Enhancements

Enhancements are a very powerful tool for the prosecution to use against the defendant in a criminal trial. An enhancement increases the amount of time that a defendant will spend in prison. The most common examples of enhancements are priors and gang relations.

Priors are straightforward, have you the defendant committed or been convicted of any prior felonies? If so, your sentence will be increased for each prior that you committed. For example, lets say you have committed three prior felonies and you are now out of prison and not on parole. You commit a new crime and are found guilty. Lets say the sentences is for one year. The judge will be required to add three (3) years to your sentence; one for each prior you have committed. This gives the prosecutor a lot of ground on which to negotiate against the defendant.

Gang enhancements are a little different. A gang enhancement can make a simple misdemeanor a felony offense. This means you could easily serve years in prison for something as simple as shoplifting. This tool is abused by the prosecution because the definition of a gang is vague. In general if you are a minority the prosecution will try to get a gang enhancement to be added to your charges. One's connection to a gang can be old or no longer exist. The prosecution doesn't care because getting convictions is all that matters to them. The prosecution has to show that the crime was committed on the behalf or for the benefit of the gang.

This sounds like it would be hard to prove for a person that left a gang 5 years ago, but if you have tattoos or other distinctive markings from a gang you are an easy target for the prosecution. The police and prosecution have wide latitude on what the present and how to convince the jury that you are a gang member.

As a general rule, enhancements make it much harder for a defendant to get a fair trial or for their counsel to get a good deal for their client.

California Penal Code section 451 (arson)

A person is guilty of arson when he or she willfully and
maliciously sets fire to or burns or causes to be burned
or who aids, counsels, or procures the burning of, any
structure, forest land, or property.
 (a) Arson that causes great bodily injury is a felony
punishable by imprisonment in the state prison for five,
seven, or nine years.
 (b) Arson that causes an inhabited structure or
inhabited property to burn is a felony punishable by
imprisonment in the state prison for three, five, or eight
years.
 (c) Arson of a structure or forest land is a felony
punishable by imprisonment in the state prison for two,
four, or six years.
 (d) Arson of property is a felony punishable by
imprisonment in the state prison for 16 months, two, or
three years.  For purposes of this paragraph, arson of
property does not include one burning or causing to be
burned his or her own personal property unless there is
an intent to defraud or there is injury to another person
or another person's structure, forest land, or property.
 (e) In the case of any person convicted of violating
this section while confined in a state prison, prison road
camp, prison forestry camp, or other prison camp or prison
farm, or while confined in a county jail while serving a
term of imprisonment for a felony or misdemeanor conviction,
any sentence imposed shall be consecutive to the sentence
for which the person was then confined.

In California an individual can face serious jail time for
committing arson. Under the code, a person is guilty of arson
if they willfully or maliciously set fire to or burn or cause
to burn or who aids in the process of one of three things:
a structure
a property
a forested land

If great bodily injury occurs the individual is looking at
5,7,9 years. If it is an inhabited structure or property the
individual is looking at 3,5,8 years.
If it is a structure or forest land the individual is
looking at 2,4,6 years.
If it is property the person is looking at 16 months, 2,3 years.

The prosecution will have to prove beyond a reasonable doubt
that the individual set fire or burned the structure/property
intentionally/on purpose or in a manner that was so reckless
that criminal intent can be inferred (e.g. using gasoline to
start a fire on a wooden floor in a home to burn trash).  The
prosecution will also have to prove that there was damage to
the property from the fire, but more than smoke damage.

California Vehicle Code Section 23152

23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) This section shall become operative on January 1, 1992, and shall remain operative until the director determines that federal regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of Federal Regulations do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.

(f) The director shall submit a notice of the determination under subdivision (e) to the Secretary of State, and this section shall be repealed upon the receipt of that notice by the Secretary of State.

The above quoted language is one of the most common vehicle code violations an individual is charged with. This is the category that most if not all people charged with a DUI or DWI fall into. The person is generally charged under section (a) and section (b). The section states that there is a presumption that the person was under the influence, if within three hours of being pulled over and tested, the individual tested a .08 or higher on the test. This presumption is rebuttable, meaning the defendant can overcome the presumption by presenting their own evidence.

Section (c) is applicable to individuals who are using narcoticsor on a drug rehabilitation program that is approved by the Health and Safety code. Section (d) states that it is illegal for a person to drive a commercial vehicle with a blood alcohol content over .04.

What you are charged with

When the prosecution brings a case, they charge the defendant with a crime. The prosecution can charge the defendant with anything they want. The defendant could be arrested for drunk driving and the prosecution could charge them with murder one, even though no one died or even got hurt from the drunk driving. Granted the above example is extreme and highly unlikely to ever happen.

However, what is more likely is that the prosecution will charge the defendant with a number of different crimes. The prosecution does this for a number of reasons. One, is that without all the evidence that would be determined during a full investigation leading up to the trial the prosecution does not know what crimes could be proven, so the prosecutor includes a laundry list. Two, the prosecution is attempting to scare the defendant into a plea deal by showing them how much they could be charged with. The later is in reality the stronger reason for a prosecutor to charge a large number of crimes as during the negotiations certain charged crimes will likely be dropped and in the end the defendant will hopefully only serve a sentence for the actual crime he or she committed, no the laundry list put forward by the prosecution.

A final word regarding charged crimes, while a person can be charged with any crime after being arrested the prosecution will generally only charge the defendant with the crimes which he or she believes can be proven at trial.

Parties to a Criminal Case

In a criminal case there are a number parties. There is the prosecution, the defense, the judge, jury, and the victims. The judge is ideally the neutral third party who makes sure that all of the parties are acting within the rules and not violating anyone's particular rights. The judge is the individual that makes decisions regarding legal questions (for example a violation of the fourth amendment or if the proper Miranda rights were read). The jury is the group that determines the questions of facts. For example, did the defendant have the requisite mental state of mind needed to be guilty of the charged crime.

The prosecution is the party who prosecutes the accused. The prosecution's client is society and the state. The prosecution's duty is to find justice and if the case goes to trial to prove beyond a reasonable doubt that the defendant is guilty of the crime charged.

The defenses does not technically have to do anything as all the burden is on the prosecution; however, it would be very dangerous to not put forth a defense. The defense will ideally poke holes in the prosecutions case and create doubt in the minds of the jury. By doing so the jury cannot find the defendant guilty beyond a reasonable doubt.

Lastly, the victims also have a limited amount of say in the trial (generally in the sentencing and restitution phase of the trial). The victim does not get to control the trial or tell the judge and/or prosecution what to do. The victims rights are largely controlled by Marcy's law.

Appeals

After the trial and the sentencing there is one more possible step. The defendant can appeal the outcome of the trial. There may be various grounds on which a defendant can appeal the verdict. Some possible appeals include ineffective assistance of counsel, jury misconduct, improper evidence or possibly habeas corpus.

The possible appeals depends on the type of trial you had and what happened during the trial. An appeal can be a very long and tedious process. Once again this depends on the circumstances of the cases. Generally it is very hard to win an appeal.

Lastly, a defendant can appeal the verdict of the case while the prosecution can only appeal in very limited circumstances but in general the prosecution cannot appeal.

When a defendant appeals the verdict the general process is the appeal goes up to the State Court of Appeals, then to the State Supreme Court. If there is a federal issue the case could go to the Federal Court of Appeals and then to the U.S. Supreme Court. Given the number of appeals that are possible this process can be very lengthy, it can drag out for a number of years.

Sentencing

Sentencing occurs after the trial is complete. Depending on the type of trial and how it was conducted there may be a trial to determine the sentence. This occurs in a bifurcated trial (a trial with two parts). In the sentencing part of a bifurcated trial the guilt is already determined. The trial is to determine the sentencing aspect of the case.

Sentencing can be surprisingly complex. If a person is guilty of committing a crime for the first time there is one of three levels (amount of time to serve) that can be applied, a minimum, the middle, and high. Generally the court will start with the middle and move towards the minimum or high end depending on the mitigating or aggravating factors of the case.

For example, lets assume you are charged with a crime that has 2, 4, 6 as the sentencing guidelines. This means the middle amount is 4 years - this is where the judge will start for purposes of sentencing. Lets assume there are a large number of mitigating factors and no aggravating factors, in this case the judge is likely to impose the 2 years as the sentence. Now lets assume there are a lot of aggravating factors but no mitigating factors, in that case the judge will likely impose a sentence of 6 years.

Now, things get much more complicated if you have prior strikes or are in a gang. Each of these can have a huge impact on the disposition of you case. These are generally called enhancements and are statutorily required. This means a simple 2 year sentence can end up being 8,10, or 20 years depending on what enhancements you may or may not have. Obviously the more enhancements you have the more time you are looking at serving.

In some cases even if you are found guilty of the underlying crime the judge may impose a stay on your sentence, this means, even though you were found guilty of the crime you will not be serving time unless you violate your parole. Once you violate your parole the sentence will instantly come into effect and you will have to serve your full sentence. A final note is time serve. If you are sentenced to a relatively small amount of time in jail, and you have been in custody, you may be able to leave shortly after you trial (if the trial took a long time) as you have already served a certain amount of time in jail awaiting trial