Tooby's California Post-Conviction Relief for Immigrants

(G)

Improper Considerations.  The sentencing court must not consider inflammatory information such as the offender’s national origin or other prejudicial and irrelevant references to race, ethnicity or religion.[193]  Due process is also violated where the court bases the sentencing decision in part on the defendant’s status as a noncitizen.[194]  If the judge takes into account inappropriate considerations in imposing sentence, counsel must normally object or the error is waived.[195]  If the trial court relies on sentencing documents which contain material factual misstatements, the proper remedy is a remand for a new probation and sentencing hearing.[196]

A defendant retains his right against self-incrimination at the sentencing hearing and the court is not allowed to draw any adverse inferences from an invocation of silence, except, perhaps in evaluating departures based on acceptance of responsibility.[197]

Conduct for which the defendant was acquitted, however, can be used as a sentencing factor consistent with due process so long as the conduct is proven by a preponderance of the evidence.[198]

[193] United States v. Vorrero-Isaza, 887 F.2d 1349 (9th Cir. 1989) (Columbian offender improperly sentenced more harshly than American codefendant in order to send warning to other Columbian drug traffickers).

[194] United States v. Onwuemene, 933 F.2d 650 (8th Cir. 1991).

[195] See People v. Scott, 9 Cal.4th 331, 353 n.16 (1995)(defense counsel’s failure to object to sentencing errors bars raising those errors on appeal except for errors considered jurisdictional).

[196] People v. Eckley (2004) 123 Cal.App.4th 1072, 20 Cal.Rptr.3d (trial court’s reliance on documents which were based on police reports and a DSS report, and not on the facts established at trial, was improper.  Defense counsel preserved the issue for appeal by filing a statement in mitigation objecting to the errors).

[197] Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307 (1999).

[198] United States v. Watts, 117 S.Ct. 633 (1997).