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tilghmansca · #1 08-06-2011, 02:50 PM

I'm in San Bernardino County, can someone tell me the purpose of the pre sentence report if a plea agreement was accepted? What is the defendant accepted a plea that involves prison time but the report comes back really positive for the defendant? Can the judge reject it thinking punishment is too harsh or can the defendant withdraw his/her plea?

Annabelle · #2 08-06-2011, 06:19 PM

The presentence report is a highly confidential document. Even the attorney won't let you see it. I don't think it has any bearing on changing a plea but it will come into play for parole. When I met with a PO for my son's transfer she read to me what the report said and it was full of inaccuracies and false information. My jaw dropped. She said, "your son lived with his paternal grandfather for two years before his arrest" uuuuummm no, he has only met him twice. I don't know where they come up with this stuff!

vegasgirl1 · #3 08-06-2011, 06:58 PM

The judge in my husband's case took the pre-sentencing report very seriously. And, the number of falsehoods and mistakes was incredible. If anyone else made that many mistakes in any other job, her or she would be reprimanded or fired! Yet, we could not get anyone to fix all the errors. Just awful.

Waiting4MyKing · #4 08-06-2011, 08:47 PM

The presentence report typically has the terms and conditions of probation or fines and fees the defendant will have to pay as well programs they feel will be needed such as anger management, drug/alcohol, or child abuse classes etc also as to whether or not probation recommends prison or probation. They usually interview the defendant in order to write the report.

tilghmansca · #5 08-10-2011, 05:07 PM

Yeah I go for mine on Monday I go into custody 8/26/11. But the officer who I'm meeting with said "well a lot of things are changing but I'm looking at this and I don't want to send you to prison this is a non-violent crime". I asked her if anything could be done if the report came back favorable and she said I could withdraw my plea. I know California is undergoing a lot of changes but I didn't now if the report had any effect on what happens when I go for sentencing. I'm just thinking if I've already accepted the plea, what else can be done?

tilghmansca · #6 08-10-2011, 05:09 PM

I"m also curious as to where I'm going now that California is closing one of it's 3 female prisons.

tilghmansca · #7 08-10-2011, 05:14 PM

Quote:

Originally Posted by Waiting4MyKing

The presentence report typically has the terms and conditions of probation or fines and fees the defendant will have to pay as well programs they feel will be needed such as anger management, drug/alcohol, or child abuse classes etc also as to whether or not probation recommends prison or probation. They usually interview the defendant in order to write the report.

I saw that you are in Victorville (I'm in Adelanto). Can they still recommend probation even if you've agreed to prison?

Waiting4MyKing · #8 08-11-2011, 12:37 AM

Yes probation can be recommended but if it is it's still ultimately up to the judge to decide whether he'll accept the recommendation or not.

tilghmansca · #9 08-11-2011, 02:14 PM

Quote:

Originally Posted by Waiting4MyKing

Yes probation can be recommended but if it is it's still ultimately up to the judge to decide whether he'll accept the recommendation or not.

It's a she Judge Morton in V8. I'm just so confused I mean nobody ever wants to go to prison. I do feel like the punishment doesn't fit the crime but I don't know. The probation lady said that if my report comes back favorable I can withdraw my plea but I thought you couldn't withdraw your plea at all unless something severe came up in your report (like warrants in other states). I was told that once you accept your plea that's it.

Gryphon · #10 08-11-2011, 04:27 PM

This is a negotiated plea, so it takes the Judge and DA to agree if the plea bargain is to go through. If a judge doesn't want to stick to a plea bargain, but the DA doesn't agree with the new proposed sentence, you'd then be able to withdraw plea and start over. So long as the plea is valid, you are indeed stuck unless the Judge lets you off the hook.

What you can do to help yourself is to gather anything that supports factors in mitigation as outlined by the CA Rules of court; and it is a good time to gather character letters. These things can be provided to your lawyer for use at sentencing.

Quote:

Originally Posted by tilghmansca

It's a she Judge Morton in V8. I'm just so confused I mean nobody ever wants to go to prison. I do feel like the punishment doesn't fit the crime but I don't know. The probation lady said that if my report comes back favorable I can withdraw my plea but I thought you couldn't withdraw your plea at all unless something severe came up in your report (like warrants in other states). I was told that once you accept your plea that's it.

tilghmansca · #11 08-11-2011, 09:57 PM

This might sound stupid but what do you mean by factors in mitigation?

Gryphon · #12 08-11-2011, 11:39 PM

Quote:

Originally Posted by tilghmansca

This might sound stupid but what do you mean by factors in mitigation?

The CA Rules of Court list factors in aggravation and mitigation to be considered at sentencing. In other words, things that make a particular set of facts more or less serious, or a particular defendant more or less able to perform on probation. Mitigation refers to factors that put the defendant in a more favorable position. For instance: Work history, what coworkers have to say, education, what professionals (counselors, clergy, teachers, etc.) have to say, community support, family support, active enrollment in anything that'll make it less likely the defendant will be back, ability to make restitution.

tilghmansca · #13 08-12-2011, 10:28 AM

Got it! Do you think it's a bad idea to show cases that are similar and defendants got less time? A part of me wants to do that but another part of me feels it will piss a judge off! I just want whats fair I don't excuse my behavior but I don't think my actions warrant state prison!

Gryphon · #14 08-12-2011, 11:04 AM

Quote:

Originally Posted by tilghmansca

Got it! Do you think it's a bad idea to show cases that are similar and defendants got less time? A part of me wants to do that but another part of me feels it will piss a judge off! I just want whats fair I don't excuse my behavior but I don't think my actions warrant state prison!

The pratical problem is that you don't in fact have a way to compare your own case against other cases. Just knowing the charge isn't enough because there is broad range of behavior that can be described by any one crime. Also, you'd need to know rap sheets, and all teh aggravating/mitigating factirs taht were considered; plus all the cases that had uncharged counts or enhancements, or had counts dismissed. The lawyers and judges will be able to recall similar cases in that particular court, but your efforts would probably be wasted since there is no way to determine that you are comparing apples to apples.

tilghmansca · #15 08-15-2011, 01:10 PM

Well I'm super nervous but I'll give it my best, this just sucks!

ned · #16 08-15-2011, 08:05 PM

These reports are a backdoor way to get info on a defendant. Not everywhere uses them and they have been challenged in the court as a violation of your 5th amendment right to remain silent. The one way they can come in to play in a negotiated plea, even if it is accepted, it can be vacated if certain information comes to light after the fact. Previous arrest for example. In our case there were actually two prepared have no idea why, and they were also completely inaccurate in some very important ways. They were prepared BEFORE my LO had been convicted/plead stating they were "Likely to re-offend" Legally, they hadn't offended at all at that point (innocent until proven guilty). The most interesting part was the statement that my whereabouts were unknown and that was why my LO would re-offend. I drove us there and I was sitting in the waiting room during the interview! I attend every single court date, there were dozens, and was present at the city jail within hours of arrest. I called the PD so often they told me to stop calling! It wouldn't be a bad idea to try to get a copy from the lawyer or at least see it. He/she doesn't have to give it you, but they can. All court documents are supposed to be public, including these reports, although they will tell you otherwise. But getting them is pretty difficult. After the plea you'll definitely want to get a copy of the Abstract of Judgment to make sure everything on there is correct (which it probably won't be) and know that if there is an error on the Abstract you have 60 days to appeal and after that you're stuck with whatever it say. If Hope things go well for you.

Gryphon · #17 08-16-2011, 07:39 PM

A pre-sentence report isn't mandatory in any way. it is done only if the defense wants to do it. it isn't a "backdoor", more of a preview of coming attractions. They are done where there's a chance that the report will sway the judge to perhaps offer a probation grant and/or less time. It is a tool that is used if there is an argument that the DA's offer is out to lunch.
Propensity to "re-offend" is in fact something covered in a presentence report. It is one of the CA Rules of Court that goes to suitability for probation. It is done in advance of a plea, assuming a guilty plea or no contest plea is entered by the defendant in the future.
Dunno why they saw you (or your absence) as the root of his evil. Lack of resources in the community? That's the sort of thing that is easily cleared up by, for instance, a letter to the court in advance of the court hearing.

There were two report in the defendant's case because he asked for a post-conviction sentencing report. He is statutorily entitled to one. Sounds like his lawyer wanted a second chance to try to get a more favorable report.

A defendant can always get a copy of the report. Otherwise it lives in as a confidential document so juries aren't tainted after lurid newspaper articles come out.

Yes, a defendant can incriminate themselves, which is why we don't use these in every case. It is pretty difficult to get a favorable report if the defendant says they didn't do it.

The time to appeal doesn't have anything to do with correcting abstract errors, unless you are arguing an illegal sentence or some sort of Constitutional violation. Typos can be corrected at any time, and the entire sentence is reviewable for 120 days. The Abstract doesn't have anything to do with the Pre (or post) conviction report (other than the sentence perhaps being influenced by the report. The Abstract is what goes to CDCR to include counts, crimes, sentence, and credits. It never hurts to double check it, but errors are unusual (and are often caught by an Analyst at CDCR). The most common errors are related to credits, especially where the inmate was transported from another jurisdiction.

Quote:

Originally Posted by ned

These reports are a backdoor way to get info on a defendant. Not everywhere uses them and they have been challenged in the court as a violation of your 5th amendment right to remain silent. The one way they can come in to play in a negotiated plea, even if it is accepted, it can be vacated if certain information comes to light after the fact. Previous arrest for example. In our case there were actually two prepared have no idea why, and they were also completely inaccurate in some very important ways. They were prepared BEFORE my LO had been convicted/plead stating they were "Likely to re-offend" Legally, they hadn't offended at all at that point (innocent until proven guilty). The most interesting part was the statement that my whereabouts were unknown and that was why my LO would re-offend. I drove us there and I was sitting in the waiting room during the interview! I attend every single court date, there were dozens, and was present at the city jail within hours of arrest. I called the PD so often they told me to stop calling! It wouldn't be a bad idea to try to get a copy from the lawyer or at least see it. He/she doesn't have to give it you, but they can. All court documents are supposed to be public, including these reports, although they will tell you otherwise. But getting them is pretty difficult. After the plea you'll definitely want to get a copy of the Abstract of Judgment to make sure everything on there is correct (which it probably won't be) and know that if there is an error on the Abstract you have 60 days to appeal and after that you're stuck with whatever it say. If Hope things go well for you.

tilghmansca · #18 08-17-2011, 05:25 PM

Well it just kind of sucked because I felt like no matter what I brought in there she wasn't going to believe me. She kept talking about how she was hungry and she's on medications and books I should read and it was really pissing me off.

Not to mention the one crime I'm actually not guilty of she goes "well you need to accept some responsibility". I was FURIOUS then they make it seem like they're doing you a favor by sending you to state prison. She says "well it's 16 months CSP which means you only have to do half" but I'd rather not do any! I'm the ONLY person in my house working at the moment and this really sucks!

She just didn't seem that interested in focusing on me she seemed more focused on everything else. I don't think my lawyer tried at all and at this point I'm prepared to go back to a public defender where I was having more success. But sentencing is next week and I honestly don't know if there is a way out of it you know? I could probably make a good argument of ineffective assistance of counsel seeing as how I still have NEVER SEEN THE EVIDENCE OR POLICE REPORT!

Some of the things brought up at the pre sentencing hear w/probation through me off a bit because I knew the facts weren't true. In the case where I'm innocent it's not even the victim making the complaint it's his girlfriend! I brought in documents and stuff for my lawyer to bring up as a way of doubt and she didn't use ANY of it. I wonder if she even looked at the details of my case.

I know where I'm guilty but I also know where I'm not. I just don't know if anything can be done at this point you know? I kind of got the feeling that by me not admitting to the one charge she was dismissing me all together at that point.

Gryphon · #19 08-17-2011, 06:08 PM

When I reresent a client who has problems defending some counts, and says they are not guilty of others, I work at multiple levels at the same time. What can the DA prove beyond a reasonable doubt, and what happens to my client if they do that at trial? What is the plea bargain and how does that compare? How much time does my client end up doing if only convicted on what the client concedes? What are the chances of numbers getting better or worse as the case goes on, and what can be done to make things better or worse? If there are errors in reports, can we correct them in a way that will be believed; and is the error material to the ultimate result of the case (would the offer impsrove any?)
Your comments about your attorney doesn't make me conclude that thius math exercise wasn't engaged in. If you can't tell, you need to go back and ask for those comparision numbers. What you've described is a lawyer who thinks that 16 mos. is cewrtainly the way to go given the alternatives. Go back and ask about the alternatives to see if the lawyer is correct.

Your not reading the police report isn't in itself an act of IAC. Sounds like you've had a chance to discuss teh evidence against you, which is what a police report can help do. It can also be done without having you look at the police report. It'd be IAC for the lawyer to not know what was in the police report (absent that lack of police report being made part of teh record along with the client's desire to go forward without it.)

It isn't a "victim" or any citizen who brings teh case against you. The Prosecutor does that, and the case caption reads that your oppenents are "The People" of the State (not an individual.) If you are saying that there was no victim and you are innocent, you can choose to go to trial. You are not compelled to take a deal. Of course, that might mean not being able to strike a favorable deal in the case where you feel the DA won't have proof problems.

DO NOT post any case specific facts, especially given your comments about being guilty/not guilty. The internet is a public place.

Quote:

Originally Posted by tilghmansca

Well it just kind of sucked because I felt like no matter what I brought in there she wasn't going to believe me. She kept talking about how she was hungry and she's on medications and books I should read and it was really pissing me off.

Not to mention the one crime I'm actually not guilty of she goes "well you need to accept some responsibility". I was FURIOUS then they make it seem like they're doing you a favor by sending you to state prison. She says "well it's 16 months CSP which means you only have to do half" but I'd rather not do any! I'm the ONLY person in my house working at the moment and this really sucks!

She just didn't seem that interested in focusing on me she seemed more focused on everything else. I don't think my lawyer tried at all and at this point I'm prepared to go back to a public defender where I was having more success. But sentencing is next week and I honestly don't know if there is a way out of it you know? I could probably make a good argument of ineffective assistance of counsel seeing as how I still have NEVER SEEN THE EVIDENCE OR POLICE REPORT!

Some of the things brought up at the pre sentencing hear w/probation through me off a bit because I knew the facts weren't true. In the case where I'm innocent it's not even the victim making the complaint it's his girlfriend! I brought in documents and stuff for my lawyer to bring up as a way of doubt and she didn't use ANY of it. I wonder if she even looked at the details of my case.

I know where I'm guilty but I also know where I'm not. I just don't know if anything can be done at this point you know? I kind of got the feeling that by me not admitting to the one charge she was dismissing me all together at that point.

tilghmansca · #20 08-17-2011, 10:33 PM

We never discussed any evidence against me. I dont know what it is. She says she's done a lot if work but hasn't shown me anything and failed to advise me of the consequences of accepting a plea that involves state prison. I didn't find out until after the fact and a lot of it is information I would have like to have know prior to, this would have shifted my decision.

Gryphon · #21 08-18-2011, 02:06 AM

Then it sounds like the 1st order of business is to ask "What can they prove?"

In CA, lawyers have to submit billings. You can ask for one. However, it is pretty normal for the client to not see the work a lawyer puts into the case.

Quote:

Originally Posted by tilghmansca

We never discussed any evidence against me. I dont know what it is. She says she's done a lot if work but hasn't shown me anything and failed to advise me of the consequences of accepting a plea that involves state prison. I didn't find out until after the fact and a lot of it is information I would have like to have know prior to, this would have shifted my decision.

tilghmansca · #22 08-18-2011, 12:39 PM

Who are they submitting these billings to? I know what they can I I know what cannot 100% beyond reasonable doubt. The one that they can't is the bigger fish.

I've called the PD office who would have had my case and asked her to call it's urgent she's out today and back tomorrow Monday at the latest. I'm going to see what she says. Meanwhile I just gather more documents to support my case.

Gryphon · #23 08-18-2011, 06:22 PM

A lawyer's billings go only to the client.

Quote:

Originally Posted by tilghmansca

Who are they submitting these billings to? I know what they can I I know what cannot 100% beyond reasonable doubt. The one that they can't is the bigger fish.

I've called the PD office who would have had my case and asked her to call it's urgent she's out today and back tomorrow Monday at the latest. I'm going to see what she says. Meanwhile I just gather more documents to support my case.

tilghmansca · #24 08-18-2011, 08:40 PM

Thank you, you've been very helpful! I'm hoping to get sentencing pushed back another 30 days. I'm the only person in my house working and there are two small children, a sickly person and my husband who works construction so you know what that's like right now, slow!

I just felt attacked yesterday when the probation officer at the pre sentencing meeting starting asking me questions about statements made and because I've never seen or discussed the evidence I was taken by surprise.

What I also didn't understand is why we were discussing that case in particular. I was convicted and sentenced and given time served so why are we even discussing it?

Gryphon · #25 08-18-2011, 10:55 PM

Because your past criminal history is relevant to your ability to complete a probation grant, because increasing seriousness is an aggravating factor, and because in general they will be having to justify telling the judge you need to be punished.

Quote:

Originally Posted by tilghmansca

Thank you, you've been very helpful! I'm hoping to get sentencing pushed back another 30 days. I'm the only person in my house working and there are two small children, a sickly person and my husband who works construction so you know what that's like right now, slow!

I just felt attacked yesterday when the probation officer at the pre sentencing meeting starting asking me questions about statements made and because I've never seen or discussed the evidence I was taken by surprise.

What I also didn't understand is why we were discussing that case in particular. I was convicted and sentenced and given time served so why are we even discussing it?