What is the test for determining whether a defendant has committed a sexual assault under section 1170.9 of the California Criminal Code?
California, United States of America
The following excerpt is from People v. Dejohnette, B278736 (Cal. App. 2018):
"shall . . . make a determination" ( 1170.9, subd. (a)) and "shall consider" ( 1170.9, subd. (b)), the trial court must, prior to sentencing, make certain findings if the defendant alleges the facts specified in the statute and the court must consider these findings in sentencing. (See People v. Abdullah (1992) 6 Cal.App.4th 1728, 1735 ["'the language of section 1170.9 is mandatory rather than permissive'"].)
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