California

Criminal Procedure

Criminal Procedure

Rule 4.423 – Circumstances in mitigation

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

(a)Facts 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 facts concerning the abuse do not amount to a defense.
(b)Facts relating to the defendant

Facts rekiting to the defendant include the fact 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.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 1991, January 1, 2007, and May 23, 2007.)

(c)Other factors

Any other factors statutorily declared to be circumstances in mitigation or that reasonably relate to the defendant or the circumstances under which the crime was committed.

(Subd (c) adopted effective January 1, 2018.)

Cal. R. Ct. 4.423

Rule 4.423 amended effective January 1, 2018; amended effective January 1, 2017; adopted as rule 423 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, July 1, 1993, January 1, 2007, and May 23, 2007.

Advisory Committee Comment

See comment to rule 4.421.

This rule applies both to mitigation for purposes of section 1170(b) and to circumstances in mitigation justifying the court in striking the additional punishment provided for an enhancement.

Some listed circumstances can never apply to certain enhancements; for example, “the amounts taken were deliberately small” can never apply to an excessive taking under section 12022.6, and “no harm was done” can never apply to infliction of great bodily injury under section 12022.7. In any case, only the facts present may be considered for their possible effect in mitigation.

See also rule 4.409; only relevant criteria need be considered.

Since only the fact of restitution is considered relevant to mitigation, no reference to the defendant’s financial ability is needed. The omission of a comparable factor from rule 4.421 as a circumstance in aggravation is deliberate.