2.4: Influences on Sentencing Decisions

The severity of a sentence usually hinges on two major factors. The first is the seriousness of the offense. The other, which is much more complex, is the presence of aggravating or mitigating circumstances. In general, the more serious the crime, the harsher the punishment. Listed below, are the California Rules of Court which identify the specific criteria for both mitigating and aggravating circumstances.

In the presentence report, probation officers prepare a detailed court report that examines the crime, the criminal history of the defendant, the social factors of the defendant and the applicaple circumstances in aggravation and mitigation to provide the court (judge) with an objective assessment of the crime and a suitable sentence based on all the indicated factors. It is important to note that a majority of criminal cases are resolved through the plea agreement process so the range of sentence was agreed upon before the presentence report is prepared.

Note

Circumstances in Aggravation

Aggravating Factors relating to the crime, whether or not charged or chargeable as enhancements include that:

• The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
• The defendant was armed with or used a weapon at the time of the commission of the crime;
• The victim was particularly vulnerable;
• The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
• The defendant induced a minor to commit or assist in the commission of the crime;
• The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
• The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
• The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
• The crime involved an attempted or actual taking or damage of great monetary value;
• The defendant took advantage of a position of trust or confidence to commit the offense.
• The crime constitutes a hate crime.

Aggravating Factors relating to the defendant include:

• The defendant has engaged in violent conduct that indicates a serious danger to society;
• The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
• The defendant was on probation, mandatory supervision, post release community supervision, or parole when the crime was committed; and
• The defendant's prior performance on probation, mandatory supervision, post release community supervision, or parole was unsatisfactory.

Aggravating Circumstances Impact on Sentencing:

The aggravating circumstances is the probation report indicates the factors of aggravation that pertains to the crime, or the defendant. Each crime has sentence triad: a low term, mid-term and upper term. Depending on the weight of the aggravating and mitigating circumstances of the crime and offender, a recommendation will be made in the report to impose one of the three eligible prison terms. The judge will review the report and impose the appropriate sentence based on the totality of circumstances.

Note

Circumstances in Mitigation

Mitigating Factors relating to the crime:

• The defendant was a passive participant or played a minor role in the crime;
• The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
• The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
• The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;
• The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
• The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
• The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
• The defendant was motivated by a desire to provide necessities for his or her family or self; and
• The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense.

Mitigating Factors relating to the defendant include:

• The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
• The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
• The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
• The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
• The defendant made restitution to the victim; and
• The defendant's prior performance on probation, mandatory supervision, post release community supervision, or parole was satisfactory.