Legal Question in Criminal Law in California

You don't have to quote the entire statute, just cite to it. If an attorney cannot find the statute from your citation to it, his advice is not worth very much.

With that said, I'm not sure what you are asking. If she was convicted, the next step is sentencing. If she has been sentenced, the next step is she serves her sentence and a restitution hearing is set by the court. If you are complaining that she was sentenced for a felony, when it was only a misdemeanor, you may have a valid point, unless she waived her right to appeal as part of the plea bargaining process. If she is complaining about the sentence, and they sentenced her based on a felony that was actually a misdemeanor, you may have to appeal.

There are a lot of general misconceptions about the legal process especially when it is regarding criminal laws, criminal procedure and punishment. Your question is basically why wasn't she charged under CPC 288a(b)(1) which you believe is a misdemeanor. CPC 288a(b)(1) is not a only a misdemeanor. It can also be a felony. This type of charge is called a wobbler and that means the District Attorney has the option of filing it as a felony or or misdemeanor. The key words in the statute are a section you did not include in your question. Those key words are "Shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year." The fact that the punishment can be time in state prison means it can also be a felony. So even if she had been charged under the section you believe was appropriate it could have been filed as a felony. There is a lot of information an attorney needs to know before providing you with any accurate information. For example, was there a trial or did she accept a plea bargain?, how old were you at the time of the incident?, Did her attorney explain everything to her? and were there other charges along with the 288 charge? and Does she have any prior convictions? This is just some basic information and there is a lot more needed in order to really address your question.

Now, with that said, the information that Mr. Roach explained is exactly correct. You may have a valid point. However it is impossible for any attorney to give you an accurate answer with the limited information provided. Facts like has she has been sentenced already? or what did the DA offer her regarding a plea? one of the things you may not be aware of is that when a plea bargain is struck between the parties sometimes an offer might include pleading to one charge but being sentenced as if it were another charge. Anything is possible when plea bargains are negotiated and decided upon. However, if she did not understand the situation or what she pleading too, and/or it was not explained to her or any number of different things, especially in regards to the sentence she received, as Mr. Roach addressed, then she may have a valid argument. In order to understand she needs to talk with an attorney and explain exactly what happened. The attorney needs to look at the file and then analyze what might be available to her. I suggest she gather the information together and start talking to attorneys. Generally initial consultations are either at no charge or at a very small fee. So it would be worth her investigating the matter. However, she may have a time restriction on her ability to appeal so she must look into it immediately. If she doesn't know any attorneys, then tell her to contact the local county bar association and ask for some attorneys from the referral list.

Good Luck

Brian McGinity

The information provided is based on general principles of law and should not be considered legal advice. This communication has not established an attorney client relationship and there is no confidential privilege regarding the information provided.