Aggravating and Mitigating Factors, generally
Category > Aggravating and Mitigating Factors, generally
Updated 3/4/2024Defendant who agreed to the upper term as part of a negotiated plea agreement was entitled to a remand under SB 567.Senate Bill 567 altered the requirements for the imposition of an upper term under Penal Code section 1170(b). The provision applies retroactively to defendant’s nonfinal judgment. Contrary to the prosecution’s claim, a defendant who stipulated to an upper term as part of a negotiated plea agreement is nevertheless entitled to a remand under SB 567.id: 28161
The aggravating factor of victim vulnerability had no application in light of the jury's verdict that defendant acted in imperfect self-defense.The manslaughter verdict as construed by the trial court constituted a finding that defendant acted in imperfect self-defense - that he killed in an honest but unreasonable belief that he needed to defend himself. The trial court erred in imposing the upper term based on the vulnerability of the victims because defendant's conduct was inconsistent with victim vulnerability.id: 13180
Court erred in imposing the upper term for mayhem based on the fact that the victim suffered great bodily injury.The trial court erred in imposing the aggravated sentence for mayhem based on the fact the victim suffered great bodily injury because great bodily injury is an element of the offense.id: 9691
Updated 3/4/2024“Circumstances in aggravation” as described in SB 567 refers to the circumstances listed in rule 4.421.SB 567 amended Penal Code section 1170(b)(2) to provide that when the sentencing court has three options it can’t impose a sentence higher than the middle term unless it finds the longer sentence is justified by aggravating circumstances and those factors have been stipulated to by the defendant or found true by the jury. The term “circumstances in aggravation” refers to the factors listed in Cal. Rules of Court, rule 4.421 and the Legislature did not violate the separation of powers doctrine by including that contrary to the prosecutor’s argument, the void for vagueness doctrine does not apply to aggravating circumstances. Finally, the factual allegations supporting the aggravating circumstances do not need to be supported by evidence presented at the preliminary hearing.id: 28124
Updated 3/4/2024The court’s reliance on improper aggravating factors to impose the upper term following SB 567 was harmless given the presence of other applicable factors and the court’s finding that defendant was a danger.Defendant argued that in selecting the upper term for the assault with a firearm and firearm use enhancement, the resentencing court relied on aggravating factors that are inapplicable under SB 567. However, there were three applicable factors that had been established as true beyond a reasonable doubt. Any error in imposing the upper term here was harmless where the court had made clear that the high term was appropriate and that defendant was dangerous.id: 28164
Updated 3/4/2024Defendant’s general waiver of his right to a jury trial and agreement that the court could consider the aggravating circumstances defeated his Sixth Amendment argument.Consistent with a negotiated plea, the court imposed a 10 year term, which included the upper term on one count. Defendant argued the upper term was unlawful because he did not, in open court, waive his right to a jury trial on the aggravating factors. However, he waived his right to a jury trial generally, and agreed the court could consider all aggravating circumstances. Moreover, his prior conviction by itself was enough to support the imposition of the upper term.id: 28173
Updated 2/24/2024A trial court’s consideration of defendant’s criminal history as reflected in his record of convictions did not violate the Sixth Amendment and using that factor to impose an upper term did not violate SB 567.Defendant was convicted of making criminal threats and was sentenced to the three-year upper term. The trial court used as aggravating factors the increasing seriousness of defendant’s convictions and his poor performance on probation. Defendant challenged the court’s use of those factors that were not admitted by defendant or found true by the jury. However, the factors were approved by a certified record of defendant’s convictions and fell within the prior conviction exception to the heightened proof requirements that apply to other types of aggravating factors.id: 28155
Any improper reasons for imposing a consecutive term were harmless where there were valid reasons to impose an aggravated term but the court imposed the middle term.The trial court imposed the middle term on the primary count after defendant pled guilty to certain sex offenses. Defendant argued the court erred by stating improper reasons for imposing a consecutive sentence on the remaining count. Assuming the stated reasons were improper, any error was harmless where there were valid factors the court could have used to impose the upper term on count one but did not.id: 25277
Supreme Court says Washington sentencing guidelines trigger Apprendi.Washington state law sets maximum terms of imprisonment for various classes of felonies. Other statutes limit the range of sentences beneath that maximum that a judge can impose for each offense, but allow for sentences above those ranges in "exceptional cases." To impose an "exceptional" sentence, a judge must find that the case involves factors not taken into account in setting the sentencing range. Defendant, convicted of kidnaping, had a sentencing range of 49 to 53 months, but the court departed upwards to a 90-month sentence because of the cruelty of defendant's offense. The Supreme Court held that defendant's sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that facts, other than the fact of a prior conviction, that increase the penalty for a crime must be submitted to a jury and proved beyond a reasonable doubt. The Court held that the statutory maximum for purposes of this rule is the maximum sentence the judge may impose based on the facts found by the jury or admitted by the defendant. The majority expressed no opinion on the Federal Sentencing Guidelines, but Justice O'Connor, in a dissent joined by Justice Breyer on this point, said that "[i]f the Washington scheme does not comport with the Constitution, if is hard to imagine a guidelines scheme that would."id: 20164
The trial court did not err in imposing the upper term for defendant’s conviction of arson based on the fact that he induced another person to set the fire. Defendant was convicted of arson causing injury where he planned the fire but it was set by an accomplice who died in the fire. He argued that the trial court erred by imposing the upper term based on the fact that he “had somebody do his bidding” but it is not a necessary element of arson that defendant induced someone else to commit the crime. Moreover, contrary to defendant’s claim, arson need not involve planning and sophistication, so the court did not err by also relying on that factor in imposing the upper term.id: 22674
The trial court did not err in relying on defendant’s poor performance on probation to justify imposing the upper term. Defendant argued the trial court erred when it relied on her poor performance on probation to justify imposing an aggravated term of three years for her offense of identity theft. The trial court was entitled to consider defendant’s performance on probation from the time it was originally granted until it was rescinded.id: 21242
Great violence may be used as an aggravating factor following a conviction of rape by force or violence.Defendant pled guilty to rape and was sentenced to the upper term. He argued it was improper to rely on great violence as an aggravating factor, since such violence is usually necessary to overcome the victim's resistance. However, the rape by force or violence statute requires only that degree of violence necessary to show that the act was for that reason against the victim's will-not the greater degree of violence described in the sentencing rule. There was no dual use of facts.id: 13859
An upper term may be imposed based upon a "multiple victim" aggravating factor where only one victim was named in each count.Defendant was convicted of two counts of gross vehicular manslaughter. The court imposed the upper term based on the multiple victim factor. Defendant argued the multiple victim factor does not apply where the victims are each named in separate counts. However, the upper term may be imposed based upon multiple victims even where only one victim was named in each count.id: 19427
Asking the witness to lie supported the court's finding of witness dissuasion notwithstanding that attempted subornation of perjury cannot be used in aggravation under rule 421(a((6).An officer testified that the witness told police defendant had called him from the jail and asked the witness to lie on defendant's behalf. Defendant argued the court's finding at the sentencing that the witness was dissuaded was not supported by the evidence because although attempted subornation of perjury is a crime it cannot be used in aggravation under California Rules of Court, rule 421(a)(6). Although defendant's point was technically correct, it availed him from nothing because under rule 408(a), the trial court was entitled to count mere attempts to do any of the misdeeds listed in rule 421(a)(6) as circumstances in aggravation.id: 13842
Burglary of a single home with multiple victims absent can be used in aggravation.The trial court sentenced defendant to the upper term based on one aggravating circumstance <197> multiple victims. Defendant argued that multiple residents of a home who are absent when the home was burglarized could not have been regarded as multiple victims within the meaning of the sentencing rule. However, the upper term in the instant case was proper. The three residents of the burglarized home, whether present or absent, were all direct victims of a single criminal transaction, and the initial burglary was correspondingly aggravated.id: 13843
Court did not err in failing to consider the fact that the cocaine sale only involved one small rock.Appellant argued the court erred in failing to take into account as a mitigating factor that the sale of cocaine involved a very small one rock. However, substantial evidence supported the trial court's implied conclusion that the small rock sale was not an isolated occurrence but part of a continuing course of criminal conduct that appellant was not interested in changing, and thus not deserving of consideration as a mitigating factor.id: 13844
Court did not err in finding that defendant's mental difficulties, for which he refused to seek help, did not warrant the lower term.Probation report recommended the lower term. In rejecting the recommendation and imposing the middle term, the court noted defendant's refusal to seek help for his alcoholism and that he knowingly declined to pursue an insanity defense which might have resulted in treatment for his delusional mental condition. Contrary to defendant's argument, the court did not punish him more severely because he was an alcoholic or suffered from a mental illness. When compared with the other aggravating and mitigating factors, the court properly concluded defendant's mental difficulties did not warrant the lower term.id: 13845
Court did not err in refusing to consider defendant's initial confession as an acknowledgement of wrongdoing for purposes of mitigation.Defendant argued the trial court erroneously failed to consider his initial confession of guilt as an acknowledgement of wrongdoing for purposes of mitigation. However, defendant proceeded to trial after pleading not guilty. This action clearly constituted an equivocation of any acknowledgement of wrongdoing and, thus, the trial court did not err in refusing to consider the earlier confession.id: 13846
Court did not err in using the same act to apply more than one aggravating factor.Defendant argued the trial court improperly used the fact of the child molest victim's abduction by him as evidence of three different aggravating factors: that she was particularly vulnerable, that the crime was sophisticated and premeditated, and that defendant violated a position of trust. However, there is nothing inherently unfair about looking at one established act and the circumstances surrounding its commission, and then considering whether the act and its surrounding circumstances, when analyzed, constitute one or more of the circumstances in aggravation or mitigation relating to the crime.id: 13847
Defendant's conduct subsequent to the charged offense was properly considered as a factor in aggravation.The trial court did not err in using defendant's conduct subsequent to the charged offense to aggravate the sentence.id: 13848
False imprisonment victim who was driving the car at gunpoint was particularly vulnerable.Appellant was convicted of false imprisonment. He argued the evidence did not support the court's conclusion that the victim was particularly vulnerable. However, the victim was driving the car, which had a manual transmission, on city streets at appellant's directions at gunpoint, exposing the victim to the risk of a traffic accident. Appellant attempted to involve the victim in two possible murders. Had appellant been able to shoot the officers and had they been chased, then the victim would have been vulnerable to being perceived as an accomplice to appellant or to any attack upon the car. He was therefore defenseless and susceptible to appellant's criminal act.id: 13850
Gun use was a proper factor in aggravation where a loaded gun was located in the car from which defendant sold drugs.The court cited the fact that defendant was armed as a factor in aggravation in defendant's drug sale sentence. Defendant argued the factor was erroneous because the gun was merely stored in the car. The aggravating factor was proper where the loaded gun was located in the car from which defendant sold drugs.id: 13851
Imposition of the upper term for felony drunk driving based on planning was proper where defendant drove to Mexico specifically to party.Defendant was convicted of felony drunk driving. He argued the court erred in using planning as an aggravating factor in imposing the upper term. However, planning was established as defendant went to Mexico for the specific purpose of partying and he consumed a large amount of alcohol, as verified by his .24 blood alcohol content.id: 13852
Rape victim was particularly vulnerable where defendant threw her onto the floor and smothered her into unconsciousness before raping.While locked in the motel room, the rape victim dashed for the door after biting defendant's finger. Defendant grabbed her from behind, threw her onto the floor, banged her on the head, and smothered her into unconsciousness. The evidence supported the finding that the victim was particularly vulnerable for purposes of imposing the full and consecutive term for the rape.id: 13853
Rule 421(a)(6) can be used twice where defendant both commits and suborns perjury.California Rules of Court, rule 421(a)(6) allows for aggravation of a sentence if the defendant threatened a witness, suborned perjury or otherwise interfered with the judicial process. The factor was properly cited twice as defendant committed and suborned perjury.id: 13854
Sentencing court did not err in failing to consider defendant's substance abuse as a factor in mitigation.Defendant argued the trial court erred in failing to consider his substance abuse as a factor in mitigation. The record showed he willingly engaged in extensive drug abuse with little regard for the effects upon himself or others. The court found that notwithstanding his drug abuse, the crimes were premeditated and deliberate. His plan to kill the victims required considerable preparation and he had ample opportunity to reflect and abandon his endeavor. The court did not err in refusing to find his substance abuse to be mitigating.id: 13855
Three convictions are numerous within the numerous prior conviction aggravating factor.Appellant was convicted of selling cocaine and his sentence was aggravated by the fact that his prior convictions were numerous. His three drunk driving priors were numerous within the context of that aggravating factor.id: 13856
Transmission of genital herpes is a proper aggravating factor.The transmission of genital herpes is a proper aggravating factor justifying the imposition of the upper term since such disease involves great bodily harm.id: 13857
Multiple victim aggravating factor was properly imposed for burglar of a single unoccupied house who stole from three separate victims.Defendant broke into a residence when no one was home and stole property belonging to three different people. He argued the gravity of the offense was in no way increased by the fact that the property stolen may have belonged to several people rather than one. The court found that the multiple victim aggravating circumstance was properly imposed because the three residents of the burglarized home, whether present or absent were all direct victims of a single criminal transaction and that the initial burglary was correspondingly aggravated.id: 13858
Possession of shotguns was properly used to impose the upper term since it was transactionally related to the offense of cultivation of marijuana.Defendant argued the trial court erred in using his possession of two loaded shotguns as an aggravating factor resulting in the upper term for his conviction of cultivation of marijuana. However, the court properly used the weapon possession as an aggravating factor because the possession was transactionally related to the offense of cultivation of marijuana.id: 10759
Trial court may consider defendant's prior prison term as an aggravating factor at sentencing on a child molest conviction under section 647.6 where the same prior elevated the current offense to felony status.Defendant pled guilty to a felony violation of Penal Code section 647.6, child molest with a prior conviction under section 288, subdivision (a). At sentencing on a violation of section 647.6, the trial court may use defendant's service of a prior prison term as a factor in aggravation of the base term when that prison commitment resulted from the same prior which elevated the current offense to felony status. <i>People v. Jones</i> (1993) 5 Cal.4th 1142 does not abrogate California Rules of Court, rule 421(b)(3) when the prior prison term considered is part of the sentence-elevating prior offense.id: 10012
Violation of a position of trust is a proper aggravating factor in a resident child molestation case.Defendant argued that in a resident child molestation case, the occupation of a position of trust is a factor which is present in virtually all cases. Consequently, it is not a factor which makes this particular case distinctively worse than the average case of resident child molestation and the court erred in using it as the single aggravating factor. However, since continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim, such sentencing factor is not an element of the crime and may be used in aggravation.id: 10014
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245