You have been convicted of a criminal offense and now it is time for sentencing. Sentencing is where the judge determines the punishment for your crime. Under California law, there may be a range of punishments you could be subject to depending on the nature of the crime. However, judges do have some say in the actual punishment. This is where aggravating and mitigating factors come in.
Before sentencing, your San Diego criminal defense attorney will explain the difference between aggravating factors and mitigating factors, and how those could impact the judge’s decision in your final sentence. If you are facing sentencing in San Diego, your defense attorney could work on your behalf to secure a more lenient sentence by presenting compelling mitigating circumstances.
What is the difference between aggravating circumstances and mitigating circumstances? What are examples of each? How might my San Diego criminal defense attorney use mitigating circumstances to reduce my sentence?
What are mitigating circumstances?
In short, mitigating circumstances refer to factors that may encourage the judge to be more lenient in their sentencing. These are factors that work in your favor and will hopefully result in a lesser sentence.
Mitigating circumstances can be both positive and negative. For example, positive mitigating circumstances that can be presented by your defense attorney can include your work ethic, devotion to your children or your involvement in your community.
Negative mitigating factors will show examples of negative circumstances that may have contributed to the commission of the crime. Some examples of negative mitigating factors could include an abusive family life or homelessness.
Mitigating factors are meant to ask the judge to look at both positive and negative factors that could encourage a more lenient sentence.
California Rules of Court Rule 4.423 provide examples of mitigating circumstances related to the crime and to the defendant.
Some examples of mitigating factors relating to the crime include:
(1) The defendant was a passive participant or played a minor role in the crime;
(2) The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
(3) The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
(4) 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
(5) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
Some examples of mitigating factors relating to the defendant include:
(1) The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
(2) The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
(3) The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
(4) The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
(5) The defendant made restitution to the victim;
What are aggravating circumstances?
Aggravating circumstances, on the other hand, are those factors that indicate to the judge that a heftier sentence is required. A prosecutor may pose aggravating circumstances to the judge during sentencing to encourage the judge to apply the harshest punishments available under the law.
Prosecutors could present aggravating factors that relate to both the crime itself and to the defendant. Judges must consider aggravating factors as well as mitigating factors in their final sentencing decision.
California Rules of Court Rule 4.421 define circumstances in aggravation relating to the crime and to the defendant.
Some examples of aggravating circumstances relating to the crime include:
1) 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;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) 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;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
Some examples of aggravating circumstances relating to the defendant include:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and
(5) The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory.
If you have been convicted of a crime in San Diego or the surrounding areas, contact experienced criminal defense attorney Joni Eisenstein at 760-721-3161 for your free initial consultation and to learn how she may be able to help you achieve a more lenient sentence.