3. sentencing and probation practice

Sentencing Laws and The Practice of
Probation

40 Boardman Place www.cjcj.org
San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013

Probation and Sentencing Practices
• Indeterminate Sentencing

• Determinate Sentencing

• Mandatory Sentencing

• Guideline Sentencing


Sentencing Case Law
• Apprendi v. New Jersey, 530 U.S. 466 (2000)

• Blakely v. Washington, 542 U.S. 296 (2004)

• United States v. Booker, 543 U.S. 220 (2005

• Cunningham v. California, 549 U.S. 270 (2007)


Presentence Investigation

An investigation that is • Description of the offense
carried out by a • Victim impact
probation officer for the
purpose of gathering and • Offender’s version
analyzing information to • Offenders background
complete a sentencing
report with • Analysis of application sentencing
recommendations to the statutes
court. • Sentencing recommendation


Victim Impact Statement
• Information in a presentence investigation that details the
impact of the offense on the victims and/or the
community


Presentence Investigation Reports
Offender-Based PSI Offense-Based PSI
• A presentence investigation report • A presentence investigation report
that seeks to understand the that focuses primarily on the
offender and the circumstances of offense committed, the offender’s
the offense and to evaluate the culpability and prior criminal
offender’s potential for future law- history
abiding behavior


Sentencing in California

• Indeterminate Sentencing Act 1917)
• Determinant Sentencing Act (1977)
• Three Strikes Law (1994)
• Lockyer v. Andrade (2003)
• Cunningham v California (2007)


California Sentencing Practices and the
Granting of Probation
• Judge must choose appropriate term:

Mitigated Base Aggravated
Term Term Term


Adult Sentencing Goals in California
• Public Safety
• Deterrence
• Punishment
• Incapacitation
• Retribution
• Restitution
• Uniformity


California Rules of Court Rule 4.414
Criteria affecting probation
(a) Facts relating to the crime
Facts relating to the crime include:
(1)The nature, seriousness, and circumstances of the crime as
compared to other instances of the same crime;
(2)Whether the defendant was armed with or used a weapon;
(3)The vulnerability of the victim;
(4)Whether the defendant inflicted physical or emotional injury;
(5)The degree of monetary loss to the victim;
(6)Whether the defendant was an active or a passive participant;
(7)Whether the crime was committed because of an unusual
circumstance, such as great provocation, which is unlikely to recur;
(8)Whether the manner in which the crime was carried out
demonstrated criminal sophistication or professionalism on the part
of the defendant; and
(9)Whether the defendant took advantage of a position of trust or
confidence to commit the crime.


California Rules of Court Rule 4.414
Criteria affecting probation
(b) Facts relating to the defendant
Facts relating to the defendant include:
(1)Prior record of criminal conduct, whether as an adult or a juvenile, including
the recency and frequency of prior crimes; and whether the prior record
indicates a pattern of regular or increasingly serious criminal conduct;
(2)Prior performance on probation or parole and present probation or parole
status;
(3)Willingness to comply with the terms of probation;
(4)Ability to comply with reasonable terms of probation as indicated by the
defendant's age, education, health, mental faculties, history of alcohol or other
substance abuse, family background and ties, employment and military service
history, and other relevant factors;
(5)The likely effect of imprisonment on the defendant and his or her
dependents;
(6)The adverse collateral consequences on the defendant's life resulting from
the felony conviction;
(7)Whether the defendant is remorseful; and
(8)The likelihood that if not imprisoned the defendant will be a danger to others.


Conditions of Probation
• Standard Conditions

• Special Conditions


What is admissible in a PSI
• Probation reports can include material relevant to sentencing that
may be inadmissible for other purposes, such as
•
Hearsay statements
•
Illegally obtained evidence
•
Evidence of sustained juvenile petitions in California


Common California Felony Probation
Conditions
Meetings with your probation officer as Compliance with stay away orders not to
often as required, generally once a month harass victims,

Payment of restitution Compliance with orders not to associate
with gang members
Participation in individual or group therapy
Spending a certain amount of time in
Submission to drug testing county jail (for example, this is required in
cases of probation granted for second or
third violations of California Penal Code
Performance of community service or 273.5 pc corporal injury on a spouse)
community labor

Agreement to submit to peace officer Agreement not to violate any laws
searches of your person or property with
or without a warrant (referred to as
"search conditions")


3. sentencing and probation practice

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3. sentencing and probation practice