Man Continues His Years-Long Fight to Avoid Jail : Courts: A judge delays the Simi Valley businessman’s 30-day sentence. He has been convicted twice in his 1985 arrest on cocaine charges.

Almost six years after his arrest and nearly two years since he was found guilty at a second trial, the president of a Simi Valley computer company is still fighting to overturn his conviction and avoid serving a 30-day jail sentence.

Richard A. Cole, 44, convicted of possessing half a gram of cocaine, was to begin serving the jail term Tuesday. But Ventura County Superior Court Judge Steven Z. Perren granted a month’s delay while probation officials look into a new legal argument that Cole has raised.

Cole, president of SpectraCom Inc. in Simi Valley, already has spent an estimated $85,000 in legal fees on the case, said George Eskin, one of half a dozen attorneys who have represented him. The case has been appealed twice to the state’s 2nd District Court of Appeal--the first time to ask for a new trial, which was granted, and the second time seeking a new sentence, which was denied.

“Part of me wants to say, ‘Oh, Richard, forget it. Look at all the money you’ve spent,”’ Eskin said in court Tuesday. “But he wants to pursue it.”

Cole acknowledged that the case has “cost me quite a bit.”

“It’s scary,” he said, “when you have a system as good as ours and you’re innocent and you lose--twice.”

Cole’s latest argument is that he should have been allowed to enter a diversion program for first-time drug offenders. If he completed diversion successfully, the charge would be dismissed and Cole, a former board member of the Moorpark College Foundation, would not have the stigma of a drug conviction.

In granting the postponement, Perren noted that the case has dragged on for years already. “This is not a case where we are concerned about a rush to judgment,” he said.

And Deputy Dist. Atty. Richard E. Simon, who tried the case before two juries, did not object to the delay.

But afterward, Simon said, “The whole thing’s a waste of time.

“He’s fighting and fighting and fighting,” Simon said. “It’s a psychological thing. He thinks he’s a big shot in the community. He’s guilty. His story is such a bunch of garbage.”

Since his arrest on July 3, 1985, Cole has maintained that the cocaine, which police found in a safe in his garage, belonged to his teen-age daughter. He said he found the plastic packet containing the drug among her things and put it in his safe while he and his wife debated whether to turn the girl over to authorities.

Cole’s daughter twice took the witness stand to confirm that the cocaine was hers. She had been arrested along with her father after drugs were found in her room and pleaded guilty in juvenile court before her father’s case came to trial.

As for the scales, razor blades, plastic bags and straws that police also found in his garage, Cole said they were used to weigh and package food for a vending machine business that he owned.

But neither jury that heard the case took more than a few hours to decide that Cole was guilty.

After the first trial, which ended Dec. 23, 1986, Judge Frederick A. Jones sentenced Cole to 120 days in jail. Cole appealed on several grounds, and a year and half later the 2nd District Court of Appeal ordered a new trial. The court agreed with Cole’s claim that the jury had been improperly instructed.

Perren heard the second trial, which ended May 5, 1989, and sentenced Cole to 30 days in jail and three years’ probation. “You’ll never touch this stuff again, I’m sure of that,” Perren told Cole, according to published accounts at the time.

However, in a lengthy commentary on the destructiveness of cocaine, the judge added, “I just can’t turn to the community and say, ‘This is a case without jail.’ ”

Cole’s attorneys seized on the judge’s remarks as grounds for taking the case back to the appellate court. They argued that the judge should have granted probation and was unduly influenced by community sentiment. After another 18-month delay, the appellate court upheld Perren last December.

Cole was not considered for diversion at the beginning of the case because he had been sentenced to the California Youth Authority in 1965 for sale of marijuana. Diversion is open only to first-time offenders.

But Eskin said that Cole’s commitment to the Youth Authority was not the same as a conviction under the law, and that he should have been considered for the diversion program.

Simon said Cole is not suitable for diversion because he does not admit guilt, a prerequisite for the program. “He just doesn’t want to admit it,” Simon said.

Probation officials will study Cole’s request for diversion and report to Perren by April 26.

John Lacy, a juror at the first trial, said he was shocked to learn all that has happened since then. “We thought the prosecution put on a solid case,” Lacy said, adding that the jury was especially unimpressed by Cole’s attempt to implicate his daughter.

In response, Cole said “it was a difficult time for the entire family,” and said he let his daughter testify on his behalf only because she had already pleaded guilty in her case.

Lacy said he was surprised more by the sentences Cole has received than by the delays in serving time.

“I’m shocked that he would only have gotten four months,” Lacy said. “And to think that he was retried and it was reduced to a month. It doesn’t make a lot of sense.

“I can see why the police are frustrated trying to get the job done related to drugs and so forth. I’m really surprised.”

Cole insisted that he has paid his debt to society.

“I’ve done five years of extra work to raise the money for my defense,” he said. “I’ve had five years of worry. I’ve had five years of being angry at the unfairness of it. I feel like I’ve done my time and a lot more besides.”