Los Angeles Criminal Defense Attorney

Archive for the ‘Probation Termination and Expungement’ Category

County Jail Felony Sentence is Not Probation

Sunday, October 23rd, 2011

There are many questions about California’s criminal justice realignment plan.  The cornerstone of this plan is the restructuring of California’s sentencing laws.  As of October 1, 2011, most “non-strike” offenses will be served in county jail rather than state prison.  However, people should not mistake these “county jail felonies” for probationary sentences. Here’s an example:

Let’s say someone is convicted of possession for sale of methamphetamine in violation of Health and Safety Code Section 11378.  Under realignment, there are two sentencing options:  1) A sentence of 16 months, two years, or three years in county jail OR 2) Probation which may include time in the county jail.

This distinction between the two options is important.  Until now, county time on a felony was often the part of a probationary sentence, now both a sentence to a county jail felony and a probationary sentence can both include county jail time.  However, if a person is sentenced to the county jail felony and not probation, he or she will suffer many of the same collateral consequences of being sent to state prison. The two most significant of these consequences is that a county jail felony counts as a “state prison prior” in any future felony cases and county jail felonies are not eligible for dismissal under California Penal Code 1203.4 (commonly called “expungement”).

Defendants and criminal defense lawyers must be very careful to understand that just because someone is sentenced to county jail, the sentence is not probation unless the judge specifically designates the county time as a term of the probationary sentence.

If you or a loved one have questions about criminal justice realignment call a qualified criminal defense attorney, Jerod Gunsberg is available for consultations at (310) 210-0744.

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New Law For Early Termination of Probation in California?

Sunday, April 3rd, 2011

Under California Penal Code 1203.3, a judge has the discretion to order the early termination of probation “in the interests of justice.”  The court can do this, even over the objection of the prosecutor.   However, prosecutors in Los Angeles County are starting to use a 2008 California Supreme Court case to support the position that if a probationary sentence was agreed to as part of a plea bargain with the prosecutor, then the court cannot modify probation in any way without the prosecutor’s consent.

Their rationale is based on a basic rule of contract law:  The court is not a party to the plea agreement.  The agreement is between the prosecutor and the defendant.  Therefore the court has no authority to modify the agreement. If the defendant entered an open plea to the court, then the agreement is between the defendant and the court, and the court and the defendant could agree on any subsequent modifications they want.

The case that the prosecution relies on is called People v. Seguara (2008) 44 C4th 921. Segura is about modifying custody time.  In that case, the court modified the defendant’s county jail sentence to 360 days from 365 days for immigration law purposes.  The California Supreme Court did not allow this modification of the custody time on the grounds that the lower court cannot modify a “material term’ of the plea agreement:

“As we have discussed, following entry of the judgment, the trial court retained its authority pursuant to section 1203.3 to revoke, modify, or change probation or modify conditions that were not made a part of the parties’ plea agreement. Nonetheless, as the trial court recognized, it was not at liberty to modify a condition integral to the granting of probation in the first place – a negotiated condition included within the plea agreement entered into by the parties, accepted by the court, and incorporated into the judgment.”  Segura at 936.

And what, you ask, is a “material term of probation?”  The Seguara court does not want to go there:

“We need not determine as a general matter what constitutes a material term of a plea agreement, because the one-year term in the present case clearly was a material term” Segura at 936, FN10.

So the bottom line is this:  After a negotiated disposition, the court can – without the prosecutor’s consent – modify probation under 1203.3 as long as the modification is not a material condition of the plea bargain.  But we don’t know what a material condition is.

There are other sections in 1203.3 that deal with notice to the prosecutor, but certainly nothing about a requirement that the prosecutor must approve a probation modification.

It is hard to imagine that the California Supreme Court intended to nullify the plain language of 1203.3(a), but that’s what some prosecutors are saying and some courts are starting to go along with it.

So what to do if you find out that the DA is going to use this broad interpretation of Seguara to oppose your client’s petition to terminate probation?  Argue to the court that Segura is limited to the issue of negotiated custody time, the length of probation itself is not a “material term” (as opposed to other terms and conditions of probation which require the probationer to affirmatively do something such as pay restitution, attend anger management classes, perform a certain amount of community service, etc.). And that to rule otherwise would be inconsistent with the plain language of Penal Code 1203.3(a).   If you lose, you’ve at least made your record in case your client wants to take it up on appeal — which is where this issue will eventually be resolved.

Jerod Gunsberg is a Los Angeles criminal defense lawyer handling all criminal cases including early termination of probation and expungement in Los Angeles and throughout Southern California.  He can be reached at 310-210-0744.

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