GETTINg out of jail Almost free:
Pre-trial Release ON CPAC and Penal Code Section 1203.018
What happens if your client is placed into custody at arraignment and he or she cannot afford bail? Attorneys know that a client’s custody status impacts the case strategy. Often times, it changes the entire negotiation. If a client is out of custody he or she can work on mitigation for their case- he can work on his sobriety in a rehabilitation center, he can start volunteer work or charge-related courses, or he can work toward paying restitution. Additionally, a client who is out of custody is far more accessible for confidential communication and can assist in building a robust defense from the start.
Most importantly for clients, awaiting trial out of custody maintains their stability by allowing a client to keep his or her career, home, and family life intact. Most importantly for attorneys, a client awaiting trial out of custody is more willing to exercise his or her available litigious options. Out of custody clients can patiently wait until their attorney has received all of the discovery and conducted a thorough investigation and review of the case.
Unfortunately, in the practice of criminal defense, we attorneys see far too many clients jump at a mediocre offer against counsel’s advice for the sole reason that it involves a quick release from jail. As a former public defender, I saw many individuals knowingly and voluntarily waive strong motions and forfeit defensible cases to take hasty plea bargains in exchange for the certain satisfaction of being freed, without fully weighing the long-term consequences of their decision. There are few experiences more deflating for an attorney than a client taking a suboptimal offer when fighting the case could likely yield superior results.
Not all clients have the option of posting a bond. However, there is a solution for qualifying defendants in San Diego. Penal Code section 1203.018 authorizes the Sheriff’s Department to evaluate individuals for release to CPAC (County Parole and Alternative Custody) pending the outcome of their case. In other words, an eligible client can fight their case while technically in custody but not physically in jail. This means the client will be accumulating custody credits pursuant to Penal Code section 4019 while mitigating their case, working, and assisting in their defense. The client may also be permitted to seek counseling, education, medical or dental assistance, or training classes. (PC §1203.016(b).)
Not every client is eligible for release on CPAC. To be eligible the client must be held by the Sheriff’s Department in lieu of bail and for no other reason. (PC §1203.018(a).) Thus, he or she cannot be remanded on a probation violation or have any other holds or outstanding warrants. (PC §1203.018(c)(1).) Additionally, while not specifically stated in code, the individual must actually be in custody. The Sheriff’s department will not determine a candidate’s eligibility while the individual is out of jail.
While the section outlines the objective eligibility requirements for the program it is important to recognize that the Sheriff’s department has complete discretion to make the ultimate determination of an individual’s suitability for the program.
The Sheriff’s discretionary eligibility requirements are both objective and subjective. The Sheriff Department’s first concern is the public safety so it will not consider individuals for the program who have a history of or are in jail for violent, dangerous, or sexual offenses. Each individual is evaluated on a case by case basis so a person facing their first-time domestic violence charge may be eligible for CPAC depending on the overall circumstances of the case and their criminal history. The Sheriff’s Department considers if the person has a history of failing to appear, violating court orders and protective orders, or if the person has a mental health history that could make compliance with the program difficult.
A CPAC deputy interviews the candidate as part of the vetting process. Primarily, only one CPAC deputy is assigned to interview the pretrial candidates. This deputy is trained to not ask specific information about the pending charges. Still, it is a wise practice to counsel your client regarding the interview and remind them not to speak about their pending charges.
Finally, the client must qualify in the usual manner for CPAC:
- He or she must have a stable and consistent residence where they are able to charge their monitoring device and upload the data.
- His or her roommates must also be vetted and be acceptable to the Sheriff’s Department.
- He or she must be able to afford CPAC which is currently at a cost of $6.50 to $9.00 dollars per day depending on applicant’s income. If alcohol monitoring is necessary, an additional $7.00 dollars a day will be assessed. All payments and payment arrangements are made with the vendor. The CPAC unit does not collect or handle any of the money.
- He or she must follow the rules and regulation established by CPAC. The inability to do so may result in being placed back in jail.
A client can even be monitored in a treatment center as long as the center has a reliable place for the client to charge the device and upload the data. If the client arranges to stay in a residential treatment or sober living facility, the program must allow CPAC unfettered access to their facility and the ability to communicate with the applicant via telephone. If a client’s criminal charges relate to his or her use of controlled substances, their participation in this type of program can make a huge difference in their pending case.
A client is often more motivated to work on his or her sobriety while a charge is pending rather than after sentencing. The ankle monitor makes relapse less appealing as the individual knows he or she is being surveilled by law enforcement. This accountability can make a world of difference for the client both in their personal journey toward sobriety and in achieving a helpful disposition.
PROCEDURE: MAKING THE FIRST MOVE
Statutorily, the Sheriff’s Department can evaluate an individual for CPAC pursuant to Penal Code §1203.018 while their case is pending with or without a judge’s referral to electronic monitoring. However, in San Diego county, a client is not evaluated unless referred to CPAC by a judge. Thus, without a referral, the Sheriff’s Department will not independently consider the individual for this program. Request the judge to state on the docket that your client “may be evaluated for CPAC while in custody pursuant to Penal Code §1203.018.”
With clients who are already on probation in another case, request that the judge set bail in the trailing matters rather than simply remand the client to custody. Ask the judge to place the same referral language on the docket for each case.
CPAC will not evaluate a client unless it actually receives the referral from the court. It is important to follow up with CPAC to confirm receipt.
FAILURE TO COMPLY
As attorneys, we often can tell who is a good candidate for this program and who might squander the opportunity. Remember, the client’s location and possibly their alcohol use is being monitored 24 hours a day by law enforcement. The client must also waive their fourth amendment rights and take frequent drug tests. If the client fails to return to the place of home detention he or she is at risk of being charged with a violation of Penal Code section 4532. If your client is not ready to responsibly handle their freedom then do not request the judge to make the referral. Thus, while the Sheriff makes the ultimate decision regarding suitability and placement, the client’s first screening should be done by their attorney.
This great opportunity for qualifying clients is surprisingly underutilized in our county. Spread the word! You can visit sdsheriff.net/cpac.html for additional information and instructions.