Reducing a Sentence with Mitigating Factors

How Does the Judge Decide the Sentence in a Criminal Case?

The California penal code specifies a range of penalties for most felonies. For instance, if the defendant was convicted of first-degree burglary, the judge could order formal probation or sentence them to two, four, or six years’ incarceration. If the judge denies probation and imposes a prison term, California law mandates that when a statute specifies three possible terms for an offense, the court sentence a defendant to the middle term unless there are circumstances in “aggravation” or “mitigation” of the crime.

• Aggravating factors of a crime make the offense worse and may result in a harsher sentence.
• Mitigating factors of an offense lessen the severity of the crime and may lead to a lower sentence.

In the case of burglary, California law would require the court to impose a four-year term unless the court finds that aggravating factors require enhancement of the penalty to six years or that mitigating factors justify reduction of the sentence to two years.

The importance of presenting mitigating factors to outweigh aggravating factors is clear. In the case of burglary, the existence of mitigating factors can cut the potential prison sentence by two-thirds.

1. How Does the Judge Decide the Sentence in a Criminal Case?
2. What Are Mitigating Factors?
3. Examples of Mitigating Factors
4. Developing Mitigating Factors in a Case
5. How Experienced Attorneys Can Help Present Mitigating Factors in Your Case

What Are Mitigating Factors?

To mitigate is to lessen the effect of something. Mitigating factors in criminal law are circumstances or facts about the offense or the defendant that persuade the judge to impose a less harsh sentence. The prosecution will most likely present aggravating factors related to the offense or the defendant to increase the penalty, so providing mitigating circumstances is essential to obtaining a lesser sentence.

Mitigating factors relating to the offense are not the same as circumstances that provide a defense to a charged criminal act or reduce a charge to a lesser included offense. For instance, the existence of provocation that resulted in a defendant’s impaired judgment may reduce a charge of murder to manslaughter, in the absence of malice. But if the provocation was not enough to warrant a reasonable person to act with impaired judgment, that provocation does not reduce the murder charge to manslaughter. However, the provocation may be a mitigating circumstance that impacts sentencing.

California Rule of Court 4.423 sets out circumstances that are mitigating factors related to the offense and to the defendant that may reduce the sentence imposed.

Mitigating factors related to the offense 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;
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;
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; and
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; but the abuse does not amount to a defense.

Mitigating factors related 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 (moral responsibility) 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;
• The defendant's prior performance on probation, mandatory supervision, post-release community supervision, or parole was satisfactory; and
• The defendant is or was a member of the U.S. military and suffers from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems caused by his or her military service (California Penal Code 1170.91).

These are not the only factors that may be considered. The Rule also allows consideration of any other factors that “reasonably relate to the defendant or the circumstances under which the crime was committed.” Thus, the field is wide open to the facts that may be brought to the court’s attention in mitigation so long as they “reasonably relate” to the circumstances of the crime or to the defendant’s culpability.

1. How Does the Judge Decide the Sentence in a Criminal Case?
2. What Are Mitigating Factors?
3. Examples of Mitigating Factors
4. Developing Mitigating Factors in a Case
5. How Experienced Attorneys Can Help Present Mitigating Factors in Your Case

Examples of Mitigating Factors

Some examples of mitigating factors include:

• In a case of DUI, the defendant’s blood alcohol content was relatively low, and the defendant was not driving recklessly or at a high rate of speed.
• In a case of gang-related voluntary manslaughter, a rival gang member instigated a fight, although the defendant responded with force that was greater than necessary to defend against the instigation.
• In a case of robbery, the defendant was influenced by drug use for which he had been seeking treatment.
• In a case of shoplifting, the defendant took food or other necessities, such as diapers, for their family.
• In a case of attempted kidnapping, the defendant immediately admitted guilt and showed sincere remorse.
• In a case of assault, the defendant had no prior criminal record, and the victim had no injuries.
• In a case of burglary, the defendant, prior to trial, made restitution to the victim for the property taken.
• In a case of theft of a car, the defendant was only a passenger and did not drive the car.
• In a case of involuntary manslaughter, the defendant was acting at the urging of his parent or other person of influence.
• In a case of theft, the defendant’s low mental functioning prevented him from realizing that his conduct was wrongful.

These are merely examples of mitigating factors. As referenced above, any fact showing that the defendant’s conduct was “partially excusable for some other reason not amounting to a defense” can be presented in mitigation of the offense. Likewise, any other factors that “reasonably relate to the defendant or the circumstances under which the crime was committed” can be a mitigating circumstance.

How Mitigating Factors Cannot Be Used

However, evidence that a defendant may introduce in mitigation of the crime has a limit. The point of mitigation is not to show that the defendant is a good person — that he took care of his mother, went to church every Sunday, or contributed to charities. The point is to show that the defendant’s personal history makes the defendant less culpable for the offense or that unique circumstances lessen the seriousness of the offense so that a reduced sentence should be imposed. This is consistent with the California legislature’s declaration that the purpose of sentencing “is best served by terms that are proportionate to the seriousness of the offense.”

1. How Does the Judge Decide the Sentence in a Criminal Case?
2. What Are Mitigating Factors?
3. Examples of Mitigating Factors
4. Developing Mitigating Factors in a Case
5. How Experienced Attorneys Can Help Present Mitigating Factors in Your Case

Developing Mitigating Factors in a Case

Before sentencing, a defendant can work with their attorney to develop and maximize the impact of mitigating factors. Information may come from the defendant, their friends or family, a witness, a probation officer, or any other person with relevant information.

Some questions an attorney may ask concern:

• All the circumstances of the crime, even facts that could not be put into evidence at the trial stage, including unique circumstance of the crime that demonstrate that the situation leading up to the offense is unlikely to recur;
• The role that the defendant played in the offense;
• The defendant’s mental capacity and his or her mental state at the time of the offense, including facts known to the defendant that were inadmissible at trial;
• The defendant’s personal history and upbringing, including any abuse from the victim of the offense, that demonstrate the defendant’s lack of ability to recognize the wrongfulness of his or her conduct or show that the defendant acted under mental duress;
• The defendant’s attempts to make restitution to any victim or victims;
• Any fact that shows that the defendant was sincerely remorseful for the offense;
• Duress or pressure put on the defendant to commit the offense or the influence of a person in a position of authority or power over the defendant;
• The defendant’s military service and whether it resulted in trauma; and
• Any other fact that would reduce the seriousness of the offense or the wrongfulness of the defendant’s actions.

The Importance of Mitigating Circumstances

Presenting evidence of mitigating circumstances is a crucial part of the sentencing process in California. A defendant serves their best interest by providing their criminal defense lawyer with all facts related to the offense, events leading up to the offense, the defendant’s state of mind at the time of the offense, and any other factors related to the offense or the defendant that could persuade the court to impose the shortest sentence that the law provides.

While more evidence is better, even a few powerful mitigating factors can influence sentencing. Reduced jail or prison time will have a substantial impact on the offender’s life and their rehabilitation, and mitigating factors can greatly influence the time the defendant will have to serve.

1. How Does the Judge Decide the Sentence in a Criminal Case?
2. What Are Mitigating Factors?
3. Examples of Mitigating Factors
4. Developing Mitigating Factors in a Case
5. How Experienced Attorneys Can Help Present Mitigating Factors in Your Case

How Experienced Attorneys Can Help Present Mitigating Factors in Your Case

If you have been charged with a crime and feel there are mitigating factors, you don't deserve the harshest sentence possible. Experienced appellate attorneys will review your case and answer all of your questions about sentencing. Contact SPCRC's Recommended California Lawyers today for a consultation.