What Critieria Must the Court Consider in Deciding Whether to Grant Probation after a Felony Conviction?
A court will look at a number of factors to determine whether a person convicted of a felony offense will be granted probation. (PC 1170(a).)
According to California Rules of Court, Rule 4.414, the court considers the following factors in determining probation eligibility:
(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.
(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.
In addition to these factors, the court may consider other factors in determining circumstances in aggravation or mitigation. (See Cal. Rules of Court, Rules 4.421 and 4.423.)
Thus, the court compares defendant’s situation with the typical circumstances surrounding others who committed the same crime and asks, is defendant’s crime more or less serious? (PC 1170(a).) If the crime is committed in a more violent, brutal, dangerous or offensive way than typically committed, than a court will likely sentence the defendant to the maximum prison term. Conversely, if circumstances make the crime less brutal or offensive than usual, or other circumstances suggest that the crime was highly out of character for defendant, then the court may consider the lesser term or probation.
The court places great weight court on the defendant’s prior criminal record, if any. Courts are less likely to be lenient if the current offense indicates a pattern of criminal behavior.
Other statutory factors exist as to the aggravating or mitigating circumstances of particular crimes. In addition, in some situations, courts may have more limited discretion in determining the defendant’s sentence, such as in Three Strikes cases or Prior Strike cases. If you have questions, contact a Southern California criminal defense attorney to discuss your case.
If you have been convicted of a felony, you will need an experienced Southern California criminal defense lawyer to vigorously represent you during your sentencing hearing. Having Wallin and Klarich fighting for you at your sentencing hearing could make the difference between you receiving a probationary sentence or being sent to state prison for many years. At Wallin & Klarich, we have represented clients at sentencing hearings for over 40 years. Call us today at (877) 4-NO-JAIL or (877) 466-5245 or visit us at our website at www.wklaw.com. We will be there when you call.
