Van Nuys Court Grants Probation In Felony Possession Crimes

By:   Roman P. Mosqueda, Esq.

            Commissioner Alvin Nierenberg of Division 100 of the Van Nuys Court granted formal probation of three years and 120 days in County Jail on June 1, 2005, to a 26-year-old, male alien, diagnosed and being treated with Paranoid Schizophrenia.

The Thai mentally-ill defendant, whose identity is withheld to protect his privacy, was out on $10,000 bail on felony charges of receiving stolen property, motor vehicle, and of possession of a controlled substance, methamphetamine. The original offer of disposition by the District Attorney’s Office was a low term of 16 months in state prison.

With the congestion and lack of accommodation in the Los Angeles County Jail, he would be released after serving two weeks of his 120-day term of imprisonment. This plea bargain was negotiated by this Author with Deputy District Attorney Paul Segojan, who had asked for 270 days in County Jail, but was reduced to 120 days by Commissioner Alvin Nierenberg, upon request by this Author.

Importance of Recommendation

of Probation Department:

            This Author, in his over twenty-years of criminal defense experience, cannot overemphasize the importance of the recommendation of the Probation Department to the plea bargaining process.

So, at the initial hearing for arraignment on April 27, 2005, this Author asked the Court to order a Pre-Conviction (PC 1203.7) Report and for continuance of the arraignment. This was granted by the Court.

Next, this Author instructed the defendant-client to cooperate with the Probation Officer, who will interview him for the Pre-Conviction Report and render evaluation and make recommendation for sentencing to the Court. Equally as important is the input of defense counsel in the Pre-Conviction Report of the Probation Officer.

So, this Author communicated with Probation Officer Daniel R. Welsh, who was assigned to the case. Happily for the defendant, P.O. Daniel R. Welsh was receptive to the input of this Author, and even attached to his Pre-Conviction Report copy of 20 pages of medical reports, records and statements on the mental illness, activities, and treatment of the defendant. These were furnished by this Author, who waived confidentially there- of for his client.

Not surprisingly, the Probation Department recommended that “proceedings be suspended, that probation be granted for a  period of three years …(for defendant to) spend first suitable  days in county jail,” instead of the felony range of sentence from 16 months, 2, or 3 years in state prison, as stated in the Felony Complaint in this case.

Guilty on Count 1

And Dismissal of Count 2:

            As stated above, the charges in the Felony Complaint were for Receiving Stolen Property, Motor Vehicle, in violation of Penal Code Section 496d(a), a Felony, as Count 1, and for Possession of a Controlled Substance, Methamphetamine, in violation of Health & Safety Code Section 11377(a), a Felony, as Count 2.

The plea bargain approved by the Court was formal probation for three years and 120 days in County Jail, for plea of guilty to Count 1, and the dismissal of the drug charge, Count 2.

The Van Nuys Court usually asks the prosecutor to orally conduct the waiver of Constitutional rights and take the felony guilty plea. But because of possible lack of understanding by the defendant with mental illness, Commissioner Nierenberg required the defendant to execute the written Felony Advisement of Rights, Waivers and Plea (pink) Form, which he did.

This Author explained to the defendant the written waivers and plea before he initialed each applicable box, and dated, and signed the form. The same form also requires the defense attorney to certify his explanation of rights, facts of the case and possible defenses thereon, date, and sign the form.

Court Sentence And

Probation Conditions:

            The Court inquired of the defendant whether his attorney had explained to him the waivers and the facts and defenses of his case, and whether he knowingly, fully and voluntarily waived his constitutional rights listed in the aforesaid waiver Form.

Commissioner Nierenberg further asked the defendant to enter his plea of guilty to Count 1, which he did; and asked him whether he consented to the disposition of three-year formal probation and 120 days in County Jail, to which he answered in the affirmative.

            Thus, the Court sentenced the defendant accordingly, ordered payment of $200 restitution fine, dismissed Count 2, and stated the terms and conditions of his formal probation, which include mental health and substance abuse counseling and narcotics testing.

            Earlier, this Author and Deputy District Attorney Paul Segojian had discussed the current congestion at the Los Angeles County Jail and estimated that the defendant would only serve two weeks of his 120 days jail sentence, and be released thereafter.

            The defendant surrendered himself to the Court bailiff, after his sentencing by the Court to begin his jail sentence forthwith at the Los Angeles County Jail.

Possession or receipt of stolen property is an aggravated felony under Section 101 (a)(43)(G) of the Immigration and Nationality Act (INA), if the term of imprisonment (imposed by the Court) is at least one year, regardless of suspension thereof.

In this case, the term of imprisonment of 120 days in County Jail imposed by the Court, although the felony sentence range is 16 months, two years, or three years for the charge of possession or receiving stolen property under Section 496d (a) of the Penal Code, did not result in conviction of an aggravated felony under the INA.

There is no relief for conviction of an aggravated felony, as a ground for renewal in removal proceedings before the Immigration Court, even for a lawful permanent resident, except withholding of removal or under the Convention Against Torture (CAT).

            The lesson of this disposition is: if the defendant is caught red-handed by the police in possession cases, possession of stolen motor vehicle and possession of methamphetamine in this case, his or her attorney should normally plea bargain, rather that go to trial and risk maximum sentences for the crimes in case of conviction.

******