35+ Years Criminal Defense Experience in California


The California Sentencing & Appeal Process

The conviction does not mark the endpoint in the criminal process.  The court will determine an appropriate sentence for the defendant.  In addition, the defendant may file an appeal if portions of the trial were conducted unfairly or improperly.


The jury determines guilt; the judge determines the sentence.  After the jury reaches a verdict and the defendant is convicted, he/she will transition into the sentencing phase.  For infraction cases, the sentence is determined immediately; for misdemeanor cases, the sentence is determined no less than six hours and no more than five days after the verdict, unless waived by the defendant or extended by the court; and for felony cases, the sentence determination phase can continue for several weeks.

During the sentencing phase, the probation department prepares a report and recommends to the court what the appropriate sentence should be.  Both the defense and prosecution are legally entitled to receive the probation department’s report several days prior to the sentencing hearing.  An experienced California Criminal Defense Attorney will be able to carefully scrutinize the report and properly evaluate the best route in next stage.  In most felony cases, the defense will file a “Statement of Mitigation” and the prosecution will file a “Statement of Aggravation” in which each side cites facts and circumstances to persuade the court to alter the sentence.  The prosecution will argue for an increased sentence and the defense will argue for a decreased sentence.

California sentencing and appeals process

The sentencing hearing provides the defense and prosecution opportunities to present their respective cases.  The prosecution will present “aggravating factors,” namely any facts or circumstances that increase the severity or culpability of a criminal act.  These may include recidivism, lack of remorse, amount of harm to victim, or committing crime in front of a child.  Conversely, the defense will present “mitigating factors,” namely any facts or circumstances that lessen the severity or culpability of a criminal act.  These may include the ability of the defendant to reform, mental health issues, an addiction to illegal substances /alcohol that contributed to the criminal behavior, or the lack of prior criminal record.

After each side argues its respective case, the judge will review the probation department’s report and all other documentation submitted by both the defense and prosecution.  In addition, the judge will listen to statements by the defendant and the victims, or victim’s representative(s).  After a careful review of all the evidence, the judge will impose a sentence.

Restitution Hearing

Every criminal defendant has the right to a restitution hearing.  A restitution hearing grants the defendant an opportunity to challenge the restitution itself or the items it covers.  The court has the power to reduce or entirely eliminate the restitution, in its sole and absolute discretion.

The court bases its determination on the “amount of loss claimed by the victim or victims, or any other showing to the court”.  The victims, or the victim’s representative(s), present evidence to show that losses occurred and such losses were caused by the defendant’s criminal act.  The evidentiary standard is lower than that of criminal trials—the restitution must be proved by a preponderance of evidence.

If the victim makes a prima facie showing of economic losses, the burden shifts to the defendant to disprove the claimed losses.  The defendant can disprove the losses by showing that the restitution recommendation in the probation report or in the victim’s estimates is inaccurate.


Immediately after the judge determines and imposes a sentence, the defendant has sixty dates to file a notice of appeal.  Due to the restrictive time frame and the potentially significant impacts of a successful appeal, it is crucial that the defendant consult a California Criminal Defense Lawyer as soon as practicable.

Call Wallin & Klarich Today

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Contact the experienced criminal defense attorneys at Wallin & Klarich today

The California Criminal Defense Lawyers at Wallin & Klarich have over 30 years of experience handling criminal cases.  Our California Criminal Defense Attorneys understand the intricacies of the criminal process and the ways in which you can use the system to your advantage.  The consequences of a criminal conviction can be grave, affecting you, your family and loved ones.  Please call our offices today at (877) 4-NO-JAIL or (877) 466-5245 or submit the form at the top of this page to request our immediate assitance.

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