SENTENCING

The last phase of a criminal case is the sentencing of a convicted defendant. Most crimes are punishable by a term of incarceration in a jail or prison and a fine. Sentencing for misdemeanors and for felonies is somewhat different, so they are discussed separately.

Misdemeanor Sentencing

Misdemeanors are punishable by a fine or a term in the county jail, or both. For most misdemeanors, that is up to six months in jail and up to $1,000.00 fine. Examples are petty theft, prostitution, and driving under the influence as a first offense. For some misdemeanors, the maximum punishment is a year in county jail and a fine of $1,000.00. Examples of these are criminal threats, forgery, and driving under the influence as a second offense. For some misdemeanors, the maximum fine is greater than $1,000.00, such as battery ($2,000), domestic violence with injuries ($6,000) and vandalism ($50,000). For some misdemeanors, there is a minimum jail term, such as 48 hours for driving under the influence as a second offense, 15 days for domestic violence with injuries as a second offense, 45 days for prostitution as a second offense, and 90 days for brandishing a firearm. For some misdemeanors, there is a minimum fine, such as driving under the influence ($390).

Most misdemeanants, however, consent to be placed on summary or informal probation, with monitoring directly by the court. This means that the court suspends imposition of the statutory sentence and instead conditionally releases the defendant back into the community, upon specified conditions geared to rehabilitate and reform the defendant. During the term of probation, the judge requires the defendant to report back to court periodically, such as every ninety days for a progress report.

If the defendant completes all of the conditions of probation, then at the end of probation no statutory sentence will be imposed. If defendant fails to complete the conditions, then the judge may terminate probation and impose a sentence of jail and fine, up to the maximum allowed by law. If the defendant refuses the conditions of probation, then the judge also can sentence the defendant up to the maximum allowed by law.

Felony Sentencing

For some felonies, the defendant may be granted a term of formal probation, with certain conditions. The basic difference between misdemeanor informal probation and formal felony probation is that with formal probation, the defendant is supervised by the county probation department. The defendant is assigned to a specific deputy probation officer, to whom the defendant has to report periodically, usually monthly. The probation officer is responsible for supervising the defendant and reporting to the Court and violation of the various probation conditions with which the Court require each defendant to comply.

For a number of offenses, such as most serious and violent felonies, or where a gun is used, probation is not allowed and the judge's only choice is to sentence the defendant to a term in state prison. California has a Determinate Sentencing Law ("DSL"), in which each felony has three specific sentences: a low term, a mid term and a high term. For example, robbery of a person at an ATM is first degree robbery. First degree robbery is punishable by a low term of three years in state prison, a mid term of four years, and a high term of six years. The presumptive sentence would be the mid term, unless there are aggravating or mitigating factors, which would justify the high and low terms, respectively.

In addition to the term applicable for the crime, there may be sentencing enhancements, for having a prior conviction, or infliction of great bodily injury, or using a gun. There are numerous types of enhancements that can be pleaded to and proved.

The Three Strikes Law also may affect the sentence imposed. The Three Strikes Law provided that if a defendant has two prior serious or violent felony convictions, and then commits any felony, even if not serious or violent, then the defendant is ineligible for probation and the punishment for that third felony is life imprisonment with a minimum term of 25 years. If the defendant has only one prior serious or violent felony, then the punishment is twice what it would be otherwise. Thus, if a defendant has a prior conviction for robbery (a violent felony), and a prior conviction for residential burglary (a serious felony), and the defendant is then convicted of, say, passing a bad check, a felony, or a DUI with minor injuries to a passenger, a felony, the mandatory minimum punishment is 25 years to life. With only one prior serious or violent felony, the punishment for passing that bad check or DUI would be 32 months, four years or six years, instead of the usual 16 months, two or three years, as specified by the DSL.

Once sentence is pronounced, the defendant is remanded to the Sheriff with an order to deliver the defendant to the California Department of Corrections ("CDC"). The CDC decides in which state prison the defendant will be housed, and under what conditions.

In cases where the punishment is death, there is an automatic appeal to the California Supreme Court. In all other cases, if the defendant feels that the court committed an error of law, the defendant must file an appeal, which will be heard in the Court of Appeal. The Court of Appeal normally does not retry the case or re-decide the facts. Instead, it determines whether the law was applied correctly by the trial court to those facts.