Sentencing 

In many respects, sentencing can be the most critical and complicated aspect of a case.  While prosecutors are supposed be neutral arbiters of justice exercising their discretion to reach fair and just results in all cases, prosecutors, more often than not, seek the absolute maximum sentence in every case.  As a result, the punishment sought by the prosecution usually does not fit crime.  This trend puts clients at a great disadvantage requiring skilled counsel to convince the trial court that the prosecution’s position is unreasonable, unjust, and legally unfounded. 

Sentencing usually starts with a probation report summarizing applicable law and weighing aggravating and mitigating circumstances in support of a sentencing recommendation made to the court.  Therefore, a strong sentencing defense consists of two primary components: mitigation and highly skilled legal analysis. 

Sentencing, unlike a trial, presents one of the only opportunities a defendant has to explain his or her unique circumstances to the court and demonstrate why a minimal sentence is appropriate.  Providing this mitigating evidence to the court is imperative because the probation department will make no effort to independently seek out or highlight these factors in your case.  To successfully develop mitigation, a lawyer or investigator must prepare a factually intensive work up the client’s life highlighting heroic and sympathetic stories supported by family, friends, and employers.  Too often, trial attorneys neglect to fully develop mitigating factors at sentencing and fail to present a coherent mitigating theme compelling a lower sentence.  The Legal Appeals Group has experts who specialize in mitigation and can prepare sentencing position papers to support the best argument for a reduced sentence. 

In addition to mitigation, a topnotch sentencing strategy must include targeted legal analysis as sentencing laws are often intricate, complicated, and formidable.  Therefore, having the Legal Appeals Group consult at the sentencing stage can be imperative to achieving a positive result.

Due to recent changes in the law, a federal district court judge now has great latitude when sentencing criminal defendants.  According to United States v. Booker, 543 U.S. 220 (2005), a district court is no longer strictly bound by the federal sentencing guidelines and can provide any sentence below the statutory maximum prescribed by Congress as long as it first considers the appropriate guideline range set by the Sentencing Commission.  As a result, federal sentencing consists of a two step process.  First, the district court must determine or calculate the applicable guideline range requiring sophisticated legal analysis.  Second, the district court must decide whether to impose the guideline sentence or whether a different sentence, below or above the statutory maximum, is more advisable.  In this respect, the district court will consider many factors including life history information that mitigates the crime and support a reduced sentence.

Since the district court has broad sentencing discretion, it can be more difficult to reverse a sentence on appeal.  Therefore, the Legal Appeals Group strongly urges consultation at the trial stage.  Nevertheless, if the district court abuses its discretion by miscalculating the guideline range or failing to consider factors raised by the defense at a sentencing hearing, the sentence can still be challenged on appeal.    

California’s determinate sentencing scheme provides for the imposition three discrete sentences in which the trial court judge chooses between the low term, middle term, and upper term sentence.  While the sentencing ranges often differ depending on the crime, most felony crimes provide for a 2 year low term, three year middle term, and four year upper term sentence.  This is called the base or principal term sentence.

Conduct Enhancements

Most principal term sentences are increased by conduct enhancements.  There are approximately 100 different conduct enhancements in California’s sentencing scheme most of which increase a defendant’s sentence from 1 to 5 years although some enhancements can increase a sentence from 10 years to life.  The most common enhancements involve carrying a weapon, acting in a violent manner, being in a gang, or causing great bodily injury.   

Multiple Offenses

Where a defendant is convicted of multiple offenses, the counts other than the principal term are calculated as subordinate terms.  Like the principal term, subordinate terms are calculated by choosing the applicable low, middle or upper sentence and adding any relevant conduct enhancement, but only one third of that sentence can be imposed on a subordinate count.  Therefore, if a subordinate count provides for a three year sentence, the trial court can only impose one year.  Depending on the crime, the court may have the discretion to run the subordinate term concurrently or consecutively to the base term.  Some crimes, however, require consecutive sentencing like multiple kidnapping, witness threats and intimidation, voluntary manslaughter, and forcible sex offenses. 

Recidivist Enhancements

In addition to conduct enhancements, a defendant’s sentence may also be increased by recidivist enhancements.   There are several types of recidivist enhancements most range from one to five years.  The most common recidivist enhancements increase punishment for serving a prior prison term in the last five years or for having a conviction for a serious or violent crime in which the defendant has previously been convicted.   

Three Strikes

Under the Three Strikes law a defendant’s principal and subordinate terms will be doubled if a defendant has one prior strike consisting of a violent or serious felony conviction.  If the defendant has two prior strikes, the defendant will face a sentence of 25 years to life.      

If the prosecution alleges a juvenile prior conviction as a strike, it is unclear whether this type of conviction can qualify as a strike since juvenile convictions in California are not obtained by an unanimous jury verdict.  Therefore, this issue must be litigated at trial and preserved for future appellate and habeas challenges in state and federal court.  

In determining how to sentence a defendant under the Three Strikes law, the trial court has limited discretion to dismiss one or more strikes greatly reducing the potential for an immensely long sentence.  Therefore, if a defendant has two strikes and the trial court exercises its discretion to strike one of the two, the defendant will face a doubled sentence rather than a sentence of 25 to life.  Similarly, if the trial court strikes both strikes, the defendant will avoid punishment under the Three Strikes law all together.  However, since an appellate court has the power to reverse these types of decisions on appeal under an abuse of discretion standard, it may behoove a defendant not to appeal his or her case in order to ensure this result is untouched.  

Often times, the trial court’s decision to strike a strike will be based on mitigating factors presented to the court by the defense.  Therefore, having The Legal Appeals Group develop a professional mitigation theme in your case supported by documentation can make the difference between a reasonable sentence and a life sentence. 

Prohibition Of Multiple Punishment for Same Conduct