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Public Defender

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1. Are Deputy Public Defenders real attorneys?

Yes. All Deputy Public Defenders are 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 careers as Deputy Public Defenders, all attorneys continue their legal education by attending classes and seminars to remain up to date in the practice of criminal defense law.

2. How do I get an attorney 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 is accused of a crime and unable to afford counsel.

If you have been arrested and remain in custody, you will usually be brought to court 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.

If you are not able to afford counsel, the judge will ask you if you intend to hire an attorney, or if you are requesting appointment of the Public Defender to represent you. The court may inquire about 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 Defender's Office and fill out a financial evaluation form.

The County of Napa requires completion of the financial evaluation form and Public Defender staff can assist you in filling out the form. The Public Defender’s Office will make an initial determination as to whether you are eligible for our services. If you are told you do not qualify for our services and you believe you should, notify our staff and the matter will be calendared for an eligibility hearing so the court can determine if you qualify. No person will be denied representation due to their inability to pay for attorney services.

When you first come to our office, all misdemeanor defendants will be able to schedule an appointment with the attorney who will represent you. If you are charged with a felony, the file will be reviewed to select the most appropriate attorney. You should call the office within a day or two to schedule your first appointment with the attorney who will represent you.

If you are in custody when the Public Defender is appointed, the court will notify us that we represent you and your attorney will interview you at the jail as soon as possible. At your first meeting, your attorney will explain the court process and the charges against you. It is important that your attorney have a copy of the police reports and charges before they interview you.

3. Can I get advice from an attorney before I appear in court?

Before an individual 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 asks for 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 provide you with your next court date and will direct you to ask the court to appoint the Public Defender. If you have sustained injuries that 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.

We understand that people who need legal help are often apprehensive and may even be desperate to get the answer they want. It is the goal of our support staff to be helpful, but only your attorney can provide you with legal advice. Please understand that our support staff cannot give you legal advice because it is considered an unauthorized practice of law.

Find more information about this on our Talking to an Attorney Before You Appear in Court page.

4. How do I contact my attorney?

If you are charged with a misdemeanor and we have your case number available, the receptionist at the Public Defender's Office will be able to determine your attorney and schedule an appointment. You can leave a message via voice mail for that attorney, if you have already met with him or her. When you leave a telephone message for your attorney or speak with a receptionist, speak slowly and clearly. Leave your complete name, a telephone number, your next court date (if you know) and a case number (if you know). Our attorneys are often in court or at the jail meeting with clients or preparing cases for court, so please allow a reasonable amount of time for a return call. If you leave repeated messages which are not returned, check with the receptionist to make sure you are contacting the correct attorney. If you still do not get a call, please submit a written request to your attorney.

See our Staff Directory for contact information.

5. I forgot the name of my attorney. 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 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 Courthouse located at 1111 3rd Street in downtown Napa. They are usually scheduled in Department D or E, on the second floor of the building. Family support matters (civil child support) are often scheduled in the Historic Courthouse (Civil Division) 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 Justice Center located at 212 Walnut Street in Napa.

The Napa County Superior Court provides a website to look up court dates based upon your case number, driver's license number or citation number: Napa Superior Court Criminal and Traffic Case Lookup

The Napa County Superior Court calendars are updated Monday through Friday and may be subject to change: Court Calendars

If you have not yet appeared in court and been referred to our office, your best option is to call the court directly at (707) 299-1100. You can also call our office at (707) 253-4442 for court date lookup assistance if an attorney has already been appointed for you. Our office has access to some of the court's records via computer. We will probably be able to tell you your next court date. Please have your full name, birth date and case number available.

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.

Find information about where to appear on our Court Appearances page.

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

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 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 all costs of the services of your attorney, some of the costs 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 enquiry into your ability to reimburse.

View information about this on our Paying for a Public Defender page.

8. How much can I earn and still be eligible for the services of an attorney?

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 the 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 the 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.

Find more information about eligibility on our Eligibility for a Public Defender page.

9. What if the Public Defender cannot represent me?

The County of Napa has entered into contracts with other attorneys to provide representation for those who are not able to be served by the Public Defender’s 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." 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 another attorney. The attorneys who accept such appointments are not employees of the Public Defender, even though they have been appointed by the court.

11. What is "O.R."?

Being released on an "O.R." means being released on one's own recognizance, that is, on one's promise to appear in the future without having to post bail.

12. What is bail?

"Bail" is the amount of money that a defendant (or typically someone on his/her behalf) must pay in order to be released from jail. It is intended to assure the court that the defendant will appear at his/her future court dates.

13. When will the judge set bail and/or consider an O.R. release?

The judge will set the bail amount according to the county’s bail schedule and in light of the circumstances of your background and the conduct with which you are charged. The Napa County bail schedule is here: Napa Bail Schedule

14. 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).

Felony charges may also be filed even though there has not been an arrest. For example, the police may conduct an investigation of a crime and identify a suspect. Rather than arresting that person, the police may instead present their investigation to the District Attorney, who may file charges with a court and get an arrest warrant. The District Attorney may also present evidence to the Grand Jury, which has the power to charge a person with a felony.

The first step in the criminal court process is called an arraignment. Usually, this is the first time the defendant appears in court. He/She is informed of the charges, and offered legal representation if he/she cannot afford counsel. The defendant then enters a plea of guilty or not guilty. Most often, this is also the time when the defendant has his first contact with the Public Defender's Office.

The attorney who handles arraignments in that particular court will discuss the case briefly with the defendant. Usually the attorney will enter a plea of "not guilty" on behalf of the client. (If a case is particularly complex or unusual, a plea might not be entered at the first appearance, but might be entered at a later date in order to allow the attorney time to gather more information about the charges.) If a "not guilty" plea is entered at this first appearance, the case will then be scheduled for a pre-preliminary hearing and a preliminary hearing, which is usually set no later than 10 court days after the arraignment. You must meet with your attorney prior to these next two appearances.

The pre-preliminary hearing is a brief appearance at which the case will either be confirmed for preliminary hearing the next day, continued, or a change of plea might be entered. The preliminary hearing is the court proceeding at which the District Attorney's Office must present enough evidence to convince a judge that there is reasonable cause to believe a crime has been committed -- and that the accused is the person who committed the crime.

This hearing is not heard by a jury, and at this point in the criminal process, the District Attorney's case does not have to be proven beyond a reasonable doubt. The primary purpose of the preliminary hearing is to weed out charges that are obviously groundless. At a preliminary hearing, the District Attorney may use police officers to present the statements of victims and witnesses to demonstrate to the judge that there is enough evidence to justify sending the case to a court for trial. The vast majority of defendants are "held to answer" after the preliminary hearing.

Understandably, this can be frustrating for a client who wants to "fight" aggressively to win his case now, rather than later. However, this is not always possible, nor wise. It is important to remember that delay in a court case does not mean defeat. Effective and thorough legal defense takes time to prepare. Preparation is often worth the wait.

After the preliminary hearing, the defendant is once again arraigned; however, this time a trial date is set. Generally speaking, the trial must occur within 60 days from the date of this new arraignment, although felony cases frequently require more time so that the defense can conduct a complete, independent investigation, interview witnesses, consult with expert witnesses, and sift through all evidence presented by the District Attorney.

The defense attorney may also make various motions if there are legal grounds. This might include a motion to get evidence excluded if police acted improperly when seizing it or a motion to dismiss if the evidence presented at the preliminary hearing was not strong enough to warrant a trial. The defense might also make motions to force the District Attorney or the police to disclose other pieces of evidence which could prove that the client is not guilty of the charge.

While the case is ongoing, the defendant may decide he or she does not want to go to trial but wants to settle the matter. Just as often, a District Attorney might offer the defendant a case settlement, referred to as a "plea bargain." This may include a guilty plea to a less serious charge or reduced incarceration time at sentencing.

Settlement may occur at any time, from the first court appearance at the initial arraignment up to, and even during, trial. Case settlement usually involves the defendant pleading "guilty" or "no contest" for an agreed sentence, to an agreed-upon charge, or to a maximum sentence referred to as a “lid.”

Another kind of "settlement" can be possible in certain felony cases involving non-violent drug offenses. Individuals who have been charged with first-time drug offenses, as well as certain defendants who suffer from the disease of drug addiction may be eligible to attend classes or other rehabilitation programs. If they successfully complete all required programs, they can have their case dismissed in a process which is known as "Deferred Entry of Judgment" -- commonly referred to as DEJ or drug diversion. Still other defendants who commit non-violent drug possession offenses may be eligible for sentencing according to Proposition 36, which generally favors long-term drug treatment as an alternative to incarceration. DEJ is available only upon a plea of "guilty," whereas Proposition 36 sentencing is available upon conviction -- whether a defendant pleaded guilty or was found guilty after a trial. [Insert Link to Drug Court FAQ.]

An adult criminal defendant has the right to a trial by jury. This is where 12 jurors, who are called "the finders of fact," listen to all the evidence presented by both the prosecution and the defense and decide what has been proved. The judge's job at a jury trial is to make sure that both the prosecution and the defense adhere to all the rules of evidence when presenting their case to the jury.

At trial, the prosecution must try to prove the client's guilt beyond a reasonable doubt. All 12 jurors must agree in order to convict or acquit. If the jury cannot agree, a "mistrial" will be declared by the court, and the case may be tried again before a different jury, the case may be dismissed, or a case settlement may be agreed upon by the prosecution and the defense.

A defendant can also decide to have a judge hear the case, instead of a jury; this is called a "court trial." For this to happen, the prosecution must also agree. In a court trial, the prosecution still has to prove the case beyond a reasonable doubt, but this time, the judge is the "finder of fact" and must decide whether or not the defendant is guilty, while also making certain that both attorneys are abiding by all the rules of evidence.

If a defendant is found guilty, the judge will then impose a sentence. The possible range of sentence, which is set by various laws, may range from no jail and probation, to imprisonment in the state prison. Sentencing can be a very complex process, depending on the severity of the crime for which the defendant has been convicted.

In the most serious of cases, referred to as special circumstance prosecutions, the defendant faces a sentence of life imprisonment without the possibility of parole, or even the death penalty. If a defendant has been convicted of such an offense, there is a separate proceeding, called a penalty phase, at which both sides present evidence in aggravation or mitigation of penalty. The jury determines the appropriate penalty. If the jury determines the defendant should be executed, the judge still has the power to overrule that determination and sentence the defendant to life imprisonment without the possibility of parole. However, if the jury agrees that life imprisonment is the appropriate punishment, the judge does not have the power to impose the death penalty.

Defendants who have been convicted after a trial have the right to appeal their conviction. This process is started by the trial attorney who, upon request of the client, will file a notice of appeal in the trial court within 60 days of the imposition of sentence. An attorney who specializes in appeals will then be appointed by to represent the defendant on appeal.

Find more information about this on the Felony Information page.

15. 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 a felony arrest, most individuals charged with misdemeanors are detained 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."

The police reports alleging illegal acts are then presented to the District Attorney who decides what charges, if any, should be filed. Occasionally, instead of filing misdemeanor charges, the prosecutor may choose to file a complaint alleging an infraction. Individuals who are accused of infractions cannot be sentenced to jail, nor are they entitled to the appointment of an attorney.

Any person who has been arrested and then released from custody and given a court date and time must appear in court on that date, at that specific time. Failure to appear will result in the issuance of a warrant and possible arrest. You cannot assume the Court will understand that you had to work that day, you overslept, or your child was sick. If you have failed to appear in court when required, it is always better to contact court services and arrange to surrender, rather than wait until the police find and arrest you. You have a much better chance of walking out of the courtroom if you appear in court as soon as possible after your failure to appear. If you do not act quickly to appear in court, additional criminal charges may be filed. You should notify your attorney when you will appear.

It is not uncommon for a person to be arrested on misdemeanor charges, then released, only to appear in court and discover that no charges have been filed. Occasionally, this is because the charges have been rejected by the District Attorney; other times, the decision might have been delayed.

Once a case has been filed, the first step in the criminal process is arraignment. This is usually the time the defendant first appears in court, is informed of the charges, and enters a plea. The attorney who handles misdemeanor arraignments in that particular court will discuss the case with you, and a plea will be entered. The usual pleas are "not guilty," "guilty," or "no contest." If you are in custody at arraignment on a misdemeanor charge, your attorney may make a motion to dismiss based on failure of the police reports to establish that a crime has been committed. If you have been charged for something you simply did not do -- or the charges are far more serious than the offense for which you are actually responsible -- or your attorney feels there is insufficient evidence to convict you, he or she might advise you to take the case to trial.

In misdemeanor cases that are not likely to go to trial, it is not unusual for your attorney to settle the case on your behalf and with your consent, either at arraignment, or at a pretrial hearing which is usually held a couple of weeks later. Some misdemeanor cases settle for a fine and probation, without any jail time. However, some misdemeanor charges can carry a sentence of as much as one year in the county jail (a few have a mandatory minimum jail sentence) as the possible punishment.

Only by knowing the particular facts of your case, your prior criminal record, if any, and your current situation, is it possible to accurately advise you about your case.

A misdemeanor case that is not going to be resolved with a plea must generally go to trial within 30 days if the defendant was in custody at the arraignment -- or within 45 days if the defendant is out of custody. Cases are often continued to allow defense attorneys to gather the necessary evidence and interview any possible witnesses. Before trial, the defense attorney may make various motions, including a motion to suppress unlawfully obtained evidence by the police and motions for the prosecutor or the police to disclose evidence which might help the defense.

An adult criminal defendant has the right to a trial by a jury. This is where 12 jurors, who are called "the finders of fact," listen to all the evidence presented by both the prosecution and the defense and decide what is proved and what is not. The judge's role in a jury trial is to make sure that both the prosecution and the defense adhere to all the rules of evidence when presenting their case to the jury.

At trial, the prosecution must prove the client's guilt beyond a reasonable doubt. All 12 jurors must agree in order to either convict or acquit. If the jury cannot agree, a "mistrial" will be declared by the court, and the case may be tried again before a different jury, it may be dismissed, or a case settlement may be agreed upon by the prosecution and the defense.

A defendant can also decide to have a judge hear the case, instead of a jury; this is called a "court trial." For this to happen, the prosecution must also agree. In a court trial, the prosecution still has to prove the case beyond a reasonable doubt, but this time, the judge is the "finder of fact" and must decide whether or not the defendant is guilty, while also making certain that both attorneys are abiding by all the rules of evidence.

If a defendant is found guilty, the judge will then impose a sentence. The possible range of sentence, which is set by various laws, may range from no jail and probation, to confinement in the county jail for up to one year.

 Defendants who have been convicted after a trial have the right to appeal their conviction. This process is started by the trial attorney who, upon request of the client, will file a notice of appeal in the trial court within 30 days of the imposition of sentence. An attorney who specializes in appeals will then be appointed. It is important to keep the court informed of your current address. It is also important that you read and respond to all communications you receive from the court. If there is anything you do not understand, call your attorney.

Find out what happens on our Misdemeanor Information page.

16. 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 counsel, 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.

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

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 counsel, 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.

18. 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.

19. 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 attorney that you need an interpreter. Often people may think they can understand enough English to "get by." In court, words may have special meaning that make a critical difference in your case. 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 said to you and about you, it is 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 to inform your attorney in advance if possible. Occasionally it is helpful to use a family member who speaks some English to clarify the language and dialect spoken by the person who needs assistance. A court interpreter - 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 in your case.

The Public Defender will make arrangements to obtain the assistance of an interpreter. To find more information about this visit our Interpreter Assistance page.

20. I like a certain attorney. Can I choose who represents me?

When an individual hires an attorney, they are free to hire whomever they choose. Cases are assigned to an attorney by the Napa County Public Defender based on the nature and seriousness of the charges, the criminal record of defendant, the courtroom to which the case is assigned and 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. We need to ensure that each attorney has sufficient time to represent each client to the best of his or her ability. Consequently, you are not entitled to select which of the attorneys will represent you in a pending case.

21. I don’t like my attorney. How do I get a new one?

Being charged with a criminal offense is often stressful and frightening. It is difficult to understand the legal process, jargon and consequences. The role of your attorney is to vigorously represent your interests. This includes ensuring that you are informed and understand the legal process. If you are dissatisfied with your attorney, you can submit a written request addressed to the Public Defender (Ronald Abernethy). The request should include your name, address, phone number, case number and the name of your attorney. You should indicate where you are in the proceedings (for example: sentenced, or awaiting trial), what problems you are having and what you would like to occur. You will usually receive a phone call or written response within two (2) working days. You can write to the Napa County Public Defender at 1127 1^st Street, Suite 265, Napa, California 94559.

22. 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.

23. 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. Find more information about drug court on our Drug Treatment Courts page.

24. 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. Visit our Child Charged with Crime page for more information.

25. 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 attorney 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 attorney. 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.

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

Visit our page on appellate courts for more information.

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

Find information about these proceedings on our Habeas Corpus Proceeding page.

28. What is an expungement?

An expungement results in the dismissal of a previous conviction pursuant to Penal Code 1203.4.

29. Who is eligible for an expungement?

Any person who was convicted of a felony or misdemeanor, who successfully completed probation, is not now serving a sentence for any other offense, is not charged with the commission of a new offense and is not currently on probation. In addition, any person who, after the passage of one year, was convicted of a misdemeanor and not granted probation may apply for expungement. It is mandatory in any case where an individual was granted and successfully completed probation, without violation, or was discharged from probation early. This includes the full payment of fines and restitution. 

An expungement is discretionary in the interests of justice in other probation cases. A court may not grant an expungement to a person who served a sentence in prison on a felony conviction. Penal Code section 1203.4a gives similar relief to an individual convicted of a misdemeanor, but not granted probation.

30. When is an expungement available?

This relief is available after one year from the date of sentencing, provided the person (i) fully complied with and performed the sentence of the court, (ii) is not presently serving a sentence, (iii) is not presently charged with any crime, and (iv) has, since being sentenced, lived and honest and upright life.

31. What will an expungement do for me?

• It will reflect a dismissal of the case under Penal Code section 1303.4.
• It will allow you to answer on job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government issued license, certificate or permit or a job which involves a security clearance, the conviction will be discovered.
• If the conviction was for a felony, it is the first step in obtaining a pardon.
• It will not remove the conviction from your rap sheet. Your record will reflect a conviction and a dismissal pursuant to 1203.4.
• It will not reinstate the right to possess firearms; however, a reduction to a misdemeanor may accomplish this if the offense is not one of violence.
• It will not allow you to omit the conviction on applications for government issued licenses.
• It will not seal or otherwise destroy the records.
• It will not prevent the conviction from being used as a prior in a subsequent prosecution.
• It will not prevent the conviction from being used to impeach if called as a witness.
• It will not prevent the conviction from being considered and used to refuse and revoke government licenses and permits such as teaching credentials, foster care licenses, nursing licenses, bus drivers licenses etc., however, the expungement will usually reduce the weight a licensing agency gives to the conviction.
• It will not eliminate the conviction from consideration for immigration purposes.

32. Does the Public Defender's Office have access to any police officers or investigators who can look for evidence that will help me talk to witnesses in my case?

The Office of the Public Defender has a staff of highly trained and experienced investigators. Visit our Office of the Public Defender Investigators page.

33. I know my attorney can't repeat anything I say in confidence. 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 attorney 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.

34. If the police contact me, do I have to speak with them?

No. For more information, see the What to Do if You Are Contact by Law Enforcement page.

35. What should I do if the police want to search me or my belongings?

Law enforcement is under no duty to advise you of your rights in order to search you or your property. Nevertheless, law enforcement can only search you or your property under certain circumstances. While you do have the right to refuse to be searched or have your property searched, there are situations where law enforcement can search you or your property without your consent. If you do not consent to being searched by law enforcement, you should clearly tell the police that you do not want to be searched.

If law enforcement has a search warrant, ask for a copy of the warrant.

36. 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 individuals who want to file a civil lawsuit.

37. 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. Find more information on the Suing the Court page.

38. 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.

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

In general, the Public Defender only represents individuals 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 attorney referral service. The State Bar is located at 1149 South Hill Street, Los Angeles, CA 90015-2299, 213-765-1000, and at 180 Howard Street, San Francisco, CA 94105-1639, 415-538-2000.

40. 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.

41. What is Proposition 64?

In October 2015, Governor Jerry Brown signed into law the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64). It legalizes the responsible use of marijuana by adults 21 and over and establishes a statewide regulatory system for medical marijuana in California.

You can view the memo from Drug Policy Alliance (PDF) for further information.