Is a defendant entitled to a new sentencing hearing at the same time as the previous hearing?

California, United States of America


The following excerpt is from The People v. Mejia, B213993, Super. Ct. No. BA324792 (Cal. App. 2010):

discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court, ' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.] [] Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] ' "[A] trial court is presumed to have been aware of and followed the applicable law." [Citations.]' [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.)

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