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Sentencing Laws and The Practice of
             Probation




           40 Boardman Place                                   www.cjcj.org
           San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
Probation and Sentencing Practices
• Indeterminate Sentencing

• Determinate Sentencing

• Mandatory Sentencing

• Guideline Sentencing




                  40 Boardman Place                                   www.cjcj.org
                  San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
40 Boardman Place                                   www.cjcj.org
San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
Sentencing Case Law
• Apprendi v. New Jersey, 530 U.S. 466 (2000)

• Blakely v. Washington, 542 U.S. 296 (2004)

• United States v. Booker, 543 U.S. 220 (2005

• Cunningham v. California, 549 U.S. 270 (2007)




                   40 Boardman Place                                   www.cjcj.org
                   San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
Presentence Investigation


An investigation that is    • Description of the offense
carried out by a            • Victim impact
probation officer for the
purpose of gathering and    • Offender’s version
analyzing information to    • Offenders background
complete a sentencing
report with                 • Analysis of application sentencing
recommendations to the        statutes
court.                      • Sentencing recommendation




                        40 Boardman Place                                   www.cjcj.org
                        San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
Victim Impact Statement
• Information in a presentence investigation that details the
  impact of the offense on the victims and/or the
  community




                    40 Boardman Place                                   www.cjcj.org
                    San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
Presentence Investigation Reports
Offender-Based PSI                           Offense-Based PSI
• A presentence investigation report         • A presentence investigation report
   that seeks to understand the                 that focuses primarily on the
   offender and the circumstances of            offense committed, the offender’s
   the offense and to evaluate the              culpability and prior criminal
   offender’s potential for future law-         history
   abiding behavior




                           40 Boardman Place                                        www.cjcj.org
                           San Francisco, CA 94103        © Center on Juvenile and Criminal Justice 2013
Sentencing in California

•   Indeterminate Sentencing Act 1917)
•   Determinant Sentencing Act (1977)
•   Three Strikes Law (1994)
•   Lockyer v. Andrade (2003)
•   Cunningham v California (2007)




                    40 Boardman Place                                   www.cjcj.org
                    San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
California Sentencing Practices and the
             Granting of Probation
• Judge must choose appropriate term:




       Mitigated            Base             Aggravated
        Term                Term               Term




                   40 Boardman Place                                     www.cjcj.org
                   San Francisco, CA 94103     © Center on Juvenile and Criminal Justice 2013
Adult Sentencing Goals in California
•   Public Safety
•   Deterrence
•   Punishment
•   Incapacitation
•   Retribution
•   Restitution
•   Uniformity




                     40 Boardman Place                                   www.cjcj.org
                     San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
California Rules of Court Rule 4.414
                   Criteria affecting probation
(a) Facts relating to the crime
Facts relating to the crime include:
(1)The nature, seriousness, and circumstances of the crime as
   compared to other instances of the same crime;
(2)Whether the defendant was armed with or used a weapon;
(3)The vulnerability of the victim;
(4)Whether the defendant inflicted physical or emotional injury;
(5)The degree of monetary loss to the victim;
(6)Whether the defendant was an active or a passive participant;
(7)Whether the crime was committed because of an unusual
   circumstance, such as great provocation, which is unlikely to recur;
(8)Whether the manner in which the crime was carried out
   demonstrated criminal sophistication or professionalism on the part
   of the defendant; and
(9)Whether the defendant took advantage of a position of trust or
   confidence to commit the crime.

                        40 Boardman Place                                   www.cjcj.org
                        San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
California Rules of Court Rule 4.414
                      Criteria affecting probation
(b) Facts relating to the defendant
Facts relating to the defendant include:
(1)Prior record of criminal conduct, whether as an adult or a juvenile, including
the recency and frequency of prior crimes; and whether the prior record
indicates a pattern of regular or increasingly serious criminal conduct;
(2)Prior performance on probation or parole and present probation or parole
status;
(3)Willingness to comply with the terms of probation;
(4)Ability to comply with reasonable terms of probation as indicated by the
defendant's age, education, health, mental faculties, history of alcohol or other
substance abuse, family background and ties, employment and military service
history, and other relevant factors;
(5)The likely effect of imprisonment on the defendant and his or her
dependents;
(6)The adverse collateral consequences on the defendant's life resulting from
the felony conviction;
(7)Whether the defendant is remorseful; and
(8)The likelihood that if not imprisoned the defendant will be a danger to others.

                            40 Boardman Place                                      www.cjcj.org
                            San Francisco, CA 94103      © Center on Juvenile and Criminal Justice 2013
Conditions of Probation
• Standard Conditions

• Special Conditions




                   40 Boardman Place                                   www.cjcj.org
                   San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
What is admissible in a PSI
• Probation reports can include material relevant to sentencing that
  may be inadmissible for other purposes, such as
•
  Hearsay statements
•
    Illegally obtained evidence
•
    Evidence of sustained juvenile petitions in California




                         40 Boardman Place                                   www.cjcj.org
                         San Francisco, CA 94103   © Center on Juvenile and Criminal Justice 2013
Common California Felony Probation
                   Conditions
Meetings with your probation officer as           Compliance with stay away orders not to
often as required, generally once a month         harass victims,

Payment of restitution                            Compliance with orders not to associate
                                                  with gang members
Participation in individual or group therapy
                                                  Spending a certain amount of time in
Submission to drug testing                        county jail (for example, this is required in
                                                  cases of probation granted for second or
                                                  third violations of California Penal Code
Performance of community service or               273.5 pc corporal injury on a spouse)
community labor

Agreement to submit to peace officer              Agreement not to violate any laws
searches of your person or property with
or without a warrant (referred to as
"search conditions")



                                40 Boardman Place                                           www.cjcj.org
                                San Francisco, CA 94103           © Center on Juvenile and Criminal Justice 2013

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3. sentencing and probation practice

  • 1. Sentencing Laws and The Practice of Probation 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 2. Probation and Sentencing Practices • Indeterminate Sentencing • Determinate Sentencing • Mandatory Sentencing • Guideline Sentencing 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 3. 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 4. Sentencing Case Law • Apprendi v. New Jersey, 530 U.S. 466 (2000) • Blakely v. Washington, 542 U.S. 296 (2004) • United States v. Booker, 543 U.S. 220 (2005 • Cunningham v. California, 549 U.S. 270 (2007) 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 5. Presentence Investigation An investigation that is • Description of the offense carried out by a • Victim impact probation officer for the purpose of gathering and • Offender’s version analyzing information to • Offenders background complete a sentencing report with • Analysis of application sentencing recommendations to the statutes court. • Sentencing recommendation 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 6. Victim Impact Statement • Information in a presentence investigation that details the impact of the offense on the victims and/or the community 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 7. Presentence Investigation Reports Offender-Based PSI Offense-Based PSI • A presentence investigation report • A presentence investigation report that seeks to understand the that focuses primarily on the offender and the circumstances of offense committed, the offender’s the offense and to evaluate the culpability and prior criminal offender’s potential for future law- history abiding behavior 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 8. Sentencing in California • Indeterminate Sentencing Act 1917) • Determinant Sentencing Act (1977) • Three Strikes Law (1994) • Lockyer v. Andrade (2003) • Cunningham v California (2007) 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 9. California Sentencing Practices and the Granting of Probation • Judge must choose appropriate term: Mitigated Base Aggravated Term Term Term 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 10. Adult Sentencing Goals in California • Public Safety • Deterrence • Punishment • Incapacitation • Retribution • Restitution • Uniformity 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 11. California Rules of Court Rule 4.414 Criteria affecting probation (a) Facts relating to the crime Facts relating to the crime include: (1)The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; (2)Whether the defendant was armed with or used a weapon; (3)The vulnerability of the victim; (4)Whether the defendant inflicted physical or emotional injury; (5)The degree of monetary loss to the victim; (6)Whether the defendant was an active or a passive participant; (7)Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; (8)Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and (9)Whether the defendant took advantage of a position of trust or confidence to commit the crime. 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 12. California Rules of Court Rule 4.414 Criteria affecting probation (b) Facts relating to the defendant Facts relating to the defendant include: (1)Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; (2)Prior performance on probation or parole and present probation or parole status; (3)Willingness to comply with the terms of probation; (4)Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; (5)The likely effect of imprisonment on the defendant and his or her dependents; (6)The adverse collateral consequences on the defendant's life resulting from the felony conviction; (7)Whether the defendant is remorseful; and (8)The likelihood that if not imprisoned the defendant will be a danger to others. 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 13. Conditions of Probation • Standard Conditions • Special Conditions 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 14. What is admissible in a PSI • Probation reports can include material relevant to sentencing that may be inadmissible for other purposes, such as • Hearsay statements • Illegally obtained evidence • Evidence of sustained juvenile petitions in California 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  • 15. Common California Felony Probation Conditions Meetings with your probation officer as Compliance with stay away orders not to often as required, generally once a month harass victims, Payment of restitution Compliance with orders not to associate with gang members Participation in individual or group therapy Spending a certain amount of time in Submission to drug testing county jail (for example, this is required in cases of probation granted for second or third violations of California Penal Code Performance of community service or 273.5 pc corporal injury on a spouse) community labor Agreement to submit to peace officer Agreement not to violate any laws searches of your person or property with or without a warrant (referred to as "search conditions") 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013