I have a pc459 complaint filed against me and
An arrest warrant that was filed 11/2012 in riverside county ca I have never gone to court or went to jail on this complaint.from the time when the complaint was filed to present day I have been pulled over twice the first time was in orange county ca they ran my name and didn't say anything about an arrest warrant and let me go the second time was in Riverside County ca for a dui they took me to jail on the DUI and did not say anything aboutt an arrest warrant and cited and released me on the DUI.can I have a public defender file a serna motion?
Sure. Speak with your public defender about this or retain a private attorney.
San Diego Criminal Defense Attorney--Former Prosecutor--20 years experience.
There is more to a Serna motion than just timelines. We need to look at reports and get more details.
The public defenser can file it, if they think it will help. But they won't do so just because you want then to. No (good) attorney will.
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Definitely bring this to your attorney's attention. They would be in a better position to answer your question.
This matter is ripe for a serna motion. PD should file one.
ANDREW ROBERTS CRIMINAL AND TRAFFIC TICKET DEFENSE ATTORNEY
It appears that you do have a Serna Motion. Note however, that there is more to the motion than just stating that it has been too long. Discuss this with your public defender who can explain what is required to file a Serna Motion.
You have a couple of options. The best option is to retain private counsel to clear up the outstanding warrant and the underlying case. You did not state whether the complaint was for PC 459 1st (residential burglary) vs. PC 459 2nd (commercial burglary). With the passage of Prop 47, the good news is that a 459 2nd would now be a misdemeanor offense. As now a misdemeanor offense there is the possibility that the attorney could appear and handle the motion in your absence (PC 977 appearance).
There is definitely the possibility of a Serna motion, which can either be done via written motion, or sometimes it can even be stipulated with the DA on the record and accepted by the court and dismissed. However, as others noted you should discuss the details of your situation with an attorney to see if a Serna motion is likely to be successful or not. Also, as I noted earlier there is the possibility of discussing the matter with the DA. A lot will depend on your criminal history before and after the charge.
If you don't have any other criminal history, with the passage of Prop 47, deferred entry of judgment is possible. If the DA and court agree to DEJ, in Riverside County you would simply have to take a one day theft class ($275 cost). If you enrolled in the class within 10 days of the entry of the plea and completed it within 90 days the case is dismissed. As theft charges can have ugly consequences for employment opportunities it may be cheaper and easier to simply go this route to getting the case dismissed as soon as possible.
If you have prior criminal history, or have picked up new charges since, your options may not include DEJ, in which case your attorney may feel a Serna motion (either by stipulation with DA or written motion to be heard by the court) may be the best option. Again, these are things to discuss with your attorney.
If you can afford to hire an attorney I highly recommend you do so as they can be proactive and handle things for you (get warrant recalled, calendar the case, appear in your absence, etc.) If you can't afford to hire your own attorney you will have to turn yourself in on the warrant. You can generally appear at the criminal clerk's window to request a court date and advise that there is an outstanding warrant. Depending on the amount of the warrant you may be released with a citation to appear. However, there is the possibility that you could also be taken into custody pending arraignment. You would then either have to post bail (I say always better to use your money to retain counsel first if you can't afford both) or remain in custody until arraignment. Having turned yourself in will go a long way in the court considering an OR release.
The last option (and one I recommend you do not rely on) is to wait until you are picked up on the warrant. At that time you will either be cited out or taken into custody depending on the amount of your bail (a bail bondsman could check on the amount, or you can go on the court website and check the case status for that information). Unfortunately, if taken into custody you will not have a strong argument for an OR release at the time of your arraignment.
You will only get a public defender once you are arraigned. Before that date you are not going to get the public defenders office to recall your warrant, put you on calendar, etc. However, once you either turn yourself in, or you are picked up on the warrant, you will be able to request a public defender and the court will assign one if the judge determines that you qualify for such services.
Most criminal defense attorneys provide free legal consultations, which would be in your best interest to take advantage of. Myself and other Riverside area attorneys can be located by using the Find a Lawyer tab on this site. In this case your best interests would be served by having an attorney retained to handle things on your behalf.
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