(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).

Ninth Circuit

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, 631 F.3d 1295, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

Other

CAL POST CON " PLEA BARGAINING " JUDICIAL INVOLVEMENT
People v. Clancey, 202 Cal.App.4th 790 (Cal.App. Jan. 10, 2012) (trial court's offered sentence was not proper because it was: 1) conditioned on the defendant pleading to all counts and admitting all allegations, and 2) operated as a commitment by the judge to impose the offered sentence or to allow the defendant to withdraw the pleas and admissions).