The first question almost every defendant asks, understandably, is how much jail or prison time can be imposed. Naturally, if you’re convicted, the best possible outcome is no jail time at all, but that’s not always realistic.
Determining how much jail or prison time you face if convicted of a California criminal offense is a complex task. Under California law, each criminal offense has a lower, a middle, and upper prison term. The judge is required by law to impose the middle term unless the judge determines that “aggravating circumstances” call for more serious punishment.
Aggravating factors in a California criminal case can be related to either the offense or the defendant. The following are the offense-related aggravating factors that can be applied to a case:
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 crime involved a large quantity of contraband;
The defendant took advantage of a position of trust or confidence to commit the offense.
These are the factors related to the defendant that can aggravate an offense:
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 has served a prior prison term;
The defendant was on probation or parole when the crime was committed; and
The defendant’s prior performance on probation or parole was unsatisfactory.
In drug cases "weight enhancements" can add the following prison terms to a sentence:
More than one kilogram (about 2.2 pounds) – an additional three years in prison
More than four kilograms – an additional five years in prison
More than 10 kilograms – an additional 10 years in prison
More than 20 kilograms – an additional 15 years in prison
More than 40 kilograms – an additional 20 years in prison
More than 80 kilograms – an additional 25 years in prison
Your attorney will try to uncover mitigating factors in your case. If shown, these factors may reduce your jail or prison time. The following mitigating factors related to the offense can be considered.
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
These are mitigating factors related to the defendant:
The defendant has no prior record, or has an insignificant record of criminal conduct, considering the date 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 or parole was satisfactory
Aggravating and mitigating factors can have a tremendous influence on the sentence in a criminal case. It’s absolutely imperative to hire an attorney for the best chance of a good outcome. Your attorney will bring as many mitigating factors as possible to the judge’s attention and attempt to minimize the aggravating factors.