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California Right to Counsel in Criminal Cases (CA Penal Code section 19.6)

Today’s post will be short. I’m going to go over the right to have a lawyer appointed for you in a criminal case and how that is handled in California state court. Most of you — at least I hope it is most of you — have heard of the 6th amendment to the US Constitution which says the following:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” (emphasis added)

The part I’ve bolded and underlined is where a criminal defendant’s right to an attorney comes from. If you’re familiar with the Miranda Warning — or at least seen it on TV before — that also mentions a criminal defendant’s right to have an attorney.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” (emphasis added)

What this right to counsel means in the real-world, though, can be quite involved. Some would say that it is largely a hollow right as the vast majority of criminal defendants can’t afford lawyers at all and public defenders are so underfunded that they realistically cannot do a competent job representing these defendants.

This brings up an unfortunate but important distinction: your right to an attorney generally means you can always hire your own attorney. If you’re paying for your own legal counsel, the courts generally won’t have a problem with it. The problem arises, though, when you want a lawyer appointed for you that you don’t pay for yourself. In California state court, this generally means the Public Defender in your county or one of their alternate conflict panels.

I may address those topics (e.g. is this system fair, is there a more fair way of doing this, how alternate conflict panels work, etc) more in-depth in future posts. Today’s post, though, goes over a more limited question:

“In California, does a criminal defendant have the right to a lawyer for an infraction?”

An infraction for those who don’t know (e.g. you are outside California, etc) is a case where your only punishment is a monetary fine. The vast majority of traffic tickets only carry a fine. An infraction does not involve jail or prison. A criminal defendant facing an infraction case generally does not have the right to a court-appointed attorney of any kind, unless he or she is arrested for some reason and not released. The authority for that in California is Section 19.6 of the Penal Code, which says:

“An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail.”

Thus, the general rule of thumb to remember:

  • Unless you’re in jail for some reason, you generally don’t have the right to a court-appointed lawyer if you’re facing an infraction.
  • You also don’t have the right to a jury trial in California if you’re just facing an infraction.

As always, I hope you found this post helpful. As I explicitly mention above, this post is not meant to be an exhaustive or comprehensive discussion of a criminal defendant’s right to a jury trial. I only intended to make you aware of Section 19.6 of the California Penal Code and what it provides. If you are going to rely on the information presented above, I highly recommend that you do your own research first because it is entirely possible that the law mentioned above will have changed in the time between when I wrote this post and when you’re reading it. Hopefully the links included above will help you start your research. Lastly, if you have a situation involving a right to counsel issue, please do find an attorney in your area with whom you can discuss the facts of your situation.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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