One of the scariest parts of any criminal action is the fear surrounding what the potential punishment may be.  Every defendant knows that their crime is often different from a crime committed by someone else, even if the two defendant's actual records reflect the same conviction.  There could have been mitigating circumstances! There could have been life circumstances which may sway a judge to give them a lesser sentence!  The Defendant could have been coerced into committing the crime! Thankfully, California is well aware of all of these possibilities and seeks to have every sentence reflect the seriousness of the particular offense. 

In California, the law requires the preparation of a "probation report" in all cases in which a felony conviction is obtained. This report is prepared by the Probation office after an interview with the defendant, at which time the defendant can do a little more explaining. A defendant him- or herself, often through his or her attorney, can also prepare a "statement in mitigation," which is a more in-depth analysis of all of the relevant factors they hope the judge considers before handing down a sentence. The court should use this Presentencing Report and the Statement in Mitigation in determining the appropriate length of a prison sentence and in deciding whether probation is appropriate. The report can be helpful as it should contain factual findings by the probation officer including, but not limited to, the facts and circumstances of defendant’s crime, recommendations as to a grant of probation and its terms, and any other sentencing recommendations. 

​To help both probation and the defense focus their arguments, California Rule of Court 4.410(a) outlines list of general objectives for sentencing in California:  protecting society, punishing the defendant, encouraging the defendant to lead a law abiding life in the future and deterring him or her from future offenses, deterring others from criminal conduct by demonstrating its consequences, preventing the defendant from committing new crimes by isolating him for a period of incarceration, securing restitution for the victims of the crime, and achieving uniformity in sentencing. Subsection (b) of that same rule provides that “Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case.” Also, California Rules of Court, Rule 4.414 lists several criteria the court can look to when deciding whether to grant probation.  These criteria include facts related to the crime, and facts related to the defendant.

So which factors matter enough to have been expectedly listed in the law? 

Factors relating to the crime include that:

1. The defendant was a passive participant or played a minor role in the crime;
2. The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
3. The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
4. The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;
5. The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
6. The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
7. The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
8. The defendant was motivated by a desire to provide necessities for his or her family or self; and
9. The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense

 
Factors relating to the defendant include that:

1. The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
2. The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
3. The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
4. The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
5. The defendant made restitution to the victim; and
6. The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was satisfactory.

If you would like to speak to an attorney ready, willing and able to help you put the best possible spin on your case, get ahold of Devina Douglas.

One of the first thoughts that run through an arrestee's mind after landing in jail is quite simply "how fast can I get out?"  Usually, the fastest way out is to post bail: your promise, secured by money, that you will appear at the upcoming court dates. 

The Constitution guarantees a person the right to jail in almost all circumstances,[1] and a person's bail is often set by a schedule, a set of guidelines adopted by the government that establish uniform guidelines correlating each crime to a dollar amount of bail.  We have bail schedules to try to ensure the defendants who commit the same crime are held on the same bail throughout the state. But both the prosecution and the defense can request deviations from bail.  When deviating, the court often looks to these factors:

1. The seriousness crime. For example, if  Person A was arrested for Hit and Run after dinging someone's bumper in parking lot and not leaving a note, their attorney might argue their crime is far less serious that Person B who was also arrested for Hit and Run after sideswiping a car on the freeway, as they did 90 mph, thus their bail should be lower.
2. The chances they'll show up to all their court appearances. For example, Person A will likely have a lower bail if they've been involved in the justice system before and has a perfect track record for attending court than Person B who has the same type of criminal history, but has missed several court dates previously, even if Person B still ultimately returned to court. Also considered is the person's flight risk: even if the charges are serious, a person with ties to the area (family here, a job here, has lived in the area for a long time, etc.) stands a better chance of getting a lower bail. 
3. The risk to public safety. This one should be pretty obvious.  

If you are in custody, and want to speak to a criminal defense attorney, give Devina a call. 

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[1]The exceptions her in California being Capital (a) crimes when the facts are evident or the presumption great, (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others;  or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. The purpose of the exception to the right to bail for capital defendants is to protect the public from those who commit intensely serious crimes. ​