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Factors to Rely on for Determinate Sentencing

By Henry J. Hall

Under the Determinate Sentencing Law (Penal Code, Section 1170 et seq.,), judges must determine whether to impose the high, low, or middle prison terms for felony offenses. It is important for all bench officers and attorneys handling felony cases to be aware of the intricacies of the California Rules of Court that set forth aggravating and mitigating factors that guide the sentencing choices under the Determinate Sentencing Law

The objective of this article and self-study test is to review the factors that a court can properly rely on in deciding which term should be imposed under the Determinate Sentencing Law. Readers will learn about aggravating and mitigating factors set forth in the Rules of Court relating to the crime and the defendant, along with significant cases that have interpreted the factors.

In response to Cunningham v. California, 549 U.S. 270 (2007), the California Legislature amended the Determinate Sentencing Law to delete the requirement that a court must find an aggravating fact to impose a high term, instead providing that when a "statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." Penal Code, Section 1170(b); Stats. 2007, ch. 3. The Legislature also eliminated the requirement that the judge state on the record the facts supporting any aggravating or mitigating factors, but required that the judge state "the reasons for imposing the term selected." Penal Code, Section 1170(b); Rule 4.420(e).

In determining which term to impose, the judge must be guided by the aggravating criteria in Rule 4.421 and the mitigating criteria in Rule 4.423. The criteria are not exclusive (see Rule 4.408(a)), however, they are highly instructive, and judges and lawyers should be familiar with their proper scope.

Circumstances in aggravation include the following factors related to the crime (Rule 4.421(a)):

(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." The focus here is on the defendant's violence, not the actual extent of the victim's injury. People v. Garcia, 209 Cal.App.3d 790 (1989). Threats to inflict great bodily injury that exceed the minimum inherent in the crime itself will suffice. People v. Williams, 228 Cal.App.3d 146 (1991).

(2) "The defendant was armed with or used a weapon at the time of the commission of the crime." A person is armed within the meaning of this provision if he or she carries a weapon or has it available for use. The underlying intent is to deter persons from creating a potential for death or injury resulting from the presence of a weapon at the scene of the crime. People v. Searle, 213 Cal.App.3d 1091 (1989).

(3) "The victim was particularly vulnerable." Under this provision, vulnerability means "defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act. An attack upon a vulnerable victim takes something less than intestinal fortitude. In the jargon of football players, it is a cheap shot." People v. Smith, 94 Cal.App.3d 433 (1979).

(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." This factor does not apply to drug sales cases when the buyer initiated the transaction. People v. Searle.

(5) "The defendant induced a minor to commit or assist in the commission of the crime." The involvement of children must be transactionally related to the offense. People v. Searle.

(6) "The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process."

(7) "The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed." If this factor in aggravation is employed, the court must state on the record why consecutive sentences could have been imposed under the factors set forth in Rule 4.425. People v. Ramirez, 165 Cal.App.3d 214 (1985).

(8) "The manner in which the crime was carried out indicates planning, sophistication, or professionalism." The focus in this factor is on whether the circumstances of the offense "negate the view that [the defendant] acted randomly or spontaneously." People v. Mathews, 102 Cal.App.3d 704 (1980).

(9) "The crime involved an attempted or actual taking or damage of great monetary value." The monetary amounts specified in the enhancements in Penal Code section 12022.6 are not controlling; however, the court must make an inquiry into the value of the property and this factor is inapplicable unless the property has substantial monetary value. People v. Bejarano, 114 Cal.App.3d 693 (1981).

(10) "The crime involved a large quantity of contraband." Possession of nearly one-half ounce of heroin is enough for this aggravator in simple possession case. People v. Maese, 105 Cal.App.3d 710 (1980).

(11) "The defendant took advantage of a position of trust or confidence to commit the offense." A babysitter is in a position of trust (People v. Miranda, 196 Cal.App.3d 1000 (1987)), and so too are the victim's parents in a child molestation case (People v. Garcia, 166 Cal.App.3d 1056 (1985)).

(12) "The crime constitutes a hate crime." A "hate crime" is defined in Penal Code Section 422.55. There are some restrictions in using this factor specifically listed in Rule 4.421(a)(12), including that no hate crime enhancements under Penal Code Section 422.75 can be imposed.

Circumstances in aggravation include the following factors related to the defendant (Rule 4.421(b)):

(1) "The defendant has engaged in violent conduct that indicates a serious danger to society." Offenses subsequent to the current offense may be considered as showing a pattern of dangerous conduct. People v. Gonzales, 208 Cal.App.3d 1170 (1989).

(2) "The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness." This factor is in the disjunctive; therefore, either numerous convictions or increasing seriousness will suffice. People v. Marshall, 196 Cal.App.3d 1253 (1987).

(3) "The defendant has served a prior prison term."

(4) "The defendant was on probation or parole when the crime was committed."

(5) "The defendant's prior performance on probation or parole was unsatisfactory." The fact that the defendant had only been on probation a short time when he reoffended may be properly considered. People v. Cortez, 103 Cal.App.3d 491 (1980).

Rule 4.421(c) also states that factors listed in other statutes are proper aggravators, but most are found in Rule 4.421. Finally, a factor used in aggravation to impose an upper term cannot be used to also impose an enhancement (Penal Code Section 1170(b)), and it also cannot be used to justify consecutive sentences when it is an element of the crime (Rule 4.425(b)(3)).

Circumstances in mitigation include the following factors related to the crime (Rule 4.423(a)):

(1) "The defendant was a passive participant or played a minor role in the crime." The court has broad discretion to consider any mitigating factors and is not limited to those set forth in Rule 4.423. People v. Tatlis, 230 Cal.App.3d 1266 (1991).

(2) "The victim was an initiator of, willing participant in, or aggressor or provoker of the incident." Provocation must be found in the record of the case. People v. Dixie, 98 Cal.App.3d 852 (1979).

(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." The court may consider an imperfect entrapment defense, i.e., police pressure not amounting to true entrapment. People v. Kellett, 134 Cal.App.3d 949 (1982).

(6) "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 fact that the police interrupt a crime before it is completed, causing the victim's damage to be minimized, is not a factor in mitigation. People v. Bates, 113 Cal.App.3d 481 (1980).

(7) "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."

(8) "The defendant was motivated by a desire to provide necessities for his or her family or self." This factor was applied when the defendant committed a string of robberies in part to provide support for a child because of his feeling that welfare payments were inadequate. In re Spears, 157 Cal.App.3d 1203 (1984).

(9) "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."

Circumstances in mitigation include the following factors related to the defendant (Rule 4.423(b)):

(1) "The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes." Having merely one misdemeanor reckless driving conviction can be properly considered as mitigating. People v. Price, 151 Cal.App.3d 803 (1984).

(2) "The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime." Being under the influence of alcohol or drugs at the time an offense is committed can be mitigating even if it does not constitute a defense. People v. Avalos, 37 Cal.3d 216 (1984). Mental illness that is causally related to the crime may also be a mitigating factor. People v. Gibson, 204 Cal.App.3d 1425 (1988).

(3) "The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process." A confession to the police need not be considered mitigating when the defendant never enters a plea of guilty at any stage of the proceedings. People v. Holguin, 213 Cal.App.3d 1308 (1989).

(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." This includes restitution through an insurance payment. People v. Jones, 164 Cal.App.3d 1173 (1985).

(6) "The defendant's prior performance on probation or parole was satisfactory."

The sentencing judge may also consider any other factor reasonably related to the sentencing decision. Relevant circumstances may be obtained from the case record, other reports and statements properly received, statements in aggravation and mitigation, and any evidence introduced at the sentencing hearing. Penal Code, Section 1170(b); Rule 4.420(b).

Henry J. Hall is a Superior Court Judge for the county of Los Angeles.

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