Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

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Felony Sentencing Factors

If you have been convicted of a felony by a jury or pleaded guilty to a felony, you may wonder what you can do to persuade the judge to give you a lower sentence. Most crimes in California provide for a few different sentencing options. Before your sentencing hearing, there are important steps that you can take to ensure the court has a complete picture of all of the reasons why it should give you a lower sentence.

What documents and evidence will the court consider when sentencing?

 Sentencing in California is typically done by the trial judge. Because sentencing takes a lot of preparation, it usually occurs months after you are found guilty or plead guilty. Generally speaking, there are four different types of documents and evidence that the trial judge will consider when deciding what sentence to give you.

People’s sentencing memorandum

The first type of document that the trial court will consider is the people or prosecution’s sentencing memorandum. Although the prosecution sometimes recommends a lower sentence, it is generally their practice to recommend the highest sentence possible. In support of this, they will typically rely on the worst facts of your case, whether from the trial or elsewhere, that show that you should be given the highest sentence. They will then make a sentencing recommendation based on those facts.

Defendant’s sentencing memorandum

The defendant in criminal cases is usually also permitted to submit a sentencing memorandum, although many criminal defense attorneys choose not to, for whatever reason. Similar to the people’s sentencing memorandum, the defendant’s sentencing memorandum outlines all of the best facts of both the defendant and the case and then makes a sentencing recommendation, which is typically the lowest sentence that is legally permissible. Many sentencing memoranda also contain letters from friends, family, and community members who know the defendant personally and are familiar with his or her character. They also sometimes contain certificates that the defendant has earned or other documents showing his or her good character. Because these letters and documents can take several weeks to compile, it is imperative that you and your attorney are diligent in trying to collect them.

Probation officer’s report

The court will additionally consider what is called a “probation officer’s report.” Probation offices are county-wide, and each probation office drafts its reports differently. Some counties, such as Los Angeles County, drafts the probation officer’s report immediately after the defendant is charged. Other counties, such as San Mateo or Santa Clara County, draft the probation officer’s report once there has been a conviction or guilty plea.

The probation officer’s report often contains information gleaned from speaking with the police officers and victims of the particular offense. Many probation officers will also attempt to interview the defendant in order to learn his or her side of the story. In addition, the report usually contains a detailed criminal history of the defendant, including any offenses committed as a juvenile. It also typically contains family, education, employment, and financial history.

The probation officer’s report usually concludes with a sentencing recommendation. It varies, but these reports tend to recommend higher sentences, often in line with what the people recommend in their sentencing memorandum.

Testimony at the sentencing hearing

Last, trial judges will often permit the victim, people who are familiar with the victim, the defendant, and people who are familiar with the defendant, to testify at the sentencing hearing. Courts are relatively relaxed about the format of the testimony, which is generally much less formal than a trial. There typically are no objections or hearsay concerns with testimony from individuals at the sentencing hearing.

Even if you chose to not testify at trial, it can often be helpful to testify at your sentencing hearing. Often times this is the trial judge’s first opportunity to hear your side of the story in full.

 What are the factors that a trial court will consider when sentencing you?

 The factors that a court will consider in sentencing you are governed by California Rules of Court, rules 4.421 and 4.423. These are divided into “circumstances in aggravation” and “circumstances in mitigation.”

Circumstances in aggravation

 Under California Rules of Court, Rule 4.421, the circumstances in aggravation that a court may consider are broken down into factors relating to the crime, factors relating to the defendant, and other factors:

(a) Factors relating to the crime

Factors relating to the crime, whether or not charged or chargeable as enhancements include that:

  1. The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
  2. The defendant was armed with or used a weapon at the time of the commission of the crime;
  3. The victim was particularly vulnerable;
  4. The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
  5. The defendant induced a minor to commit or assist in the commission of the crime;
  6. The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
  7. The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
  8. The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
  9. The crime involved an attempted or actual taking or damage of great monetary value;
  10. The crime involved a large quantity of contraband; and
  11. The defendant took advantage of a position of trust or confidence to commit the offense.
  12. The crime constitutes a hate crime under section 422.55 and:
    1. No hate crime enhancements under section 422.75 are imposed; and
    2. The crime is not subject to sentencing under section 1170.8.

 (b) Factors relating to the defendant

Factors relating to the defendant include that:

  1. The defendant has engaged in violent conduct that indicates a serious danger to society;
  2. The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
  3. The defendant has served a prior term in prison or county jail under section 1170(h);
  4. The defendant was on probation, mandatory supervision, post-release community supervision, or parole when the crime was committed; and
  5. The defendant’s prior performance on probation, mandatory supervision, post-release community supervision, or parole was unsatisfactory.

 (c) Other factors

Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.

(Cal. Rules of Court, rule 4.421.)

Circumstances in mitigation

Similar to rule 4.421, Under California Rules of Court, Rule 4.423, the circumstances in mitigation a court may consider are broken down into factors relating to the crime, factors relating to the defendant, and other factors:

(a) Factors relating to the crime

Factors relating to the crime include that:

  1. The defendant was a passive participant or played a minor role in the crime;
  2. The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
  3. The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
  4. The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;
  5. The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
  6. The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
  7. The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
  8. The defendant was motivated by a desire to provide necessities for his or her family or self; and
  9. The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant’s spouse, intimate cohabitant, or parent of the defendant’s child; and the abuse does not amount to a defense.

 (b) Factors relating to the defendant

Factors relating to the defendant include that:

  1. The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
  2. The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
  3. The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
  4. The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
  5. The defendant made restitution to the victim; and
  6. The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was satisfactory.

 (c) Other factors

 Any other factors statutorily declared to be circumstances in mitigation or that reasonably relate to the defendant or the circumstances under which the crime was committed.

(Cal. Rules of Court, rule 4.423.)