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Jun 26, 2019

If I am Convicted of a Crime, How is the Sentencing Determined?

As your case wends through the criminal justice system, it’s natural to ask yourself, “If I am convicted of a crime, how is the sentencing determined?” You may have heard of “hanging judges,” a nickname for those who dole out extremely harsh penalties for even minor crimes. You may wonder if there are rules governing sentencing or if criminal penalties are subjected to the whims of the judge overseeing the case.

A Brief History of Sentencing

The truth is, the history of sentencing and punishments is full of twists and turns. Up until the late 1700s, there weren’t many prisons and the crimes that were prosecuted were serious. The jurors took center stage. If jurors found a defendant guilty, the person was usually put to death. During the 1800s, judges and lawyers gained more prominence and the power of jurors began to wane. There were more jails, prisons, and reformatories. Jurors no longer handled sentencing; that was left to the judge. California designed its first prison system in the mid-1800s, when San Quentin was built.

By the early 1900s, indeterminate sentencing was instituted, meaning that judges gave open-ended sentences that fell within the minimums and maximums outlined by California law. The Board of Prison Directors made the ultimate decision about the length of any given sentence. With prison overcrowding already an issue, California also instituted probation and parole. As a result, there was tremendous disparity in sentencing. And because appellate courts didn’t review sentencing, there was no overarching authority.

Consciousness about race and class bias in sentencing surfaced in the latter part of the 1900s, when indeterminate sentencing came under attack in the form of public outcry and a series of California Supreme Court decisions. In 1976, the state enacted determinate sentencing, which created a framework of baseline sentences with room for enhancements for particularly egregious crimes. Over the next three decades, sentences became incrementally harsher, reflecting politicians’ and elected officials’ emphasis on “law and order.” This culminated in the three-strikes law that enhanced sentences for each subsequent felony conviction and resulted in 25-year-to-life sentences for tens of thousands of Californians.

How Felony Sentencing is Determined Today

Broadly speaking, California felony sentencing falls into three categories. There are determinate sentences, which are outlined by statute, indeterminate sentences that have a minimum but no maximum, and life sentences or the death penalty. For determinate sentencing, there are three possible punishments for each crime. These are called a triad, and reflect the low, medium, and high jail or prison terms for the crime. Which level you receive depends upon a variety of factors, such as prior convictions, whether or not you were central to the crime, and whether others were injured.

If you are convicted of multiple crimes, then you receive a sentence for each crime. Depending on the judge’s discretion, you may be able to serve the time concurrently, or you may have to serve the sentences consecutively. What does this mean? Let’s say that James is accused of producing fake driver’s licenses, and is convicted of making ten fake licenses. California law defines this as a felony punishable by 16 months, two years, or three years in jail. Instead of being sentenced to ten consecutive three-year jail terms, which means that he’d spend 30 years in jail, James serves three years for the first count and eight months (one-third of the middle term) for each of the other nine counts, for a total of nine years. Instead, he may be sentenced to ten concurrent three-year jail terms, which means that he’d spend three years in jail. It’s clear, in other words, that there is tremendous variation in criminal sentencing.

If a person receives convictions for different crimes with sentences of varying lengths, then the length of a concurrent sentence is typically just for the crime with the longest term. Let’s say that James was caught with one fake driver’s license when the police were searching his house for stolen goods. If he’s convicted of first degree burglary, he could be sentenced to state prison for two, four, or six years, along with a three-year jail term. If the sentences are concurrent, James serves just the six years.

But there are other possibilities as well. Let’s say that James is convicted of felony carjacking that benefited members of his gang. A standalone carjacking means that James is facing a potential prison sentence of three, five, or nine years. But because he committed the crime to help out his gang, he receives a five-year enhancement to his sentence, meaning he serves even more time.

Criminal sentencing is complex. That’s why, if you’ve been charged with a crime, you need a San Francisco Bay Area criminal attorney by your side. They understand the ins and outs of criminal sentencing and can advocate for the most lenient possible sentence. If you’re like James, it can mean the difference between serving three years and 13 years. In truth, it can actually mean the difference between serving 13 years or no time at all. We’ll explain why.

Other Types of Felony Sentences

Jail and prison aren’t the only two types of sentences for criminal convictions. Instead of reporting to jail or prison, you can get probation for three to five years. Probation sentences can incorporate different types of punishments. For example, you can spend up to a year in jail, perform community service such as roadside cleanup, pay a fine or victim restitution, participate in an education program, or some combination of these or other punishments. In addition, you may have to regularly meet with a probation officer, agree to unconditional searches, or submit to regular drug testing. You also must not be convicted of another crime while you’re on probation.

Judges consult published guidelines when determining whether or not someone is eligible for probation. They also receive a probation report from the county. The probation department interviews people associated with your case, evidence that may have been admissible in your court proceedings, and psychological reports. This is another reason why a San Francisco Bay Area criminal defense attorney is invaluable. Your attorney can provide the probation department with information that will create a positive impression – and a favorable report – in the eyes of the judge.

While it’s difficult to generalize, you may be eligible for probation if the crime wasn’t that serious, if you don’t have prior convictions, if your imprisonment would pose a hardship on your children, if the victim wasn’t a child or an elder, or if you’re committed to adhering to the terms of your probation. You’re likely not eligible for probation if your actions caused serious bodily injury, if you used a weapon in the commission of a crime, or if you stole money or goods worth more than $100,000.

It’s important to note that, if you violate any terms of your probation, you will likely be required to completely serve out your jail or prison term. On the other hand, if you successfully complete your probation, you may be eligible for an expungement. This means that your case will be reopened and that the judge will set aside your conviction, thereby cleaning up your criminal record.

There is also the possibility that you are eligible to participate in a collaborative court program. This occurs after your guilty plea but before sentencing. These “drug courts” are for people who have substance abuse issues. They provide you with resources and accountability to become and remain sober, to continue your education, or to receive job training. If you successfully complete drug court, your charges may be reduced or dropped; if you don’t, you will likely be sentenced for your conviction.

How is Misdemeanor Sentencing Determined?

If your case involves a misdemeanor, you are likely asking yourself, “If I am convicted of a crime, how is the sentencing determined?” Misdemeanor sentencing in California is decided much like felony sentencing: the judge consults the sentencing guidelines outlined in the law. The sentence you receive greatly depends upon the nature of your conviction. For example, if James owned a liquor store and sold alcohol to a minor, his conviction would lead to a three-year suspended sentence, a $4,345 fine, 24 hours of community service, and a one-year license suspension.

Let’s say that James was convicted of simple battery. Battery occurs when the other person is injured, and simple battery is when the crime isn’t related to domestic violence. Then, James would receive a three-year suspended sentence and $805 in suspended fines. He’d need to complete 10 to 20 hours of community service or an anger management course. James wouldn’t be able to buy, own, or possess a gun for ten years, and would be prohibited from having contact with his victim.

If James was convicted of brandishing a firearm, he’d receive a three-year suspended sentence but would have to serve 90 days in jail. He’d have $682 in suspended fines, be forced to have his weapon transferred or destroyed, and would have to waive his Fourth Amendment rights by agreeing to be searched without cause. He also wouldn’t be able to buy, own, or possess a gun for the next ten years.

It’s important to note that suspended sentences and fines are revoked if you commit another crime or don’t complete the other required elements of your sentence. In the scenario above, James would have to serve the three-year sentence and pay the fine if he was found to be in possession of a gun.

It’s clear that every crime is different, and that the penalties vary depending on the crime. In the most general terms, though, the maximum penalty for a California misdemeanor is up to six months in jail, a fine of up to $1,000, or both. For aggravated misdemeanors, such as domestic battery or driving under the influence, a conviction can mean a sentence of up to one year in jail, a fine of up to $1,000, or both.

The Role of a Bay Area Criminal Defense Attorney

If you’re worried about how sentencing is determined following a criminal conviction, chances are good that you need an experienced Bay Area criminal defense attorney. A knowledgeable attorney will advocate on your behalf long before the sentencing phase of your proceeding. The vast majority – about 80 percent – of California felony criminal cases never go to trial. Instead, the charges are dropped or the defendant’s attorney negotiates a guilty plea to a lesser offense.

Let’s say that James is arrested for driving under the influence. His blood alcohol content is definitely over the legal limit, but isn’t extraordinarily high. His Bay Area criminal defense attorney can negotiate with the prosecutor and get her to agree to lessen the charges to reckless driving. This “wet reckless” conviction means that he won’t lose his job as a delivery driver – which would have happened if he was convicted of driving under the influence. His alcohol education program will be shorter than for a DUI, and he won’t have a DUI on his criminal record.

If your case does go to trial and you are convicted, then your criminal defense attorney can advocate on your behalf. They can positively influence the report prepared by the probation department, and can present arguments to the judge that persuade her to choose the least punitive option.

Wherever you are in the criminal justice process, you need a skilled criminal defense attorney who has your best interests at heart. You need Silver Law Firm.



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