35+ Years Criminal Defense Experience in California


Aggravating and Mitigating Factors California Felony Prison Terms

How does the judge decide what my sentence will be?

If you have been convicted of a felony, the judge must determine whether to sentence you to the upper, middle or lower prison term specified in the criminal statute (PC 1170(b)). The judge may consider and weigh circumstances of aggravation or mitigation when deciding what your sentence length should be, in addition to any other factors the judge finds relevant (JCR 4.420). If there are no aggravating or mitigating factors present in your case, or if the judge believes the aggravating and mitigating factors are equally balanced, the judge must impose the middle term sentence (PC 1170(b)).

Aggravating Factors (JCR 4.421)

The judge will weigh the mitigating and aggravating terms in order to determine your prison sentence.
The mitigated and aggravated factors in your case will determine whether you’ll be sentenced to the upper, middle, or lower prison term.

If the judge finds that the aggravating factors outweigh the mitigating factors in your case, the judge will impose the high term sentence. According to California Rules of Court Rule 4.421 aggravating circumstances include that:

  • 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;
  • You were armed with or used a weapon at the time of the commission of the crime;
  • The victim was particularly vulnerable;
  • You induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in the commission;
  • You induced a minor to commit or assist in the commission of the crime
  • You threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
  • You were 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;
  • You took advantage of a position of trust or confidence to commit the offense; and
  • Whether the crime constitutes a hate crime under section 422.55 and no hate crime enhancements under section 422.75 are imposed and the crime is not subject to sentencing under section 1170.8.
  • The judge may also look to aggravating factors that relate to your prior conduct or criminal history, including whether:
  • You engaged in violent conduct that indicates a serious danger to society;
  • You have prior convictions as an adult or sustained petitions in juvenile delinquency proceedings of increasing seriousness;
  • You have served a prior prison term;
  • You were on probation or parole when the crime was committed; and
  • Your prior performance on probation or parole was unsatisfactory.


Mitigating Factors (JCR 4.423)

If the judge finds that the mitigating factors outweigh the aggravating factors in your case, the judge will impose the low term sentence. According to California Rules of Court Rule 4.423 aggravating circumstances include that:

  • You were 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;
  • You participated in the crime under circumstances of coercion or duress, or your criminal conduct was partially excusable for some other reason not amounting to a defense;
  • You, with no apparent predisposition to do so, were induced by others to participate in the crime;
  • You 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;
  • You believed that you had a claim or right to the property taken, or for other reasons mistakenly believed that your conduct was legal;
  • You were motivated by a desire to provide necessities for your family or self; and
  • You 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 your spouse, intimate cohabitant, or parent of your child; and the abuse does not amount to a defense.


The judge may also look to aggravating factors that relate to your prior conduct or criminal history, including whether:

  • You have no prior record, or have an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
  • You were suffering from a mental or physical condition that significantly reduced culpability for the crime;
  • You voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
  • You are ineligible for probation and but for that ineligibility would have been granted probation;
  • You made restitution to the victim; and
  • Your prior performance on probation or parole was satisfactory.


Statement of Mitigation and the Probation Report (CPC 1203)

If you are convicted of a felony and are eligible for probation the court will refer the matter to a probation officer to review both the circumstances of the case and your criminal history. The court will consider the probation officer’s report when balancing any aggravating or mitigating circumstances. The report must be submitted to both the prosecution and your defense attorney at least nine days prior to the sentencing hearing so that both parties have an opportunity to review the report. After both the prosecution and your defense attorney have a chance to review the probation report they may each submit a statement to the court to consider at sentencing.

The experienced criminal defense attorneys at Wallin & Klarich can prepare an extensive Statement of Mitigation for the court to consider at sentencing. The statement in Mitigation will explain to the court why a probationary sentence, as opposed to a prison sentence, would be appropriate in your case. The Statement of Mitigation will also present information about any mitigating factors and why the judge, if he or she decides to deny probation, should impose a mitigated prison sentence.

It is important to note that the prosecution may also file a Statement of Aggravation that explains the prosecution’s argument as to why the court should not impose a mitigated sentence. For this reason, it is important that you hire an experienced defense attorney that will be able to present a legally accurate and well-supported Statement of Mitigation.

Let our Felony Attorneys at Wallin & Klarich Help You Today

Our felony lawyers at Wallin & Klarich explain how the aggravating and mitigating circumstances of your case may impact the term of your prison sentence if convicted of a felony in California.
Speak to us today for immediate help. 1(877) 4-NO-JAIL (466-5245).

The attorneys at Wallin & Klarich have over 30 years of experience successfully defending clients who are facing felony charges. If you are facing the possibility of a felony conviction we are here to help. We will vigorously fight for you in your case to achieve the best possible result in your case and help you avoid jail time. We have offices in Orange County, Los Angeles, Torrance, Sherman OaksSan Diego, Riverside, San Bernardino, Ventura, Victorville and West Covina.

Call 1(877) 4-NO-JAIL (466-5245) or fill out our confidential form.

We will get through this together.

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