Judges in California have a fair amount of flexibility when it comes to criminal sentencing, with the exception of criminal charges that have mandatory minimums, or fall under the three strikes law.
If you’ve already been convicted, or expect to plead guilty, worrying about sentencing can be an extremely stressful time. If you have a separate sentencing date court appearance, you may feel relieved when that date arrives. This is the day you will find out what the consequences are that you will have to bear. A judge will take many things into consideration when determining your sentence.
Misdemeanor vs. Felony Sentences
Misdemeanors are less serious offenses. They are typically punishable by fines or probation. If you are sentenced to jail time for a misdemeanor, it cannot be more than one year.
Felonies, are punishable by terms of incarceration in the California prisons. California statutes have a lot to do with determining the length of your potential sentence, as do federal guidelines. Certain crimes have a “mandatory” sentence that the judge must adhere to.
The majority of felonies, however, are sentenced within a range of possible prison terms. The judge will adjust your sentence either up or down from the recommended range depending on the circumstances of your situation.
Some charges can be either felonies or misdemeanors, such as domestic assault. This decision is at the discretion of the prosecutor, based on the severity of the circumstances.
California has a system of determinate sentencing for felony charges. There is a range of 3 numbers for possible prison sentence lengths, to be determined by the judge, based on any mitigating factions. These are decided into low term, mid term, and high term sentences.
For example, a charge of assault with a deadly weapon (other than a firearm) carries possible sentences of 24, 36, or 48 months in prison, depending on the severity of the circumstances, as decided by the sentencing judge.
Mitigating vs. Aggravating Circumstances
If the judge sentences you to less than the recommended range, it is due to mitigating factors. Mitigating factors are those which show the judge that you do not deserve the harshest punishments. As a successful firm, we will compile what we see as the best mitigating factors in your case to present them to the judge at sentencing time.
Mitigating factors can include:
- Personal hardships that may have contributed to the crime (ie. You were under extreme financial or relationship stress, had just been in a car accident, etc)
- If you were not the “principle” actor in the crime but merely assisted someone else in the offense
- A small or non-existent criminal history
- The crime did not harm anyone
As your attorney it is our job to show the judge why you should be granted a more lenient sentence.
On the other hand, the prosecution will attempt to show the court that you deserve harsher punishment. They will point out any aggravating circumstances related to the crime in an effort to increase your sentence.
Another source available for the judge at sentencing time is the pre-sentence report prepared by the California Probation Department. Prior to your sentencing date, an investigating Probation Officer will be gathering information about you to assist the judge in determining your sentence.
The pre-sentence investigation and subsequent report will include such things as:
The investigating officer will also include a sentencing recommendation for the judge. Because of the probation officer’s experience in dealing with offenders under community supervision, they may suggest you would be a good candidate for probation.
The judge is not required to follow the probation officer’s recommendation but will give it consideration.
When you are facing a lengthy prison sentence, probation can seem like a blessing. A good attorney can help make this blessing a reality through showing the court that you can be trusted under community supervision.
Probation is typically a suspension of your sentence. What this means is that you will be sentenced to prison time, which is suspended while you serve a probationary term. If you serve the term successfully, it will act as a substitution for the term of incarceration.
If, however, you violate the terms of your probation, you may be sent to prison to serve the original sentence.
Our experienced attorneys can not only increase your chances of getting probation, but can also help you beat a probation violation in court.