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When convicted of a crime in the state of California, the defendant is entitled to a sentencing hearing. During this hearing, the attorney for the defendant will ask for a lesser sentence and provide evidence as to why it should be minimal. The prosecution will ask for a harsher sentence and provide evidence to support their argument. The sentencing hearing is not always held immediately. If not, the judge has three options. He or she can:
Order the defendant to remain in jail, pending the sentencing
Order a defendant who is not in jail to be taken into custody
Allow the defendant to remain out on bail or post bail to stay out of jail until the sentencing
If the conviction is a misdemeanor and the defendant has filed an appeal or asked for probation, the defendant may be released on bail prior to the sentencing.
When are Sentencing Hearings Held?
The sentencing hearings are regulated by the Penal Code as to when a judge must conduct the hearing. If the conviction, guilty plea, or no contest plea regards a misdemeanor, the sentence must be given no less than six hours or more than five days afterward. This can be waived by the defendant.
If the conviction, guilty plea, or no contest plea is for a felony, the judge must schedule the hearing within 20 days or it can be extended for an extra 10 days in certain instances. There are extenuating circumstances for both, including a sanity evaluation, a motion for a new trial, or a probation recommendation from the appropriate department.
What are the Rights of the Defendant at the Sentencing Hearing?
The defendant has the right to attend the sentencing hearing. He or she has the right to be instructed on the type of criminal charge, the pleas that were entered, and the verdict. This is called an arraignment for judgment and is not to be confused with the initial arraignment hearing.
The defendant has the right to have attorney representation. The defendant may offer evidence on his or her behalf. This can include a report as to the character and background of the defendant in support of rehabilitation rather than incarceration.
The defendant cannot cross-examine anyone who provides reports to the court. This includes probation officers, witnesses, victims, or any other interested parties.
What Guidelines Must Be Followed at the Sentencing Hearing by the Judge?
The sentencing hearings are somewhat more informal than the trial stage. However, the judge has certain guidelines that he or she must follow. All interested parties must be told what sentence is being imposed and the reason for the sentence. The attorneys must have a chance to object to the sentence that is imposed.
The judge must be willing to consider objections to the sentence and contemplate alternatives to incarceration such as rehabilitation. He or she cannot consider other convictions against the defendant unless there is information that is presented in a factual way without being misleading.
This can include cases such as simple drug possession, and the defendant received a deferred entry of judgment and completed a treatment program. Additionally, allowing that the defense is informed of statements that are not sworn and can respond, the judge can consider these statements if they are pertinent to the offense. A judge may also decide during the sentencing if evidence that was not admissible earlier due to illegal search and seizure can be considered for sentencing purposes.
Other Considerations During Sentencing
The sentencing guidelines will depend on whether the crime was a misdemeanor or a felony. Misdemeanors generally carry from up to six-months to a year in the county jail. Felonies have a “low term”, “mid term”, or “high term”. For example, a defendant could be sentenced to one, three, or five years in jail. The judge will contemplate aggravating and mitigating factors during sentencing for a felony conviction.
Some aggravating factors can include whether the defendant was armed or violence was involved during the commission of the crime, if he or she persuaded others to participate in the crime, if the defendant has been convicted of several other serious crimes, if he or she was on parole or probation when the crime was committed, and the quantity of stolen goods involved.
A few of the mitigating factors considered during sentencing are whether the defendant was coerced to participate in the crime, if he or she did not believe they were committing a crime, if the defendant used care to avoid harm to property or others, if the defendant does not have a prior criminal record or only a minor offense, and if he or she has made restitution to the victim of the crime.
Rather than the low, mid, or high terms of jail time a judge can sentence the defendant to serve, he or she may also choose to impose a fine for the crime. The judge can order “formal probation” or suspended sentence rather than jail or prison time.