examples of aggravating factors include but are not limited to:
- The crime involved serious bodily harm or great violence.
- You threatened the victim or other witnesses to the alleged crime.
- The victim was a child or otherwise particularly vulnerable.
- You allegedly committed other crimes at the same time and consecutive sentences could have been imposed in lieu of concurrent sentences.
- You betrayed your position of trust.
- You committed a hate crime but enhancements for the same were not imposed.
Examples of mitigating factors include but are not limited to:
- You played a minor role in the crime.
- You were cautious to make sure no one was harmed during the commission of the alleged crime.
- You were provoked and otherwise would not have committed the crime.
- You have no prior criminal record.
- You suffer from some mental or physical condition.
When a felony does not carry a specific prison term, then the sentence may be set for:
- 16 months,
- 2 years, or
- 3 years in state prison unless otherwise stated.
Felony Probation (also known as Formal Probation)
California judges are allowed by state law to give a person convicted of certain felonies a "suspended sentence" in place of an incarceration. This suspended sentence refers to felony (or formal) probation. If granted probation, you will have to successfully complete the terms and conditions of the probation. If you do so successfully, you will not have to serve time in jail or prison.
Fines for a felony conviction can be steep. Typically, a fine can go up to $10,000. But in many cases, particularly drug offenses, fines can well-exceed the $10,000 mark by many thousands of dollars more.
Apart from incarceration, probation, and fines, as a convicted felon you still suffer consequences long after your debt to society has been paid. A felony conviction can impact your life in ways you may never have imagined. Some of these consequences include:
- Challenges with employment. You will likely have to disclose that you have been convicted of a felony when you apply for most jobs. Even if you didn't disclose, background checks are regularly made, and a felony will be discovered through this process. You can be overlooked for someone not perceived as a liability.
- Challenges with a security clearance or professional license. If you have any kind of security clearance or a professional license, acquiring, maintaining or renewing the same can be problematic. Examples of professional licenses include real estate, nursing, pharmacists, medical, teacher, social work, among others.
- Challenges with housing. You will likely have to disclose that you have been convicted of a felony when you apply for any type of housing. Many rental communities market themselves as a safe, crime-free environment and do not allow convicted felons to rent property.
- Registration as a sex offender. If you were convicted of a sex offense, you must register as a sex offender to an indefinite amount of time or for life. You can also not live within 2000 feet of a school or park.
- Loss of constitutional rights. You have a constitutional right to vote for your representatives. You also have a constitutional right to bear arms. You cannot vote while you are incarcerated -- but California, unlike many states, restores your right to vote after successful completion of all terms and conditions of your sentence and/or probation. You also lose the right to use and possess firearms, but unlike your right to vote, your right to own and use a firearm is not automatically restored upon successful completion of your sentence or probation. In most cases, unless your felony is reduced to a misdemeanor, you will have to apply -- after completion of your sentence or probation -- for a Governor's Pardon, and that is a difficult thing to receive.
- Deportation. If you are not a U.S. citizen and the felony is a deportable offense, you can be deported. Common deportable offenses relate to domestic violence, firearms, controlled substance offenses, and offenses known as moral turpitude crimes. Crimes of moral turpitude include murder, rape, sexual misconduct with minors, possession of illegal substances with the intent to sell them, fraud, among many others.
- Denial of public benefits. Convicted felons are not eligible for many California benefits, like housing assistance, state licensure, student loans, or CalFresh. In order to restore your eligibility, you must have your conviction expunged. If the conviction was a drug crime, then to restore eligibility, you must have completed a qualifying drug program.
What is the general court process for a felony?
There are many steps you will take to complete the court process. A qualified attorney who has the experience and resources will guide you through this process. Though each case is different, thus, each case's specific process may vary, there are some general steps.
The arraignment is the first hearing you will have before a judge. Here, the charges and your constitutional rights are read to you unless you waived it. After the reading, you will enter a plea of guilty, nolo contendre, or not guilty. After the pleading, you are remanded to custody (if not already in jail), released on your own recognizance, or bail is set.
At your pretrial conference, your defense attorney will discuss an early resolution.
The focus of a preliminary hearing is to determine if probable cause existed. The burden of proof is a much lower standard than a showing of beyond a reasonable doubt. If probable cause is found, you will be arraigned again, but at the County of Los Angeles Superior Court unless you were arrested in another California county where you will be arraigned at that county's respective superior court. At the arraignment at the superior court, you will again enter a plea.
Possible Motions and Discovery
After the pretrial conference and before trial, your attorney will develop your defense strategy using discovery and motions to propel the strategy forward. Your attorney will file a number of motions, when applicable. These motions could include a Motion to Dismiss (otherwise known as a 995 Motion to dismiss the case on the basis that probable cause does not exist) or a Motion to Suppress under PC 1538.5 (where evidence can be excluded if it was the result of a constitutional violation), or Motion to Compel Discovery. Discovery is where the prosecutor and defense request from and share with each other evidence pertinent to your case. The State is not allowed to keep any evidence secret from your attorney.
If the case proceeds, you will go to trial. A jury trial for a felony involves 12 persons. You will have the opportunity to waive a jury and have a bench trial, but your attorney -- if a trial attorney with experience -- will advise you otherwise. Jury trials can be won and they can be won through the art of smart defense strategy and persuasion.
At the end of the trial, the jury will deliberate and return a verdict. If you are found not guilty, you will go free. If you are found guilty, a sentencing hearing will be set. The judge will likely order a presentence report through the probation department. Your attorney will argue for the lowest sentence, employing mitigating factors to persuade the judge.
How do you defend a felony in California?
Defending a felony in California is fact-intensive; each defense strategy will be unique to each particular case. That said, there are some basic defenses that can be employed in addition to certain strategies. Basic defenses include:
- Mistake of fact
- Mistaken identity
- Entrapment, and/or
- False Accusation.
Some strategies that can be effectively combined with these defenses or used on their own to weaken the State's case include:
- Challenging the credibility of the witnesses
- Challenging the police officers
- Challenging the evidence, and, among many other strategies,
- Filing pretrial motions to dismiss, exclude, or suppress evidence based on lack of probable cause, police misconduct, illegal search and seizure, or other reason.
The key will be how the attorney executes your defense before and -- if it comes to it -- at trial in front of a judge and jury.
In some cases, if relevant and only if in your best interests, your defense strategy may actually be one where you plead guilty to partake in a felony diversionary program. If you complete it successfully, the charges can be dismissed. But diversion is available in limited felony cases and may or may not benefit you. It's something William S. Kroger will speak to you about in order to outline both the advantages and risks of such a program.
Contact a Los Angeles Felony Criminal defense attorney today
William S. Kroger will use his skill and resources to defend you, your freedom, and your good name. The goal is a dismissal of the charges prior to trial or acquittal at trial. But if you are convicted, William S. Kroger will discuss your options with you, including the option of filing an appeal within 60 days. As you can see, however, a felony charge is very serious. Let William S. Kroger put his skill and reputation to work for you. Contact his office either online or at 323-655-5700.