Once you have been convicted of a crime in this state, California criminal law provides both the defense and the prosecution an opportunity to be heard with respect to sentencing.1
This opportunity is what's known as a sentencing hearing. At a California sentencing hearing, the defense presents mitigating circumstances as to why the punishment and penalties should be minimized. Conversely, the prosecution presents aggravating circumstances to demonstrate why the sentence should be harsh.
This is just another reason why it is so important to have skilled representation on your side. As former cops and prosecutors, we know the most effective arguments to make to convince judges to go easy on our clients.
Below, our California criminal defense attorneys2 address the following:
- 1. Overview of a California Sentencing Hearing
- 2. Defendant's Rights
- 3. Evidentiary Issues
- 4. Sentencing Considerations
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
After a defendant either
- enters a guilty plea or a nolo contendere (or "no contest") plea to at least one criminal charge, OR
- is convicted of at least one charge by a judge or jury,
a judge must impose a sentence (also referred to as judgment). But before the judge imposes a sentence, both the defense and prosecution are entitled to an opportunity to be heard as to what they believe is an appropriate penalty.3 This opportunity is what's known in California as a sentencing hearing.
And because the defendant has already been convicted of the crime, our laws provide for much more "relaxed" rules of evidence that they do during a California jury trial or, for that matter, even during some of the pretrial process.
When does the sentencing hearing take place?
The Penal Code regulates when a judge must conduct a California sentencing hearing.
Misdemeanor sentences must be pronounced not less than six hours nor more than five days after a guilty plea, no contest plea, or conviction unless the defendant waives that timeframe.4
These times may also be extended due to special circumstances which include
- consideration of a motion for a new trial,
- awaiting a probation recommendation from the local department of probation, and/or
- determining whether the defendant is insane.5
It is quite common for persons convicted of misdemeanors to receive their sentences immediately following a guilty verdict or guilty / no contest plea.
Felony sentences must be scheduled within 20 days of the guilty verdict or plea. The court may extend that timeframe by up to ten days for the same reasons listed above.6
If the sentencing hearing is not held immediately following a guilty plea or guilty verdict, the judge may
- keep the defendant in custody (that is, in jail),
- order an out-of-custody defendant to go into custody, or
- require the defendant to post or remain on bail to assure his/her appearance at the time of sentencing.
This matter is entirely within the judge's discretion unless it is a misdemeanor case where the defendant has either (1) applied for probation, or (2) filed an appeal.7 In these instances, California bail laws entitle the defendant to be released on bail before the judge actually pronounces the sentence.8
Like all California criminal proceedings, the defendant is endowed with certain rights during his/her sentencing hearing. Some of the most noteworthy rights include (but are not limited to):
- the right to be present for sentencing,9
- the right to be represented by an attorney,10
- the right to present evidence on his/her own behalf,11
- the right to propose an alternative sentence (such as proposing rehabilitation in lieu of incarceration),12 and
- the right to be arraigned for judgment (which includes the right to be advised of the nature of the criminal charges, the pleas entered, and the verdicts returned on the pleas). Note, this is different from the more commonly referred to California arraignment proceeding which is the first phase of this state's criminal court process.13
The defendant does not retain the right to confront or cross-examine witnesses during a sentencing hearing. This includes the lack of a right to cross-examine a probation officer who prepares a probation report for the court, as well as any victims or other people who submit out-of-court statements.14
California sentencing hearings are not governed by the same rules and regulations as jury trials.15 In fact, they are much more relaxed and informal. However, there are still guidelines as to how a judge must conduct this type of hearing.
Some of these guidelines include (but are not limited to):
- Allowing the attorneys a "meaningful" opportunity to object to the sentence. This does not mean that the court must issue a tentative decision prior to the pronouncement of judgment but rather that
- the parties must be clearly apprised of the sentence,
- the parties must be clearly apprised of the judge's reasons for electing that sentence, and
- the judge must demonstrate a willingness to consider any objections.16
- Considering recommendations for rehabilitation (rather than incarceration).17
- Relying on out-of-court or unsworn statements concerning the circumstances of the offense and the characteristics of the defendant as long as the defense has notice that the statements will be accepted and has an opportunity to respond.18
- Reviewing the defendant's driving record in a driving under the influence case.19
- Analyzing whether or not evidence that was obtained during an illegal search and seizure that was previously suppressed during a 1538.5 "motion to suppress evidence" is nevertheless admissible during a sentencing hearing.20
- Not counting against the defendant those cases where he/she successfully completed
When it comes time for the judge to pronounce the actual sentence, there are a number of issues that the judge states "for the record". Below are some of the most important.
Concurrent vs. consecutive sentences
If the defendant has been convicted of two or more crimes.whether in the same proceeding or while still on probation.the judge must decide whether the sentences will run concurrently or consecutively.
If the sentences run concurrently, it means that they run simultaneously during the period that the times overlap.22 For example, a defendant sentenced to serve a one-year sentence concurrently with a two-year sentence would only serve two years.
When the judge orders that the sentences run consecutively, it means they run back-to-back.23 Using the sample sentence above, the defendant would actually serve three years.the one-year sentence followed immediately by the two-year sentence.
Unless a judge specifies that the sentence will run consecutively, it will run concurrently.24 Making this distinction becomes particularly important when the defendant has been convicted of multiple acts that are incident to one objective.25
As Santa Ana criminal defense attorney Zachary McCready26 explains, "Illegal consecutive sentences are common, which is simply another reason why having a skilled attorney is so important. He/she not only knows how to distinguish a legal sentence from an illegal one but also knows the most effective ways to convince judges that a concurrent sentence will best serve the interests of justice in any given case."
Reasons for imposing a selected sentence
Misdemeanor crimes are typically punishable by up to six-months in a county jail or by up to one year in a county jail. Most felony offenses have three options for imprisonment (for example, two, four, or six years in the California state prison). The judge will consider aggravating and mitigating factors in California felony sentencing to decide whether to impose the "high term," "mid term" or low term."
This means that a judge exercises quite a bit of discretion when deciding what sentence to impose. As a way to ensure that judges don't abuse this discretion, California law requires that judges state their reasons for choosing a particular sentence.27
In addition, if the judge is dismissing
- a sentencing enhancement (such as Penal Code 12022 PC California's sentencing enhancement for personally using a firearm),
- a "prior" enhancement (that is, a prior conviction that necessarily increases the current sentence),28 and/or
- a strike under California's three strikes law,29
he/she must also clearly state his/her reasons for doing so.30 Similarly, if a judge is revoking probation based on a California probation violation.and is ordering the defendant to serve a jail or prison sentence.he/she must state the reasons for the revocation.31
Call us for help.
If you or a loved one is in need of help with sentence hearing and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For information about sentencing in Nevada criminal cases, go to our article on sentencing in Nevada criminal cases.
California Penal Code 1170 PC -- Determinate sentencing. ("(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts. In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.")
Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Please contact us at Shouse Law Group with any questions.
See 1170 PC -- Determinate sentencing, endnote 1, above.
California Penal Code 1449 PC -- Judgment; time for pronouncement; extension of time; bail to appear for judgment; commitment pending determination of sanity; veteran discharged for mental disability, military medical history. ("In a misdemeanor or infraction case, after a plea, finding, or verdict of guilty, or after a finding or verdict against the defendant on a plea of former conviction or acquittal, or once in jeopardy, the court shall appoint a time for pronouncing judgment [that is, a California sentencing hearing] which shall be not less than six hours, nor more than five days, after the verdict or plea of guilty, unless the defendant waives the postponement. The court may extend the time for not more than 10 days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment. The court also may extend the time for not more than 20 judicial days if probation is considered. Upon request of the defendant or the probation officer, that time may be further extended for not more than 90 additional days. In case of postponement, the court may hold the defendant to bail to appear for judgment. If, in the opinion of the court there is a reasonable ground for believing a defendant insane, the court may extend the time of pronouncing judgment and may commit the defendant to custody until the question of insanity has been heard and determined. If the defendant is a veteran who was discharged from service for mental disability, upon his or her request, his or her case shall be referred to the probation officer, who shall secure a military medical history of the defendant and present it to the court together with a recommendation for or against probation.")
California Penal Code 1191 PC -- Appointment of time for pronouncing judgment; reference to probation officer or placement in diagnostic facility; extension of time. ("In a felony case, after a plea, finding, or verdict of guilty, or after a finding or verdict against the defendant on a plea of a former conviction or acquittal, or once in jeopardy, the court shall appoint a time for pronouncing judgment [aka a California sentencing hearing], which shall be within 20 judicial days after the verdict, finding, or plea of guilty, during which time the court shall refer the case to the probation officer for a report if eligible for probation and pursuant to Section 1203. However, the court may extend the time not more than 10 days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment, and may further extend the time until the probation officer's report is received and until any proceedings for granting or denying probation have been disposed of. If, in the opinion of the court, there is a reasonable ground for believing a defendant insane, the court may extend the time for pronouncing sentence until the question of insanity has been heard and determined, as provided in this code. If the court orders the defendant placed in a diagnostic facility pursuant to Section 1203.03, the time otherwise allowed by this section for pronouncing judgment is extended by a period equal to (1) the number of days which elapse between the date of the order and the date on which notice is received from the Director of Corrections advising whether or not the Department of Corrections will receive the defendant in the facility, and (2) if the director notifies the court that it will receive the defendant, the time which elapses until his or her return to the court from the facility.")
California Penal Code 1166 PC -- General verdict against defendant or special verdict; remand or commitment to custody pending judgment; exoneration of bail and refund of deposit. ("If a general verdict is rendered against the defendant, or a special verdict is given, he or she must be remanded, if in custody, or if on bail he or she shall be committed to the proper officer of the county to await the judgment of the court upon the verdict, unless, upon considering the protection of the public, the seriousness of the offense charged and proven, the previous criminal record of the defendant, the probability of the defendant failing to appear for the judgment of the court upon the verdict, and public safety, the court concludes the evidence supports its decision to allow the defendant to remain out on bail. When committed, his or her bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant or to the person or persons found by the court to have deposited said money on behalf of said defendant.")
California Penal Code 1272 PC -- After conviction and pending probation or appeal; bail as of right; bail discretionary; notice to prosecuting attorney. ("After conviction of an offense not punishable with death, a defendant who has made application for probation or who has appealed may be admitted to bail: 1. As a matter of right, before judgment is pronounced pending application for probation in cases of misdemeanors, or when the appeal is from a judgment imposing a fine only. 2. As a matter of right, before judgment is pronounced pending application for probation in cases of misdemeanors, or when the appeal is from a judgment imposing imprisonment in cases of misdemeanors. 3. As a matter of discretion in all other cases, except that a person convicted of an offense subject to this subdivision, who makes a motion for release on bail subsequent to a sentencing hearing, shall provide notice of the hearing on the bail motion to the prosecuting attorney at least five court days prior to the hearing.")
California Penal Code 1193 PC -- Pronouncement of judgment.
California Constitution Article 1, Section 15 -- Criminal cases; speedy public trial; compel attendance of witnesses; appearance and defense; counsel; depositions; double jeopardy; self-incrimination; due process. ("Sec. 15. The defendant in a criminal cause [which includes a California sentencing hearing] has the right to a speedy public trial, to compel attendance of witnesses in the defendant's behalf, to have the assistance of counsel for the defendant's defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant's counsel. Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.")
See also Ex parte Roberts (1953) 40 Cal.2d 745, 748. ("It seems clear, however, that Roberts was entitled to counsel when judgment was pronounced and sentence imposed on the forgery charge and that he was deprived of that right in violation of article I, section 13, of our Constitution. (See In re Levi, 39 Cal.2d 41, 45-46 [244 P.2d 403]; People v. Fields, 88 Cal.App.2d 30, 33 [198 P.2d 104]; cf. In re Davis, 37 Cal.2d 872, 875 [236 P.2d 579].) There is nothing in the record to indicate that Roberts was ever informed of his right to counsel or that he knew he was entitled to the aid of an attorney. There was no express waiver of the right, and we are of the opinion that none may be implied. (See In re Levi, 39 Cal.2d 41, 46-47 [244 P.2d 403].) The judgment must therefore be set aside and the matter remanded to permit Roberts to be arraigned with counsel.")
See 1170 PC -- Determinate sentencing, endnote 1, above.
See also California Penal Code 1204 PC -- Circumstances in aggravation or mitigation of punishment; hearing. ("The circumstances shall be presented by the testimony of witnesses examined in open court [during a California sentencing hearing], except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section. This section shall not be construed to prohibit the filing of a written report by a defendant or defendant's counsel on behalf of a defendant if such a report presents a study of his background and personality and suggests a rehabilitation program. If such a report is submitted, the prosecution or probation officer shall be permitted to reply to or to evaluate the program.")
See Penal Code 1204, above.
California Penal Code 1200 PC -- Arraignment of defendant for judgment; inquiry as to cause why judgment should not be pronounced. ("When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.")
People v. Huber (1986) 181 Cal.App.3d 601, 635. ("Section 1191.1 was enacted on June 2, 1982, as part of the initiative measure commonly known as Proposition 8, or "The Victim's Bill of Rights." As originally enacted, it provides in relevant part: "The victim of any crime, ... has the right to attend all sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime. The victim ... has the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of the victims ... and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation."The section has since been amended in a manner not relevant to the instant action. (See Stats. 1984, ch. 1425, 1, p. -.). On appeal defendant urges that this procedure denied him his Sixth Amendment right to confront the witnesses against him. It did not; there is no Sixth Amendment right in such circumstances. (People v. Zikorus (1 983) 150 Cal.App.3d 324, 332-333 [197 Cal.Rptr. 509].)")
See also People v. Arbuckle (1978) 22 Cal.3d 749, 754. ("Defendant first contends that his right to a probation and sentencing hearing pursuant to Penal Code section 1204 was effectively denied because he was not permitted to cross-examine the Department of Corrections personnel who prepared the report or to introduce expert testimony challenging the methodology used by the staff. He correctly asserts a right to present evidence tending to mitigate punishment or assist in the determination of his application for probation. (Pen. Code 1204; People v. Barajas (1972) 26 Cal.App.3d 932, 939 [103 Cal.Rptr. 405]; People v. Valdivia (1960) 182 Cal.App.2d 145, 148 [5 Cal.Rptr. 832].) The defendant is entitled to an opportunity to respond to adverse sentencing information. There is no statutory support for the asserted right to confront and cross-examine as witnesses those who prepare a report which, pursuant to section 1203.03, must contain a diagnosis and recommendation in writing.")
Williams v. People of State of N.Y. (1949) 337 U.S. 241, 246. ("Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations.FN4 But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.FN5">
Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders. FN6">
A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information 'as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant.")
People v. Scott (1994) 9 Cal.4th 331, 351. ("Against this backdrop, the purpose for requiring the court to orally announce its reasons at sentencing is clear. The requirement encourages the careful exercise of discretion and decreases the risk of error. In the event ambiguities, errors, or omissions appear in the court's reasoning, the parties can seek an immediate clarification or change. The statement of reasons also supplies the reviewing court with information needed to assess the merits of any sentencing claim and the prejudicial effect of any error [during a California sentencing hearing]. ( People v. Martin (1986) 42 Cal.3d 437, 449 [229 Cal.Rptr. 131, 722 P.2d 905]; People v. Edwards, supra, 18 Cal.3d 796, 804.)")
See also People v. Gonzalez (2003) 31 Cal.4th 745, 755. ("The trial court prefaced its sentence with the words, "Defendants are sentenced as follows." (Italics added.) These words may have implied to the parties that the trial court had already made its sentencing decision. Because the court had not previously notified the parties that it intended to rely on defendants' firearm use as a reason for its sentence, it should have more clearly given the parties a meaningful opportunity to object by saying it was announcing proposed sentences for each defendant and its reasons for the sentences, that the prosecutor and defendants were entitled to object, and that if the objections were meritorious it would alter the sentences appropriately. Nevertheless, the record shows that after the trial court had stated defendants' sentences and its reasons for them, defendants did object, although not on two of the grounds they now wish to raise on appeal. The court did not tell defendants their objection was untimely or impermissible; instead, it considered and rejected the objection. Thus, the court did give defendants a "meaningful opportunity to object" as required by Scott, supra, 9 Cal.4th at page 356, 36 Cal.Rptr.2d 627, 885 P.2d 1040. (See People v. Downey (2000) 82 Cal.App.4th 899, 916, 98 Cal.Rptr.2d 627 [ Scott bar applies when trial court allowed parties to interrupt to make objections while it was pronouncing sentence [during a California sentencing hearing]].)")
See California Penal Code 1204 PC -- Circumstances in aggravation or mitigation of punishment at a California sentencing hearing, endnote 11, above.
People v. Mockel (1990) 226 Cal.App.3d 581, 586-587. ("It is well settled that allowing statements from the friends and family of the victim of a violent crime does not violate due process or the defendant's right to confront and cross-examine witnesses so long as the defendant had notice that the statements would be accepted and had an opportunity to respond. ( People v. Birmingham (1990) 217 Cal.App.3d 180, 183-185 [265 Cal.Rptr. 780]; People v. Sewell (1989) 210 Cal.App.3d 1447, 1449 [259 Cal.Rptr. 34] and cases cited therein.)")
California Vehicle Code 13209 VC -- Record of prior conviction. ("Before sentencing a person [during a California sentencing hearing] upon a conviction [for driving under the influence for] of a violation of Section 23152 or 23153, the court shall obtain from the department a record of any prior convictions of that person for traffic violations. The department shall furnish that record upon the written request of the court. Notwithstanding the provisions of Section 1449 of the Penal Code, in any such criminal action the time for pronouncement of judgment shall not commence to run until the time that the court receives the record of prior convictions from the department.")
People v. Moore (1988) 201 Cal.App.3d 877, 885. ("In Belleci our Supreme Court held that if evidence is suppressed pursuant to a final order under section 1538.5, then such evidence is inadmissible at any trial or hearing. ( People v. Belleci, supra, 24 Cal.3d 879, 887-888.) Pursuant to the holding in Belleci admission of the note to impeach defendant would be improper. However, in 1982, Proposition 8, which added section 28, subdivision (d) (section 28(d)), to article I of the California Constitution, was adopted. (See People v. Smith (1983) 34 Cal.3d 251, 254 [193 Cal.Rptr. 692, 667 P.2d 149].) In In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744] our Supreme Court expressly held that "Proposition 8 has abrogated ... a defendant's right to object to and suppress evidence seized in violation of the California, but not the federal, Constitution." ( Id. at p. 879.) In other words, the effect of section 28(d) is to permit admission of unlawfully seized evidence unless exclusion is mandated by the Fourth Amendment exclusionary rule of the federal Constitution.")
California Penal Code 1000.4 PC -- Successful completion of program; record; disclosure of arrest. ("(a) Any record filed with the Department of Justice shall indicate the disposition in those cases deferred pursuant to this chapter. Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred.")
See also People v. Ratcliffe (1981) 124 Cal.App.3d 808, 823. ("The defendant in Calloway complained that the trial court denied his application for probation and committed him to the California Youth Authority on the basis of a probation report listing various prior contacts with law enforcement agencies and courts, including four matters on which the disposition was listed as "'unknown"' and seven contacts (under the headings of grand theft, burglary and assault with a deadly weapon) bearing the notation "'Not arrested, 849b(1) P.C."' ( People v. Calloway, supra., at p. 907.) Penal Code section 849, subdivision (b)(1), provides for the release from custody of a person arrested without a warrant when there are insufficient grounds for making a criminal complaint against the person. The court in Calloway stated: "Such records, without supporting factual information, should not be included in a probation report. They are unreliable, highly prejudicial, and under many circumstances could result in a fundamentally unfair hearing." ( Id., at p. 908, italics added.) However, the court in Calloway found no deprivation of due process because the trial court had not relied upon the impermissible factors in committing the defendant to the California Youth Authority. ( Id., at p. 909; see People v. Romero (1977) 68 Cal.App.3d 543, 550 [137 Cal.Rptr. 675].)")
It is now well established that a probation report may refer to an arrest that did not result in a conviction, if supporting factual information is included and the information is not presented in a misleading manner.
Ex parte Roberts (1953) 40 Cal.2d 745, 749. ("It would seem clear, however, that sentences may be concurrent, i.e., may run together, without either starting together or ending together. What is meant is that they run together during the time that the periods overlap.")
California Penal Code 669 PC -- Conviction of multiple offenses; direction for concurrent or consecutive terms.("When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.")
See also People v. Carr (1936) 6 Cal.2d 227, 228-229. ("Section 669 of the Penal Code provides that when a person is convicted of two or more crimes, "the judgment [during a California sentencing hearing] shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently or whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be".")
California Penal Code 669 PC -- Direction for consecutive or concurrent terms, endnote 23, above. ("Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.")
California Penal Code 654 PC -- Offenses punishable in different ways by different provisions; double jeopardy; denial of probation. ("(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.")
Santa Ana criminal defense attorney Zachary McCready represents clients throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Anaheim, Irvine, and Westminster.
See California Penal Code 1170 PC -- Determinate sentencing, endnote 1, above.
California Penal Code 1385, endnote 30, below, permits dismissal in the interests of justice in any situation where the California Legislature hasn't clearly shown a contrary intent. This applies to California sentencing hearings that involve certain sentencing enhancements (such as Penal Code 12022 PC California's sentencing enhancement for personally using a firearm) and prior convictions. See People v. Jones (2007) 157 Cal.App.4th 1373, 1378-1379. ("It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c),[ FN4">
] to dismiss or strike an enhancement, or to 'strike the additional punishment for that enhancement in the furtherance of justice.' " ( People v. Meloney (2003) 30 Cal.4th 1145, 1155, 135 Cal.Rptr.2d 602, 70 P.3d 1023 ( Meloney ).) The power to dismiss "an action" includes the discretion to "strike factual allegations relevant to sentencing" including allegations of prior convictions."[A]bsent a clear legislative direction to the contrary, a trial court retains its authority under section 1385 to strike an enhancement.".[and at 1381].Finally, section 12022, subdivision (f), provides, "Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in subdivision (c) or (d) in an unusual case where the interests of justice would best be served," in effect paralleling the language of section 1385, subdivision (a).")
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504. ("This case raises the question whether a court may, on its own motion, strike prior felony conviction allegations in cases arising under the law known as "Three Strikes and You're Out." (667, subds. (b)-(i), added by Stats. 1994, ch. 12, 1, eff. Mar. 7, 1994; see also 1170.12, added by initiative, Gen. Elec. (Nov. 8, 1994) [Proposition 184].) Although the Legislature may withdraw the statutory power to dismiss in furtherance of justice, we conclude it has not done so in the California Three Strikes law. Accordingly, in cases charged under that law, a court may exercise the power to dismiss granted in section 1385, either on the court's own motion or on that of the prosecuting attorney, subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.")
California Penal Code 1385 PC -- Dismissal on judge or magistrate's own motion or application of prosecuting attorney; statement of reasons; ground of demurrer; authority to strike prior conviction of serious felony for purposes of enhancement of sentence. ("(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. [This process is even available to California sentencing hearings]. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading. (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667. (c)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).")
People v. Jones (1990) 224 Cal.App.3d 1309, 1315. ("Our reading of the section 1170, subdivision (c) and the applicable Rules of Court, especially in light of the interests served by a statement of reasons, leads to a single conclusion: where the imposition of a sentence is suspended and later that suspension is lifted and a sentence imposed, the court must articulate reasons for any sentencing choice it makes, including the selection of imprisonment over probation. Defendant's Commitment to Prison. Once a probation violation occurs, the trial court has broad discretion in deciding whether to continue or revoke probation. (People v. Angus (1980) 114 Cal.App.3d 973, 987 [171 Cal.Rptr. 5].) However, due process principles require the trial court to articulate sufficient reasons supporting its revocation of probation.")