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Conviction: Sentencing

Preparing for Sentencing from the Very Beginning

Criminal defense lawyers should be proactive at the outset of the case and committed to searching out and designing alternatives to traditional punishment. It is important to have a plan that will include evaluation of the case, counseling, community service, payment of restitution, etc. Specifically with drug and alcohol cases, a lawyer can focus on evaluating treatment options. These may include an out-patient program, in-patient treatment, or counseling. The design of the program depends on whether the client is a repeat offender, the client's needs regarding employment, ability to pay for programs, and more.

As an example, if a criminal case involves drugs, an analysis can be made by the criminal defense attorney at the inception of the case as to whether or not an addiction exists. If so, steps taken to address the addiction can go a long way toward softening the impact of sentencing. These considerations include not only cases in which drugs were possessed, sold, distributed, grown, etc., but, also, cases in which other crimes were committed to support an addiction, i.e., burglary, theft, possession of drugs, using forged prescriptions, etc.

Exploring All Appropriate Programs & Services

It is crucial for a criminal defense lawyer to fully explore all of the appropriate programs and services that may help resolve any underlying problems that exist for the client. This enables the attorney to craft a sentence focused on correcting the underlying problem as opposed to punishing the client. Addressing a drug problem far in advance of a sentencing hearing can be helpful in a variety of ways. Primarily, it is an effort on the part of the criminal defense attorney and the client to address problematic issues which eliminates the argument for the necessity of forced rehabilitation once the client arrives at sentencing.

In short, this approach often takes the wind out of the sails of the prosecutor and/or judge.

The same process is true for other types of cases that do not directly involve drugs but are the result of a drug addiction such as theft, assault, or DUI case. If drugs or alcohol are involved—and if there is the possibility of a guilty verdict or a negotiated disposition with the District Attorney—it is important that counseling and/or anger management sessions be seriously considered and documented so that, once again, the defendant has taken constructive steps to address the underlying issues which can then be favorably presented by the criminal defense attorney at sentencing.

An effective criminal defense lawyer will make every effort to encourage leniency on the part of the court to help the client resume a normal productive life as quickly as possible. Alternative sanctions that may be available to a client will be reviewed by the criminal defense lawyer or DUI attorney and will include actions such as community service instead of jail, electronic monitoring, supervised probation, restitution to the victim, referral of clients to treatment and education programs, etc.

Mitigating factors that are favorable to a client at sentencing include:

  • Evidence of the good character of the client
  • Client's involvement with the financial support of his/her family
  • Client's youth or special conditions (ex: health problems)
  • Attitude or forgiveness of the victim
  • Client's remorse
  • Rehabilitation issues
  • Construction of a reasonable plan for restitution

In summary, an understanding of the underlying problems and the construction of a plan of action to address those problems will put the defense lawyer in a position to explore various sentencing strategies. In addition to what is set forth above, these strategies can also include the hiring of a professional psychologist or psychiatrist to perform a comprehensive psychiatric/psychological evaluation. This evaluation will offer the court important information about the client's personal history including information as to why a criminal act may have occurred. This allows the court to construct a sentence focused on rehabilitation and treatment rather than punishment and time in jail.

10 Best Ways to Reduce or Eliminate Jail Time

  1. Deferred Entry of Judgment with Entry of "No Contest" or "Guilty" Plea
  2. Deferred Entry of Judgment Without the Entry of Plea
  3. Prop 36 - Drug Treatment After Conviction
  4. Misdemeanor Diversion
  5. Bad Check Diversion
  6. Civil Compromise
  7. Work Release Program - SWAP
  8. Home Confinement - EMP
  9. Work Furlough or Work Release - WF
  10. Additional Jail Programs

Deferred Entry of Judgment with Entry of "No Contest" or "Guilty" Pleas

This is a diversion program that is available in narcotics and drug abuse cases. To be eligible for this program, a defendant must plead guilty to the crime charged and waive their statutory rights for a quick entry of judgment. The entry of judgment is then deferred or put off until the successful completion of a court approved drug program. If an individual successfully completes the program, criminal proceedings are then dismissed and the defendant can, with certain exceptions, always answer any question involving his or her criminal record by saying that he or she has never been arrested or charged with the offense.

If a person does not successfully complete the drug program, then the judgment is entered and, since the defendant has already pled guilty, the criminal proceedings move forward toward a sentencing hearing. This is the same process that would occur in any type of guilty plea or a guilty verdict subsequent to trial.

Offenses that qualify for a deferred entry of judgment program are:

  • Possession of controlled substances and/or other restricted drugs
  • Possession of marijuana
  • Possession of drug paraphernalia
  • Aiding, assisting, or abetting the unlawful use of controlled substances
  • Possession of non-narcotic prescription drugs without a prescription
  • Possession of prescription drugs without a prescription
  • Using or being under the influence of a controlled substance
  • Possession of glue like substance with intent to inhale and become intoxicated
  • Possession of marijuana while driving
  • Cultivation of marijuana
  • Creation or use of a forged or altered narcotic prescription
  • Solicitation to commit a felony

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Deferred Entry of Judgment Without the Entry of Plea

A criminal defense attorney can determine whether a person's case qualifies for Penal Code §1000.5 which establishes the ability of a court to have a pre-guilty plea drug court program wherein criminal proceedings are simply suspended without the entry of a guilty plea and defendants are referred to drug treatment.

Those who successfully complete the treatment are then entitled to dismissal of their case. If a person does not successfully complete treatment then their criminal charges are reinstated. This is a program that must be agreed to by the judge, the District Attorney, and the defendant through his/her criminal attorney.

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Prop 36 - Drug Treatment After Conviction

There is a widely used program favored by criminal defense attorneys that is referred to as Prop 36. This program is, in essence, is a post-conviction sentencing program. Prop 36 makes drug treatment for someone on probation mandatory if they are qualified after having been convicted of a non-violent drug possession offense. The court can, as part of this drug treatment, impose requirements while someone is on Prop 36 probation involving vocational training, education, counseling, etc. Drug testing is generally a requirement of Prop 36 and is favored by a criminal defense attorney because it eliminates a jail sentence.

People who are not eligible for Prop 36 treatment are as follows:

  1. Anyone with two prior convictions for non-violent drug offenses who has participated in two separate courses of drug treatment under Prop 36, should the court determine that they are not going to be helped by further treatment.
  2. Anyone who has committed certain drug offenses with a firearm
  3. Anyone who has been convicted in the same case of a non-drug related misdemeanor or a felony
  4. Anyone who refuses drug treatment as a condition of probation
  5. Anyone convicted previously of a serious or violent felony pursuant to Penal Code §667.5(c) or Penal Code §1192.7 unless the prior conviction occurred more than five years prior to the offense date of the current case and during that five year period the defendant has not been in prison and did not commit certain offenses

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Misdemeanor Diversion

Some counties have District Attorney Offices that have approved a local misdemeanor diversion program for certain offenses. Crimes that are subject to other deferred diversion or deferred entry of judgment programs or DUI offenses are ineligible for this type of a misdemeanor diversion program. A well informed criminal defense attorney will be aware of exactly which crimes are eligible for a diversion program.

To be eligible for this program, the defendant must meet the following requirements:

  1. A person's prior probation or parole cannot have been revoked without being successfully completed
  2. The defendant could not have been granted misdemeanor diversion within the prior five years
  3. If the defendant has ever been convicted of a felony, he/she is ineligible for this diversion program.

There are also certain crimes that are not available for this program, such as:

  • Crimes involving the use of force or violence against another
  • Crimes that have been reduced from a felony to a misdemeanor
  • Crimes for which registration is required upon a conviction

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Bad Check Diversion

This is another pre-complaint program that some counties offer to defendants prior to the filing of the criminal complaint by the District Attorney. A criminal defense attorney will be able to determine whether any particular "bad check" case qualifies for a check diversion program. These programs are generally operated by the District Attorney who has the authority to refer a potential case to the program. If a pre-complaint bad check diversion program exists in a particular county, it is the District Attorney who makes the decision as to whether any particular case will be referred to that program.

Most bad check cases that are referred to the Bad Check Diversion program are instances in which a person simply makes a mathematical error or some other unusual circumstances exist that eliminate the appearance of the intention to defraud.

The following primary factors are generally considered when the decision is being made to refer a case to the Bad Check Diversion program:

  1. The amount of the bad check or checks involved
  2. Whether the defendant has any kind of a history involving bad checks
  3. The number of bad check complaints filed against the defendant in the past
  4. The defendant's prior criminal record

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Civil Compromise

When a crime is committed in which the alleged victim has a civil remedy—such as a vandalism case—a criminal defense attorney may be able to effectuate a civil compromise. The court has the power to order the criminal proceedings halted and, if a civil compromise is successfully constructed by the criminal defense attorney, the criminal charges will be dismissed. Ultimately, proof must be presented by the criminal defense lawyer to the satisfaction of the court that the victim has received full and complete satisfaction for the harm created to them. The defendant may also be required to pay the costs of prosecution.

Crimes that are unavailable for civil compromise treatment include:

  1. Offenses committed against a peace officer while executing duties of office
  2. Offenses committed in violation of a court order
  3. Certain crimes made an exception in PC §1377.
  4. Certain domestic violence cases
  5. Violence committed on an elder or a child

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Work Release Program - SWAP

The work release program is a post-conviction substitution of work for jail. A criminal defense attorney will be aware of all of the qualification requirements for this program. This work generally manual labor (ex: sweeping sidewalks and gardening); it is usually a day of work in exchange for a day in jail.

A criminal defense attorney will determine whether the court will agree to allow some of the work release time to be done in vocational training, drug treatment, or school, but at least half of the time in a work release program must be spent doing manual labor. As jails become more and more crowded, work release programs become more favored by county judicial systems. This is a program that is generally used by those who simply do not want to go to jail. Although there is no hard and fast rule, generally these programs are offered to those defendants who received a sentence of less than 30 to 60 days, depending on the county.

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Home Confinement - EMP

Home confinement or electric monitoring programs allow someone who has been sentenced to jail to serve their sentence at home with a monitoring device. A criminal defense attorney will be aware of the general requirements which are that (1) the person live in a drug- and alcohol-free environment at home, and (2) have a telephone line for the installation of a receiver for a monitoring device.

The program will assess each individual on a case-by-case basis and determine whether that person will be allowed to leave their home to go to school, to assist a relative who may have health problems, to do laundry if no laundry facilities are available in the home, etc. This is often a program that is more suitable for someone who receives a longer sentence, in the range of three months to a year. The cost for this program is generally on a sliding scale depending on an individual's income and resources.

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Work Furlough or Work Release - WF

A work furlough program is different than a work release program. In a work release program, as previously mentioned, you trade days of work for days in jail. In a work furlough program, an individual is released from jail to go to work during their normal work shift. They then return to jail each day.

An attorney will attempt to acquire this program for a client who does not want to lose their job and, for other reasons, are not allowed to participate in a home detention program. This program will generally require proof of reliable transportation to and from the client's place of employment and proof of workman's compensation insurance coverage.

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Additional Jail Programs

The Weekend Jail Program - WKR

In a weekend jail program, an individual is allowed to serve their time on weekends, making the assumption that they work during the week or are the primary care provider for children during the week. A lawyer will determine whether the client meets these requirements and acquire specific approval from the court to allow the client the opportunity to participate in this program. This program can equally apply to certain weekdays depending on an individual's schedule. A typical weekender program would have someone show up at jail at approximately 7:00 pm on Friday night and be released on Sunday at 7:00 pm.

County Parole - CP

County Parole is a program whereby the jail facility will release someone before they serve their full sentence. Counties who have the Sheriff's Parole program form a board to establish rules and regulations. Most counties require at least half of the sentence to be served before a person becomes eligible for County Parole. Someone who is granted County Parole can actually be released when they serve 50% of their sentence. Some counties count good time and work time credit and some counties don't. Certain counties will also exclude persons convicted of certain crimes such as serious drug offenses, violent offenses, etc. When released, conditions of parole generally will include conditions that are appropriate on a case by case basis including a curfew, drug or alcohol counseling, submission to drug or alcohol tests, etc.

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Ronald Dinan & Associates, Attorneys & Lawyers, Santa Rosa, CA