Probation and Sentencing

As your San Diego probation lawyers, we can negotiate a Plea Bargain, which is an agreement where the prosecutor obtains a guilty plea or nolo contender, and our client can receive a lower and/or negotiated sentence from the Court. Additionally, a negotiated plea bargain can result in a possible dismissal of or reduction in the number of charged crimes. Approximately 95 percent of all criminal cases are resolved at or before the Probation and Sentencing Hearing. The “P&S” Hearing is the Court proceeding wherein the Court adopts the plea bargain as its Order and consistent with its earlier approval announced at the time the parties enter into the agreement.

Plea Bargains

Advantages of Plea Bargains

By obtaining a plea bargain, we can settle your case before it goes to trial. It saves taxpayers money by reducing the number of Judges, Prosecuting Attorneys and ancillary Court personnel; it benefits our clients by imposing lower sentences. You avoid the cost, time and inconvenience of going to Court and being present throughout a jury trial. The matter is resolved much quicker than if you were to choose a trial by Court or jury. Additionally, if you are already in the County Jail we can get you out, depending upon the circumstances, once we have obtained a plea bargain.

Disadvantages of Plea Bargains

When you enter into a plea bargain, it can affect future punishments that become more severe if you are later charged with the same or another crime. If you fail to appear for a court hearing, the Court will likely issue a bench warrant or an arrest warrant. Also, if you violate any of the terms of probation, an arrest warrant or a bench warrant can be issued. Call for your free consultation with the managing San Diego probation attorney of Spital & Associates, Sam Spital, a former Deputy Attorney General and Probation Officer. Basically, the prosecutor can use a conviction as an enhancement of the punishment in the next case and/or as an additional charge. Also, you lose the opportunity for a jury trial and appeal if you enter a plea. A conviction can also affect one’s future employment or career goals (for example, state license).

Punishment for Crimes

Generally, crimes are punished according to the seriousness of the offense, with a longer or more severe sentence for a more cruel or dishonest crime. The range of punishment will include one of more of the following elements: (1) a fine; (2) a term of incarceration in County Jail or imprisonment in a State Prison; (3) probation or parole, with an array of terms and conditions; (4) restitution (repayment) to the victim(s) of the crime; and (5) in the case of “capital” crimes, the death penalty. As part of probation, often there is a requirement of community service.

The second most important consideration for a judge in deciding what is an appropriate sentence is to look at factors in aggravation and mitigation. We will argue in favor of mitigation or against aggravation, using the following factors: (1) your prior criminal record; (2) your age; (3) your work history; (4) your social and family history, including use of drugs and/or alcohol; (5) the age, vulnerability and amount of loss to the victim(s); (6) whether a weapon was used in the offense. Call us as your San Diego Sentencing Lawyers so we can provide advice or emphasize to the Court the other circumstances surrounding the crime that may be of interest, including your cooperation with law enforcement authorities.

Probation

There are two kinds of probation, namely Court, or unsupervised probation, and Formal probation, which is supervised by a Probation Officer. The Court may order probation where jail time is not required by law. Then, the Court will impose various terms and conditions to insure you will lead a law-abiding life. At the end of the probationary period, you will no longer be subject to the state’s supervision. We frequently advise our clients to seek an early dismissal of probation.

Arrest Warrant and Bench Warrant

An Arrest Warrant is an Order given to the police, demanding the arrest and detention of a person. These warrants typically will be issued where there is suspicion of criminal activity. For example, when law enforcement reasonably suspects criminal activity has occurred, the police or sheriff will obtain a sworn statement from the alleged victim, present it to a judge who will sign an Order for the arrest of that person. The District Attorney or law enforcement officer can also sign a sworn statement to obtain an arrest warrant. Another example of when an arrest warrant is issued is after a Grand Jury indictment. In most situations, however, you would not become aware that an arrest warrant exists until the police arrest you.

The arrest warrant can be served at one’s place of business or home, making it an embarrassing and highly inconvenient situation. When the police officer or sheriff executes the arrest warrant, he or she handcuffs the person and takes the suspect to jail. In high-profile cases, there may even be new media present. Thereafter, the person in custody is taken to court.

If you become aware there is an outstanding arrest warrant for you, you should contact Spital & Associates immediately, because you are at risk of being arrested any time and we can ensure that law enforcement officers do not obtain any statements, admissions or confessions from you. Any statements made to the police officer or sheriff can and will be used against you, no matter how innocent you may feel they are.

For your San Diego Arrest Warrant Attorney, contact criminal defense attorney Sam Spital. At Spital & Associates, we handle these cases on a regular basis and will go to court to have the arrest warrant cancelled, and if possible, help you avoid any custody in jail. We are skilled and experienced advocates. We will present the arguments to the court that are necessary to have our clients released without posting any bail; in a case where bail is ordered, we will argue the necessary grounds to lower the bail amount, thereby facilitating one’s release.

Do not attempt to go to court to explain the case to the judge without experienced legal counsel. Unfortunately, far too many individuals have tried and failed in their attempt to offer what seems a valid excuse. Most judges have heard all of the excuses that are offered and may not be willing to hear the same thing again. You need to call Spital & Associates to present the legal arguments that are appropriate to your case, so the arrest warrant can be recalled (cleared).

A Bench Warrant, the most common type of warrant in California, is an order for the immediate arrest of a person. Typically, bench warrants are issued by the court as a result of one’s failure to appear in court on the date scheduled for a hearing. Additionally, a bench warrant is issued if you do not appear for your arraignment (time to enter a plea of not guilty) after being charged with a crime, if you fail to appear for your sentencing hearing and/or you fail to appear or show proof of your compliance with a court-ordered term of your probation (such as payment of fines, attendance at certain classes, completion of community service, etc.).

Probation Violation

It is important that you are aware you need San Diego Probation Violation Attorneys and Arrest Warrant/Bench Warrant Attorneys if you have violated one or more of the probationary terms and/or failed to appear for a hearing, because this violation may cause the court to revoke your probation and then send you to jail to serve your original jail sentence. If you are sentenced to State Prison, you may be paroled, which is the conditional release of a prisoner before the expiration of the sentence. In California, parole is granted by the Board of Prison Terms, which is a separate state agency or commission that considers the applications of inmates in State Prison for early release from incarceration. Parole is typically granted on terms and conditions in the same manner as probation in the context of a County Jail sentence. Violating these conditions can result in one’s parole being revoked and that person being sent back to State Prison to finish the term of the original sentence.

Expungement or Dismissal

Under section 1203.4 of the California Penal Code, a convicted defendant “may be reinstated as a law-abiding member of society” if the defendant has complied with all of the terms of his or her probation and is not currently serving a sentence nor on probation for any other offense and has been charged with the commission of any other offense.

Are you eligible?

Under California law, your misdemeanor conviction can be expunged as long as you have completed the terms and conditions of your probation. If you were not placed on probation, your conviction can be expunged one year after the date you pled guilty or no contest. Although successful completion of probation is a requirement, the law provides courts the discretion to expunge convictions even where probation was violated.

You can employ Spital & Associates to obtain an expungement of your misdemeanor conviction, as long as your conviction was not for a violation of Vehicle Code section 42001(b) or PC sections 286(c), 288, 288a(c), 288.5, 289(j) or any felony conviction of Penal Code section 261.5(d).

The expungement process begins when Spital & Associates files a petition with the Superior Court in which the conviction took place. The matter is then typically sent to the probation department and District Attorney for review. The probation department may submit a report to the court and the DA may oppose expungement, at which time the case is set for a hearing. Once the expungement is granted, the conviction is set aside, a plea of not-guilty is entered and the conviction is dismissed. Then, the Superior Court sends a copy of the Order to the Department of Justice to update its records.

How Does This Help You?

  1. It will result in the dismissal of the case;
  2. It will permit you to answer “NO” on employment applications that inquire if you have any prior convictions. On the other hand, if you are applying for a state professional or vocational license, government employment or a job in which there will likely be a background investigation, the employer will likely discover the conviction; therefore, you should disclose the conviction and that it has been expunged or dismissed (some prefer attaching a certified copy of the court order). Also, the conviction or underlying facts, if the conviction is dismissed may be used to refuse or revoke a state license and/or permit, such as a professional license issued to a doctor, attorney, nurse, dentist, real estate sales broker/agent, security officer, teacher, bus driver, etc.

However, at Spital & Associates, we handle state administrative cases and will use a variety of factors, including the expungement, to reduce the weight given to the conviction by the licensing agency.

Section 1203.4(a) provides:

“In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of probation . . . the defendant shall, at any time after the termination of the period of probation, . . . be permitted by the court to withdraw his or her plea of guilty . . . and enter a plea of not guilty; . . . and, . . . the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . .”

Section 1203.4(b) provides:

“Subdivision (a) of this section does not apply to any misdemeanor which is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, or to any infraction.”

Although section 1203.4 confers the benefit of expungement to a defendant who successfully fulfills the conditions of probation, the statute does not operate automatically. You must petition the court for an expungement and show the successful completion of probation as long as you are not then serving a sentence nor on probation for any offense and have not been charged with the commission of another offense.

An expungement may be filed one year after the date of sentence or after the completion of probation of a misdemeanor. We have found the Superior Court more likely to grant relief once all of the terms of probation have been fulfilled and it is approximately 18 months after sentencing. Please note, this relief is available even if the entire period of probation has not been completed. If you contact Spital & Associates, we will provide you with for a free consultation with our Managing Attorney Sam Spital, who is a former Deputy Attorney General and Probation Officer.

The Superior Court will not grant an expungement on a felony conviction unless it is first reduced to a misdemeanor, so this is a two-step process. Moreover, you are required to attend the Court proceeding if you are seeking an expungement of a felony. While only certain felonies qualify for expungement, the court has discretion to expunge or dismiss all misdemeanors.

If you are being investigated for, or have been arrested and are facing a Probation and Sentencing hearing, or a Probation Violation hearing, or would like to have your conviction dismissed, contact Spital & Associates now at 619.583.0350 or send an e-mail now so that we can help.

 

Main Offices
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108-1642
Telephone: 619-583-0350
Fax: 619-583-1850

Banker’s Hill Associate Office
1901 First Avenue, Suite 138
San Diego, CA 92101

Downtown Associate Office
Of Counsel – Bill O’Connell, Esq. 
110 West C Street, Suite 1300
San Diego, CA 92101-3978

Associates available 24/7.
Call (619) 583-0350 or send us an e-mail.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.