Most people meet a criminal defense attorney during the hardest week of their life, with no clear idea of what the person across the desk will actually do. The work is concrete, and it happens in a set order: a call to the detective before charges, arraignment, discovery, motions, negotiation, trial, and sentencing.
This guide follows that work as it unfolds in San Diego Superior Court. One point belongs first: a defense lawyer's job is to hold the government to its burden of proof. The job is not to decide whether the client is guilty.
Where the Right to a Defense Lawyer Comes From
The Sixth Amendment gives an accused person the right to counsel. Gideon v. Wainwright (1963) held that the right applies in state court and that a judge must appoint a lawyer for a person who cannot afford one.
Two duties follow. Loyalty means the lawyer works for you alone. Confidentiality, under Business and Professions Code section 6068(e) and rule 1.6 of the Rules of Professional Conduct, keeps what you tell your lawyer private, including the facts that hurt. And because Penal Code section 1096 puts the whole burden on the prosecution, the lawyer's task is to test that proof rather than judge the client.
Before Charges Are Filed
A case usually exists for weeks before anyone is charged: police investigate, then send the report to a prosecuting agency. In San Diego County the District Attorney reviews felonies county-wide and misdemeanors outside the City of San Diego, and the City Attorney reviews misdemeanors inside city limits.
During that window a lawyer can call the detective, state that you are represented, and end the interview before it happens, and can bring material to the reviewing prosecutor: receipts, phone records, business video, a witness the police never interviewed, or proof of treatment.
Cases do end here. A prosecutor who sees a proof problem may decline to file, leaving no arraignment and no conviction to clean up later.
At Arraignment: Plea, Release, and Protective Orders
Arraignment is the first court appearance: you are told what you are charged with and asked to enter a plea. In nearly every case that plea is not guilty, which preserves your time limits, triggers discovery, and can be changed once the evidence is known.
Custody is decided at the same hearing. Penal Code section 1270 allows release on your own recognizance, and section 1275 directs the court to weigh public safety first, along with the seriousness of the offense, your record, and whether you are likely to appear. Under In re Humphrey (2021) it must also weigh your ability to pay.
Penal Code section 136.2 lets the court issue a protective order while a case is pending. A full stay-away order can move you out of your home before anything is proven, so where the facts allow the lawyer asks for a peaceful contact order instead.
Discovery and Investigation
Under Penal Code section 1054.1 the prosecution must disclose its trial witnesses, statements by the defendant, relevant physical evidence, expert reports, and exculpatory evidence. Brady v. Maryland (1963) adds a constitutional duty to turn over favorable evidence, asked for or not.
The duty runs both ways. Section 1054.3 requires the defense to disclose its trial witnesses, their statements, and expert reports it will offer. Reading the file is only the start:
- Hiring an investigator to interview witnesses the police did not and to find private video before it is overwritten.
- Subpoenaing records: body worn camera, 911 audio, phone, medical, and payroll records.
- Retaining defense experts: toxicology, crime lab and DNA review, accident reconstruction, digital forensics.
- Filing a Pitchess motion under Evidence Code sections 1043 and 1045 for an officer's record. It takes a declaration showing good cause; the judge reviews the personnel file privately and discloses qualifying prior complainants.
Pretrial Motions and What Winning One Does
A motion asks a judge to exclude evidence, dismiss a count, or limit what jurors hear. It is how a large share of cases are decided without a jury.
- Motion to suppress, Penal Code section 1538.5: challenges an unlawful stop, detention, arrest, search, or warrant. In a felony it can be brought at the preliminary hearing and renewed in superior court.
- Motion to set aside the information, Penal Code section 995: asks the superior court to dismiss counts the preliminary hearing evidence did not support.
- Motions in limine: filed before trial to keep out prior convictions, uncharged conduct, hearsay, prejudicial photographs, or a statement taken in violation of Miranda.
What a Granted Motion Does to a Case
Winning a motion rarely ends a case by itself; it removes evidence or counts. In a possession, firearm, or driving under the influence case the suppressed evidence is often the whole case, and the prosecution then dismisses under Penal Code section 1385.
The Preliminary Hearing in a Felony Case
In a felony case a judge decides at a preliminary hearing whether to hold the defendant to answer. Penal Code section 859b sets the timing: within 10 court days of the arraignment or plea, and within 60 days unless the defendant personally waives it.
The standard is low. The judge is not deciding guilt, only whether there is sufficient cause, meaning enough evidence to lead a person of ordinary caution to entertain a strong suspicion. Proposition 115 lets qualified officers relay hearsay, so the accuser often never appears. It still matters: officers testify under oath, and cross-examination creates a transcript that can impeach them at trial.
Negotiation: What a Plea Agreement Trades
A plea agreement is a contract. The defendant pleads guilty or no contest to something, and the prosecution dismisses counts, reduces a charge, or agrees to a sentence or a cap. The judge must approve it.
Custody time is only one term. A lawyer is also trading on whether the conviction is a felony or a misdemeanor, whether it counts as a strike, and whether it carries an immigration consequence, a firearm ban, or registration.
Diversion is a separate path: complete the program and the charge is dismissed with no conviction. California offers drug diversion under Penal Code section 1000, mental health diversion under section 1001.36, military diversion under section 1001.80, and misdemeanor diversion under section 1001.95. A wobbler, chargeable either way, can be reduced to a misdemeanor under section 17(b).
Most cases resolve short of trial because both sides are weighing risk, and an offer is only as strong as the work behind it: a pending suppression motion, an investigator's report, a witness who contradicted the report under oath.
Trial
A California criminal jury is 12 people plus alternates. The lawyer questions the panel for bias, moves to excuse jurors for cause, and uses a limited number of peremptory challenges, which Code of Civil Procedure section 231.7 bars from resting on race, ethnicity, gender, or other listed traits.
Cross-examination is the bulk of the work. The goal is rarely a confession on the stand, but showing that a witness did not see what they say they saw, skipped a required procedure, or left something out of the report.
Whether the defendant testifies is the defendant's own decision, and under CALCRIM 355 the jury may draw no inference from silence. Before argument, the court and counsel settle the jury instructions that define each element. The burden never shifts: the defense need not prove innocence or call a witness, and an element left unproven is an acquittal.
Sentencing, Appeals, and Clearing the Record
If there is a conviction, sentencing is its own proceeding. The lawyer assembles mitigation: work and school records, treatment completed, restitution paid, and letters from people who know the client, weighed against the aggravating circumstances listed in the California Rules of Court. Probation terms are negotiable too, including length, fees, community service in place of custody, and the surrender date.
A notice of appeal is due within 60 days of judgment in a felony case and 30 days in a misdemeanor. An appeal does not retry the facts; it argues that a legal error in the record affected the outcome. Claims resting on evidence outside the record go by habeas petition under Penal Code section 1473, and a plea taken without understanding its immigration consequences can be challenged under section 1473.7.
Penal Code section 1203.4 lets a person who completed probation withdraw the plea and have the case dismissed. The conviction still counts as a prior and must be disclosed for some licenses, but most private employers cannot ask about a dismissed case, and a section 17(b) reduction alongside it changes what a background check shows.
What a Defense Lawyer Cannot Do
Be careful with anyone who promises more than the following. These limits come from the Rules of Professional Conduct.
- Guarantee an outcome. No lawyer controls a judge, a jury, or a charging decision, and a dismissal promised before anyone has read the reports is not something a lawyer can know.
- Present testimony or evidence the lawyer knows to be false. Rule 3.3 forbids it and requires corrective steps if it happens.
- Contact a represented party. Under rule 4.2 the lawyer cannot discuss the case with a person the lawyer knows to be represented by another lawyer in the matter without that lawyer's consent.
What to Expect From the Lawyer You Hire
Judge the communication first: calls returned in a reasonable time, notice of every court date, a copy of your discovery, and an explanation of each appearance. You should also know who is handling the case and what the fee covers.
Judge the honesty second. You should hear the weak parts of your case from your own lawyer, early, not from a prosecutor at a settlement conference. If the evidence is strong, the work shifts toward reducing exposure, and you are entitled to know it.
What to Do Next
Do not discuss the facts with police. Say that you want a lawyer, then stop talking. Do not discuss the case on a recorded jail line, with the accuser, or on social media. Save messages, photos, and receipts, and ask nearby businesses to preserve video, since many systems overwrite within days.
Marc S. Kohnen has defended clients in San Diego since 2008, has taken cases to jury verdict, and is licensed in state and federal court (State Bar of California #255303). The Law Office of Marc S. Kohnen is at 425 Tenth Avenue, San Diego 92101, and is available 24 hours at (619) 398-2500. Every case is different and prior results do not guarantee a similar outcome.
Questions People Ask
What does a criminal defense attorney do?
A criminal defense attorney represents a person under investigation or charged with a crime at every stage. Before charges, the lawyer contacts the detective or the filing prosecutor and can present evidence during the charging review. After charges: arraignment and release, investigating discovery, motions to suppress evidence or dismiss counts, cross-examination at the preliminary hearing, negotiation, trial, and then sentencing and record relief.
Do defense attorneys defend people they know are guilty?
Defense attorneys represent people regardless of what they believe about guilt, because guilt is decided by a judge or a jury. Holding the prosecution to its burden of proof is the same check that protects innocent people. A lawyer who knows a client committed the offense can still challenge an illegal search, test unreliable evidence, and argue for a fair sentence, but cannot present testimony known to be false.
What is the difference between a criminal defense attorney and a public defender?
Public defenders are criminal defense attorneys. The difference is how they are assigned and paid. The court appoints the Public Defender for a person who cannot afford counsel, and that office carries a high volume of cases. A private attorney is hired directly, can be brought in before charges are filed, and controls how many cases it takes on. Our separate guide covers that comparison in detail.
Can a defense attorney get my case dismissed?
Sometimes, and it happens several ways. A prosecutor may decline to file after a pre-filing presentation. A judge may grant a motion to suppress under Penal Code section 1538.5, leaving too little evidence to proceed, and the prosecution then dismisses under section 1385. Counts can be dismissed at the preliminary hearing or on a section 995 motion, and completing diversion ends in dismissal. No lawyer can promise any of it.
What should I expect at my first meeting with a defense lawyer?
Expect questions before answers. The lawyer will ask what happened, what you said to police, what was searched, who else was present, and what your record looks like, because the advice turns on those details. Bring any paperwork you were given: a citation, bail paperwork, a protective order, or a notice of a court date. You should leave knowing the charge, the range of outcomes, and what the fee covers.
This guide is general information about California law, not legal advice about any specific case. Legally reviewed by Marc S. Kohnen, Attorney at Law, State Bar of California #255303, defending San Diego since 2008.
Free, confidential case evaluation, available 24 hours at (619) 398-2500.