What is a statement in mitigation?

A statement in mitigation is provided to the judge after a person is found guilty to explain mitigating circumstances.

A party may submit a statement in mitigation. (See Pen. Code, § 1170, subd. (b).)

“The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.”

(Pen. Code, § 1170, subd. (a)(1) [bold added].)  “General objectives of sentencing include: … Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;” (Cal. Rules of Court, Rule 4.410, subd. (a)(3).)

“Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.”

(Cal. Rules of Court, Rule 4.410, subd. (b) [bold added].)

“Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.

(a)Facts relating to the crime Facts relating to the crime include:

(1)  The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;

(2)  Whether the defendant was armed with or used a weapon;

(3)  The vulnerability of the victim;

(4)  Whether the defendant inflicted physical or emotional injury;

(5)  The degree of monetary loss to the victim;

(6)  Whether the defendant was an active or a passive participant;

(7)  Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;

(8)  Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and

(9)  Whether the defendant took advantage of a position of trust or confidence to commit the crime.” (Cal. Rules of Court, Rule 4.414, subd. (a).)

“(b)Facts relating to the defendant Facts relating to the defendant include:

(1)  Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;

(2)  Prior performance and present status on probation, mandatory supervision, postrelease community supervision, or parole ;

(3)  Willingness to comply with the terms of probation;

(4)  Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;

(5)  The likely effect of imprisonment on the defendant and his or her dependents;

(6)  The adverse collateral consequences on the defendant’s life resulting from the felony conviction;

(7)  Whether the defendant is remorseful; and

(8)  The likelihood that if not imprisoned the defendant will be a danger to others.” (Cal Rules of Court, Rule 4.414, subd. (b).)

“Circumstances in mitigation include factors relating to the crime and factors relating to the defendant.

(a)Factors relating to the crime Factors relating to the crime include that:

(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; and the abuse does not amount to a defense.” (Cal. Rules of Court, Rule 4.423, subd. (a).)

“(b)Factors relating to the defendant Factors relating to the defendant include that:

(1)  The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;

(2)  The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;

(3)  The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;

(4)  The defendant is ineligible for probation and but for that ineligibility would have been granted probation;

(5)  The defendant made restitution to the victim; and

(6)  The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was satisfactory. (Cal. Rules of Court, Rule 4.423, subd. (b).)

“(c)Other factors Any other factors statutorily declared to be circumstances in mitigation or which reasonably relate to the defendant or the circumstances under which the crime was committed.” (Cal. Rules of Court, Rule 4.423, subd. (c).)

“(a)Factors relating to the crime Factors relating to the crime, whether or not charged or chargeable as enhancements include that:

(1)  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;

(2)  The defendant was armed with or used a weapon at the time of the commission of the crime;

(3)  The victim was particularly vulnerable;

(4)  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;

(5)  The defendant induced a minor to commit or assist in the commission of the crime;

(6)  The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;

(7)  The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;

(8)  The manner in which the crime was carried out indicates planning, sophistication, or professionalism;

(9)  The crime involved an attempted or actual taking or damage of great monetary value;

(10)  The crime involved a large quantity of contraband; and

(11)  The defendant took advantage of a position of trust or confidence to commit the offense.

(12)  The crime constitutes a hate crime under section 422.55 and:

(A)  No hate crime enhancements under section 422.75 are imposed; and

(B)  The crime is not subject to sentencing under section 1170.8.

 (b)Factors relating to the defendant Factors relating to the defendant include that:

(1)  The defendant has engaged in violent conduct that indicates a serious danger to society;

(2)  The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;

(3)  The defendant has served a prior term in prison or county jail under section 1170(h);

(4)  The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and

(5)  The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory.

(c)Other factors Any other factors statutorily declared to be circumstances in aggravation or which reasonably relate to the defendant or the circumstances under which the crime was committed.” (Cal. Rules of Court, Rule 4.421.)