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CAL HS 11366

CAL HS 11366.5 A

Cultivation of Marijuana

DUI Drugs (DUID)

Marijuana Distribution

Marijuana DUI

Mitigating Factors in Drug Cases

Possession of a Controlled Substance

Possession of Marijuana

Possession With Intent to Sell

Present Where Drugs Are Used

Proposition 47

Under the Influence of Drugs

 

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FACTORS OF AGGRAVATION & MITIGATION IN DRUG CASES

Under Californiaís determinate sentencing law, certain serious criminal offenses are punishable by a range of sentences known as the lower term, middle term, and the upper term. The sentence that is imposed is determined by issues such as aggravating and mitigating factors Ė information that prompts the court to treat you more harshly or more leniently.

In addition, certain aggravating factors can be charged as sentencing enhancements that carry additional punishment. A prosecutor must prove a sentencing enhancement beyond a reasonable doubt in order for the additional punishment to be imposed. If you are not convicted of the underlying offense, you cannot be convicted of or punished for a sentencing enhancement. Certain factors, such as prior convictions, cannot be used as both aggravating factors and sentencing enhancements.

Obviously, mitigating and aggravating factors can be confusing. Please speak with a skilled attorney like Ben Mironer to help explain the factors that may seriously affect your case.

The following aggravating factors related to the offense can impact sentencing in a California criminal 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 accused that can aggravate a California criminal offense:

  • The defendant has engaged in violent conduct that indicates a serious danger to society;
  • The defendantís 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 defendantís prior performance on probation or parole was unsatisfactory.
Like the aggravating factors applied in California criminal cases, mitigating factors, which typically prompt the court to treat you with greater leniency, are also divided into factors related to the offense and factors related to the defendant.

The following mitigating factors related to the offense can be considered in a California criminal case:

  • 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 defendantís spouse, intimate cohabitant, or parent of the defendantís child; and the abuse does not amount to a defense.

These are mitigating factors related to the accused:

  • 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 defendantís prior performance on probation or parole was satisfactory.

 

                     
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