Legal Question in Criminal Law in California
In san joaquin county, re document "prelim hearing minutes"
On the second page the box checked states "defendant waived probation referral" the next box also check marked states"and request immediate sentencing"
My question "does this mean that probation was an option and sentencing could of been avoided?"
3 Answers from Attorneys
Without knowing the case, the sentence received or seeing the document you're referring to...
If there is an agreed upon disposition (a plea bargain), then there's usually no need for a probation report and recommendation, since both sides know what the sentence will be. AFter a conviction, whether by plea or a conviction after trial, a defendant has a right to be sentenced in not less than 6 hours nor more than 20 days unless they give up that right. Again - in a plea bargain situation, it's already agreed what the sentence is, so there's no need to delay the sentencing.
As Mr. Dane notes, probation might have been an option, but the defendant decided not to stick around in jail to find out.
The defense may have reached a deal with the prosecution that reduced the maximum possible sentence, with the agreement that the defendant wouldn't get probation.
It may have been a case where the defendant had already spent so much time in jail that he was eligible for a "paper commitment," where the judge just released him with orders to report to the parole office.
The defendant may have been serving a prison sentence in another county, and just received a short consecutive sentence in this case.
There are even defendants who have spent a lot of time in prison, and see going back to prison as being easier than being on probation.
It all depends on the particulars of this case.
Based on what you provided, it means the defendant waived probation referral. That means his or her case would have been referred to the probation department, for a determination of whether or not the defendant was qualified and probation was a viable option for that particular defendant. The probation department then makes a recommendation to the trial judge, for sentencing. Instead, the defendant opted for sentencing.
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