3. sentencing and probation practice

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CJCJ's Executive Director Daniel Macallair, is a practitioner-in-residence at San Francisco State University (SFSU)'s Department of Criminal Justice Studies. These slides are from his Community Corrections and Sentencing course materials.

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3. sentencing and probation practice

  1. 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. 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. 3. 40 Boardman Place www.cjcj.orgSan Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  4. 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. 5. Presentence InvestigationAn investigation that is • Description of the offensecarried out by a • Victim impactprobation officer for thepurpose of gathering and • Offender’s versionanalyzing information to • Offenders backgroundcomplete a sentencingreport with • Analysis of application sentencingrecommendations to the statutescourt. • Sentencing recommendation 40 Boardman Place www.cjcj.org San Francisco, CA 94103 © Center on Juvenile and Criminal Justice 2013
  6. 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. 7. Presentence Investigation ReportsOffender-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. 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. 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. 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. 11. California Rules of Court Rule 4.414 Criteria affecting probation(a) Facts relating to the crimeFacts 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. 12. California Rules of Court Rule 4.414 Criteria affecting probation(b) Facts relating to the defendantFacts relating to the defendant include:(1)Prior record of criminal conduct, whether as an adult or a juvenile, includingthe recency and frequency of prior crimes; and whether the prior recordindicates a pattern of regular or increasingly serious criminal conduct;(2)Prior performance on probation or parole and present probation or parolestatus;(3)Willingness to comply with the terms of probation;(4)Ability to comply with reasonable terms of probation as indicated by thedefendants age, education, health, mental faculties, history of alcohol or othersubstance abuse, family background and ties, employment and military servicehistory, and other relevant factors;(5)The likely effect of imprisonment on the defendant and his or herdependents;(6)The adverse collateral consequences on the defendants life resulting fromthe 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. 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. 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. 15. Common California Felony Probation ConditionsMeetings with your probation officer as Compliance with stay away orders not tooften as required, generally once a month harass victims,Payment of restitution Compliance with orders not to associate with gang membersParticipation in individual or group therapy Spending a certain amount of time inSubmission to drug testing county jail (for example, this is required in cases of probation granted for second or third violations of California Penal CodePerformance of community service or 273.5 pc corporal injury on a spouse)community laborAgreement to submit to peace officer Agreement not to violate any lawssearches of your person or property withor 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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