SENTENCING AND APPEAL

If the defendant is convicted, the court proceeding is not over.  A court must determine the sentence and, if parts of the trial were unfair or handled improperly, the defendant may file an appeal to a higher court.

SENTENCING

In jury trials, the jury decides whether the defendant is guilty or not guilty.  However the task of determining the punishment is left to the judge hearing the case. Sentencing usually occurs immediately for infractions.  In misdemeanor cases, a judgment regarding sentence must be pronounced not less than six hours nor more than five days after the verdict, unless time is waived by the defendant or extended by the court.
In felony cases, if a defendant is found guilty of a felony offense, sentencing is continued for several weeks.

During this time, the probation department will prepare a report and make recommendations to the court as to what the appropriate sentence should be. This probation report is extremely important and both the prosecution and the defense are legally entitled to receive this report several days prior to the sentencing hearing. In most felony matters the defense will file “Statements in Mitigation” and the prosecution will file “Statements in Aggravation.”  The respective briefs cite facts and circumstances to persuade the court that the defendant’s sentence should be shorter or longer.
During a sentencing hearing, the prosecution presents evidence of aggravating factors and the defense presents evidence of mitigating factors.

Aggravating factors are any facts or circumstances that increase the severity or culpability of a criminal act.  Aggravating factors include recidivism, lack of remorse, amount of harm to the victim, or committing the crime in front of a child, among many other factors.

Mitigating factors are any facts or circumstances that lessen the severity or culpability of a criminal act.  Mitigating factors include the ability for the defendant to reform, mental health issues, an addiction to illegal substances or alcohol that contributed to the criminal behavior, and lack of prior criminal record, among many other factors.

The judge will then review the probation report and all written documents submitted by the prosecution and the defense, as well as listen to statements made by the defendant and the victims of the crime. At that time the court will impose what it believes to be the appropriate sentence.

RESTITUTION HEARING

All criminal defendants have a right to a restitution hearing to challenge the amount of restitution or the items it covers, pursuant to Penal Code 1202.4(f)(1)/Welf. & Inst. Code § 730.6.  At the restitution hearing, the court, in its discretion, may reduce or eliminate the amount of restitution.

The court must base its restitution determination on the “amount of loss claimed by the victim or victims or any other showing to the court.” Pen C §1202.4(f). In addition, the victim or their representative must present evidence showing that there were losses and that the losses were caused by the crime committed by the defendant. People v Fulton (2003) 109 CA4th 876, 885–886, 135 CR2d 466. The amount of restitution must be proved by a preponderance of the evidence. People v Gemelli (2008) 161 CA4th 1539, 1542–1543, 74 CR3d 901.

Once the victim makes a prima facie showing of economic losses, the burden shifts to the defendant or their counsel to disprove the amount of the claimed losses. The defendant has the burden of showing that the restitution recommendation in the probation report or the victims’ estimates are inaccurate.

APPEAL

Once a defendant is sentenced to a felony they have sixty days to file a notice of appeal. It is essential to retain an experienced criminal appeals attorney to assist you in reviewing your case and discuss with you what may be able to be done for you or your loved during the appellate process.

Hopefully this outline of the criminal process has given you a great deal of knowledge so you are in a better position to take steps to retain the correct criminal defense law firm to assist you or your loved one as they go through the complicated criminal process in California.

If you or someone you know has been accused of a crime, you will need an experienced criminal defense attorney who will guide you through the criminal process and aggressively defend you at each step.  At Wallin & Klarich, we have over 30 years experience helping people who have been accused of crimes.  Feel free to contact us at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.