Most Important Rule: After any arrest in California, say nothing except your name and immediately ask for an attorney. Anything you say can and will be used against you.
Your Constitutional Rights After Arrest
Whether arrested for a misdemeanor or felony in San Diego, you have these rights:
- Right to remain silent (5th Amendment) — you are not required to answer police questions beyond your name and address
- Right to an attorney (6th Amendment) — if you cannot afford one, a public defender will be appointed at arraignment
- Right against unreasonable search and seizure (4th Amendment) — evidence obtained illegally can be suppressed under Penal Code §1538.5
- Right to a speedy trial — California Penal Code §1382 requires trial within 30 days of arraignment for misdemeanors and 60 days for felonies (unless you waive time)
- Right to bail — most California defendants have a right to bail (Penal Code §1268), though it may be denied for serious or violent felonies
Miranda Rights in California
Police must read you Miranda warnings before a custodial interrogation. If they fail to do so and you make incriminating statements, those statements may be suppressed. However, volunteered statements made before arrest (when you were not in custody) are not protected by Miranda.
Invoking Your Rights: Courts have held that you must affirmatively invoke your rights. Say clearly: "I am invoking my right to remain silent and my right to an attorney." Then stop talking.
The San Diego Criminal Court Process
| Stage | Timeline | What Happens |
|---|
| Arrest / booking | Day 1 | Fingerprinting, photograph, held in custody or released |
| Arraignment | Within 48 hours (in custody) / 30 days (cite release) | Charges read, plea entered, bail set |
| Preliminary hearing (felony) | Within 10 court days of arraignment | Judge determines probable cause |
| Pre-trial motions | Before trial | Suppression motions, discovery disputes |
| Trial | Within 30 days (misd.) / 60 days (felony) of arraignment | Jury or bench trial |
| Sentencing | After conviction | Probation, county jail, or prison |
PC §1538.5 — Suppression of Evidence
One of the most powerful tools in California criminal defense is the Penal Code §1538.5 motion to suppress evidence. If police conducted an unlawful search or seizure — no warrant, no exception, or exceeded the scope of a warrant — the evidence can be excluded from trial. Common grounds in San Diego cases include:
- Unlawful traffic stops (no reasonable suspicion)
- Warrantless vehicle searches without consent or probable cause
- Home searches without a warrant (absent emergency exceptions)
- Prolonged detentions beyond the scope of the initial stop
- Cell phone searches without a warrant (Riley v. California)
California Felony vs. Misdemeanor vs. Infraction
California has "wobblers" — crimes that can be charged as either felony or misdemeanor depending on the circumstances and the DA's charging decision. A skilled San Diego criminal defense attorney can often convince the DA to charge a wobbler as a misdemeanor, or negotiate a misdemeanor reduction after filing.
Felonies: More than 1 year in state prison. Misdemeanors: Up to 1 year in county jail. Infractions: Fines only, no jail.
Proposition 47 — Drug Possession Reform
Under California Proposition 47 (2014), simple possession of controlled substances is a misdemeanor, not a felony. Many San Diego drug cases that would have been felonies before 2014 are now misdemeanors. If you have a pre-Prop 47 felony drug conviction, you may be able to petition for reclassification.
Frequently Asked Questions
What is the difference between a misdemeanor and a felony in California?
In California, felonies carry potential state prison sentences over one year, significant fines, loss of voting rights while incarcerated, and prohibition on firearm possession (Penal Code §29800). Misdemeanors carry up to one year in county jail and smaller fines. Many California crimes are 'wobblers' — chargeable as either. A San Diego criminal defense attorney can often negotiate wobbler charges down to misdemeanors through pre-filing interventions or plea negotiations.
Can a criminal conviction be expunged in California?
Under Penal Code §1203.4, if you successfully complete probation (or serve your sentence without probation), you can petition to have your conviction dismissed/expunged. Expungement allows you to legally answer 'no' to most private-sector job applications. However, it does not seal your record from government background checks, professional licensing boards, or immigration proceedings. Serious felonies (sex offenses requiring sex offender registration, murder) are not eligible.
How does bail work in San Diego County?
After arrest, bail is typically set according to the San Diego County Bail Schedule. A judge can modify bail at arraignment based on flight risk and public safety. If you cannot afford bail, a bail bondsman typically charges 10% of the bail amount (non-refundable) to post a bond. Alternatively, a criminal defense attorney can argue for release on own recognizance (OR release) or reduced bail at arraignment or a subsequent bail hearing.
What is a Pitchess motion in California?
A Pitchess motion (from Pitchess v. Superior Court) allows defense attorneys to request an in-camera review of a police officer's personnel file for prior complaints of misconduct, excessive force, or dishonesty. If the court finds relevant material, it may be disclosed to the defense. Pitchess motions are common in San Diego excessive force, DUI, and search-and-seizure cases where officer credibility is central to the defense.
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