Why Does Sentincing Keep Being Continued

Sentencing hearings in CA criminal cases

A sentencing hearing is a court proceeding in which a judge imposespenalties upon a defendant who has been convicted of a crime. The hearing takes place after the defendant has pled guilty or no contest, or has been found guilty at a jury trial or bench trial. Both the prosecutor and the defense may present evidence and arguments relevant to the issue of sentencing.

At a sentencing hearing in California, the defense presentsmitigating circumstances as to why the punishment and penalties should be minimized.  Conversely, the prosecution presentsaggravating circumstances to demonstrate why the sentence should be harsh.

Below, our California criminal defense attorneys address the following:

• 1. How do sentencing hearings work in California?
• 2. What are a defendant's rights at a sentencing hearing?
• 3. What types of evidence can be introduced?
• 4. How does a judge decide what penalties to impose?

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. How do sentencing hearings work in California?

After a defendant either

1. enters a guilty plea or a nolo contendere (or "no contest") plea to at least one criminal charge, OR
2. 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.¹²  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

Bail

If the sentencing hearing is not held immediately following a guilty plea or guilty verdict, the judge may

1. keep the defendant in custody (that is, in jail),
2. order an out-of-custody defendant to go into custody, or
3. 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

The defendant is endowed with certain rights during his/her sentencing hearing

2. What are a defendant's rights at a sentencing hearing?

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 as 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

3. What types of evidence can be introduced?

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
  1. the parties must be clearly apprised of the sentence,
  2. the parties must be clearly apprised of the judge's reasons for electing that sentence, and
  3. 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 defendantas 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
  1. a Penal Code 1000 PC "deferred entry of judgment",
  2. Proposition 36 diversion, or
  3. any arrests that did not result in a conviction (unless factual information is included, and that information is not presented in a misleading manner).²¹

4. How does a judge decide what penalties to impose?

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 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

For further assistance…

Contact us for help.

If you or a loved one is in need of help with a 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 the 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. Also see our article on how to write a letter asking the judge for leniency.

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Legal References:

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Source: https://www.shouselaw.com/ca/defense/process/sentencing/

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