Sacramento Criminal Defense Lawyer Blog

Proposition 36, passed by California voters in 2000, provides some people accused of non-violent possession or use of illegal drugs the opportunity to undergo drug treatment rather than be sentenced to jail or prison. Codified in Penal Code 1210.1, Proposition 36 is similar to Deferred Entry of Judgment - described in the July 9 post - though it differs in several ways. Like Deferred Entry of Judgment, PC 1210.1 is intended only for people accused of drug use or possession. It is not an option for those accused of drug manufacture, sale, or trafficking.

The program works like this. The defendant agrees to plead guilty to the drug possession or use charge, and a conviction is placed on his/her criminal record. Instead of being sentenced to jail or prison, however, the defendant is placed on probation with the stipulation that he/she completes a drug treatment program. Additional requirements - such as counseling or community service - may also be imposed.

If all of the terms of probation are fulfilled, the judge orders the conviction replaced with a dismissal. Significantly, PC 1210.1(e)(1) holds that "both the arrest and the conviction shall be deemed never to have occurred." This means that the defendant does not have to disclose the incident to questions that might arise in the course of an application for employment. (An exception to this is when applying for a position as a peace officer.)

Because the guidelines for PC 1210.1 are complicated, it's important to speak with an experienced defense attorney to see if you qualify. For example, those who do not qualify include people who used a deadly weapon while under the influence of drugs, refused to undergo drug treatment as a requirement of probation, or have undergone treatment twice before under PC 1210.1. Moreover, the program is not an option for many people convicted of serious felonies, though it might be available for them if during the previous five years they have not been imprisoned and have not been convicted of a felony other than a non-violent drug possession.

If you have questions about drug treatment under PC 1210.1 - Proposition 36 - contact the Law Office of Nancy King at (916) 442-1200.

A bill that would have substantially increased penalties for DUI convictions was watered down before being passed out of the Assembly Appropriations Committee.

The proposed law, authored by Jerry Hill (D-San Mateo), would have given judges the authority to impose a lifetime ban on driving after three DUI convictions. Instead, the bill gives judges the ability to revoke a license for 10 years. Current state law suspends driving privileges for three years after a third DUI conviction. Also removed by the committee was language that allowed consideration of a driver's lifetime record for DUI conviction. Current law limits consideration to the previous 10 years.

Hill claimed that budget limitations were the primary reason the bill was amended. It was estimated that the bill would have cost $10 million a year to house the additional people who would have been sent to prison due to conviction for felony DUI, which comes after a fourth DUI conviction. Felony DUI convictions would have increased if the bill's provision to allow consideration of a driver's lifetime record had been retained.

The California DUI Lawyers Association argues that a better solution is installation of Ignition Interlock Devices, which require drivers to blow into an alcohol detection device before starting their cars. If any alcohol is present, the ignition will not operate.

If you have questions about DUI laws in California, call the Law Office of Nancy King at (916) 442-1200 for a free and confidential consultation.

San Mateo County Times, May 28, 2010

Domestic violence - or spousal abuse - falls under California Penal Code 273.5, which makes it a crime when bodily injury results from a physical confrontation involving spouses, former spouses, cohabiting couples, or former cohabiting couples. For charges to be brought under PC 273.5, the injury must be traumatic - an external or internal wound caused by physical force - and willfully, or intentionally, inflicted.

Domestic violence cases are often complicated by the dynamics of the spouses' or partners' relationship. Each person usually has a very different view of what happened, and emotions tend to run high. Moreover, many people are effected by the incident, including children, relatives, friends, and neighbors.

Since PC 273.5 is a "wobbler," it can be charged as either a misdemeanor or a felony, depending on the criminal record of the accused and the circumstances of the incident.

Possible penalties for a misdemeanor conviction include:

• at least three years informal probation
• up to one year in county jail
• up to $6,000 in fines, with the potential for additional fines depending on prior offenses
• payment of up to $5,000 to a battered women's shelter
• reimbursement of the victim's medical expenses
• a restrainer order preventing contact with the victim for up to 10 years
• counseling
• community service

Possible penalties for a felony conviction include:

• the restraining order, community service, and counseling options listed above
• up to five years in state prison, with the possibility of additional time if the victim suffered great bodily injury
• formal probation
• a possible strike under California's Three Strikes Law

Bear in mind that the district attorney's office decides whether to file criminal charges. Sometimes in domestic violence cases, the alleged victim files a complaint and then later tells the DA that he/she wants to "withdraw the charges." Once prosecutors have become involved, however, the discretion to file charges rests with them.

It's especially important in domestic violence cases to have a defense lawyer who will ask the right questions and gather all the relevant evidence to be able to put together a clear picture of what happened. Only then will a credible, effective defense be possible. Call the Law Office of Nancy King if you have questions about domestic violence, or any other topic covered in our blog.

In our April 8 post, we went over California law as it relates to petty theft. Today we'll review grand theft.

California Penal Codes 484 to 490 specify the elements of, and penalties for, both petty theft and grand theft. If the value of the property stolen is greater than $400, grand theft is charged.

Some exceptions to this general rule exist, however. One concerns vehicles. All instances of auto theft are charged as grand theft. Another exception concerns livestock and agriculture. A person who steals fruits, vegetables, nuts, fowl, fish, cattle, or numerous other agricultural and livestock items will be charged with grand theft if the value of those items exceeds merely $250 - in contrast to the $400 threshold for most other goods.

In general, grand theft is punishable by up to one year in county jail or state prison, substantial fines, work project, restitution, counseling, and probation. But again there is an exception. If the grand theft involves use of a firearm, then the prison term is 16 months to 3 years.

Grand theft is a 'wobbler,' meaning that it can be charged as either a misdemeanor or a felony depending on the prior record of the defendant and the particulars of the crime. Because of this variability, it's critically important to be represented by an experienced criminal lawyer to help you present the best possible case.

If you have questions about grand theft or petty theft, call me at (916) 442-1200. I've defended many clients facing theft charges and can review your case in a free and confidential consultation.

The tortured tale of time credits at the Sacramento County jail seems to finally have come to a close. Judge Loren McMaster on Friday ruled against the request by the Sacramento Sheriff's Deputies Association to block implementation at the jail of a new state law increasing the amount of early release time inmates could earn for good behavior.

The ruling comes after a hearing that saw the sheriff's deputies association on one side arguing against the new law, and the Sacramento district attorney's office, Sacramento public defender's office, and the state attorney general's office all on the other side arguing for it.

Keep in mind that before this new law went into effect January 25, state prison and county jail inmates in California were already able to earn early release if they met good behavior requirements. All the new law did was increase the amount of credit that could be earned. (See our previous posts for full explanations of this.) The new law was seen as necessary because of the twin problems of budget constraints and overcrowding in jails and prisons.

Throughout this battle, the sheriff's deputies association has made two arguments: the new law was meant to increase time credits at state prisons only, not county jails; and the increased number of prisoners obtaining early release would endanger the public.

In the end, McMaster was not persuaded. County jail inmates will now get one day of credit toward early release for each day they serve with good behavior.

The actions by the deputies' union do raise questions, though, especially after the deputies were opposed in court by their law enforcement partners, the district attorney and the attorney general. It seems clear to us that the new law applies to county jails, not just state prisons. If the deputies want to return to the provisions of the old law, they are better served trying to get the legislature and governor to pass an amended law rather than circumventing the legislative process.

What was their motivation?

The new state law that increases the amount of time a jail sentence may be reduced for good behavior continues to be the subject of an ill-considered legal battle in Sacramento County. (For a review of the law's provisions, see our previous post.)

The superior court judge who last week issued an order blocking enforcement of the law yesterday reversed himself and said that the law must be implemented until county jail inmates are able to bring their legal concerns before the court. "While county jail inmates may not be indispensable parties in the technical sense," Judge Loren McMaster wrote, "they are real parties in interest since the resolution of this matter directly affects them and their status."

While we're pleased that McMaster has temporarily allowed the law to be implemented, we still disagree with his original ruling. The legislature clearly meant for the new law to merely amend a previous state law that already allowed state prison and county jail inmates to be released early for good behavior. All the new law did was increase the amount of credit that could be earned in an attempt to relieve prison and jail overcrowding.

Sadly, McMaster's rulings have only resulted in confusion and inequity. We know of at least one inmate who got caught in the middle of this wrangling and received no credit at all for good behavior, because he entered Sacramento County Jail just as McMaster issued his original injunction blocking the new law, and was released today, just as the injunction was lifted.

At least one issue has been clarified: The California Attorney General's Office has advised the Sacramento Sheriff's Department, which oversees the jail, that the new system of determining time credits should only apply to time served after January 25.

More on this issue as it develops.

"More inmates to be released early as Sacramento judge rescinds earlier order," Sacramento Bee, February 17, 2010

Confusion reigns at the Sacramento County Jail after a Sacramento Superior Court judge blocked implementation of a new state law increasing the amount of time credit inmates at the county jail can get for good behavior.

Judge Loren McMaster issued the injunction on Wednesday in response to a lawsuit brought by the Sacramento County sheriff's deputies union, which claims that the California Community Corrections Performance Incentives Act of 2009 applies only to state prisons and not county jails.

The new law, enacted by the legislature and the governor to deal with overcrowding of California's prisons and jails, was meant merely to modify and expand a previous state law that allowed prisoners, both in the state prison system and county jails, to have their sentences reduced if they met certain good behavior criteria. Under the old law, prisoners were eligible for fifty percent credit, meaning a one day sentence reduction for every two days served. That meant someone sentenced to 60 days could be released after 40 days. The new law increased the opportunity for time credits to one day reduced sentence for each day served, giving a person with a 60-day sentence the chance to get out in 30 days.

The absurdity of this situation comes in many forms:

• The Sacramento Sheriff's Department, along with sheriff's departments in 20 other California counties, has taken the official position of implementing the law. As a result now you have the Sheriff's Department saying it intends to enforce the new law while the sheriff's deputies union fights to block it.
• After Judge McMaster issued the injunction on Wednesday, the Sheriff's Department declared that there would be NO GOOD TIME CREDIT GIVEN AT ALL until the matter is resolved, even though such credit had been granted for 34 years under previous law. So now you have people in custody who would have been granted one-for-two credit for good behavior under the old law, were expecting to get one-for-one credit under the new law, and now find that they get no credit at all.
• Complicating things even more, McMaster on Thursday issued a clarification that said that good time credit would continue to be awarded, but only for the portions of sentences served before January 25, the date the new law took effect.
• And finally, some Sacramento judges are apparently giving out sentences with calculations for credit for time served based on the old law.

The state legislature is apparently working to pass a law that would clarify who should receive credits, but given the shambles that is our legislature (what's happened to Abel Maldonado's nomination for lieutenant governor is a good example) we shouldn't expect quick action. The result is that this has taken away the incentives for good behavior for people serving time in county jail, and exacerbated an already serious problem of jail overcrowding.

What a mess.