Sentence Modifications – Modification of Prison Term

When a defendant is found guilty of a criminal offense as a result of the defendant’s plea or a jury verdict after a trial, another hearing is scheduled in which the judge will pronounce, or officially determine, the punishment that will be imposed for the crime.

Before Judgment is Pronounced
When a sentence includes a prison term, and the judge has a choice among three possible terms, California Penal Code Section 1170 provides that the defendant has at least four days prior to the pronouncement of the sentence to present arguments or mitigating facts to convince the judge to impose the least of the possible sentence terms. However, the prosecution and the victim (or the families of the victim) may also present arguments or facts to compel a court to impose the harshest of the possible sentence terms.

Correcting an Error in the Sentence
A court generally maintains power to correct an incorrect sentence.  This means that if the sentence was brought about by a clerical error, the court can simply amend the abstract of judgment to reflect the correct sentence. Thus, if a person was orally sentenced to 2 years, and the clerk erroneously entered 20 years into the minutes, the court can amend the abstract of judgment to reflect the correct sentence.

If the court pronounces an illegal sentence-or a sentence which, by law, it had no power to grant-then the court always retains jurisdiction to correct itself and legally sentence the defendant, even if it results in a greater sentence. Thus, if the court sentenced defendant to probation, when the law clearly states that probation is not available for that particular crime, then the court may re-sentence the defendant to a sentence authorized by law.  Clerical errors often result in illegal sentences, but other times the court is mistaken as to its legal sentencing discretion and may sentence defendant to punishment not authorized by law.

If the court sentences defendant pursuant to a judicial error, then the sentence generally cannot be modified except through a specified statutory procedure or if defendant has not begun serving his or her sentence.  For example, at sentencing, if the court fails to consider a fact reflected in the record that it could have used to enhance the sentence (i.e., such as the fact of a prior conviction), then the un-enhanced sentence is valid and the court is deemed to have used its sound discretion to strike the enhancement.  It does not matter that if the court had considered the prior conviction, it would have enhanced the sentence: as long as the court had the power to strike the enhancement, the court is deemed to have stricken the enhancement.  This is a judicial error, and it cannot be amended except through a specific statutory procedure or if the defendant has not yet started serving his or her sentence.

Under Penal Code 1170(d), a court may also recall a sentence within 120 days of the pronouncement of the sentence. A recall is different from a correction because a recall means that original sentence was valid and legally correct, but the court may have changed its mind and wishes to reconsider the circumstances.  The court will then pronounce a new sentence, which cannot be longer than the original sentence.

A Writ of Habeas Corpus
Once a judgment has been pronounced and the defendant has begun to serve the prison sentence, the defendant has the prerogative to initiate a writ of habeas corpus at any time during the incarceration. Any kind of detention, incarceration, or imprisonment pursuant to a court judgment amounts to a loss of the defendant’s personal liberties. For this reason, a writ of habeas corpus can potentially release a defendant if the imprisonment is found to be unlawful. In initiating a writ of habeas corpus, the question is not a matter of guilt, but whether the prison sentence was properly imposed. Therefore, if the defendant can show that he was somehow denied his/her constitutional right to Due Process at any point during the trial, the resulting imprisonment may be deemed illegal. A writ of habeas corpus has no time limitation (it can be brought at any time while incarcerated) and is commonly used to appeal to a higher court to review the case.

The defendant, in petitioning the court, may assert a broad range of defects in the trial court proceedings that could have unduly deprived him/her of a fair trial. This can range from claiming a tainted jury to asserting that certain evidence was improperly admitted against him/her.

Death Penalty or Life in Prison Without Parole
Under California Penal Code Section 190.4(e), every case in which the sentence imposes the death penalty or confinement in prison without the possibility of parole, the defendant is deemed to have automatically made an application for a modification of the verdict or finding. No motion is necessary. In ruling on the application, the judge must review the evidence that was properly presented in court, consider the aggravating or mitigating circumstances of the case, and make a determination of whether the verdict or finding is sufficiently supported by the evidence and circumstances. The judge must then state on the record the reasons for granting or denying the modification.

Modifying a prison sentence can be a time-consuming and complicated process. You should contact an experienced criminal defense attorney who can help you through the process and ensure that you present your case in the best possible manner. At Wallin & Klarich, our criminal defense attorneys have over 30 years of experience in helping clients challenge their prison sentence. Call us today at 888-749-0034.