Infraction, Misdemeanor, and Felony Charges

California Criminal Procedure & Collateral Consequences

Because process is important.

At the Law Offices of Jerod Gunsberg, we understand the challenges that come with being accused of a crime. Facing a legal infraction, misdemeanor, or felony can seriously impede your life and livelihood, which is why seeking appropriate representation is critical. Before dealing with these issues, it is important to understand what you are being charged with and how the arrest, court, and trial process works.

Infraction Defense

An infraction is a violation of the law that is not considered serious enough to be considered a “crime.” You cannot be sentenced to jail time for committing an infraction. You can, however, be ordered to pay a fine. You may also have the choice to perform community service if you cannot afford to pay the fine. You will often be given the option of paying the fine without appearing in court if you chose to do so.

Common infractions include:

Jaywalking
Traffic Violations (i.e. speeding, running a stop sign, etc.)
Possession of less than one ounce of marijuana

If you are charged with an infraction, you will not have to remain in jail or post bail while you wait for your court date. You will be issued a citation and will be expected to appear in court. The only exception to this is if you missed a prior court date, and a bench warrant was issued because you failed to appear in court. If this is the case, you may be held in custody because of the warrant.

If you wish to plead not guilty to an infraction, you have the right to have a trial in front of a Judge. You do not have a right to a jury trial for an infraction. During the trial, you will have the opportunity to cross-examine witnesses, to present a defense, and to testify or to remain silent.

Misdemeanors vs. Infractions

There are some offenses that can either be charged as a misdemeanor crime or an infraction. An infraction is less serious than a misdemeanor for various reasons. First, you can be punished to jail time for a misdemeanor. Second, a misdemeanor conviction is a crime on your record, while an infraction is not.

Misdemeanor

A misdemeanor is a criminal offense that can be punished by up to one year in jail. Misdemeanors are more serious than infractions but less serious than felonies. Common misdemeanor offenses include driving with a suspended license, driving under the influence, and battery without injuries. Other offenses, such as domestic violence or assault with a deadly weapon, may be charged as either misdemeanors or felonies. It is important to consult with your attorney to assess the chance that your case could be re-filed as a felony. Particularly if you have any strike priors, this could significantly increase your maximum jail term.

Felonies

A felony is a crime that can be punished by one year or more in state prison or county jail, or in the most serious cases by death. You can also be sentenced to probation instead of prison time, depending on your criminal record and the charges against you. Your attorney may be able to convince the prosecution to reduce your felony charge to a misdemeanor, or to offer you a plea bargain agreement that will allow you to avoid a prison sentence.

The punishment you face for a felony charge is greatly impacted by your prior record. Previous felony convictions can substantially increase your sentence in a new felony offense, depending upon whether they are “strike” offenses, and whether you previously served time in prison.

Arrest

At the time of your arrest for an offense, the police will either release you and give you a citation to appear in court, or they will take you to jail. If you are taken to jail, it is possible that the police will later release you and give you a citation to appear in court. They may also set a bail amount. If the police set bail, you will not be released before your first court date unless you can post bail.

If the police have not arrested you or issued you a citation to appear in court for an offense, they may also request an arrest warrant. This generally occurs when an incident is reported to the police, but the police have not had contact with the alleged offender. If you are notified that an arrest warrant has been issued for you, you should consult with your attorney regarding the next steps you should take. It is generally better to go to court than to report to a police department in response to an arrest warrant.

Misdemeanor Court Process

Your first day in court is called your arraignment. You will find out what charges are being filed against you, and your lawyer will help you determine whether to enter a plea of guilty, not guilty, or no contest. The prosecuting agency is responsible for deciding what charges to file in court, and whether to file the case at all. If the evidence against you is weak, the prosecutor’s office may decide not to file charges against you. The prosecuting agency may not file charges against you by your arraignment date, but they may decide to file charges against you several months after your arraignment date.

Depending on your particular situation, you may be interested in having your attorney negotiate with the prosecutor to obtain a lesser charge or a less serious sentence. You may want to avoid jail time at all costs, in which case your attorney could negotiate a plea agreement that would result in a sentence of community service or a fine instead of jail time.

Felony Court Process

Many courts operate Early Disposition courtrooms where defendants are offered plea bargains with reduced sentences as an incentive to plead guilty or no contest early in the process. Early Disposition Court dates are generally set soon after the arraignment date. In some cases, it may be in your best interest to resolve your case early in the process. For example, if you have a prior strike conviction that the prosecutor has not alleged, you may be able to shave years off of a prison sentence by pleading no contest before anyone realizes that you have a strike prior.

Drug Offenses: Alternatives to Prison

Possession of drugs such as powder or crack cocaine is a felony. However, there are various programs that you may qualify to participate in that will allow you to avoid prison for a drug offense.

Deferred Entry of Judgment (“DEJ”) — For a first-time drug offense, you may attend a series of drug treatment classes from court-approved providers in order to earn the eventual dismissal of your case.
Proposition 36 — You may qualify to participate in a Proposition 36 drug program instead of serving time in prison. The type of treatment you participate in will be determined through a substance abuse assessment. Consult with the attorney to see if you qualify.
Drug Courts — Many courts also operate specialized drug court programs that are designed for people with substance abuse issues. You may qualify for drug court even if you do not qualify for DEJ or Proposition 36.

Preliminary Hearing

If you plead not guilty in a felony case, the court will schedule a preliminary hearing. At this hearing, the prosecutor will call witnesses to prove that there is enough evidence against you to proceed with the case. The prosecutor does not have to prove that you are guilty at this stage. The standard is very low, and the prosecution almost always wins preliminary hearings. Your attorney will have the opportunity to cross-examine the prosecution witnesses during the hearing. Your attorney may also call defense witnesses, although in most cases it is better to wait until the trial to do so. Your attorney will argue that the case should be dismissed, or reduced to a less serious charge, at the conclusion of the preliminary hearing.

Although it is unusual, your attorney may be able to get your case dismissed at the preliminary hearing. If the witnesses do not identify you, or if there is no evidence of one of the elements of the crime, the Judge may decide that there is not enough evidence for the prosecution to proceed with your case, and the case would be dismissed.

Arraignment

If the Judge determines there is enough evidence for the prosecution to proceed with your case at the preliminary hearing, your next court date will be for an arraignment on the felony. You will likely have several other court dates before your trial date. The purpose of these court appearances will be for your attorney to make sure the prosecution has provided all of the evidence they have to the defense, to argue any motions and to negotiate a better plea bargain, if that is what you would like.

Plea Bargaining

Depending on your particular situation, you may be interested in having your attorney negotiate with the prosecutor to obtain a lesser charge or a less serious sentence. You probably want to avoid going to prison, in which case your attorney could negotiate a plea agreement that would result in a sentence of probation, community service, and participation in some form of counseling or rehabilitative program instead of jail time. If you are facing a long prison sentence, your attorney will negotiate for a sentence of fewer years in prison.

Your attorney will work with you, as well as with investigators and experts, to highlight weaknesses in the prosecutor’s case and to advocate for your desired outcome. Your attorney may be able to present mitigating information about you to convince the prosecutor to offer a less serious charge or sentence.

Misdemeanor And Felony Motions

A skilled attorney can challenge your case by filing written motions. The following are some of the legal motions your attorney may file on your behalf, depending on the circumstances surrounding your arrest:

Speedy Trial Motion — If a substantial amount of time has passed between the time of the crime you are charged with committing and the time of your arraignment, your attorney may be able to get your case dismissed as a violation of your Constitutional right to a speedy trial. You will need to consult with your attorney to see if your case is appropriate for this type of motion.
Motion to Suppress Evidence — The police must have a justified reason to stop you, search you, or arrest you. If they did not have adequate justification to do so, your attorney may be able to file a motion to suppress any evidence they recovered in the course of an unlawful search, or any statements you made after an unlawful stop or arrest.
Pitchess Motion — If the police engaged in misconduct during your arrest, such as using excessive force or planting evidence, or if they lied in the police report, your attorney might be able to file a Pitchess motion to obtain otherwise confidential information from the officers’ personnel files. This information can help your attorney locate potential witnesses who could testify regarding similar misconduct by the officer(s) during your trial.

Felony Motions

995 Motion — If the Judge determined that there was enough evidence presented at the preliminary hearing to go forward with the case, but your attorney feels that the judge incorrectly applied the law, a 995 motion can be filed to argue that the case should have been dismissed at the preliminary hearing.

Trial

You have a constitutional right to a jury trial. During the trial, the prosecutor will have to convince twelve jurors that you are guilty beyond a reasonable doubt. If you intend to go to trial, you will need an experienced attorney by your side. The trial will proceed in various steps:

Jury Selection — Various people who have reported to jury duty will be brought into the courtroom. The judge, the prosecutor, and your attorney will ask each prospective juror questions in order to determine if they can be fair. Your attorney will determine which prospective jurors would be most favorable for your case. Twelve jurors will be selected to hear the evidence in the case, and to decide whether you are guilty or not.
Opening Statements — The prosecutor will begin by presenting an opening statement that summarizes the evidence he or she expects to present in the case. Your attorney can decide whether to make an opening statement that summarizes the defense case at this time. Your attorney may also decide to wait to make an opening statement until the beginning of the defense evidence phase of the trial.
Prosecution Evidence — The prosecutor gets to present evidence first because the prosecution is responsible for proving that you are guilty. They will call witnesses to testify, including any victim(s) or other people who observed the incident. Generally, the arresting police officer also testifies. The prosecutor will also present any physical evidence, such as a weapon or drugs that were recovered during the investigation.
Defense — After the close of the prosecution evidence, your attorney will have the opportunity to present a defense. This may include calling witnesses who observed the incident any expert witnesses relevant to the defense. You have the right to testify or to remain silent. Your attorney will help you assess what would be in your best interest.
Closing Arguments: After all of the evidence has been presented, the prosecutor and defense attorney will present closing arguments to the jury, arguing why you should be found guilty or not guilty.
Jury Instructions — The judge will read the law that applies to the case to the jury. The jury will then be instructed to apply the facts, proven by the evidence, to the law.
Verdict — The jury will meet confidentially and will decide whether the prosecution has proven that you are guilty. In order to find you guilty, all twelve jurors must agree that you are guilty. If even one juror believes that the prosecutor has not proven you are guilty, you will not be convicted of the crime. If there is not a unanimous decision by the jurors, the Judge may order another trial with another set of jurors. Your attorney can also argue that the case should be dismissed without another trial. If all twelve jurors agree on a not guilty verdict, the case will be dismissed.

Sentencing

If you are found guilty in a trial, the judge will be responsible for sentencing you. Your attorney can present evidence and will advocate on your behalf in a sentencing hearing. Your attorney may call character witnesses and may present alternatives to jail time during the sentencing hearing, depending on your desired outcome. Typical sentencing options include jail, fines, community service, Cal Trans (which is work cleaning up freeways), counseling, substance abuse treatment, anger management classes, psychiatric treatment, and domestic violence classes. If you are sentenced to jail time, your attorney may be able to help you to be released on house arrest.

If you are accused of an infraction, misdemeanor, or felony in Los Angeles County or anywhere in California, contact criminal defense attorney Jerod Gunsberg in Los Angeles. Call Jerod at (323) 633-3423 for a confidential consultation or get in touch via the secure contact form on this page. Help is available 24 hours a day, 7 days a week.