California Criminal Trial Manual

Sentencing Overview

Overview // Determinate Sentencing Law (DSL) // Low Term Presumption // Exceeding the Midterm (PC 1170(b)(2)) // Indeterminate Sentencing Law (ISL) // Felony Probation // Imposition vs Execution of Sentence Suspended // Probation Eligibility

Overview

  • Time Limits. For felony cases, TNW sentencing must take place 20 court days after plea of guilty, or verdict of guilty. (PC 1191.)
  • A felony sentence generally involves (1) Imprisonment & (2) Supervision Following Imprisonment

Facility of Imprisonment

Type of Supervision

  • Parole (PC § 3000 et seq)
    • Present offense = serious or violent
    • Sentenced to CDCR
    • Term of Parole
    • Max for violation is 180d CJ
  • PRCS (PC § 3450 et seq)
    • Present offense = NOT serious or violent
    • Sentenced to CDCR
    • Term of PRCS is 3 years. (PC 3451(a).)
    • Max for violation is 180d CJ (PC 3455(e).)
  • Mandatory Supervision 1170H (SP)
    • Present offense = NOT serious or violent
    • Precluded from CDCR by statute
    • Split sentences

Determinate Sentencing Law (DSL)

Overview

  • The DSL established three fixed-year, or determine, sentencing options for nearly all felony offenses. (People v. Sasser (2015) 61 Cal.4th 1, 8.)
  • General rule: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.” (PC 18, subd. (a).)

Low Term Presumption

  • Youth/Trauma Contributing Factor -> Low Term Presumption – PC 1170(b)(6)
    • Creates a presumption that the court should impose the low term “if any of the following was a contributing factor in the commission of the offense:
      • (a) D has experienced psychological, physical, or childhood trauma
      • (b) D is < 26 at the time of the commission of the offense. (PC 1170(b)(6); PC 1016.7(b).)
  • Interests of Justice Exception. The presumption can be overcome if the court “finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice.”
    • Functionally: allows Court to impose MT or UT
    • “The mere fact a defendant is young or has suffered past trauma is insufficient-either or both must be a contributing factor in the commission of the offense for the low term presumption to apply.” (People v. Knowles (2024) 105 Cal.App.5th 757.)

Exceeding the Midterm (PC 1170(b)(2).)

  • Overview
  • Exceeding Middle Term. When a sentencing court chooses a term from a statutory triad, the chosen term shall not exceed the middle term, unless the facts supporting the aggravating circumstances are:
  • PC 1170(b)(2) Function. PC 1170(b)(2) “creates a rule limiting a trial court’s discretion to impose the upper term in cases where no aggravating factor has been proven beyond a reasonable doubt, stipulated to by the defendant, or established by certified record.” (People v. Hall (2023) 97 Cal.App.5th 1084.)
  • Aggravating Circumstances – Factors Relating to Crime (CRC 4.421(a).)
    • Crime involved great violence, GBI.
    • D was armed w/ or used a weapon.
    • Vulnerable V.
    • D induced others to participate in crime
    • D induced minor to commit/assist in crime
    • D threatened witnesses, dissuaded witnesses, etc
    • D convicted of crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed
    • Manner in which crime carried out indicates planning, sophistication, or professionalism
    • Crime involved taking or damage of great monetary value
    • Crime involved large quantity of contraband
    • D took advantage of a position of trust or confidence to commit offense
  • Aggravating Circumstances – Factors Relating to D (CRC 4.421(b).)
    • D has engaged in violent conduct that indicate a serious danger to society
    • D’s prior convictions are numerous or of increasing seriousness
    • D served a prior prison term in prison or CJ under 1170(h)
    • D was on probation/parole when crime was committed
    • D’s prior performance on probation/parole was unsatisfactory
  • Single Aggravating Circumstance Sufficient. “[O]ne aggravating circumstance can justify imposition of the upper term.” (People v. Hall (2023) 97 Cal.App.5th 1084, 1106.)
  • Aggravating Factors: Dual Use of Facts
    • CANNOT BE:
      • Elements of crime
      • Enhancement imposed
      • Fact used to justify CS
    • CAN BE:
      • Fact used to deny probation
      • Fact used to justify other upper term
      • Same fact can be used to justify upper term on crime and enhancement
  • Aggravating Factors: Priors
    • Priors used to aggravate a charge, but not triad enhancement, can be decided by the court with certified record of conviction
    • Priors used to aggravate an enhancement punishable by a triad, need to be proved to a jury or admitted
    • Compare: PC 1170(b)(3) & PC 1170.1(d)(1)/(2)
    • People v. Wiley (2023) 97 Cal.App.5th 676 (petition for review pending).
      • Court may find aggravant of (1) increasing seriousness of convictions or (2) poor performance on probation based on the record as reflected in certified records of conviction, including certified RAP
  • Fact that is element of the crime cannot be aggravating factor. (People v. Parrott (1986) 179 Cal.App.3d 1119, 1125.)
  • No Pleading Requirement. No requirement that circumstances in aggravation addressed by PC 1170(b)(2) be alleged in the accusatory pleading when seeking imposition of upper term. (People v. Pantaleon (2023) 89 Cal.App.5th 932, 939-941; People v. Hall (2023) 97 Cal.App.5th 1084, 1106.)

Indeterminate Sentencing Law (ISL)

  • Minimum Eligible Parole Date (MEPD). How long D statutorily must serve before eligible to be considered for release
    • “Straight life” crimes = 7 years (PC 3046.)
    • “X years to life” crimes = X years
    • “Life Without Possibility of Parole (LWOP)” crimes = NEVER

Felony Probation

  • Overview. probation is defined in the Penal Code as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. (PC 1203(a).)
  • General Rule. felony probation limited to a maximum of two years. (PC 1203.1(a).)
  • Violent Felonies Exception. Maximum length of probation is “the maximum possible term of the sentence.” (PC 1203.1(l)(1).)
    • Term: max possible sentence
      • Determine max term excluding PC 654 charges, tacking on c/s charges
      • Ex: D convicted of five counts of PC211 [Triad: 2-3-5]
        • Max possible sentence = 9 years; max possible term of probation = 9 years
    • People v. Kite (2023) 87 Cal.App.5th 986.
  • Specific Probation Length Exception. Any offense that “includes specific probation lengths within its provisions.” (PC 1203.1(l)(1).)
    • Maximum length of probation is “the maximum possible term of the sentence.”
      • Maximum possible term is the maximum term of imprisonment that could have been imposed, NOT the maximum probationary period allowed under the law specifying a specific probation length. (People v. Kite (2023) 87 Cal.App.5th 986.)
    • Domestic Violence Offenses. Where probation is granted, minimum period of probation is 36 months. (PC 1203.097(a)(1).)
      • Maximum possible term depends on crime for which convicted (see above)
  • $25,000 Exception. Does not apply to conviction for PC 487(b)(3), PC 503, PC 532a if total value of property taken exceeds $25,000. (PC 1203.1(l)(2).)
    • 3-year term

Imposition of Sentence Suspended vs. Execution of Sentence Suspended

  • Imposition of Sentence Suspended (ISS): when trial court suspends imposition of a prison sentence before placing D on probation, the court retains full sentencing discretion in the event probation is later revoked.
  • Execution of Sentence Suspended (ESS): If prior to placing D on probation, the court imposes a prison sentence and suspends execution of that sentence, the court must impose that exact sentence if probation is revoked.

Probation Eligibility – Mandatory Denials

  • Must be pled & proven. (People v. Buruce G. (2002) 97 Cal.App.4th 1233.)
  • Can’t apply PC 654 to make D eligible for probation
  • Courts can’t strike mandatory prison allegations
  • Facts underlying mandatory prison allegations must be pled & proven to jury
  • Presumptive allegations need not be pled & proven
  • But see People v. Superior Court (Frietag) (1988) 204 Cal.App.3d 247 [held prosecution did not need to plead & prove actual probation denial enhancement.]
  • In general:
    • Serious/violent felonies
    • Personal use firearm
    • Personal infliction GBI
    • Child molest
    • Sex assault