Los Angeles Criminal Defense Attorney

Posts Tagged ‘probation’

Modern Day Debtors Prisons in Los Angeles

Friday, July 6th, 2012

As a criminal defense attorney in Los Angeles, I sometimes feel that I live in an alternate reality.  On a weekly basis, I experience things that most well-educated and well-read people are confident don’t exist anymore.  One of those is debtors’ prisons.  Surely, you are thinking to yourself, they are a relic of the past.  And officially they are.  But in practice many court systems, including Los Angeles Superior Court, impose fines and penalties on indigent defendants and those who have been convicted of minor offenses that have the effect of imprisoning them for failing to pay their debts.

The New York Times reported on July 2 about for profit companies that help generate revenues for court systems by collecting fines.  The article, entitled, “Poor Land in Jail as Companies Add Huge Fees for Probation,” focuses on Alabama, and details the flight of Gina Ray, who was fined $179 for a speeding ticket, but three years later, after the imposition of a variety of fines and penalties, owes more than $3,000.

Three years ago, Gina Ray, who is now 31 and unemployed, was fined $179 for speeding. She failed to show up at court (she says the ticket bore the wrong date), so her license was revoked.

When she was next pulled over, she was, of course, driving without a license. By then her fees added up to more than $1,500. Unable to pay, she was handed over to a private probation company and jailed — charged an additional fee for each day behind bars.

For that driving offense, Ms. Ray has been locked up three times for a total of 40 days and owes $3,170, much of it to the probation company. Her story, in hardscrabble, rural Alabama, where Krispy Kreme promises that “two can dine for $5.99,” is not about innocence.

It is easy to dismiss what happened to Ms. Ray as a by-product of living in Alabama.  But this is also a problem throughout California and in Los Angeles in particular.  Faced with budgetary pressures, state and local governments are increasingly turning to fines and penalties as a way to finance court systems.  A report from the Brennan Center for Justice entitled, “Criminal Justice Debt: A Barrier To Reentry” details disturbing practices in 15 states including California.  For example, California Penal Code section 1214.1(A) authorizes courts to impose a $300 civil assessment for people who fail to appear in court or who fail to pay a fine ordered by the court.  Los Angeles Superior Court imposes this civil assessment.

If you’re wondering about the wisdom of imposing fines on poor people for their failure to pay existing fines, you aren’t alone.  Unfortunately, this isn’t a question of sound public policy or wisdom.  Too often, a financial incentive exists to create a cycle that makes it hard for the poor to escape the criminal justice system.  The New York Times article describes Judicial Correction Services, Inc., a Georgia-based company that, according to its website, helps provide courts with “a comprehensive solution to recidivism or just a boost in the fine collections.”

The company claims but there efforts impose costs on tax payers, but this seems to be true only in the narrowest sense.  Much of the fines imposed on Gina Ray were payable to this for profit company. So what do you suppose happens when people faced with ever increasing fines have to decide whether to decide whether to pay their fines or the child support obligations?  Who bears the cost of that?  The community at large, which, of course, includes tax payers.  And what happens when people can’t pay their debt burden.  Some, as outlined in the Brennan Center report, “choose” to go to prison as a way of paying off their debts.

People who are on probation are faced with a cycle of fines and penalties that can land them in prison. Yes, this is really going on in the United States in 2012.

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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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The Myth of the Wet Reckless In Los Angeles DUI Cases

Sunday, October 17th, 2010

Many people accused of a DUI in Los Angeles believe that their lawyer get their DUI charge reduced to something known as a “wet reckless.”   For the uninitiated, a “wet reckless” is an alcohol related misdemeanor that is similar, but less serious than a DUI.  The benefits to a wet reckless include a shorter probation period, lower fines, six weeks of a weekly alcohol class rather than 12 weeks, and in LA County there in no requirement that an Ignition Interlock Device (IID) be installed on your vehicle.  However, a wet reckless is still “priorable”, meaning that if you get convicted DUI in ten years, the wet reckless counts as a prior DUI conviction and the penalties on your next DUI will be enhanced.

Do not be fooled by an attorney promising you that he or she can “get you a wet reckless with no problem” in your DUI case.  For starters, a good DUI lawyer should always vigorously investigate your case and be ready to take your case to trial.  Whether your case actually goes to trial or not, preparing for trial is the way to get the best deals.  Now, if you blow a .08 or .09 on a first offense, sure there’s a strong chance you can get a wet reckless and if your lawyer does his or her job properly you may even get an even better offer.   But if your breath or blood shows that you have anything more than a .10, your lawyer is going to have work to get that wet reckless.  Los Angeles DAs and City Attorneys don’t give away wet reckless for nothing, your lawyer is going to have to research the case, file the discovery motions and really challenge the police and prosecution’s case.

  • Were the chemical tests performed properly?
  • Was the breath machine functioning normally?
  • Did the officer administer the breath tests correctly?
  • If blood was drawn, was the blood drawn, preserved and stored properly?
  • Was the equipment that tested the blood in working order?

These are just a few of the issues that a lawyer needs to investigate and discover in most cases.  Of course, if there is really a significant problem with the way in which the tests were done, you may find that your lawyer is able to get the charge reduced even further or you may even be able to take your case to trial.   Whatever your circumstance you need to be sure that a qualified criminal defense lawyer is handling your DUI case.

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