“Sentencing Hearings” in California Criminal Cases

A California sentencing hearing is where a judge imposes penalties after a criminal conviction. The hearing takes place after:

• you have pleaded guilty or no contest, or
• you have been found guilty at a jury trial or bench trial.

During your sentencing hearing, you can present mitigating circumstances as to why the punishment and penalties should be minimized. Examples of mitigating circumstances are:

• you had a difficult childhood
• you have been cooperative throughout your case
• you have an otherwise clean record

Conversely, the prosecution will respond by presenting aggravating circumstances to demonstrate why the sentence should be harsh. Examples may include:

• you have a long criminal history
• you were uncooperative during your case
• your case involved “vulnerable” victims such as children

Below, our California criminal defense attorneys address the following:

• 1. How do sentencing hearings work in California?
• 2. What are my rights at a sentencing hearing?
• 3. What types of evidence can be introduced?
• 4. How does a judge decide what penalties to impose?
• Additional resources

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. How do sentencing hearings work in California?

After you either

1. enter a guilty plea or a nolo contendere (or “no contest”) plea to at least one criminal charge, OR
2. are convicted of at least one charge by a judge or jury,

a judge must impose a sentence (also referred to as judgment).¹ Though before the judge imposes a sentence, both you and the prosecution are entitled to an opportunity to be heard as to what is an appropriate penalty.² This opportunity is what’s known in California as a sentencing hearing.

Because you already have been convicted of the crime, our laws provide for much more “relaxed” rules of evidence that they do during a California jury trial or, for that matter, even during some of the pretrial process.³

When does the sentencing hearing take place?

The Penal Code regulates when a judge must conduct a California sentencing hearing.

Misdemeanor sentences must be pronounced not less than six hours nor more than five days after a guilty plea, no contest plea, or conviction unless you waive that timeframe.⁴

These times may also be extended due to special circumstances which include

• consideration of a motion for a new trial,
• awaiting a probation recommendation from the local department of probation, and/or
• determining whether you are insane.⁵

It is quite common for you to receive your sentence immediately following a guilty verdict or guilty / no contest plea to a misdemeanor.

Felony sentences must be scheduled within 20 days of the guilty verdict or plea.  The court may extend that timeframe by up to ten days for the same reasons listed above.⁶

Bail

If the sentencing hearing is not held immediately following a guilty plea or guilty verdict, the judge may

1. keep you in custody (that is, in jail),
2. order you to go into custody, or
3. require you to post or remain on bail to assure your appearance at the time of sentencing.

This matter is entirely within the judge’s discretion unless it is a misdemeanor case where you have either

1. applied for probation, or
2. filed an appeal.⁷

In these instances, California bail laws entitle you to be released on bail before the judge actually pronounces the sentence.⁸

2. What are my rights at a sentencing hearing?

Like all California criminal proceedings, you are endowed with certain rights during your sentencing hearing. Some of the most noteworthy rights include (but are not limited to):

• the right to be present for sentencing,⁹
• the right to be represented by an attorney,¹⁰
• the right to present evidence on your own behalf,¹¹
• the right to propose an alternative sentence (such as proposing rehabilitation in lieu of incarceration),¹² and
• the right to be arraigned for judgment (which includes the right to be advised of the nature of the criminal charges, the pleas entered, and the verdicts returned on the pleas).  Note, this is different from the more commonly referred to as California arraignment proceeding which is the first phase of this state’s criminal court process.¹³

You do not retain the right to confront or cross-examine witnesses during a sentencing hearing.  This includes the lack of a right to cross-examine a probation officer who prepares a probation report for the court, as well as any victims or other people who submit out-of-court statements.¹⁴

3. What types of evidence can be introduced?

California sentencing hearings are not governed by the same rules and regulations as jury trials.¹⁵ In fact, they are much more relaxed and informal. However, there are still guidelines as to how a judge must conduct this type of hearing.

Some of these guidelines include (but are not limited to):

• Allowing the attorneys a “meaningful” opportunity to object to the sentence. This does not mean that the court must issue a tentative decision prior to the pronouncement of judgment but rather that
  1. the parties must be clearly apprised of the sentence,
  2. the parties must be clearly apprised of the judge’s reasons for electing that sentence, and
  3. the judge must demonstrate a willingness to consider any objections.¹⁶
• Considering recommendations for rehabilitation (rather than incarceration).¹⁷
• Relying on out-of-court or unsworn statements concerning the circumstances of the offense and your characteristics as long as you have notice that the statements will be accepted and have an opportunity to respond.¹⁸
• Reviewing your driving record in a driving under the influence case.¹⁹
• Analyzing whether or not evidence that was obtained during an illegal search and seizure that was previously suppressed during a 1538.5 “motion to suppress evidence” is nevertheless admissible during a sentencing hearing.²⁰
• Not counting against you those cases where you successfully completed
  1. a Penal Code 1000 PC “deferred entry of judgment”,
  2. Proposition 36 diversion, or
  3. any arrests that did not result in a conviction (unless factual information is included, and that information is not presented in a misleading manner).²¹

4. How does a judge decide what penalties to impose?

When it comes time for the judge to pronounce the actual sentence, there are a number of issues that the judge states “for the record“.  Below are some of the most important.

Concurrent vs. consecutive sentences

If you have been convicted of two or more crimes – whether in the same proceeding or while still on probation – the judge must decide whether the sentences will run concurrently or consecutively.

If the sentences run concurrently, it means that they run simultaneously during the period that the times overlap.²²

For example, if you are sentenced to serve a one-year sentence concurrently with a two-year sentence, you would only serve two years.

When the judge orders that the sentences run consecutively, it means they run back-to-back.²³

Using the sample sentence above, you would actually serve three years – the one-year sentence followed immediately by the two-year sentence.

Unless a judge specifies that the sentence will run consecutively, it will run concurrently.²⁴ Making this distinction becomes particularly important when you have been convicted of multiple acts that are incident to one objective.²⁵

As Santa Ana criminal defense attorney Neil Shouse²⁶ explains,

“Illegal consecutive sentences are common, which is simply another reason why having a skilled attorney is so important. We not only know how to distinguish a legal sentence from an illegal one but also know the most effective ways to convince judges that a concurrent sentence will best serve the interests of justice in any given case.”

Reasons for imposing a selected sentence

Misdemeanor crimes are typically punishable by up to six months in a county jail or by up to one year in county jail.  Most felony offenses have three options for imprisonment (for example, two, four, or six years in the California state prison).

The judge will consider aggravating and mitigating factors in California felony sentencing to decide whether to impose the

• high term,
• mid term or
• low term.

This means that a judge exercises quite a bit of discretion when deciding what sentence to impose.  As a way to ensure that judges do not abuse this discretion, California law requires that judges state their reasons for choosing a particular sentence.²⁷

In addition, if the judge is dismissing

• a sentencing enhancement (such as Penal Code 12022 PC California’s sentencing enhancement for personally using a firearm),
• a “prior” enhancement (that is, a prior conviction that necessarily increases the current sentence),²⁸ and/or
• a strike under California’s three strikes law,²⁹

they must also clearly state their reasons for doing so.³⁰ Similarly, if a judge is revoking probation based on a California probation violation – and is ordering you to serve a jail or prison sentence – they must state the reasons for the revocation.³¹

Additional resources

For more in-depth information on sentencing hearings, refer to these scholarly articles:

• The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings – The Vanderbilt Law Review.
• Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings – Iowa Law Review.
• Victim Impact Videos: The New-Wave of Evidence in Capital Sentencing Hearings – Queensland Law Reporter.
• The Emergence of Sentencing Hearings – Punishment & Society.
• The Standard of Proof at Sentencing Hearings under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate – University of Illinois Law Review.

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