Felony offenses are usually punished by one of three possible terms:
- a low term,
- a middle term, or
- a high term.
Under California Penal Code 459 PC, first degree burglary is punishable by a term of two, four or six years in California state prison.1
California Penal Code Health and Safety Code 11358 PC, unlawfully cultivating marijuana, is punishable by 16 months, or two or three years in county jail.2
Which term you are sentenced to depends on whether there are circumstances in “aggravation” or “mitigation” of the crime.
“Aggravating” circumstances are negative factors that make a crime worthy of greater punishment.
“Mitigating” circumstances are those that argue in favor of leniency.
“Aggravating” and “mitigating” circumstances are set forth in the Judicial Council of California 2014 California Rules of Court. Both aggravating and mitigating circumstances include:
- Factors relating to the crime itself, and
- Factors relating to you, the defendant.
- 1. Circumstances in “aggravation” of a crime
- 2. Circumstances in “mitigation” of a crime
- 3. How aggravating and mitigating factors are used to determine a California felony sentence
California Rule of Court 4.421 sets forth circumstances in aggravation. Aggravating circumstances related to the crime can include (but are not limited to):
- The crime involved great violence or bodily harm, or involved a high degree of cruelty,
- You were armed with or used a weapon during the commission of the crime,
- You induced others – including minors -- to participate in the commission of the crime,
- You threatened witnesses,
- You took or destroyed something of high monetary value,
- The crime involved a large quantity of contraband, and/or
- The crime was a hate crime not punished by a hate crime sentencing enhancement.3
Aggravating factors relating to you might include (but are not limited to):
- You engaged in violent conduct that indicates you are a serious danger to society,
- You have numerous prior convictions or prior convictions of increasing seriousness,
- You were on probation or parole when the crime was committed, and/or
- Your prior performance on probation or parole was unsatisfactory.4
California Rule of Court 4.423 sets forth circumstances in mitigation.Mitigating factors relating to the crime can include (but are not limited to):
- You were a passive participant or played a minor role in the crime,
- The victim was the aggressor,
- The crime resulted from great provocation that is unlikely to recur,
- You participated in the crime because of coercion or duress,
- You used caution to avoid harming people or property,
- You mistakenly believed your conduct was legal,
- You were motivated by a desire to provide necessities for your family or yourself, and/or
- The victim was your spouse, intimate cohabitant, or the parent of your child AND such person repeatedly physically, sexually or psychologically abused you.5
Mitigating factors related to you might include (but are not limited to):
- You have no prior – or only an insignificant – criminal record,
- You were suffering from a mental or physical condition that significantly reduced your culpability for the crime,
- You voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process,
- You made restitution to the victim, and/or
- Your prior performance on probation or parole was satisfactory.6
California Penal Code 1170(b) currently permits judges to choose whether to punish you with the low, high or middle sentence. Alternatively, a judge may sentence you to any other remedy permitted by law, including:
- a fine,
- felony (formal) probation, or
- a suspended sentence.7
Judges are to use their “sound discretion” to select the sentence that best serves the interests of justice.8 In doing so, they are to be guided by whether there are circumstances in aggravation or mitigation of the crime.
Starting on January 1, 2017, however, judges will be obligated to impose the middle term unless there are circumstances in aggravation or mitigation.9
Before your sentencing hearing, the following people are allowed to submit statements to the judge regarding factors in aggravation or mitigation:
- You (the defendant),
- The prosecutor, and
- The victim (or the family of the victim, if the victim is deceased).
The judge may also consider:
- the record in your case,
- your probation officer's report,
- any other reports (such as court-ordered mental health examinations, and
- any further evidence introduced at the sentencing hearing.10
Call us for help...
For more information about California's sentencing laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's criminal laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.
- California Penal Code 461: Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years.
- California Health and Safety Code 11358 HS: Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
See also California Penal Code 1170(h)(1) PC: Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
- Judicial Council of California 2014 California Rules of Court, Rule 4.421(a).
- California Rule of Court 4.421(b).
- California Rule of Court 4.423(a).
- California Rule of Court 4.423(b).
- California Penal Code 1170(a)(3) PC.
- California Penal Code 1170(b) PC: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court… The court shall select the term which, in the court's discretion, best serves the interests of justice.
- See California Penal Code 1170(i)PC: This section shall remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.
See also revised text of Penal Code 1170 PC, which provides, in relevant part:
(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances inaggravation or mitigation of the crime… In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.
(i) This section shall become operative on January 1, 2017.
- Penal Code 1170(b) PC: …At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing…
See also Penal Code 1203.03(a)PC: In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.