Posts Tagged ‘attorney’

Fifteen years after the passage Proposition 215, the San Diego County Probation Department is just now adopting a set of rules on how they will handle sentencing recommendations for medical marijuana patients who have felony probation matters. The Probation Department, of course, makes written recommendations to felony sentencing judges on conditions of probation for felony criminal defendants. The standard recommendation is to prohibit the use of all controlled substances, including marijuana, while on felony probation. The judges always adopt this recommendation. However, the Department will now start making recommendations as to whether a medical marijuana patient should be allowed to continue use of marijuana while on felony probation. While the rules have not been published, I believe that the following guidelines will be in effect from this day forward.

For those patients that are to be sentenced to a grant of felony probation, to lawfully use marijuana the defendant should:

1. Consult with their attorney.

2. Obtain a recommendation for the use of marijuana from a licensed physician.

3. Obtain a Medical Marijuana Identification Card (MMIC) from the San Diego Department of Health and Human Services. For more information phone 619-692-5723. The San Diego County Medical Marijuana Identification Card (MMIC) Program provides patients with the State medical marijuana identification card, a voluntary card registration program that identifies medical marijuana patients under the Compassionate Use Act.

4. Obtain a letter from their personal physician detailing a diagnosis of a medical condition that is currently being treated. The letter must come from the physician actually providing the treatment.

5. Inform the probation officer who is making the sentencing recommendation of the need to use marijuana. The officer will consider the quality of the information provided and make a recommendation to the court.

The sentencing judge will make the final decision and must approve the use of marijuana for medical purposes while on probation.

For those patients already on a grant of felony probation, the defendant should:

1. Consult with a lawyer.

2. Obtain a recommendation for the use of marijuana from a licensed physician.

3. Obtain a Medical Marijuana Identification Card (MMIC) from the San Diego Department of Health and Human Services. See, above.

4. Obtain a letter from their personal physician detailing a diagnosis of a medical condition that is currently being treated. The letter must come from a physician proving the treatment.

5. Notify the supervising probation officer of the need to use marjijuana.

6. Obtain a modification of probation to obtain the judge’s approval for the medicinal use of marijuana while on probation.  This means another trip to court in order to obtain a judge’s approval. For information on modification of probation, see  http://www.attorneylombardo.com/sentencing_probation/jail-restricted

For more information, contact the Law Office of Domenic J. Lombardo:

info@attorneylombardo.com / (619) 232-5122

No CommentsTags: attorney, Compassionate Use Act, conditions of probation, controlled substances, criminal, defendants, diagnosis, felony, felony sentencing, guidelines, judges, lawyer, licensed physician, marijuana, marijuana identification card, Medical Marijuana Identification Card Program, medical marijuana patient, medical marijuana patients, MMIC, modification of probation, probation, Proposition 215, recommendations, San Diego Department of Health and Human Services, Sentencing, smoke, the San Diego County Probation Department, treatmentRead More

Probation is the suspension of the imposition or execution of a sentence, where an individual is conditionally released from custody under the supervision of a probation officer or the court. Probation is generally reserved for those individuals whose conditional release into society poses minimal risk to public safety. In order to successfully complete probation and have his or her case dismissed by expungement,  a probationer must satisfy all terms and conditions of probation during its entire period, which is usually either three or five years. Failure to satisfy any of the numerous conditions of probation may result in termination of probation and imposition of the sentence.  

However, the court may modify terms of probation at any time during a period of probation. Such modification may be done on the court’s own motion, or upon a request of the probation officer, the probationer, or the prosecutor. A court may revoke or modify terms of probation at any time before the expiration of that term. The court’s decision to modify probation must be based upon new facts or changed circumstances. Examples of such circumstances include instances when the probationer has violated any of the conditions of his or her probation, has deceived the court at the time probation was granted, or has subsequently committed other offenses, regardless of whether he or she has been convicted for such offenses.

At the same time, the court has the authority to modify probation conditions in favor of the probationer based upon the same legal standard of changed circumstances. However, the court may not modify a jail term that was included within the terms of a negotiated plea agreement (a “stipulated sentence”) unless both the defendant and the prosecution agree to the proposed modification. Neither is it possible for the court to modify the amount of restitution owned to the victim solely on the evidence of the probationer’s good conduct and reform without showing the existence of compelling and extraordinary reasons. It is also important to know that probation cannon be revoked for lack of payment unless the court finds that the person willfully failed to make restitution or other payments, and probation may not be extended past the maximum period for which the probationer could have been incarcerated, or five years.

An experienced attorney is in the best position to determine what factual circumstances warrant probation modification. This office handles all types of matters involving modification of probation in San Diego County. For a free consultation, contact us at:

info@attorneylombardo.com.

For more information on probation modification, see the following:

http://www.attorneylombardo.com/probation_violations/jail-sentence_fines-arrests

No CommentsTags: attorney, changed circumstances, conditionally released, court, criminal, execution of sentence, imposition of sentence, judge, modify terms of probation, probation modification, probationer, prosecutor, restitution, sentenceRead More

California law affords judges a great deal of discretion to terminate probation at any time. Most misdemeanor convictions are punishable by a probation term of three years. A specific provision of the California Vehicle Code, however, specifies that DUI violations are to be punished with at least a three year probation term. Most courts will impose a five year term of probation. While this may appear to require that a person convicted of DUI spend at least three years on probation, this is not actually the case. This minimum probation requirement only applies at sentencing. After probation is granted, the judge can terminate probation at any time upon the application of the defendant. However, as with any other probation case, the appropriate time to apply for probation terminate is when sufficient good conduct and reform can be demonstrated, or upon a showing of “good cause.” An experienced attorney is in the best position to make the factual determine of whether adequate time has elapsed to demonstrate what is required to be successful in an early termination request, an accordingly when is the appropriate time to file a such a request.

If you are on probation and would like your probation terminated, our office can help you determine when to file such a request with the court and we can outline proactive steps for you to take that will afford you the best chance of having your request granted. We may be reached at: info@attorneylombardo.com

Of course, once probation is terminated, there are may be options available for clearing the record through expungement, for example. For more information, see:

 www.attorneylombardo.com/clearing_criminal_record/expungement-clearing-sealing

No CommentsTags: attorney, California, convictions, courts, DUI. probation, early termination, expungement, good cause, judge, misdemeanor, term, terminationRead More

The man famous for his Hollywood movies, murdered wife, and life as a fugitive may be extradited from Switzerland to a Los Angeles, California courtroom. Polanski faces sentencing in a felony sex case over three decades old. He fled the United States jurisdiction after he pleaded guilty and before the sentencing hearing. He has a few options, however.

His lawyer’s first option will be to move to dismiss his case. The misconduct of his judge and a prosecutor in his case provides ample ammunition for a dismissal in the interests of justice.

He may also move to withdraw his plea. The law provides that a criminal defendant may withdraw his or her guilty plea for “good cause.” Good cause is an elastic concept, one that will almost certainly embrace the broken promises made by the judge and the other misconduct pervading his prosecution.  Withdrawing his plea has some risks, most obviously that he would face charges substantially more serious charges than the one he is now facing (charges that will carry mandatory prison time – no probation).  On the other hand, his attorney may calculate that the D.A. does not have sufficient evidence anymore to prosecute the case to verdict. Polanski would then be in even a better position than he is now – no conviction on his record.

Polanski’s last option is to face the sentencing squarely. Other Los Angeles judges have made favorable findings in his case, even in his absence. Polanski’s attorney can without doubt demonstrate an abundance of reasons that favor probation both as to the offense and the offender. An astute criminal lawyer may conclude, therefore, that the risk of a state prison sentence is very remote, and the likelihood of probation, and credit for time served, is very high.

The prosecution may elect to file a felony charge for failing to appear in court, but this will likely be defeated by their own failure for many years to make any real attempt to bring him to justice.

The battle is far from over, but Polanski is unlikely to suffer any further punishment in this case.

No CommentsTags: attorney, California, conviction, court, courtroom, criminal defendant, criminal lawyer, D.A., dismissal, extradite, failure to appear, felony charge, felony sex case, fugitive, good cause, interests of justice, Los Angeles, miscondcut, probation, prosecutor, punishment, Roman Polanski, Sentencing, serious charges, sex offender, sex offense, state prison, Switzerland, time served, withdraw guilty pleaRead More

The unprecedented California budget crisis has now resulted in the San Diego Superior Court closing every third Wednesday of the month, effective September 1, 2009. Court clerks have already cut-back to a shorter work day, and the court closing will put further strain on a majority of criminal court defendants and defense lawyers. The budget mess has also forced the California Legislature to consider a number of proposals to allow for early release of prisoners.  The early release will lighten the budget load as the higher cost of housing prison inmates will be eased by the lower cost of parole supervision. This proposal, of course, does not apply to inmates in county jails serving a probationary sentence.  There are a few county sheriffs, however, that take a creative approach to the meaning of “custody” by allowing their county inmates to “serve custody” in ways ranging from electronic surveillance to work release. In this way their budget load is lightened.

The budget mess is clearly both helping and hurting criminal defendants.

No CommentsTags: attorney, budget crisis, California Legislature, county jail, court clerks, criminal courts, criminal defendant, criminal lawyer, custody, defense attorney, early release, electronic surveillance, inmate, parole, prisoner, prisoner release, probation, san diego, sentence, sheriff, superior court, work releaseRead More

Juvenile adjudications (convictions) can be used against adult criminal defendants under the “three strikes” law even though juvenile defendants have no right to a jury trial. The California Supreme Court, in People v Nguyen, held that prior juvenile adjudications that qualify as serious or violent felonies (“strikes”) can used to substantially increase an adult criminal defendant’s felony sentence, despite the fact that juveniles are not entitled to a trial by jury. 

In Nguyen, the Court emphasized that a defendant is still free to contest the fact of a prior conviction in the adult case, and, of course, a defendant can always challenge whether the juvenile adjudication actually qualifies as a serious or violent felony offense. Juvenile cases from outside of California are example of those types of cases often subject to successful challenge on the issue of whether they qualify as a strike offense.  But for now, criminal defense attorneys can no longer successfully raise 5th 6th and 14th Amendment objections against the use of the juvenile case as a strike solely due to the lack of a jury trial right in juvenile court. 

The California Supreme Court may get overruled on this issue by the U.S. Supreme Court.  Criminal defense lawyers therefore must continue to object to the use of juvenile offense as strikes in order to preserve this issue for appeal, especially for criminal defendants looking at a life sentence.

No CommentsTags: adult criminal convictions, attorney, California Supreme Court, criminal defendant, criminal defense, criminal defense lawyer, felony, jury trial, juvenile, juvenile adjudication, juvenile strike, People v. Nguyen, prior conviction, san diego criminal defense attorney, san diego criminal lawyer, sentence, three strikes, U.S. Supreme CourtRead More