What is the difference between ESS and ISS sentence? Execution suspended and Imposition suspended?

In a felony sentencing, what do the terms ESS and ISS mean?  What’s the difference?

Felony sentencing overview:

The first question that the sentencing judge must make is whether to grant or deny probation.  In most felony charges, there is a three-level or triad of sentences that can be imposed.  For example, many felonies carry as potential punishment 16 months, 2 years or 3 years in custody.  Those used to be the possible prison terms, but with a change in the laws a couple of years ago, that could be either prison time or time served in county jail.  But before getting to which of those three possible sentences to impose, the first question is whether or not to give the defendant probation.


Probation is a period of supervision under certain terms and conditions that the defendant must follow.  If they are found in violation of any of the terms of probation imposed, they can be brought back before the court and if found to be in violation, they can get any or all of the maximum sentence on the charges they were convicted of.  Just exactly what the risk is and what can be imposed is the huge difference between an ESS and an ISS sentence.

ISS (Imposition of Sentence Suspended)

In the vast majority of felony probation sentences, the judge orders that “Imposition of sentence is suspended” and the defendant is placed on probation for a period of time (typically 3 or 5 years, depending on the charge).  Just because a defendant gets probation and “imposition suspended” doesn’t mean they do no jail time. A defendant can be sentenced up to a year in jail as a term of probation, along with other conditions.  If a defendant is found to have violated their probation, they can then receive additional punishment.  That could be anything from simply revoking and reinstating probation with no additional consequences all the way up to imposing the maximum sentence.  Typically, a first time violation of probation will result in a 30-180 days in jail as a sanction for the violation.  The point is that the judge has a lot of leeway in deciding what punishment (if any) to impose if the defendant violates.

ESS (Execution of Sentence Suspended)

The other way to be sentenced and receive probation is to have an ESS imposed.  At the time of sentencing, the judge would sentence the defendant to ____ years with the execution of that sentence suspended while they are then placed on probation. The other term for an ESS is a “joint suspended” sentence – the prison (or joint) sentence is suspended during the time of probation.  The defendant could still be ordered to serve up to a year in county jail and have other terms imposed.  The difference is that if there a violation, then whatever the sentence imposed was is then ordered.  No slap on the wrist and a few days in jail – you get the sentence that was originally imposed.

An ESS is often referred to as a “deal with the devil.”  It avoids an initial sentence of a much longer time, but if there is any violation, there’s no wiggle room.  Of course, if you can make it through probation without any violations, then the threat of that suspended sentence goes away when probation ends.

Joe Dane


Call or text:  714.532.3600

Full DUI blitz underway in Orange County

DUI Checkpoints and Saturation patrols in Orange County now until Labor Day

The Orange County Sheriff’s Department announced today that a “full force” DUI task force will be underway from now, September 21, 2015 through Labor Day (September 7, 2015).  There will be a DUI checkpoint tonight, but the location has not yet been disclosed.  The California Highway Patrol (CHP) will also be deploying all available officers for a full saturation patrol.

They are calling this a “zero tolerance” operation and are labeling it “Drive Sober or Get Pulled Over.”


What to do if you get pulled over for DUI

You have rights, both during a DUI checkpoint or if you’re pulled over for any reason.  I’ve written a detailed article featured on the Forbes website that you can read here:  What to do if you get pulled over for Drunk Driving in California

Should you be pulled over, you have the right to remain silent, even though they don’t read you your Miranda rights.  Questions about drinking can only hurt you.  Politely but firmly decline to answer their questions.  Same thing for the field sobriety tests – it is not mandatory that you comply with their request for you to perform these maneuvers.  The field breathalyzer (also known as the Preliminary Alcohol Screening or PAS device) is also optional unless you’re under 21 or currently on probation for DUI.

If you are arrested for DUI

You only have 10 days to request a hearing with the DMV or they will automatically suspend your license.  To preserve your right to drive and to begin fighting your case, give me a call so we can discuss what happened and contact the DMV within that 10 days.

Be safe and remember your rights.


Joe Dane, Orange County Defense Attorney



Shoplifting and Theft Defenses

Arrested for shoplifting?  What do you do if you didn’t mean to steal?


Please click to play the audio:




Hi – This is Orange County Defense attorney Joe Dane. I’ve posted many articles, podcasts and videos about theft and shoplifting allegations, but today, I’m going to talk specifically about defenses to shoplifting charges.

First, all theft crimes require a specific intent. By that, I mean that the prosecution must prove that you had a certain specific intent at the time you took the property. They must be able to prove beyond a reasonable doubt that you intended to steal the merchandise.

That leads me to a first possible defense – accident.

Things happen. Your kids distract you…. you’re on your cell phone… you’ve got your arms full of items you’re considering – some you want, some to return… Any number of scenarios could distract you to the point you don’t realize you’ve got merchandise you haven’t paid for as you step out. Many stores – but not all – have surveillance videos throughout the store and especially at the entrances. Assuming the police book the video into evidence, we are entitled to get a copy to try and show that this was an accident.

In a theft case, there must be taking of property with that intent I was just talking about and there must be a “carrying away” or “taking”. That means that they must prove that you did in fact have the intent to steal and you actually gained control of that property. Typically, the store personnel will stop you once you’ve exited the store. They assume that once you’ve stepped out of the store, there is no intention to pay for the things you have with you.

But… there are some situations where that doesn’t apply. Some stores have outdoor garden departments that still also have cash registers where you can pay for merchandise. I remember one case I had from a large department store in a mall – just outside the store in the mall was an escalator. My client had some clothing and wanted to go downstairs to continue shopping. She saw the escalator and without a second thought, walked out into the mall to take the escalator downstairs and back into the same department store. Once I pointed this out to the DA – and the video from the store showed that she wasn’t looking around suspiciously as she exited or anything – the case was dismissed. We were able to show the prosecutor that my client had absolutely no intent to steal and this was an honest mistake.

If you have been arrested for shoplifting or petty theft in Orange County, give me a call. Let’s discuss your case and see what defenses or other options you may have to try and avoid a conviction for theft. My phone number is 714 532 3600 and you can reach me by email at joe@joedane.com.

There are some additional links below to other articles about shoplifting and civil demand letters.




Joe Dane, Orange County Defense Attorney


Shoplifting – Civil Demand Letters

Is Petty Theft a Big Deal?

Shoplifting and Loss Prevention Officers


The police didn’t read me my rights! Now what? Miranda and the law

What happens if the police didn’t read you your rights?  Can your entire case be thrown out or dismissed?


Please click to play audio (approximately 4 minutes):



Transcript of audio:


Hi – it’s Orange County defense attorney Joe Dane.


Today, I’m going to talk about one of the most frequent complaints people have when they get arrested, and that is that “The officer never read them their rights – their Miranda rights” and follow up question is always, “Does this mean my case is gonna be thrown out?”


Well, let’s start off and talk about what the Miranda rights are and what can and can’t happen in your criminal case. First of all, the Miranda rights have been around for years. In 1966, the US Supreme Court came out with the famous Miranda decision which now requires peace officers to give people their rights when they’re arrested and being subject to questioning.


The Miranda rights are actually two different rights. The first is the Fifth Amendment right and that’s your right to remain silent or not become a witness against yourself and the other one is from the Sixth Amendment and that is your right to attorney at all critical stages of the proceedings, including police interrogation. Those are the rights that come from the Constitution and the Miranda warnings (or the Miranda advisement) comes into play if you are in custody and being subject to interrogation. Both of those things at the same time have to exist before the police are required to give you your rights. Both in custody and being questioned.


Custody is the functional equivalent of an arrest or a formal arrest. If they put the cuffs on you and tell you you’re under arrest, there’s no question you’re in custody. The second part is interrogation. They have to be asking you direct questions about the crime you’re suspected of or arrested for for it to be interrogation. Both of those at the same time.


This isn’t like TV or the movies – you’ll see, you know, detectives running down the street chasing after somebody. They’ll tackle them and as they’re putting the handcuffs on, one or the other of the partners will start reading the guy their rights. It’s not like that. In fact, there are many cases where the Miranda rights never come into play because after arrest, the individual is never questioned about the crime.

It’s if you’re arrested and being questioned – that’s when they have to give Miranda rights.


The most important thing about that though, is when Miranda rights are not required to be given. If you’re not in custody, they don’t have to give your rights. The best example of not being in custody but being temporarily detained is like a traffic stop. If the police pull you over for whatever violation and they start questioning you and let’s say they smell alcohol, for example. If they ask you questions like, “Have you been drinking?” If you say yes, you have absolutely incriminated yourself under the Fifth Amendment. But because you’re only being detained and you’re not formally arrested at that point, they don’t have to read you your rights and that statement that you make out on the side of the road is perfectly admissible against you. That applies to just about every sort of police investigation. If they are just doing general investigation questions of you but you’re not formally “in custody,” Miranda rights don’t come into play.


If there is a Miranda violation, for example you were in custody and you were being interrogated but the police didn’t read your rights; or if the Miranda rights weren’t given properly, or the waivers weren’t correct or something like that, what’s the remedy? I know a lot of people think that the entire case thrown out, but that’s not the situation. The remedy, if there is a Miranda violation, is the statement that’s taken in violation of Miranda is excluded. It’s not excluded necessarily for all purposes, but the prosecution can’t use it in their case against you to try and convict you.


Miranda situations, like many aspects the law, are very fact-dependent though – whether or not you are actually in custody… whether or not the way the police ask you questions or read you your rights was proper… whether the statement itself is coercive… the entire context has to be reviewed. If you have been arrested here in Orange County and you want to talk about your case, give me a call my phone number is 714) 532-3600 or send me an email: joe@joedane.com. The links are below.


Joe Dane, Orange County Defense Attorney



Shoplifting and Civil Demand letters – Audio Podcast

Please click to play:


Transcript of audio:

Hi. This is Orange County defense attorney Joe Dane.   Today I’m going to talk about shoplifting and civil demand letters.


If you were detained or accused of shoplifting in a store, one of two things may have happened: They could have called the police. If you were arrested or cited to appear in court based on a theft or shoplifting charge, you need to absolutely contact a criminal defense attorney to discuss your options and get representation in court. The other thing is – the store personnel may not have called the police, they may have said “We’ll let you go, but you have to pay a ‘fine’ to the store.”


Well, it really isn’t a fine – it’s a civil demand letter.


Penal Code section 490.5 allows a merchant either directly or through a law firm to send out these civil demand letters and demand up to $500 in a shoplifting incident. The letters sound very intimidating. They come from law firms on letterhead. They talk about paying immediately to avoid further legal action and pursuing their rights and things like that, and they’re designed to intimidate. The big question though is: do you actually have to pay what they’re asking for? Legally speaking, there’s no obligation to pay that – it’s just a letter. It’s like if I sent you a letter and said, “Hey, send me $500.” There’s no legal obligation to send that. It’s not a debt that you owe and it’s not a judgment that has to be paid. It is a demand letter. They are demanding that you pay them money.


So what happens if you don’t pay it? The law says they’re allowed to sue you in Small Claims court. But in California, lawyers can’t be involved in small claims cases, so they would have to go through the store personnel to go to court and put on testimony to prove that you owe them anything.


Typically, that merchandise is recovered and put right back on the shelf to be resold to the next customer, so the store hasn’t suffered a financial loss and the only thing they would be suing you for is the cost of investigation which typically couldn’t be more than a couple hundred bucks. It’s just not worth their time.


In almost 18 years of practicing law plus my time to as a Deputy Sheriff and participating in statewide and nationwide forums for other defense attorneys, I’ve never actually spoken to someone whose client has been sued for ignoring the civil demand letter. So if you ignore that letter, they may send a second one. The dollar amount they are asking for may go up. It may contain a little bit more threatening language. If they have your phone number, they might call you. If you continue to ignore them though, ultimately they have to make a choice: let it go or sue you in small claims. Like I said, I never heard it happening. I suppose it could, but I’ve never heard of it actually happening because somebody ignored the civil demand letter. Typically, they just let it go.


What happens if you do pay them? Does that make things somehow better? Well, if you do pay their civil demand letter, hopefully they’ll send you a release which indicates that they’re not going to sue you in small claims – something they wouldn’t do anyway – but they’ll give you a letter saying, “Okay now we’re not going to sue you,” but it will not do anything to any criminal investigation or criminal cases. Paying it will not stop prosecution in the criminal courts. The other side is true though – not paying it doesn’t mean the police will become involved if they weren’t, so if you ignore it, it doesn’t mean that suddenly they’re going to rush off to the police and file a report and have you criminally charged – they can’t do that.


Typically, if you’re going to be charged with a crime, it is because the police were involved on the day they accused you of shoplifting and you would have been contacted right then and there by the police. So paying it doesn’t stop anything to do with the criminal prosecution, it just stops something from happening in Small Claims Court that was never going to happen the first place.


If you were arrested or cited and you have to appear in criminal court in Orange County or Southern California, give me a call. My phone number is 714-532-3600 or send me an email: joe@joedane.com. The contact links and information is below. I hope this helps, and if you have questions about the civil demand letter, talk to your attorney or contact me.


Good luck.


Joe Dane, Orange County Defense Attorney