Motions to File to Fight a California Criminal Case
What Motions Can My Attorney File to Help my Los Angeles Criminal Case?
This is a big thing that I think is confusing to people who are charged with crimes in Los Angeles County, and that is, they think there’s this whole slew of motions that work in every single case. So, they’ll hire an attorney. The attorney will talk a big game and then they’ll say, my attorney hasn’t filed one motion.
I’m finally firing that attorney. That’s the end of it. Then they come to me. They’re not happy with the attorney. They can’t believe what’s happened and I look at them and I say okay, well what motion do you think should be filed in your case and they have no idea. That’s up to you. You have to figure that out.
Isn’t there a bunch of motions that can be filed so I can get my case dismissed? I say, wait a minute, let’s look at your case. What are you charged with? What is the evidence against you? And then we can start talking about some of the motions that might be filed to help you.
Deciding Whether a Motion Even Applies in Your Case
But some criminal cases and I’d probably say the vast majority of them, there’s really no motions that are applicable to the case. The person is charged with a crime. The prosecutors have evidence and you could either refuted that evidence and show that it’s a situation where the prosecutors have not proved their case or you can’t.
If you can’t and there’s no motions to be filed, then the bottom line is you don’t file any motions in your criminal case. So that’s one of the first things you have to decide, whether a motion even applies to your case. Whether it even makes sense that you would file a motion in your criminal case.
That’s one of the things that I do. The types of motions that can be filed, and I can give you some — it’s not an exhaustive list because there’s literally tons of different motions that could be filed in Los Angeles criminal cases.
So, you have to decide what motion makes sense for your case and whether or not a motion is going to work. You obviously have to have a high probability of success if you want to have a chance to be successful with a motion.
Motion to Suppress Evidence – PC 1538.5
Here are some of the motions that I file in criminal cases when it makes sense and that would be what I call a Penal Code Section 1538.5 motion. That’s motion basically saying, the prosecutors have some evidence and they got that evidence illegally against my client, and I don’t think judge that they should be able to use that evidence against my client because it wasn’t legally obtained.
So, I’ll file a motion to say they illegally stopped my client either on foot or in a car and say, look after they legally stopped that person they were able to get this information or get this evidence against my client and since it was an illegal stop you should find it was an illegal stop and not let them use that illegally-obtained evidence against my client.
Another thing I will argue is that it was an illegal search and we can argue it under the Penal Code Section 1538.5 umbrella and say, you shouldn’t have been able to search my client’s vehicle. You shouldn’t have been able to search my client’s home.
You didn’t have probable cause to do that. In other words, you have to show as a law enforcement officer pursuant to the Fourth Amendment to the Constitution that before you search my client’s property, my client’s car, my client’s home, my client’s person, you have to show that you have a reason to do that and it’s a justifiable reason.
We’re not living in Russia. We’re not living in one of these countries that you don’t have any rights. We have a Constitution of protection and we have certain inalienable rights that cannot be violated and if they are your criminal defense attorney has to challenge that.
Searching Your Home Without a Search Warrant
If they search your home and they don’t have a search warrant and they don’t have some emergency circumstances, anything they find in the home cannot be used against you. That’s it.
So, if they do get a search warrant to search your home, then your attorney is going to have to evaluate and assess whether or not they had probable cause to search your home. Did they have any reason to search the home? Was there any evidence of criminal activity?
Did they do a surveillance on your home to check to see if there was illegal activity going on out there? Did they have some informant that was inside your home that can say you’re selling drugs out of there? You had guns or you have a methamphetamine lab in there.
Whatever the case may be, it doesn’t matter. They still must have probable cause to get that search warrant. They’re going to have to go to a judge and submit a declaration under penalty of perjury as part of their search warrant application and they’re going to have to ask the judge to grant the motion.
They have to show the judge that there is a reasonable probability they’re going to actually find something criminal inside your house or there’s some sort of criminal activity going on there or there’s some sort of fruits of some criminal activity.
If they can’t do that then they can’t get the search warrant. If they get the search warrant and they didn’t provide probable cause, we’re going to challenge and attack that search warrant.
Motion to Dismiss Criminal Case – PC 995
There’s all sorts of motions. You could file a 995 motion pursuant to that Penal Code Section after a preliminary hearing in a felony case in Los Angeles. You can say, you know what judge, the judge that heard the preliminary hearing testimony in this case did not have enough information or enough evidence to hold my client to answer for those charges.
And to send the case into the trial court, and that judge made a mistake and now Your Honor we need you to correct that mistake. We need you to grant this 995 motion, say there was not a prima facia case for each and every charge in the complaint or information that’s been filed against my client, and therefore, the case should be dismissed. That’s a 995 motion, which is a motion to dismiss criminal case. That’s applicable after a preliminary hearing.
Speedy Trial Motion (Serna)
Sometimes we file what’s called a Serna motion which is basically a motion that say, you guys waited too long to file this case in the first place. It’s commonly known as a speedy trial motion. Now we can’t find defense witnesses because you waited over a year, for example.
Now people’s memory have faded. They can’t even remember the event that you’re prosecuting my client for. Why did you wait so long to prosecute it? Now you’ve poisoned the defense’s case by waiting that long, and Your Honor grant this motion.
This case should be dismissed. They should have filed it a year ago and since they waited so long, now you need to grant this particular motion.
I can go on and on. There’s all sorts of motions in criminal defense. But here’s the thing. They don’t apply to every single case. You have to give me the facts of your case before we can determine whether a motion is applicable. Sometimes they just have the crime on videotape and there’s no motion. That’s it. The crime’s on videotape. We have to negotiate that crime.
So, there’s not a motion that needs to be filed in every criminal case. I just did a case where I have to file six motions because the police were cheating. The police were lying. The police illegally stopped my client.
The police illegally search his car and we also filed what’s called a pitchess motion where we’re getting all the bad information about the police. Other people who have complained about their tactics and their lying and their falsifying police reports.
So, we’re going to file that motion because we want to find out if there’s other people that the police did the exact same thing to that they did to my client, and I need to know that because I’m going to use that information against the police officers.
But that doesn’t apply to every single case. Sometimes the police aren’t the witnesses in the case. Sometimes other people are witnesses in the case. The police are just doing their job and arresting the person. You don’t need a pitchess motion in that circumstances.
Contact Our Los Angeles Criminal Lawyers for Help
So you have to come in and sit down with me. This is a very personal thing. It’s very important to you. You’ve got everything on the line here. So come in and sit down and meet face to face with me and then we can get our strategy together.
Then we can see whether or not any motions are applicable to your case and if they make sense and if they’re going to help you, of course we’re going to file the motions. If they don’t’ make sense then no, we’re not going to file motions and make a fool of our selves and waste court time and get nowhere.
That’s not what we’re trying to do. We’re trying to do what makes sense in your criminal case so you can get the best possible result.
Hedding Law Firm is a top-rated criminal defense law firm with a team of experienced lawyers located at 16000 Ventura Blvd #1208 Encino, CA 91436. We also have an office downtown located at 633 West Fifth Street Los Angeles, CA 90071. Contact us for a free case evaluation at (213) 374-3952.
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