Sentencing

Sentencing in California is a complex area of criminal law. In general, misdemeanors are punishable by a maximum of one year in county jail and felonies are punishable by at least 366 days in state prison but can range up to life in prison or even death.

Muddying the waters of sentencing in California criminal cases are such "tough on crime" laws as the Three Strikes Law, Proposition 36 (Prop 36) (PC 1210.1 Opens in New Window), PC 1000 Opens in New Window Drug Diversion, One Strike Sex Offender laws, "Determinate" Sentencing Laws, and numerous enhancements for prior convictions, use of weapons, and so on.

Despite all the intricacies of the sentencing laws in California, there are some standard things defendants should expect when being sentenced. After being found guilty at trial or entering a plea of guilty or no contest, the court will sentence the defendant. In misdemeanors, the court can sentence the defendant immediately. In felonies, the court must wait at least 20 court days and request a probation report.

The criminal defense attorney, the prosecutor, and the victim all have the opportunity to submit sentencing memoranda to the court indicating whether the court should be lenient or more harsh with the punishment. The prosecutor will submit a memorandum with aggravating factors and will request that the court sentence the defendant to an upper term in prison. The criminal defense attorney will submit a statement in mitigation listing factors that tend to show that less prison time and even probation is justified in the case. Depending on the case and how the victim feels about the defendant, the statement submitted by the victim could go either way.

The criminal defense attorney can also get character references for the defendant and provide proof to the court that the defendant is already taking action to remedy the wrong. For instance, in a drug case, the defendant could enter a live-in drug rehabilitation program, thereby showing the court he is serious about ending his drug addiction.

At your sentencing, the judge will refer to the probation report, the statements in mitigation and aggravation, character references, other documentation submitted by the defense or prosecution, and the victim's statement. The judge will make a determination as to what the sentence should be. If the judge grants probation, the judge will still indicate what the state prison time would be if probation is revoked (this is commonly referred to as the time "hanging over the defendant's head."

If prison time is given instead of probation, or if county jail (i.e., "local time") is given in addition to probation, the court can order the defendant taken into custody immediately. In special circumstances, the judge can order the defendant to turn himself in to the jail or prison at a particular date or time; typically, however, the defendant is taken into custody immediately.

If you are facing a criminal prosecution, you need to call a criminal defense attorney at Hackard Law for a free, confidential, no obligation consultation immediately.