L a w y e r NORTH COUNTY Board of Directors PUBLICATION OF THE. VOL. 31, NO. 2 FEBRUARY 2014

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1 NORTH COUNTY L a w y e r PUBLICATION OF THE VOL. 31, NO. 2 FEBRUARY Board of Directors Back row from left: Mark Reichenthal, Deborah Nash, Robert Daniels, Debra Lewis, Aaron Hanes, Joseph Stine, Amber Crothall, and Eric Ginder Front row from left: Michael Doukas, Susan Curran, Debra Leffler Streeter, Katie Anderson, and Rafael Acosta

2 Lawyer North County Published by the North County Bar Association (760) * Fax (760) info@northcountybar.org Web: S. Indiana Ave., 2nd Floor; Vista, CA P.O. Box 2381 Vista, CA NCBA Mary Silva, Executive Director P.O. Box 2381; Vista, CA North County Bar Association Our mission is to promote professional excellence, camaraderie, philanthropy and community outreach Board of Directors: Debra Leffler Streeter, President Rafael Acosta, Vice President/Treasurer Eric Ginder, Vice President/Secretary Aaron Hanes, Vice President Susan Curran, Vice President Katie Anderson, Director Amber Crothall, Director Robert Daniels, Director Michael Doukas, Director Debra Lewis, Director Deborah Nash, Director Mark Reichenthal, Director Joseph Stine, Director Contents Letter from the Editor 3 President's Perspective 5 The Inroads of Independent Banking 6 Appellate Notes 8 Unpaid Internships 10 #crimpro 12 Installation Dinner Highlights 14 Probation and Alternative Sentencing 18 Classifieds/MCLE Calendar 26/27 February Dinner 28 Staff: Mary Silva, Executive Director Rosemary Contreras, Membership Coordinator Laurel Cliff, Volunteer Magazine Co-Editors: Wayne Templin, Vik Chaudhry, and Audry Thornton Scott S. Markus, Esq. Steven H, Kruis, Esq. Editorial Committee: Rafael Acosta Deborah Bayus Vik Chaudhry Brenda Geiger Aaron Hanes Bill Kamenjarin Jeffrey Lacy Ken Lynch Hon. David Moon Thomas Penfield Mary Silva Dennis Stubblefield Wayne Templin Audrey Thornton The North County Lawyer Magazine is published monthly by the North County Bar Association. Subscriptions, articles, photos and advertising should be submitted to: NCBA, P. O. Box 2381, Vista, CA or info@northcountybar.org, or (760) The subscription rate for non-members is $40 per year. Deadline for submissions is the 1st of the month prior to publication. 550 West C Street #700 San Diego, CA To schedule a mediation, please contact our case manager, Sue Housh, at or sue@agreement.com. Hon. M. B. Orfield (Ret.) Abby Silverman Weiss, Esq. Anthony Pantoni, Esq. The North County Lawyer reserves the right to edit all submissions. 2 North County Lawyer

3 Letter from the Editors By Vik Chaudhry, Wayne Templin and Audry Thornton T hank you for taking the time to read the February 2014 issue of North County Lawyer Magazine. First and foremost, we would like to thank Debra Lewis and Laura D Auri for the fantastic job that they have done over the past year as co-editors for our magazine. Debra Lewis and Laura D'Auri put forth a tremendous amount of work and deserve to be commended. The co-editor idea worked so well for Debra and Laura that, beginning with this issue, the three of us that will be serve as your co-editors for this year are Wayne Templin, Audrey Thornton, and I. We are excited to follow in the tradition of ensuring that great articles are published for our fellow North County attorneys. One of the most important resources that we have as attorneys in North County is each other. We work with, socialize, and often learn from each other. It is with that spirit that we have developed such a great group. That is the reason that we are excited to take on the co-editors positions. We have lots of ideas for North County Lawyer that we hope to implement over the next year and we look forward to speaking to you all if you have any input on how to make the magazine even better. Finally, we encourage all members of our legal community to submit articles to publish in future issues. Some of our greatest teachers are our own peers and we look forward to reading what you all have to say. All submissions may be sent to Mary Silva at info@northcountybar.org. We can be reached at Vik Chaudhry at vik@thevclawgroup.com Wayne Templin at waynetemplin@mindspring.com Audrey Thornton at Audrey@thorntonkoller.com Do You Need to Refer a Client, but don t know who to call Sponsored by the North County Bar Association February

4 Higgs(NCLawyer"OrganPavillion"7"X4.75")BRev 1/7/14 2:59 PM Page 1 craighiggs.com In Orange County and Los Angeles Contact judicatewest.com 4 North County Lawyer

5 President's Perspective We re off to a great start for the year! The recent yearly retreat with the board went very well. We had opportunities for getting to know each other and worked through our plans to make this another great year! We completed a lot of business, but hopefully had fun in the process. I am looking forward to working with everyone. I think we have a really good team this year. Thanks go K. Martin White for giving us the history, in a nutshell, of the NCBA and Lawyer Referral Service. Martin was also available with Russell Kohn and Mary Cataldo to discuss the resolutions proposed by the members of CCBA. Mary Cataldo conducted a team-building exercise that offered a great lesson on different styles of working together. Thank you for your support! Be sure to check our Facebook page. Michael Doukas is wonderful at keeping that-up-to-date by posting announcements of upcoming events. Our annual Youth in Court program will be March 14th. Judge Elias, with the support of court staff Annette Wine and Kimberly Stucker, have been February 2014 Calendar of Events Dinner Meeting Thursday, February 20, 2014 William Eddy 7 Tips for Managing High-Conflict People at The Crossings in Carlsbad at 5:30 p.m. working closely with our own Youth in Court Committee to make this another amazing year for the kids. If you are interested in helping, please contact me or Mary Silva at the bar office. We always need volunteers. There will be an amazing evidence program presented in April. Please watch for the announcements to sign up. Rafael Acosta, Susan Curran, and Deborah Nash have been working closely with a number of judges to put this program together. It sounds like an event you don t want to miss. Anyone who does anything involving presenting evidence should plan to attend. I hear space is limited, so sign up quickly! We once again have a contract in place for the online distribution of our MCLE events. If you would like to speak on a topic or have a great idea, please let us know. The team will come out to video the presentation so it can be sold online. The bar association receives money each month for each video presentation available. It is a great opportunity to bring in additional money to support our members! Lastly, we have signed the contract for the development of our new web site. We are excited about the new features available including renewing membership online. Debra Leffler Streeter President 5

6 The Inroads of Independent Banking: Confronting the Regulated Lender By Tony De Salvo, J.D. Know your enemy, know yourself, and in 100 battles you will be victorious. -- Sun Tzu, The Art of War In a banking matter, what does counsel really need to know about the other side in order to seize the high ground in a legal confrontation with a regulated lender? The great changes in the independent banking arena have produced an industry-wide siege mentality, in both ownership and management. Bank management used to be vertical, decisions made at the top by those with skills and experience who rose in a banking hierarchy. Now, under the most unusual market and regulatory pressures, senior management decision- making has been compressed into a linear configuration, and many bankers are new recruits with little experience. Committees are formed to address almost everything, and although this slows down reaction times, committee members feel safe because blame, if any, cannot be attributed to one person. There s corporate safety in that style of management. Most banks are well run. But these conditions exist throughout the parallel universe of independent banking. So the question is, how might an understanding of a bank s internal workings inure to the advantage of a bank s legal opponent? A few years ago, as the EVP/CCO of a mid-sized, local community bank, I received a letter from an attorney who represented a bank which had bought a syndicated portion of a large commercial loan my bank had originated (before my time). The loan had two features which were troublesome to all concerned. First, the borrower was a director of my bank, making the loan an insider transaction, and regulatory sensitive. Secondly, the loan was seriously past due, accompanied by a failure of the borrower to supply additional collateral for it, as he had promised to do in the terms of the loan agreement. Disaster loomed. The letter was laced with veiled threats of all kinds including regulatory reprisals. They wanted out of the syndication, and the die was now cast. Counsel had nothing going for him, no idea whatsoever as to what real issues might be raised. He offered a stinging list of improbable wrongs, most of which were not even very good boilerplate. However, he either did not realize that, or thought that we might be hoodwinked into taking a position where we would reveal something he could use, or we could not defend. It turned out to be the former. There were three principal matters he overlooked or misunderstood. It was clear that counsel had not read the Participation Agreement. First, this is the document which spells out the rights and obligations of the lead and investor banks in the transaction. It is an industry standard front-loaded with provisions favoring the selling bank. Every bank uses the same, identical format. For example, the agreement gives the lead bank exclusive control over administering all phases of managing the loan. It specifically says that the lead bank need not consult with any of the buyers for any reason. The list of exclusions is lengthy and conspicuously set out in the document. Secondly, and more compelling, is the regulatory requirement that the purchasing banks must conduct their own, specific due diligence on the credit before Continued on page 22 6 North County Lawyer

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8 APPELLATE NOTES By Richard I. Kohn, Esq. Ever Wish You Could Get an Appeal Dismissed? Have you ever won a great victory at trial only to be blind-sided by an unexpected appeal? You may think the appeal is frivolous or a means to extract a settlement or just plain wrong-headed, but whatever the reason, you wish the appeal would just go away. Is there a way you can get an appeal dismissed? Although the Courts of Appeal are generally reluctant to dismiss appeals, getting an appeal dismissed isn t impossible, and there are actually several grounds for doing so. These grounds fall into three main categories: 1. Lack of appellate court jurisdiction; 2. Lack of a ripe issue for decision, as when the appellant s claims are moot, frivolous, abandoned, or waived; 3. Failure by the appellant to comply with certain appellate rules, such as missing deadlines or failing to pay fees. See Cont. Ed.Bar, California Civil Appellate Practice, 3d ed. (referred to hereafter as CEB ) Once a notice of appeal is filed, the trial court loses jurisdiction in favor of the Court of Appeal (in nonlimited civil cases, which this article covers), so any motion to dismiss must be brought in the Court of Appeal and not the trial court. CEB The most cut-and-dried example of lacking jurisdiction is when a notice of appeal isn t filed on time. Although the notice of appeal is filed in the Superior Court, timely filing is jurisdictional with respect to the Court of Appeal, which doesn t acquire jurisdiction over an untimely filed notice of appeal, nor will the court extend the time for filing the notice. CEB Under Cal. Rules of Court 8.104(b), except in the case of a public emergency, no court may extend the time to file a notice of appeal, and if a notice of appeal is filed late, the reviewing court must dismiss the appeal. Under Cal. Rules of Court 8.104(a)(1), the time to appeal is about 60 days after the judgment, but you need to read the rule closely for the exact timing and exceptions. See also CEB Lack of standing by the party filing the notice of appeal also deprives the court of jurisdiction. To have standing to appeal (pursuant to CCP 902), a party must have a sufficient interest in an order or judgment to challenge it, which means generally that the appellant must be a party of record or be aggrieved by the trial court s decision. CEB 5.2. A more complicated jurisdictional question arises over whether the subject order or judgment was appealable at all. It is usually said that there must be a final judgment or one final judgment before an appeal can be taken, which is taken to mean that the final determination was made by a judge, no issues remain to be determined later, and that the judgment is final, complete, and ends the suit. See Cont.Ed.Bar, Handling Civil Appeals Action Guide, November, 2013, p. 3. As an aside, the term final judgment is arguably redundant, since CCP 577 states that a judgment is the final determination of the rights of the parties in an action or proceeding (emphasis added). And despite the oft-cited one final judgment rule, appeals can be taken from certain orders and interlocutory judgments. CCP sets forth in detail what may be appealed, and it s crucial to review this section if you suspect that the appeal was improperly taken. A very comprehensive chart of appellate review of Superior Court orders can also be found at CEB You should also consider whether the appeal has been rendered moot, in which case it should be dismissed. For example, a determination of issues by an intervening judgment or order may moot the appeal, as will certain settlements. See generally CEB Appeals that are frivolous or are filed mainly to harass the respondent or delay execution of the judgment 8 North County Lawyer

9 Ordas Dispute Resolution Complex Disputes + Creative Solutions = Resolution can be dismissed and can also be subject to significant sanctions. Your motion may succeed when it s patently obvious from even a cursory review of the record that the appeal is frivolous, but the Court of Appeal will probably decide the case on the merits if a full review of the record is needed to determine whether the appeal is indeed frivolous. In addition to your filing a motion to dismiss, the Court of Appeal has the inherent power to dismiss an obviously frivolous appeal on its own motion. CEB No one likes being faced with an appeal after winning at trial. As your first line of defense, though, think about dismissal, and the appeal may be thwarted sooner than you think. Richard I. Kohn can be reached at: Telephone RK@RichardKohnAppeals.com "Effective Appellate Representation -- Affordable Fees" Dale E. Ordas Mediator - Arbitrator - SB #38140 Ordas Dispute Resolution OrdasADR@ordas.com Patience, persistence and prudence are more than an alliteration, they are part of a skills set for the resolution of your dispute. 300 Carlsbad Village Dr., Ste 108A Carlsbad, CA Mobile Fax years as an arbitrator & mediator plus 30 years as a litigator. Training: Hundreds of hours at Straus Institute at Pepperdine University, Loyola Law School, Southern California Mediation Association & Association for Conflict Resolution Mediation/Arbitration of Commercial Disputes: Regarding terms or conditions of agreements for goods, services, real estate or property Employment: Wrongful Termination, Grievances, Harassment, Wage & Hour Torts: Accidents (Workplace Accidents & Workers Compensation) Product Liability, Professional Liability, Toxic Torts and Asbestos Mark A. Chambers Attorney at Law FEDERAL COURT FELONY AND MISDEMEANOR REPRESENTATION SUPERIOR COURT FELONY AND MISDEMEANOR REPRESENTATION Mark A. Chambers 345 W. Ninth Avenue Suite 200 Escondido, California (760) JUVENILE COURT CRIMINAL MATTERS Personal Service to Each Client 31 Years of Quality Criminal Law Experience February

10 Unpaid Internships: Business Opportunity or Booby Trap? By Lou Storrow, Esq. W hat a great concept! A small business gets a little free help and a willing student or former student learns how the business works. Some interns even end up with good jobs after learning valuable skills. But here s the unfortunate reality, especially for California employers: The unpaid intern is largely a myth because, if your business benefits from their labor, you have to pay at least minimum wage. If you don t and your happy intern becomes a disgruntled plaintiff, you face double damages, penalties, interest, attorney fees, even the shutting down of your business or a misdemeanor conviction. Such are the penalties for using unpaid or underpaid labor which include liquidated damages (Lab C (a)) waiting time penalties (Lab C. 203), interest ( 218.6), attorney fees ( 218.5, 1194), and criminal sanctions ( 206.5, 215, 216, 226.6, 1103, 1199, and others). And don t get me started on class actions under the Private Attorney General Act (PAGA) at Lab C ) which can result in penalties of tens of thousands of dollars per employee! Some rather big players are learning the risks of unpaid internships the hard way. In the last couple of years, interns have filed lawsuits against Hearst, Fox Searchlight Pictures, Condé Nast, Atlantic Records and others. Generally, the claim is, we worked our butts off for you and should have gotten paid at least minimum wage, even though they had all agreed to intern for free. Many companies have now cancelled their internship programs while others have decided to pay wages to qualified candidates and let the rest find another way to learn the business. What Happened to the Good Old-Fashioned Intern? Just like starting out in the mailroom which I did at CBS long before law school interning has a long and celebrated history in this country. Programs in competitive industries fashion, advertising, media attract many applicants eager to show up every day for nothing just to get a foot in the door, learn and make valuable contacts. Enter the class action lawsuit for back wages: Many interns today claim they are being subjected to long hours, harsh conditions and, like Network s Howard Beale, they re not going to take it anymore! Maybe it s Gen Y s entitlement syndrome, but no matter, the law is on their side. California and federal wage law do not permit employees to agree to work for nothing except in very limited circumstances such as volunteering for schools, hospitals, and non-profits and in qualified training or internship programs. A Narrow Legal Window The rules permit unpaid internships, but only under limited conditions. Both state and federal authorities will consider these six criteria to decide whether an intern or trainee is truly exempt from minimum wage: 1. The internship is similar to training the individual would get in a school, even if it involves actual operations of the employer; 2. The experience is for the benefit of the intern, not the company; 3. The employer gains nothing from the intern and, in fact, the operation may at times be impeded; 4. The intern does not displace regular employees; 5. The intern is not guaranteed a job at the end of the internship; and 6. It s agreed that no wages will be paid. For most small businesses, these criteria are the opposite of what the business needs. Small businesses typically want a mutually beneficial arrangement where the student learns while the business gets cheap or free labor. Yet, that s precisely the situation that will likely lead your small business client down a painful road to damages, penalties, and attorney fees. 10 North County Lawyer

11 Pay to Play The safer practice is to pay inexperienced workers minimum wage and treat them as employees. If the math doesn t support the position, don t hire. When clients ask me about unpaid internships, my advice generally is, don t. It s a rare case that fits the rules, and with so many college grads looking for fewer jobs, and the minimum wage going up, the setting is ripe for more of these free workers to end up at the Labor Commissioner s office or in court. You don t want your client to be the employer on the other side of the room. Lou Storrow is a Carlsbad labor & employment attorney and a long-time member of the North County Bar Assn. He can be reached at or at lstorrow@hrlawyer.com. JUSTICE LEADING THE WAY For more than 65 years, and with over $5 billion recovered, CaseyGerry has brought a compassionate and united approach to personal injury and civil litigation in San Diego, offering a specialized set of talents and people for each and every case. From a recent $32 million settlement of a milestone robo-calling lawsuit to a key role in the national NFL brain injury litigation, our experience and tireless pursuit of justice has led to a history of success that truly sets us apart. Call (800) to discuss referral or co-counsel arrangements. San Diego Office: North County Office: caseygerry.com February

12 #crimpro By Eric P. Ganci, Esq. With a voluntary intoxication defense, can the People use a court-ordered evaluation against Defendant without violating his 5th Amendment? This is from the December 11, 2013 US Supreme Court decision Kansas v. Cheever (2013 DJDAR 16039). And the answer is yes. Quick facts: "The prosecution here elicited testimony from its expert only after Cheever offered expert testimony about his inability to form the requisite mens rea." Here's the rule as stated by Justice Sotomayor: "We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant's evidence." Does resisting arrest with force require actual "force against or on the officer?" From the December 20, 2013 Appellate Court decision People v. Bernal (2013 DJDAR 16673) the answer is no. The quick facts: "As Officer Whitaker was attempting to put the handcuffs on Bernal, Officer Whitaker felt Bernal's hands push against him as Bernal attempted to get onto the balls of his feet and begin running. Officer Whitaker dropped the handcuffs and grabbed Bernal around Bernal's waist with both of his hands. Bernal then began running west on the bike path, dragging Officer Whitaker with him. Bernal jerked his hips a couple of times first to the right and then to the left in an apparent effort to throw off Officer Whitaker. Bernal was able to drag Officer Whitaker approximately eight to 10 yards down the bike path before both men fell to the ground." The People charged Bernal with violating California Penal Code 69, resisting arrest against an Officer with force. So really, Bernal didn't use force against the Officer. He was just using it to get away from the Officer. Well, this case says it doesn't matter. Can a "no contest" plea with no reference to any facts/ documents establish a factual basis for a plea? The California Supreme Court December 5, 2013 decision People v. Palmer (2013 DJDAR 15893) address two main issues, but the one I'll focus on is "whether counsel's bare stipulation, without reference to any document describing the underlying facts, sufficiently establishes a factual basis for the plea." Answer: "a bare stipulation without reference to any document describing the facts may, in an appropriate case, satisfy the requirements of [California Penal Code] section " But why? First, the Court says that stipulations happen all the time, so why would it be any different during a plea? "This rule is consistent with defense counsel's broad authority to stipulate to factual and procedural matters on his client's behalf. Even at trial, counsel may stipulate to the existence or nonexistence of essential facts." "Stipulations obviate the need for proof and are independently sufficient to resolve the matter at issue in the stipulation." Second, there may be privacy or sentencing reasons to NOT state facts, or reference the police report, preliminary transcript, or any other documents connected with the case. "A defendant may be factually guilty but still hesitate to stipulate to the truth of an entire document like a police report that contains details he or she either disputes or simply does not want to admit. If there is no stipulated sentence, counsel may fear the police reports will demonstrate the existence of aggravating factors that could cause the court to impose a higher sentence, or to reject the plea bargain altogether. In sensitive cases involving intrafamilial violence and abuse, a defendant may wish to avoid having confidential information about the victim become part of the public record in the case." Can a juvenile strike that's dismissed be used as a prior strike on a new case? No it cannot. For this November 21, 2013 Appellate decision People v. Haro (2013 DJDAR 15306) the issue was whether a dismissal per California Penal Code 12 North County Lawyer

13 782 erases the prior juvenile adjudication. It's a new issue, and "782 does not address whether or not the dismissal of a juvenile petition may be used to enhance the punishment for a subsequent offense." "We conclude the juvenile court's dismissal under section 782 of the petition underlying defendant's robbery adjudication precluded the use of that adjudication as a strike under the three strikes law." Is battery a lesser included offense to a lewd act? I m running out of word space for this month! So I ll just give the holding on this California Supreme Court decision People v. Schockley (2013 DJDAR 16838) from December 26, 2013: battery is not a lesser included offense of lewd conduct. For infomation please contact GALENTE GANCI, APC 110 West C Street, Suite 712 San Diego, California eric@gandgtriallawyers.com T: dbm@judgedavidmoon.com (858) February

14 Installation Dinner A special thanks to Supervising Judge Michael Kirkman for giving the State of the Judiciary, to Justice Gilbert Nares for performing the swearing-in ceremony, and to all in attendance. The Honorable Michael Kirkman, Richard Muir, and Ray Gomez Mark Reichental, Rafael Acosta, and Marianne Thom Margaret & Michael Wexler, and The Honorable Robert Dahlquist Rima Khoury & Paul Campo Larry Campitiello & Susan Gorman Daniel Burke & Robert Daniels Jacques Kirch & Ron Ball Continued on page North County Lawyer

15 Spring Co-Ed Softball Can you swing a bat? Catch a ball? If so, register now - if not, register anyway! We are again registering the NCBA Sluggers to play in the Carlsbad Adult Softball League this spring. Games begin the week of February 18th and will be played at Poinsettia Park, Aviara Park, or Calavera Hills Park on Tuesday, Wednesday, or Thursday evenings. Best of all, the NCBA pays the registration fee! Your only obligation all season is to show up and to bring $21.00 for a one-time for the umpire and scorekeeper fees. Sign up now by calling team manager/coach Russ Kohn (760) Lots of Fun! CRIMINAL AND DUI DEFENSE BILL NIMMO 35 Years Experience Office in Vista February

16 A special thanks to Justice Gilbert Nares for performing the swearing-in of Debra Leffler Streeter as president, and of the board of directors and officers. Janet Lacy & James Lund Michael Doukas, Aaron Hanes, and Jesse Allen Ken & Cynthia Gosselin Eric Ginder, Jonathan Fuller, and Rebecca Seldin Debra Lewis & Deborah Nash 16 North County Lawyer

17 The Honorable Robert Dahlquist received the Writer's Award presented by Laura D'Auri and Debra Lewis, Co-Editors of the North County Lawyer Magazine Incoming President, Debra Leffler Streeter presented the President's Award to Janet Bledsoe Lacy on behalf of outgoing president Jeffrey Bledsoe Lacy. Also, Janet accepted the Outgoing President's Award for Jeffrey Bledsoe Lacy Christine Mueller receives the Outgoing Director Award presented by incoming president Debra Leffler Streeter Kurt Weiser receives the Outgoing Director Award presented by incoming president Debra Leffler Streeter February

18 Probation and Alternative Sentencing: Behind the Scenes By Stacey Kuhns, Defense Consultant (Retired Deputy Probation Officer) Aprobation report is an invaluable tool to the Court, the District Attorney, as well as the defense. An alternative sentencing report is an invaluable tool to the defense and their client. When a probation officer interviews the client, they are bound by a set list of questions, plus the over 100 COMPAS assessment questions (except on a NOLT report), and a limited amount of time, usually an hour or less. In this time, the probation officer is expected to make a decision about your client s life. The probation officer is most likely meeting your client for the first time but rarely will spend the time it takes to get to know the client and their particular needs. This may allow no hope for an alternative sentencing recommendation. The COMPAS assessment is a priority for the interviewing officer as it is a required part of the interview and if the defendant is granted probation, will indicate where in the Probation Department system the defendant is to be placed. The benefit of a defense consultant in relation to the sentencing outcome is the consultant can accompany the attorney on their initial client visit and interview the client at the front end, thereby allowing for recommendations for appropriate, legal, alternative sentences to be utilized by the attorney during the plea phase of negotiations. An alternative sentencing report can also be compiled after the defendant is convicted and the probation report has been completed. This will provide information to the defense to use in final arguments at sentencing and to assist in gaining an alternative sentence for the client. Like the interviewing probation officer, the consultant will conduct an assessment to evaluate the number of personal and social factors, as well as the client s commitment to change. The consultant is not limited by time during the interview process and in turn is able to delve deeper into possible issues that warrant an alternative sentence, such as mental health issues, veteran s issues, and treatment needs. Socioeconomic problems as well as familial issues are discussed. Risk predictors for the client can be determined more accurately with a thorough interview and/or a review of the probation report. The alternative sentencing report consists of the client s biological background, exploration of the instant offense, as well as a review of the client s criminal history. The probation report is reviewed for possible missing information that can be provided by the client with a more thorough interview. The consultant can then determine if there are areas that warrant the client receiving an alternative sentence. The consultant will determine if there is a viable sentencing option between incarceration and probation. While the probation officer is an objective party in this process, most of the time, they adhere to the plea agreement and do not take the time to consider anything else. There are usually a number of alternative options for sentencing. Custody is not always the best alternative when considering the ultimate goal; rehabilitation of the client. The focus needs to be on the client, not the crime, although the crime plays a key role in sentencing outcomes. The probation officer has written hundreds of reports with similar crimes. The officer does not always separate the individual client from the crime and does not normally stray from the plea agreement. With the increase in the workload for probation investigations and the shorter completion time they have on their reports, focusing on the individual client is not always a priority. A defense consultant makes the client and their needs a priority, exploring every avenue to determine alternative sentencing options. Continued on page North County Lawyer

19 wcrg_7w x 4.75h_NorthCountyLawyer_Doug_2012 WEST COAST RESOLUTION GROUP His Resolve: A Genuine Balance of Consideration and Expertise Your Resolution: Doug Barker Doug adjusts his approach to the needs of each case and maintains a balanced and productive environment. He is effective because he cares. -San Diego Attorney exceptional service Doug s Featured Practice Areas: Commercial, Construction, Employment Law, Personal Injury, Real Estate Dispute Resolution. It s what we do and we take it personally. JIM CHODZKO DENISE ASHER DOUG BARKER JUDY COPELAND JOHN EDWARDS RICK BARTON HON. SUSAN P. FINLAY (RET.) A Division of NCRC Our Resolve. Your Resolution. westcoastresolution.com BANKRUPTCY AND CREDITOR HARASSMENT DOAN LAW FIRM, LLP CALIFORNIA S LARGEST FAMILY LAW FIRM "EXPERIENCE, REPUTATION, AND AGGRESSIVE REPRESENTATION AT AFFORDABLE FEES" Referral Fees Paid in Accordance with Rule DOANLAW.COM BANKRUPTCY $ 100 Starts most cases Over 25,000 Consumer Bankruptcies Filed Chapter 7 Discharge Guarantee Foreclosure Relief Thru Chapter 13 Mortgage Removal Thru Chapter 13 Michael Doan is a Certified Bankruptcy Specialist - Consumer Bankruptcy Law - American Board of Certification CREDITOR HARASSMENT We Sue Bill Collectors, Inside and Outside of Bankruptcy Immediately Stop All Creditor Harassment Credit Card Defense FDCPA, FCRA, RFDCPA, TCPA CLAIMS Debt Settlement SAN DIEGO COUNTY'S LARGEST BANKRUPTCY CASE FILING FIRM 5 Offices Throughout San Diego County 2850 PIO PICO DRIVE SUITE D CARLSBAD, CA PHONE: (760) FAX: (760) EAST SECOND AVENUE, SUITE 108 ESCONDIDO, CA PHONE: (760) FAX: (760) LA MESA BLVD SUITE 300-G LA MESA, CA PHONE: (619) FAX: (619) WEST F STREET SUITE 100 SAN DIEGO, CA PHONE: (619) FAX: (760) H STREET SUITE 5000 CHULA VISTA, CA PHONE: (619) FAX: (619) February

20 Probation and Alternative Sentencing: Behind the Scenes Continued from page 18 Depending on the client s economic status, there are a multitude of options for rehabilitation. The focus should be what is best for the client and their family, as well as community safety, and taking any victims into consideration. Probation and the Courts focus greatly on making the victim in the case whole. Exploration of achieving this goal is paramount to the Court considering the alternative sentence. If the client is committed to change, there is a strong argument for treatment being more effective than jail time. If the client is a productive member of the community and is working 35 or more hours a week, Work Furlough is an excellent alternative to straight jail time. Work Furlough is also positively looked upon by the Court and the Probation Department as a viable alternative sentence. Aside from Work Furlough, there are many options in the County including public programs as well as those that are privately funded. If a client has the economic means to go into a private program, there are many to chose from including dual diagnosis programs. A defense consultant can narrow down the best programs for your client including those who may be homeless. There are alternatives for homeless and/or mentally ill offenders, such as the North Star ACT program. Many clients have mental health issues that need to be addressed. They often self-medicate with drugs/alcohol. They are then seen by the Probation Department and the Court as drug offenders or addicts when in fact their main issue is the underlying mental illness for which a dual diagnosis program is key for rehabilitation. An alternative sentence will most likely be accepted by the Court if the client has little or no criminal history, a non-violent felony or misdemeanor, and does not pose a risk to the community. Due to overcrowding in the jails and prisons, with prison sentencing being served locally, due to realignment, alternative sentences are the answer. While the probation report is invaluable to all parties in the process, the lack of individual attention to the client can be detrimental when it comes to sentencing. All factors need to be considered to make a valid argument for alternative sentencing, whether it is on the front end, during negotiations, or after conviction and prior to sentencing. Stacey Kuhns can be contacted at: or staceykuhns2consult@gmail.com S t r u c t u r e d S E T T L E M E N T S e r v i c e s Manuel R. Valdez, CSSC MRValdez@RinglerAssociates.com CA Lic # W e s t B r o a d w a y, S u i t e S a n D i e g o, C A Manny J. Valdez, CSSC MJValdez@RinglerAssociates.com CA Lic #0C North County Lawyer