Judge or Jury Trial Sentencing

The Judge or Jury Trial is the next proceeding in the felony case. Defendants must be brought to trial within a specified time period. For felony cases, we generally consent or agree to the trial date being extended, albeit the required time period is within 60 days of the Arraignment on the Information. For misdemeanors, unless we, as your felony defense lawyers in San Diego, CA, consent or agree to a later date, the trial must be held within 30 days of arraignment on the felony complaint (when the defendant is in custody), and within 45 days from the arraignment (when the defendant is out of custody).

The Jury

The following are the basic parts to a jury: trial voir dire (questioning of the jury panel) and selection, opening statements, the presentation of evidence (divided into the prosecution’s case, the defense case, and then the prosecution has an opportunity for a rebuttal), the closing arguments, the jury verdict and finally the sentencing.

On the date that is set for the trial of a felony complaint involving a homicide, rape, grand theft, fraud, robbery or any other felony complaint in San Diego County, the judge will hold a conference with the attorneys. At this conference, the parties will present (a) brief outline of the nature of the case, (b) identify witnesses, (c) the prosecution’s theory of liability, and as your San Diego felony defense lawyers, we will present our defense theories, and (d) how jury selection shall begin. Occasionally both parties will waive a jury; in which case, the judge will determine whether the defendant is guilty or not. Otherwise, a jury must be selected to make that determination.

In San Diego County, jury selection begins when the court clerk calls the jury assembly room to have a panel of prospective jurors sent to the courtroom. In a typical felony crime case, the panel is composed of 30 to 35 prospective jurors. Prospective jurors are obtained from the property tax rolls in San Diego County, California Department of Motor Vehicle driver rolls, and the registered voter rolls. Persons summoned receive a court order to appear for jury duty, unless disqualified or excused. Everyone is eligible to be a trial juror, except non-residents of California, non-residents of the County of San Diego, non-citizens, minors (under age 18), convicted felons, persons who do not possess a sufficient knowledge of English, persons already serving as a trial grand juror, and persons who are the subject of a conservatorship.

Once the panel of prospective jurors is brought into the court room (entitled “Department”), jurors are seated, welcomed by the judge and then administered an oath to truthfully answer all of the questions concerning their qualifications to be a juror. The initial group is composed of 18 prospective jurors: twelve in the jury box and six seated in front of the box. Once the first group of prospective jurors is seated, the Superior Court judge gives a brief introduction to the felony case by introducing the attorneys, the court staff, the defendant and the witnesses; then, the judge explains the felony robbery, arson, rape, murder, manslaughter grand theft or other felony charges, the burden of proof and how voir dire will proceed. The judge then orally examines each juror individually in open court on the record. Once that is completed, the judge allows the attorneys to examine the prospective jurors; this is an important aspect of the case because the people who eventually become the members of the jury may make the ultimate difference in the determination that you are not guilty.

After this process is completed, the attorneys approach the judge; this is the area called “side bar,” and the conference takes place outside the hearing of the prospective jurors. There, the attorneys offer any challenges “for cause” to any of the prospective jurors; we may challenge “for cause,” which means the juror does not meet the qualifications to serve as a juror because he or she has a bias against the defendant, has pre-judged the case, has a bias for or against law enforcement officers, lives in another country, or other grounds for believing the juror cannot be fair and impartial.

After the challenges are made, the judge will issue a ruling. If granted, the prospective juror is excused. Then, the judge and the attorneys return to open court and the parties begin to exercise peremptory challenges. In most criminal cases, each side has 10 peremptory challenges (in death penalty and life imprisonment cases, each side has 20). Once both sides are either out of peremptory challenges or accept the 12 prospective jurors, the 12 jurors are sworn in. The judge and attorneys also select one to four alternate jurors (in complex trials, there may be more than four alternate jurors), who will also be seated and hear the evidence, but they will not participate in deliberations unless one of the 12 regular jurors is excused from the panel.


When all of the introductions are made, the prosecution begins its “case-in-chief,” with the prosecutor calling his or her witnesses in the grand theft, robbery, rape, homicide, manslaughter, murder or any other felony. Percipient witnesses are those witnesses who saw, heard or experienced the facts that are relevant to the defendant’s guilt or innocence. A typical example is the victim or eyewitness to the crime. Expert witnesses testify about subjects that are considered technical or scientific, but they can also testify on any subject that is not within the common experience of most individuals, because they are qualified by their education, training or experience. The witnesses are first questioned by the prosecution attorney.

As your Felony Defense Counsel, we will object to any question we believe is not allowed by the rules of evidence. The prosecutor gets a second time to examine witnesses, but the examination is limited to the scope of the cross-examination by defense counsel. This second examination of the witness is called “re-direct” examination. During the case-in-chief, the prosecution attorney may also introduce exhibits. Exhibits are tangible things such as the results of a lab test of blood for the presence of drugs or alcohol, a lab test on an illegal substance in defendant’s possession to establish illegal narcotics, or a gun or other object.

After the prosecution attorney completes the presentation of its evidence in the felony case of a rape, grand theft, robbery, murder, manslaughter homicide or any other felony, it rests. At this point, we may make a motion for a judgment of acquittal pursuant to Penal Code section 118. In bringing this motion, the defendant is claiming the evidence before the court at that time is insufficient as to one or more counts. If granted, the particular charge is dismissed. If the motion is denied, the defense phase of the case begins.

It is a basic premise in the law that a defendant does not have to prove his or her innocence. In fact, the defendant does not have to testify at all, does not have to say anything, do anything or prove anything. The burden of proving the defendant’s guilt beyond a reasonable doubt is the role of the prosecution attorney. At this time, we may present our witnesses and exhibits, as your San Diego felony defense lawyers, with the prosecution attorney being able to object and cross-examine. In limited situations, the defendant may decide to waive his or her constitutional right to remain silent and testify, subject to cross-examination by the prosecution attorney.

In some cases, we will determine whether to announce “the defense rests” without presenting any evidence. This usually takes place when we believe the prosecution attorney has not proved his or her case beyond a reasonable doubt.

If we put on defense evidence in your homicide, murder, manslaughter, rape, robbery, grand theft or other felony case, the prosecution attorney may then offer rebuttal evidence. Once both sides have rested, the judge will instruct the jury on the applicable law by reading jury instructions; these are standardized instructions and include such topics as how to evaluate the evidence, the elements of each charge that has to be proved, the standard of proof required, and some guidelines on how the jury should conduct its deliberations.

Finally, both sides begin their closing arguments, where they state what they believe the evidence shows and what inferences the jury must draw from the evidence. The prosecution attorney is allowed two arguments (opening and rebuttal argument). Because we only get to argue once, in rare cases we may waive this argument, and therefore, the prosecution attorney is not allowed rebuttal. When all arguments have been completed, the case is submitted to the jury for a verdict.

The Verdict

The jury is required to decide the felony case based only on the evidence presented at trial, reasonable inferences drawn from the evidence and the applicable law. The jury is not allowed to conduct a further investigation, or consult other sources or persons. To insure there are no outside influences, the jury is brought to a private room to conduct their deliberations. First, they select a foreperson, who then leads the discussion. Any member of the jury may be the foreperson. Then, the jury decides the charges, one at a time. Once deliberations are completed, if the jury has reached a unanimous verdict one way or the other on each charge, the foreperson advises the bailiff and is conducted back into court.

Once the jury is back in court, the judge has the clerk read the verdict(s). If there is a guilty verdict to some or all of the charges, defense counsel usually asks that the jurors be polled individually. If polled, the clerk asks each juror, by juror number, “Juror No.1, is that your verdict?” and the juror answers “yes” or “no.” If there is a not-guilty verdict as to all of the charges, the jury is not usually polled. Occasionally, the jury cannot reach a unanimous verdict on some or all of the charges. In this situation, the jury is deadlocked or this is called a hung jury. When the foreperson advises the judge that the jury cannot agree on a verdict in any felony case, the judge may inquire of each juror whether any further deliberations or if additional instructions would be helpful, would be helpful. If the foreperson indicates which felony charge the jurors cannot agree upon, the judge may even allow the attorneys to reopen their closing argument and re-argue as to a particular felony charge. If the jury still cannot unanimously agree upon a verdict, the judge will declare a “mistrial,” and then discharge the jury. The judge has the discretion to reset the case for a new trial or dismiss the charges.


At this time in the felony proceedings, the sentencing portion of the case begins. The court can either pronounce the sentence immediately, or as is more often the case we will request the time for sentencing to be scheduled at a later date. If out of custody, the judge may remand the defendant into custody, pending the sentencing hearing.

If this is a death penalty case, the sentencing is called the penalty phase. This is where the prosecution attorney presents evidence as to why the defendant should receive the death penalty. If you choose us to be your counsel, we will present mitigating evidence as to why you should not be sentenced to death. The jury then decides if the sentence should be death or life imprisonment without the possibility of parole.

Most crimes are punishable by a specified term in the San Diego County Jail or State Prison. Sentencing for misdemeanors are punishable by a fine and/or a term of incarceration in the County Jail. For most misdemeanors, the term is up to 12 months in jail and fines of up to $1,000 or more. For some misdemeanors, there is a minimum jail term, such as 48 hours for a second driving under the influence offense in 10 years.

In most misdemeanor cases, the defendant is placed on summary or court probation (informal). This means the court suspends imposition of the sentence and instead conditionally releases the defendant upon specified terms and conditions. During the term of probation, the judge may require the defendant to report back to court periodically for a progress report. In this situation if the defendant completes all of the conditions of probation, at the end of probation there will be no statutory sentence imposed. If defendant fails to complete the conditions of probation, then the judge may terminate probation and impose a sentence of jail up to the maximum allowed by law.

For some felonies, the defendant may be granted a term of formal probation, where the defendant is supervised by the county probation department. The defendant is often assigned to a specific Deputy Probation Officer, to whom the defendant is usually required to report monthly. The probation officer is responsible for supervising the defendant and reporting to the Court any violation of the conditions of probation established by the Court.

For a number of offenses, such as the most serious and violent felonies (such as when a gun is used), probation is not allowed and the judge’s only choice is to sentence the defendant to a specified term in State Prison. In California, we have the Determinate Sentencing Law (“DSL”), in which each felony has three specific terms for the sentence: a low term, mid term and a high term. For example, first degree robbery is punishable by a low term of three years in State Prison, a mid term of four years, and a high term of six years. The presumptive sentence is the mid term unless there are aggravating or mitigating factors, which would justify either the high or low term.

In addition to the term applicable for the specific crime, there often are sentencing “enhancements,” when the accused has a prior conviction, or has caused great bodily injury, or the defendant used a gun in the commission of the crime.

Once the sentence is pronounced, the defendant is remanded to the Sheriff for custody in the County Jail or with an order to deliver the defendant to the California Department of Corrections (“CDC”). The CDC is empowered to decide which State Prison and under what conditions the defendant will be housed.

In cases where the punishment is death, there is an automatic appeal to the California Supreme Court. In all other cases, if the defendant believes the court committed an error of law, he or she must file an appeal and the case will then be heard in the Court of Appeal. However, the Court of Appeal normally does not retry the case or re-decide the facts. Instead, it determines whether the law was applied correctly by the trial court. We handle appeals and writs in both State Superior Court as well as the Federal Court (see our practice area of Appeals).

Why Jurors Vote for Manslaughter Rather Than Murder

It is not uncommon for defense counsel to ask jurors to vote for manslaughter rather than murder by focusing on the defendant’s emotions that took over the defendant’s reason at the time of a homicide. In other words, a jury may choose to characterize thedefendant’s emotions as a mitigating circumstance to reduce a murder charge to a verdict of manslaughter, focusing on the following factors:

  • Defendant’s history of violence with the victim. A defendant having a history of frequent and intense arguments and/or violence with the victim is more likely to be convicted of murder. Unexpected events, however, increase chances of a manslaughter verdict.
  • When a defendant’s actions are perceived as unintentional. Intentional actions are more likely to result in murder convictions. Defendants who pull out a gun they always carry without thinking about the situation are more likely to be convicted of manslaughter.
  • Defendant’s particular emotion. Among jealousy, anger, sadness and fear, a defendant who was motivated by jealousy has the greatest likelihood of a murder conviction, and a defendant feeling fear has the least likely chance; anger is slightly more likely to result in a murder conviction than sadness.
  • When defendant dwells on or purposely reflects on his or her emotions. Defendants dwelling on their emotions and allowing them to intensify are more likely to receive a murder conviction. When defendants become overwhelmed and “just snap,” or when they did not intend to feel as they did, they are more likely to be convicted of manslaughter.

For jurors, no prior history of violence, not thinking, and being overcome with fear point to manslaughter, and a prior history of violence, feeling jealous, and dwelling on that feeling point to murder.

Defendants Who Show Emotion During a Trial Are Less Likely to Be Convicted

Historical studies report that defendants who are cold and unemotional are convicted more often and punished more severely. In other words, the amount of emotion displayed by a defendant influences conviction rates. A defendant displaying a high level of emotion was judged as less guilty and more believable (assuming the evidence against the defendant was not strong). When the evidence was compelling and beyond a reasonable doubt, even in the situation where the defendant displayed a high level of emotion, there was little or no effect on the conviction rate. When the evidence is weak, a stronger display of emotion by a defendant results in the defendant being perceived as more honest, and there are likely to be fewer guilty verdicts, and shorter rather than longer sentences. When a defendant appears bored and/or emotionally uninvolved, jurors are more likely to impose a death sentence. When a defendant appears sincere and remorseful, jurors either favored a life sentence or were undecided about punishment. In summary, jurors find unemotional defendants guilty more often, and punish them more severely.

Does a Judge’s “Nonverbal” Behavior Affect Jurors?

If anyone recalls the criminal trial involving “OJ Simpson,” they probably remember the nonverbal actions of the trial judge. Because trial judges are human beings too, they exhibit nonverbal behavior as everyone else. In some cases, judges may be highly nonverbal, while other judges exhibit minimal levels of nonverbal behavior. This behavior or involvement can also affect jurors as it may be seen as a form of “bias” or a nonverbal “opinion” regarding a witness, a piece of evidence or the case itself.

Studies have shown jurors are often acutely aware of nonverbal cues from judges, particularly negative behaviors. This is because jurors often look for signals to corroborate their own suspicions or beliefs. In fact, jurors have expressed negative comments about judges that display minimal nonverbal involvement.

Does the Racial Composition of a Jury Affect the Outcome?

As a society, we believe racial diversity on juries is desirable because a jury should represent society as a whole (since society is not made up of only one race, but is a homogeneous group of people of different races, a jury should replicate the composition of society). In this manner, a jury can offer the perspective of a minority group member. As a member of society (and a jury), one should consider many factors, one of which is the perspective of others in their decision making.

There have been many studies of racially diverse juries, and these studies have established patterns in the way people of different races view the parties (plaintiff and defendant) in a case. These studies also show that jurors exposed to a racially mixed panel are often influenced by their racially mixed members. For example, White jurors on racially mixed juries have been found to be more lenient to a Black defendant than those on all-White juries.

In conclusion, racial diversity of juries does indeed affect jury verdicts.

Does the Gender of an Expert Witness Affect Their Credibility?

An “expert witness” is a witness, who by virtue of education, profession, publication or experience, is believed to have special knowledge of a subject beyond that of the average lay person, sufficient that others may legally rely upon their opinion.

In a study conducted a few years ago, it was found that male and female experts were equally effective. The research concluded that jurors did not allow their perception of who (male vs. female) is the ideal gender dictate how they interpreted the opinion of the expert. In a more recent study involving highly complex evidence, the researchers discovered that male experts were judged more believable than female experts.