Finding Alternatives In Your Sentencing

One of the greatest advantages of working with a compassionate, experienced and intelligent defense attorney is the lawyer’s knowledge of sentencing alternatives. You may not succeed at getting your case dismissed in the early stages, but you may still have a favorable outcome if your lawyer successfully negotiates a sentencing alternative that you can live with and a judge will accept.

At Law Office of Adrienne Dell, attorney Adrienne Dell helps clients pursue options in defending against criminal charges. Part of building that defense includes seeking alternative solutions in the sentencing process.

Alternatives to Jail or Prison

The Law Office of Adrienne Dell in San Jose has helped many clients take advantage of creative solutions that have kept their records clear of criminal convictions and/or kept them out of jail or prison. Depending on many unique factors of your criminal case in or near San Jose, attorney Adrienne Dell may help you avoid more punitive outcomes by getting a prosecutor or judge to agree that you should resolve your case through:

• Drug abuse treatment
• Counseling or therapy
• Anger management education
• Community service
• Restitution (repayment of losses to whoever was affected by your alleged theft or other criminal offense)

How Penal Code 1001.36 Can Pause a Criminal Case and Lead to Dismissal

Mental health diversion under Penal Code 1001.36 is used for individuals whose mental health conditions played a role in an alleged offense. This pretrial program allows criminal proceedings to be paused while the defendant participates in structured mental health treatment instead of moving forward with prosecution.

Under current California law, there is a strong presumption in favor of granting mental health diversion when a qualifying mental disorder contributed to the conduct at issue. Qualifying conditions commonly include mental illnesses recognized in the DSM, like:

• PTSD
• Bipolar disorder
• Depression
• Schizophrenia

Courts are required to seriously consider diversion when medical records and professional evaluations support the connection between the condition and the offense.

When mental health diversion is granted, the case is stayed. This means it does not proceed through trial or sentencing while treatment is ongoing. Treatment plans are individualized. They can include therapy, medication management and regular progress reporting to the court. The goal is rehabilitation rather than punishment, while still addressing public safety concerns.

Key aspects of mental health diversion in California include the following:

• Criminal proceedings are paused for up to two years while the defendant completes court-approved mental health treatment.
• Successful completion results in a full dismissal of charges, not a conviction or plea.
• Arrest records related to the case are sealed, preventing long-term damage to employment and housing opportunities.
• Judges must consider diversion favorably when evidence shows the mental disorder was a substantial factor in the alleged offense.

Because this relief is discretionary and evidence-driven, working with a California criminal defense lawyer is critical. Properly presenting mental health records, expert opinions and a viable treatment plan determines whether diversion is granted.

How Judges Can Dismiss Charges Over Prosecutorial Objections

Judicial misdemeanor diversion under Penal Code 1001.95 provided judges with independent authority to grant diversion, even when the district attorney strongly objects. This statute applies exclusively to misdemeanor cases. It reflects a broader turn toward rehabilitation and second chances within the California criminal justice system.

Under this law, a judge may “stay” misdemeanor proceedings for up to 24 months while a defendant completes court-ordered conditions. These conditions are designed to address the behavior underlying the charge rather than impose immediate punishment. Importantly, prosecutorial consent is not required, which can be decisive in cases where the district attorney refuses to negotiate.

Common terms imposed during judicial misdemeanor diversion include the following:

• Community service or volunteer work tailored to the offense
• Counseling programs such as anger management or substance abuse treatment
• Educational courses or restitution when applicable
• Compliance with all laws and court reporting requirements during the diversion period

If the defendant successfully completes all terms within the allowed time frame, the case must be dismissed by law. No conviction is entered, and the individual avoids a permanent criminal record. This outcome can be life-changing, especially for working professionals, students or individuals with immigration concerns.

Judicial misdemeanor diversion reflects the court’s recognition that not every offense warrants lifelong consequences. However, judges still evaluate eligibility carefully, weighing public safety, prior history and the likelihood of successful completion.

A California criminal defense lawyer can mitigate, negotiate appropriate terms and help ensure the dismissal is properly entered once diversion is completed.

Reducing Sentencing Exposure by Striking Enhancements Under SB 81 and Penal Code 1385

California sentencing law has undergone major reform with the passage of Senate Bill 81, which expanded a judge’s authority and obligation to strike sentencing enhancements. This law works together with Penal Code 1385 and replaces outdated approaches that focused heavily on punitive enhancements without regard for fairness or proportionality.

Under current law, judges are required to dismiss sentencing enhancements if doing so is in the “furtherance of justice.” SB 81 goes further by identifying mandatory mitigating factors that strongly favor striking enhancements. This shifts the analysis away from automatic sentence stacking.

Enhancements commonly targeted under SB 81 include any factor that dramatically increases prison exposure, like:

• Prior conviction enhancements
• Firearm enhancements
• Gang allegations

Courts must now carefully evaluate whether these additions create unjust or discriminatory outcomes. Mandatory considerations under SB 81 include the following:

• Whether the enhancement would result in a sentence exceeding 20 years.
• Whether the enhancement contributes to racial or socioeconomic disparities.
• Whether the prior conduct underlying the enhancement is remote in time or minor.
• Whether striking the enhancement would still protect public safety.

When these factors are present, the law requires judges to dismiss the enhancement unless there is a clear and compelling reason not to do so. This can dramatically reduce the total “time over your head,” even in serious felony cases. It may also be the difference between a lengthy prison sentence and a far shorter term.

Effectively arguing for the dismissal of enhancements requires detailed legal analysis, sentencing advocacy and a strong understanding of evolving California law. Attorney Adrienne Dell is a skilled California criminal defense lawyer who can identify applicable mitigating factors, challenge improper enhancement allegations and help ensure the court complies with its obligations under SB 81.

In many cases, striking enhancements are one of the most powerful tools available to reduce long-term consequences and protect your future.

When Incarceration is Inevitable, it Still May Be Shortened

If you were convicted of a strike offense and might be negatively impacted by California’s Three Strikes law, there are many ways to reduce potential jail time. New laws taking effect in 2022 may offer hope. These new sentencing laws give the court more authority in sentencing defendants.

Frequently Asked Questions Surrounding Sentencing Alternatives

At the Law Office of Adrienne Dell, we know you may have many questions if you are facing criminal charges. We’re happy to provide the answers and insights you’re looking for. Below are 10 questions we get asked most frequently from our clients about alternative sentencing options.

Let An Experienced Attorney Fight For You

Attorney Adrienne Dell makes it her job to stay up to date on all available sentencing alternatives or ways to keep sentences at a hopeful level. Discuss options in your case when a conviction seems inevitable. Call 408-217-2575 or send an email inquiry.