Common Criminal Law Terms

When two or more defendants are jointly charged, and one has made an extra judicial statement which inculpates a codefendant, that codefendant may move for severance on that basis; if the statement cannot be redacted to remove prejudice to the codefendant, either the prosecution must agree not to use the statement or the severance should be granted. (People v. Aranda (1965) 63 Cal. 2d 518; Bruton v. United States (1968) 391 U.S. 123; but see People v. Mitcham (1992) 1 Cal. 4th 1027)

Whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant’s decision to enter a guilty plea. The defendant can specifically enforce that term of the bargain, or if that’s not possible, withdraw his plea. The defendant can waive this right. (People v. Arbuckle (1978) 22 Cal. 3d 749); see also People v. Horn (1989) 213 Cal. App. 3d 701)

The prosecutor may not offer his personal opinion that defendant is guilty unless he explicitly states that such opinion is based in the trial evidence. (People v. Bain (1971) 5 Cal. 3d 839)

During voir dire, a party may not use peremptory challenges to systematically eliminate jurors who are members of a cognizable group (e.g. race, ethnicity, religion). (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal. 3d 258)

When a defendant has one or more prior felony convictions, on his or her motion the trial court must exercise discretion under Evidence Code section 352 whether to permit impeachment of defendant with any or all of the priors, using the factors identified in Beagle. (People v. Beagle (1972) 6 Cal. 3d 441; People v. Castro (1985) 38 Cal. 3d 301)

When the court uses a fact (other than the fact of a prior conviction) neither proven to the jury nor admitted by defendant to impose a sentence beyond the statutory maximum sentence permissible based on the jury’s verdict and/or defendant’s admissions, the court violates defendant’s Sixth and Fourteenth Amendment rights. (Blakely v. Washington (2004) 524 U.S. 296)

A valid guilty plea requires advisement and express waiver by defendant of the fundamental rights to jury trial, to confront and cross-examine witnesses, and against self-incrimination, as well as understanding the nature of the charge and the direct consequences of the plea. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal. 3d 122)

When a defendant is charged with a “status” enhancement (such as having a prior conviction or having committed a crime while on bail in another case), he or she may move for bifurcation of the trial proceedings so that the jury deciding the current charge is not prejudiced by being informed of the “status” enhancing allegation. People v. Bracamonte (1981) 119 Cal. App. 3d 644; see also, People v. Calderon (1994) 9 Cal. 4th 69

Due process requires the prosecution to disclose exculpatory evidence that is material to the defendant’s guilt or innocence, or to punishment. This duty includes disclosure of material evidence impeaching prosecution witnesses. Exculpatory evidence is material if it creates a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed. (Brady v. Maryland (1963) 373 U.S. 83)

At a probation violation hearing, a defendant may waive time served credits to get local time instead of a prison commitment. (People v. Burks (1998) 66 Cal. App. 4th 232)

When an appellant establishes the lower court proceedings contained error impacting his or her federal constitutional rights, the error requires reversal unless the prosecution can establish it was harmless beyond a reasonable doubt. Chapman v. California (1967) 386 U.S. 18.

A violation of the Sixth Amendment right to confrontation occurs where the government introduces “testimonial” out-of-court statements against the accused and where there has been no prior opportunity of cross-examination, overruling the”indicia of reliability” test set forth in Ohio v. Roberts (1980) 448 U.S. 56, which allowed such statements if they were reliable. (Crawford v. Washington (2004) 541 U.S. 36)

As a part of the plea agreement, defendant agrees that should s/he fail to appear at sentencing, a greater term can be imposed by the sentencing court. Defendant must be fully advised of, and waive, right to withdraw plea under PC § 1192.7. (People v. Cruz (1988) 44 Cal. 3d 1247; People v. Vargas (1990) 223 Cal. App. 3d 1107)

In a juvenile case, the minor has the right to a re-hearing if the probation officer, or preparer of the report(s) is not present at the detention hearing. (In re Dennis H. (1971) 19 Cal. App. 3d 350)

The prosecution is not allowed to impeach a defendant’s exculpatory statements by referring to defendant’s having remained silent after receiving Miranda warnings. (Doyle v. Ohio (1976) 426 U.S. 610)

A motion to reduce a wobbler to a misdemeanor pursuant to Penal Code §17(b). (Esteybar v. Municipal Court (1971) 5 Cal. 3d 119)

When the Defendant moves for a lineup. (Evans v. Superior Court (1974) 11 Cal. 3d 617)

When the trial court miscalculated the presentence credits award, before the issue can raised in the Court of Appeal, appellant must first file a formal motion in the trial court to attempt to correct the error. Appellant is not precluded from initially attempting to correct the error through an informal letter (People v. Clavel (2003) 103 Cal. App. 4th 516, 519, fn. 4), but if the informal request is denied, appellant must pursue a formal motion in the trial court before raising the matter in the Court of Appeal. (People v. Fares (1993) 16 Cal. App. 4th 954; Pen. Code, § 1237.1)

Upon a basic showing of competence, a criminal defendant is entitled, on demand, to represent himself or herself. (Faretta v. California (1975) 422 U.S. 806)

Upon a sufficient prima facie showing, in conjunction with a motion to suppress evidence, a defendant is entitled to a hearing at which to present evidence controverting the information provided in the search warrant affidavit (a motion to “traverse” or “quash” the warrant). (Franks v. Delaware (1978) 438 U.S. 154)

A prosecutor is not permitted, either expressly or by direct implication, to comment in the presence of the jury on a defendant’s exercise of the right against self-incrimination. (Griffin v. California (1965) 380 U.S. 609).

A motion by the Defendant to obtain the psychiatric records of a witness for the prosecution. (People v. Hammon (1997) 15 Cal. App. 4th 1117; People v. Reber (1986) 177 Cal. App. 3d 523).

Absent a waiver by defendant, a sentencing court is not permitted to rely upon information relating to counts dismissed in accordance with a plea bargain. (People v. Harvey (1979) 25 Cal. 3d 754)

Upon a showing that the loss or destruction by law enforcement of exculpatory evidence infringes on defendant’s due process rights, the defendant may seek sanctions ranging from dismissal to suppression of certain evidence to favorable jury instructions. (Arizona v. Youngblood (1988) 488 U.S. 51; California v. Trombetta (1984) 467 U.S. 479; People v. Hitch (1974) 12 Cal. 3d 641)

A motion to force the prosecution to disclose the identity of a material confidential informant. (People v. Hobbs (1994) 7 Cal. App. 4th 948)

A Defendant can waive credits for time served, or future time to be served, even if it means Defendant’s total time in custody will exceed the maximum term of the sentence. (People v. Johnson (2002) 28 Cal. 4th 1050)

The prosecution must join, in one case, all offenses/counts that flow from the same act. (Kellett v. Superior Court (1966) 63 Cal. 2nd 822)

Instructing the jury so that jury is precluded from deliberation on necessarily included offenses unless the jury first acquits defendant of the greater offense. Kurtzman held that Stone v. Superior Court (1982) 31 Cal.3d 503 does not prohibit the jury considering or discussing lesser offense before returning a verdict on greater offense, but jury must first unanimously agree defendant is not guilty of greater crime before returning a verdict on lesser offense. (People v. Kurtzman (1988) 46 Cal. 3d 322)

Where a search and seizure of evidence has been accomplished pursuant to a warrant which the defendant can show was not supported by probable cause or was in some other way defective, the evidence seized may nonetheless be admissible if the officer executing the search warrant reasonably and in good faith believed the warrant was valid. (United States v. Leon (1984) 468 U.S. 897)

A motion to secure information on a confidential informant. (People v. Luttenberger (1990) 50 Cal. 3d 1)


When defendant expresses to the court a desire to have new counsel appointed, the court must give the defendant the opportunity to articulate the reasons in support of the request in order to properly exercise discretion whether to relieve existing counsel. (People v. Marsden (1970) 2 Cal. 3d 118; see also, People v. Ortiz (1990) 51 Cal.3d 975)

When the police violates a Defendant’s Miranda rights by secretly questioning him/her by an undercover agent. (Massiah v. U.S. (1964) 377 U.S. 201)

When a material witness is rendered unavailable due to an action of the government (e.g. deportation). (People v. Mejia (1976) 57 Cal. App. 3d 574)

Before engaging in custodial interrogation of a crime suspect, a police officer must advise the suspect of his or her rights against self-incrimination and right to counsel. (Miranda v. Arizona (1966) 384 U.S. 436)

Morrissey established minimal due process requirements in parole revocation proceedings including an informal hearing to assure the violation is based on verified facts. (Morrissey v. Brewer (1972) 408 U.S. 471)

Defendant may be entitled to a dismissal of criminal charges upon a showing of selective prosecution for improper purposes, amounting to a violation of right to equal protection of law. (Murgia v. Municipal Court (1975) 15 Cal. 3d 286)

Upon a proper prima facie showing by a defendant charged with a crime against a law enforcement officer (such as resisting arrest), the defense may be entitled to discovery of complaints by other people against the officer in order to try to show a pattern of aggressive behavior by the officer. (Pitchess v. Superior Court (1974) 11 Cal. 3d 531)

These are the foundational cases for the definition of the standards of performance of counsel for use in evaluating a claim of ineffective assistance of counsel. (People v. Pope (1979) 23 Cal. 3d 412; People v. Fosselman (1983) 33 Cal. 3d 572 see also Strickland v. Washington (1984) 466 U.S. 668)

Absent an arrest warrant or exigent circumstances, the arrest of a crime suspect in his or her own home is unlawful. (People v. Ramey (1976) 16 Cal. 3d 263)

A short term commitment to juvenile hall imposed as a condition of probation in a juvenile delinquency case. (In re Ricardo M. (1975) 52 Cal. App. 3d 744.)

The sentencing court has discretion to strike prior conviction(s) (Pen. Code § 667(b)-(i)). (Romero v. Superior Court (1996) 13 Cal. 4th 497)

A delay of more than one year between an arrest and the filing of misdemeanor charges is presumptively prejudicial and 6th Amendment rights attach. ((People v. Serna (1985) 40 Cal. 3d 239; but see People v. Belton (1992) 6 Cal. App. 4th 1425.)

When a parolee waives his/her presence at a parole violation hearing but still wants to contest the revocation of parol. (In re Shapiro (1975) 14 Cal. 3d 711)

A court trial in which the defendant is advised of the same rights that would be attendant to a guilty plea and which the court indicates the high probability of a guilty verdict; however, issues that would have been waived by an actual guilty plea are not waived and are preserved for appeal. (Bunnell v. Superior Court (1975) 13 Cal. 3d 592)

Police may perform a pat down search for weapons where there is reason to believe the suspect is armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1)

An evidentiary hearing held to establish the facts for a violation of probation. (Vickers extended the due process rights of accused parole violators in Morrissey to accused probation violators.) (People v. Vickers (1972) 8 Cal.3d 451)

When appellate counsel establishes error which does not rise to the level of the Chapman standard (and is not one of those rare types of error which is reversible per se), reversal is not required unless the appellant can show the error resulted in a miscarriage of justice, namely that absent the error a more favorable result for the defendant was reasonably probable. (People v. Watson (1956) 46 Cal. 2d 818).

When appellate counsel has reviewed the entire record and cannot locate any arguably meritorious issues, counsel should not take a position adverse to his or her client, but should file a pleading directing the court to any potential issues, and requesting that the appellate court review the record for possible error in the court below. (People v. Wende (1979) 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738)

West is the seminal case discussing the legality of plea bargaining in California, and is cited for many, many legal propositions. However, a “West plea” is most likely to stand for a plea which “does not constitute an express admission of guilt but only a consent to be punished as if guilty.” (People v. Bradford (1997) 15 Cal.4th 1229, 1334.) Typically, the defendant stipulates to a factual basis for the plea. (See, e.g., People v. Westbrook (1996) 43 Cal.App.4th 220, 223 [factual basis from grand jury transcripts].) (People v. West (1970) 3 Cal.3d 595)

Prosecutor may not use peremptory challenges to remove potential jurors who are members of a cognizable group based on group bias. (People v. Wheeler (1978) 22 Cal.3d 258)

A crime that can either be charged as either a misdemeanor or a felony (at the choice of the prosecutor).

Boykin-Tahl requirements apply to enhancing allegations. (In re Yurko (1974) 10 Cal. 3d 857)

A motion to exclude evidence on the basis of undue prejudice and other criteria listed in the statute. (California Evidence Code §352)

A hearing held outside the presence of the jury to decide the admissibility of evidence. (California Evidence Code §402)