Improper Factors
Category > Improper Factors
Victim vulnerability can be a valid aggravating factor for a person convicted of committing a sex act on a developmentally disabled victim who was incapable of giving consent.Defendant, a professional masseur, pled guilty to sex acts committed on a developmentally disabled victim during a massage. He argued the sentencing court erroneously imposed the six year middle term on count one because certain aggravating factors were elements of the crime and the court failed to consider mitigating factors. However, defendant forfeited the issue by not objecting at sentencing. Moreover, contrary to defendant’s claim, victim vulnerability may be a legitimate aggravating factor for a crime requiring that the victim be incapable of consent due to a mental or physical disability, as the statute (Penal Code section 286, subd.(g)) doesn’t require that the victim be particularly vulnerable.id: 25276
The trial court did not err by relying on the testimony of Evidence Code section 1108 victims when imposing the middle term. Defendant argued the trial court abused its discretion by considering his commission of sex offenses against other victims when imposing the middle rather than the lower term. However, a trial court may properly consider the testimony of prior victims in denying probation and deciding on an appropriate sentence.id: 24284
The trial court did not err in finding the victims of gross vehicular manslaughter while intoxicated were "vulnerable" for purposes of probation denial and "particularly vulnerable" as an aggravating factor when selecting the prison term.Defendant pled guilty to one count of gross vehicle manslaughter while intoxicated in violation of Penal Code section 191.5, subd.(a). The trial court thereafter did not err in denying her
request for probation based on the fact that the victims were vulnerable. Moreover, the court also did not err in finding the victims were "particularly vulnerable" as an aggravating factor when imposing a prison term.id: 19572
Any error in considering defendant's use of a minor while committing the crime was harmless given the other proper aggravating factors.Defendant argued the case should have been remanded for resentencing because the trial court erroneously considered defendant's use of a minor as one of the aggravating factors articulated in sentencing him to the upper term. However, the trial court set forth several proper factors which supported imposition of the upper term, and therefore, any error was harmless.id: 13875
Particular vulnerability of molest victim was properly used to aggravate the sentence where the victim's age was considered along with the time and location of the offense.Defendant argued the particular vulnerability due to the child molest victim's age (between four and five years old) was improperly used to aggravate the sentence. While particular vulnerability may not be based solely on age, it was used in this case in combination with other offenses like time and location of offense.id: 13876
Sentence was properly aggravated for being planned and sophisticated as evidenced by its repetition.Defendant argued the court erred in relying on the manner and sophistication of the offense as evidenced by its repetition to impose the upper term. He argued that if the court was referring to his prior child molest conviction then the court improperly relied on the prior to enhance and aggravate the term for another count. However, the court's reason was that the offense was sophisticated and planned rather than a spontaneous act. The circumstances leading to the first act plus its repetition indicate planning and sophistication thereby making it worse than a single spontaneous act.id: 13877
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