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Public Defender - Resources

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1. Are Deputy Public Defenders real lawyers?

Absolutely! All Deputy Public Defenders are full-fledged attorneys who are members of the State Bar and have been licensed to practice law in the State of California. In order to become a Deputy Public Defender, any individual who has already passed the State Bar examination must also go through a rigorous interview and oral examination to ascertain whether he or she has the intellectual ability, the legal knowledge, and the commitment to practice criminal defense law.

Throughout their entire careers as Deputy Public Defenders, all attorneys are further required to continue their legal education by attending regular classes and seminars regarding any advances in the practice of criminal defense law.

2. How do I get a Deputy Public Defender to represent me?

The primary responsibility of the Public Defender's Office is to ensure the representation of any person - whether in custody or not - who has been accused of a crime, but is currently unable to afford to hire private defense counsel.

1. If you have been arrested and remain in custody, you will be brought to a local court usually within 48 hours of your arrest. If you are not in custody, you will be given a time and place to appear for your first court date. The first court date is called the arraignment. When you first appear in court for your arraignment, you may appear with private counsel.
2. If you are not able to hire a private attorney the judge will ask you if you intend to hire an attorney, or if you are requesting the Public Defender be appointed to represent you. The court may make inquiry as to your financial resources, but more commonly, the court appoints our office to represent you and schedules your next two court dates. You will be directed to contact the Public Defenders office and fill out a financial evaluation form.
3. The County of Napa requires that this form be completed, disclosing your income and assets. A Public Defender employee will be able to assist you in filling out this form. An initial determination as to whether you are eligible for our services will be made by the Public Defenders Office. If you are told you do not qualify for our services and you believe you should, simply notify our staff and the matter will be calendared for an eligibility hearing before a Judge or Commissioner so that the judge can determine if you are entitled to appointed counsel. no person will be denied representation due to their inability to pay for attorney services.
4. When you first come to our office all misdemeanor defendants will be able to schedule an appointment with the attorney who will represent you until the conclusion of their case. If you are charged with a felony, the file will be reviewed to select the most appropriate attorney and you will be asked to call the office within a day or two to schedule your first appointment with the lawyer who will remain with you until the conclusion of your case.
5. If you are in custody when the Public Defender is appointed, the court will notify us that we now represent you and we will send your attorney to the jail to interview as soon as possible. It is important that your deputy public defender have a copy of the police reports and charges before they interview you. At your first meeting, the deputy public defender will explain the court process and the nature of the charges against you.

3. Can I get advice from a Deputy Public Defender before I appear in court?

Before an individual who is in custody may be questioned regarding a crime, the law requires the police to inform that person that they have the right to remain silent and the right to counsel. If the person does not waive the right to an attorney, the police must arrange for the presence of an attorney before questioning can take place. Likewise, if the police wish to place a person who has been arrested into a lineup, that person has the right to the presence of an attorney at the lineup. The Public Defender has attorneys available to serve those functions. An attorney who responds to the police station or jail serves as the person's attorney in the same way as if the attorney had been retained to represent the person. The attorney represents the client, not the police.

If you are in custody in the Napa County Department of Corrections, there is a toll free number to dial our office directly during normal business hours. Usually the support staff can tell you when you can expect to appear in court and direct you to ask for the court to appoint us at that time. If you have sustained injuries which might be relevant to your defense, an investigator can be dispatched to take photos.

Our staff can advise you what to expect at your first appearance, but are not able to discuss the particulars of your case until the charges and police reports are available and we have been appointed to represent you.

4. How do I contact my Deputy Public Defender?

If you are charged with a misdemeanor and we have your case number available, the receptionist will be able to determine whom your attorney is and schedule an appointment. You can leave a message via voice mail for that attorney, if you have already met with him or her. Each time you have to leave a telephone message for your attorney or speak with a receptionist, always remember to speak slowly and clearly. Leave your complete name, your case number, your next court date (if you know it), a telephone number, and the best time for your attorney to contact you. If you leave repeated messages which are not returned, please check with the receptionist to make sure you are contacting the right attorney. If you still do not get a call back, ask for a supervisor, or submit a written request.

5. I forgot the name of my Deputy Public Defender. How can I find out who is representing me?

Call the Public Defender's Office. Provide the receptionist with your full name. She will ask you whether it is a felony or a misdemeanor. If you do not know, that is okay. She will still be able to tell you who your attorney is. If your case is in warrant status, or if you are facing a Violation of Probation, you may be assigned a different attorney than the original.

6. I forgot where my court is located. How can I find out where I'm supposed to appear?

Most criminal appearances are scheduled in the Criminal Courts Building located at 1111 Third Street in downtown Napa. They are usually scheduled in Department D or E, located on the second floor of the building. Family support matters (civil child support) are often scheduled in the Historic Courthouse located at 825 Brown Street in downtown Napa. These courts are virtually across the street from one another. If you are a juvenile, your hearing will be scheduled at the Juvenile Hall courtroom located at the juvenile probation facility at 2350 Old Sonoma Road in Napa. You can always call the Public Defenders Office and the receptionist at 707-253-4442, or your attorney can tell you where you should be.

All courts are concerned with security issues. Most have metal detectors and limitations on what you can bring into a courthouse. Even seemingly harmless items, such as food, beverages and nail clippers can result in confiscation or delays in entering the building. Cell phones must be turned off in all courtrooms.

7. I can't afford a lawyer! Will I have to pay to be represented by the Public Defender's Office?

You might, but it depends on your personal financial situation. Under California law, every person who is represented by a court-appointed attorney, including the Public Defender's Office, may be asked to pay a registration fee of up to $25 to the County of Napa. You will not be forced to pay anything if you cannot afford to pay the registration fee.

When your case ends, if you have been represented by appointed counsel, such as the Public Defender's Office, the judge may conduct a hearing to determine whether or not you have the present ability to pay all - or a portion of - the costs of your court-appointed attorney. At this hearing, depending upon your income and expenses, the judge may order you to pay for the cost of the services of your attorney, some of the cost - or none. If the judge determines you have the ability to pay some or all of the costs, you will be ordered to pay according to your financial situation and the level of service provided. If you cannot afford to pay, you will not be required to do so. In the past, most defendants were not required to pay. Now, in each case, the court will make inquiry into your ability to reimburse.

8. How much can I earn and still be eligible for the services of a Deputy Public Defender?

It depends on all of your current financial circumstances and how much debt you have. As such, there is no specific dollar figure which makes you ineligible for the services of a Public Defender. For example, individuals who are in custody and are unable to post bail are presumed to be eligible for Public Defender services. On the other hand, if they can afford to post a large amount for bail, or own a home, they might not be eligible. If they have enough financial assets to afford private counsel, they are not eligible to be represented by a Public Defender.
Regardless of whether a defendant is in custody or out of custody, all of that person's financial obligations (such as the need to support a family, pre-existing debts, rent/mortgage, etc.), are balanced against assets and income, including community property income, in determining whether that person can afford to hire private counsel.

9. What if the Public Defender cannot represent me?

The County of Napa has entered into contracts with two other law offices to provide representation for those who are not able to be served by the Public Defenders Office. This may occur, for example, when our office already represents another defendant accused in the same case, or the defendant happens to be a witness against another public defender client in a separate case. This is called a "conflict of interest." Attorneys who work for these two law offices are not employees of the Public Defender's Office. These two law firms are the Offices of Mervin Lernhart and the Office of Peter Firpo. Mervin Lernhart can be reached at 707-255-5150. Peter Firpo can be contacted at 888-274-7778.
When both contract law firms and the Public Defender cannot represent a client because of a conflict of interest, the court then appoints a private attorney. Those attorneys, likewise, are not employees of the Public Defender's Office.

10. Are all "appointed attorneys" employees of the Public Defender's Office?

No. If you are accused of a crime and cannot afford to hire your own attorney, the court will usually appoint the Public Defender's Office to represent you. However, in some situations, a "conflict of interest" may arise, which would make it impossible for our office to effectively work on your behalf. A good example of this might be where our office is already representing another defendant accused in the same case. In that event the court will appoint an attorney from one of the contract law office listed above, or an attorney in private criminal defense practice. The attorneys who accept such appointments are not employees of the Public Defender, even though they have been appointed by the court.

11. What happens when someone is charged with a felony?

A felony is a serious criminal charge, which is defined in terms of possible punishment. It is defined in the California Penal Code as "any crime that is punishable by death or by imprisonment in state prison." In most cases, a felony prosecution starts with an arrest. Written police reports are presented to the District Attorney's Office, which then decides what charges, if any, should be filed and whether those charges will be felonies or misdemeanors (which are less serious crimes punishable by no more than a year in county jail and/or a possible fine).

For full information, see the Charged With a Felony page.

12. What happens when someone is charged with a misdemeanor?

A misdemeanor is defined as a crime that is punishable by fine and/or imprisonment in a County jail for one year or less. As in most criminal cases, a misdemeanor prosecution starts with an arrest. However, unlike of a felony arrest, most persons charged with misdemeanors are detained only for a short time before they are released by police after promising to appear at their next court date by signing a citation that is known as a "promise to appear."

For more information, see our Charged With a Misdemeanor page.

13. Will the Public Defender represent me if I am a resident of another state?

Yes. If you are charged with an offense that is filed in a court within the County of Napa, and you are unable to afford to hire an attorney, the Public Defender's Office is available to represent you, regardless of the state where you reside. The Public Defender's office also represents clients in extradition proceedings. Your residency, citizenship status, or the type of proceeding you are involved in may raise issues unique to your case, however, and should be discussed with the attorney who is assigned to represent you.

14. Will the Public Defender's Office represent me if I am a citizen of another country?

Absolutely. If you are charged with an offense that is filed in a court within the County of Napa, and you are unable to afford to hire a defense attorney, the Public Defender's Office is available to represent you, regardless of your citizenship status. The Public Defender's office also represents clients in extradition proceedings. Your residency, citizenship status, or the type of proceeding you are involved in may raise issues unique to your case, however, and should be discussed with the attorney who is designated to represent you.

15. Will the Public Defender's Office represent me in an extradition hearing?

The Public Defender's office does represent clients in extradition proceedings. However, extradition hearings do not usually address whether you have committed any crimes. The purpose is to determine if you are the person for whom the warrant has been issued.

16. My English is limited. How can I get an interpreter to assist me or my witnesses?

The Public Defender will make arrangements to obtain the assistance of an interpreter. There is no charge to the client or witnesses for interpreter assistance. However, be sure to inform the receptionist or your lawyer that you need an interpreter. Often people may think they can understand enough English to "get by." Unfortunately, sometimes in court there might be special meanings of words which can make a critical difference in the handling of a case. Further, court proceedings can be confusing enough without adding the complication of unfamiliarity with the English language. If there is any doubt as to whether you can understand everything that is being said to you and about you, it is far safer to use the services of an interpreter.
An interpreter will be made available not only for interviews and consultations, but also for court proceedings, and during investigations. A few of our attorneys, clerical staff, and investigators are fluent in Spanish. If you need an interpreter for a language other than Spanish, it is important that you inform your lawyer as much in advance as possible. Occasionally it is helpful to use a family member who speaks some English to help make clear exactly which language and dialect is spoken by the person who needs assistance. Afterwards a court interpreter - one who is familiar with court terminology - will be obtained for whichever language or dialect is needed for you to be able to clearly communicate and understand everything that is going on in your case.

17. Who is eligible for drug treatment within the criminal justice system under Proposition 36?

There are a variety of ways to get drug treatment when a person is charged with a crime. First time drug offenders may be eligible for Penal Code Section 1000 diversion, which results in the complete dismissal of charges upon successful completion. Napa County has drug court, in which people who are addicted to drugs can enroll in an intensive drug treatment program. Proposition 36 requires the state to offer drug treatment instead of incarceration if a person is convicted of certain drug possession offenses or drug use offenses. Under some circumstances, a person who is convicted of certain crimes and is addicted to drugs can be committed to the California Rehabilitation Center (CRC) for drug treatment.

18. I have heard about the success of Drug Treatment courts. How do they differ from regular criminal courts?

The traditional adversarial system of justice, designed to resolve legal disputes, has been determined not to be highly effective at addressing alcohol or drug abuse. Indeed, many features of the court system and the roles the justice system professionals play might actually contribute to alcohol or drug abuse instead of curbing it: traditional defense counsel and prosecutor functions and court procedures often reinforce the offender's denial of an alcohol or drug abuse problem. The offender may not be clinically assessed until months after arrest, if at all. Moreover, the criminal justice system is often an unwitting enabler of continuing drug use because few immediate consequences for continued drug use are imposed. When referrals to treatment are made, they can occur months or years after the offense and there is little or no inducement to complete the program from a legal standpoint.

Learn more by reading our Drug Treatment Courts page.

19. What happens when someone under the age of 18 is charged with a crime?

A child who is charged with committing a crime, with habitual truancy, or with incorrigibility, comes within the jurisdiction of the juvenile delinquency court. After a child is arrested, the child may be released to a parent and cited into court at some future date - or transported to a juvenile hall. The police then submit their reports to the District Attorney's Office. If the District Attorney's Office decides to charge the child with a crime, the matter is set for arraignment in juvenile court.

Learn more by reading our Child Charged With a Crime page.

20. My child, who is under 18, has been arrested and needs drug treatment, mental health treatment, or specialized education. Can the Public Defender help?

There are programs available to minors to deal with problems involving drug abuse, mental health issues and specialized educational needs. These programs are provided through various state and county agencies and can be accessed by parents themselves or with the help of private advocates. If your child is represented by the Public Defender's Office, please alert the lawyer to any problems your child has with drugs, school or mental health so that our office can consider your child’s individual needs. Also, any records you have which relate to these problems should be shown to the lawyer. If the Juvenile Court is not made aware of the problems, the source of a behavioral problem might go undiscovered and untreated, and the child may not receive the full benefit of the resources available to the Court.

21. Will the Public Defender's Office represent me in the appellate courts?

Appellate court litigation can occur either before or after conviction. It is sometimes necessary for the Public Defender to challenge an order of a trial court before conviction. Such challenges are called writ proceedings. Each Deputy Public Defender is responsible for any appropriate motions, including pre-trial writs.

The Public Defender's Office is generally permitted by law to handle post-conviction appeals in the appellate courts only for defendants who were represented by the Public Defender's Office in the trial court. The appellate process takes a very long time to be completed, and is a very specialized practice. The Public Defenders Office does not have an appellate staff to enable us to routinely handle post-conviction appeals. Other counsel is available to be appointed for the appeal. Upon request of the client, the Deputy Public Defender who represented the defendant will file the documents in the trial court necessary for starting the appellate process and to obtain the appointment of appellate counsel. There are very specific and short time frames within which to file an appeal. Please notify your Deputy Public Defender promptly, in order to timely file your notice of appeal and request for appointment of appellate counsel.

22. Will the Public Defender represent me in a habeas corpus proceeding?

A writ of habeas corpus is an order directing authorities to bring the defendant before a court to determine whether keeping the defendant in custody is legal or not. It is also a way of challenging the constitutionality of a conviction.

If a habeas corpus petition needs to be filed in a pending case that is already being handled by our office, the Public Defender will do so. If the nature of the writ of habeas corpus relates to a condition of confinement at the Napa County Department of Corrections, you will be asked to first utilize the jail’s administrative process. Also, the Department of Corrections must provide you with a writ of habeas corpus form which you can send directly to the court. The court assigns a judge to review such writs and determine if it should be set for a hearing or denied.

The Public Defender may also agree to file a petition for writ of habeas corpus for a person after conviction, particularly in cases where the validity of the conviction itself is in issue, or where it appears that a person is being unlawfully detained in custody.

23. I want to hire a private detective to talk to witnesses in my case, but I can't afford to. Does the Public Defender's Office have access to any police officers or investigators who can help me?

The Office of the Public Defender has a staff of highly trained and experienced investigators. Their job is to track down any witnesses and obtain any physical evidence that might prove a client's innocence or demonstrate a weakness in the prosecutor's case against the client. They may also take photographs, draw diagrams, locate appropriate expert witnesses, and otherwise help with the logistics of presenting a defense. These individuals are also quite skilled in interviewing anyone who may have an impact on the outcome of a client's case.

Quite frequently, it is due to the work by a dedicated Public Defender investigator that an innocent client is released from custody. Other times that work helps to obtain lighter sentences for individuals who have been convicted. The Public Defender investigator works directly for the Public Defender Office and is not available for persons who are not represented by our office.

24. I know my attorney can't repeat anything I say to him in confidence. But how can I be sure that what I say to a Public Defender investigator or paralegal will be kept confidential?

The attorney-client privilege concerns the confidential communication between lawyer and client which cannot be disclosed to anyone without the consent of the client. This same privilege extends to all employees of the Public Defender's Office.

25. I want to sue the Police Department. Will the Public Defender represent me?

The Public Defender handles only criminal cases. The state law does not allow us to represent persons who want to file a civil lawsuit.

26. I like a certain Deputy Public Defender, can I pick who represents me?

When an individual hires an attorney they are free to hire whomever they choose. In the Public Defenders Office cases are assigned by the Napa County Public Defender. Assignments are made based on the nature or seriousness of the charges, criminal record of defendant, courtroom to which the case is assigned and on the skill and experience level of the attorney, among many other factors. The Public Defender has an obligation to the public to make the best use of the resources available to her. We need to ensure that each attorney has sufficient time to represent each client to the best of his ability. Consequently, defendants are not entitled to select which of the Deputy Public Defenders will represent them in the pending case.

27. I don’t like my Deputy Public Defender. How do I get a new one?

It is understandable that defendants feel the system is not responsive to their needs or that they are not being treated fairly. Being charged with a criminal offense is often frightening and it is difficult to understand the legal process, jargon and consequences. The role of the defense attorney is to vigorously represent the interests of his or her client. This includes ensuring that the client is well-informed and understands what is happening to him or her. If a client is dissatisfied with the work of the Deputy Public Defender the client should submit a written request addressed to the Public Defender (Terry Davis) or the Chief Assistant Public Defender (Ronald Abernethy). The request should include your name, address, phone number, case number and who your Deputy Public Defender is. You should tell where you are in the process (for example: sentenced, or awaiting trial) and what problems you are having and what you would like to occur. You will get a phone call or written response within two working days. Direct you writing to:
Napa County Public Defender
1127 1st Street
Napa, CA 94559

28. I was treated unfairly by the judge in my case, and I want to sue the court. Will the Public Defender's Office represent me?

The Public Defender's Office only handles criminal cases in criminal court. The best way to litigate any improper action by a judge is through appellate attorneys who represent clients in the appellate courts. However, an appellate attorney can only successfully appeal your case only if the judge, the District Attorney or even your own defense attorney did something significantly wrong.

A defendant who has been convicted after a trial always have the right to appeal the conviction. This process is initiated by the trial attorney. Your Deputy Public Defender will file a notice of appeal in the trial court on your behalf if you wish to appeal your case. A lawyer who does not work for the Public Defender, and who specializes in appeals, will then be appointed by the Court of Appeal to represent you on appeal. That attorney will be the one who to consider what you can do about any complaints against any judge who you feel treated you badly during your criminal case.

29. I was treated unfairly in court and I want to sue the jury. Will the Public Defender's Office represent me?

No. Our system of justice gives the power to decide the guilt of every defendant to a jury of 12 people who have been carefully instructed by the judge, the prosecution, and the defense on how to make a fair and just assessment of a defendant's guilt or innocence. Juries cannot be sued; however, in some circumstances, the judge can use his or her discretion to override the decision of the jury if the court finds that the jurors were clearly mistaken or biased in reaching their verdict.

30. I am the victim of a crime. Will the Public Defender represent me?

The interests of those who are victims of a crime are usually represented by the prosecutor's office, whose mandate is to see that those who victimize others are punished for their crimes. However, if you are a victim of a miscarriage of justice resulting from false police reports or other police misconduct, the Public Defender will defend you against criminal prosecution. The Public Defender is unable, by law, to pursue any civil case against your accusers. You may be the victim of a crime but are erroneously being prosecuted instead of being recognized as the victim. The Public Defender will defend you on the criminal charges.

31. I need a lawyer to help me in a civil case (like divorce, landlord/tenant dispute, debt payment, bankruptcy, child custody, personal injury action). Does the Public Defender handle that type of case?

In general, the Public Defender only represents persons subject to criminal prosecution, civil commitment, or contempt citation. The Public Defender's Office also represents individuals charged in criminal cases resulting from non-payment of child support, or those who are threatened with contempt because of an alleged violation of a civil court order for them to pay child support. Our office also represents those individuals who have been detained civilly through a conservatorship or other mental health commitment. In all other cases, the Public Defender does not represent individuals in civil cases, nor can our Office recommend any particular attorney or law firm.

The State Bar of California provides a certified lawyer referral service. The State Bar is located at:

• 1149 S Hill Street
  Los Angeles, CA 90015-2299
  Phone: 213-765-1000
• 180 Howard Street
  San Francisco, CA 94105-1639
  Phone: 415-538-2000

32. How do I get a certificate of rehabilitation?

A certificate of rehabilitation generally allows a person convicted of a crime to have his or her civil and political rights of citizenship restored. The granting of a certificate of rehabilitation also serves as an application to the Governor for a pardon. In order to qualify for a certificate of rehabilitation, a person must establish that he or she has lived an honest and upright life; that at least seven years have passed since the completion of the sentence, probation, or parole; there has been no further incarceration since his or her initial release from custody; and that he or she has resided in California for the past three years. Individuals convicted of some crimes, such as those that carry mandatory life parole terms and certain sex offenses, are not eligible for a certificate of rehabilitation.

33. What if I have a question not answered here?

Call our office at 707-253-4442 and ask for assistance. Please have your full name, birth date, and case number if available.