Aggravating Factors and Enhancements Distinguished for Domestic Violence Purposes

At the Orange County Law Office of David P Schwarz we have litigated numerous Domestic violence cases involving aggravating factors and enhancements to the sentencing of the client. Please contact our office at 949 735 9266 or via the web for a consultation. We can also be reached by email at

A domestic violence attorney will explain to you the difference between Enhancements and aggravating factors that, under certain circumstances, may also be used to increase the length of a prison sentence.

Unlike an enhancement, which must be pleaded and then proved beyond a reasonable doubt to a jury, an aggravating factor is any factor that need not be pleaded and may be considered by a court in its broad discretion in imposing one of three authorized terms of imprisonment.

A domestic violence lawyer will explain to their client that they should keep in mind that this rule assumes the applicability of at least one of the two exceptions to a defendant's Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum.

First, a fact admitted by a defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict. Second, the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.

Otherwise, it appears that a trial court may rely on aggravating circumstances in imposing an upper term only if the defendant is eligible for that term by virtue of facts that have been established according to Sixth Amendment requirements (i.e., either admitted by the defendant or found true by a jury beyond a reasonable doubt).

At the Orange County Law Office of David P Schwarz we would explain to our client the effects based on appeal of a criminal conviction that is incorrect. That it would be prejudicial error to impose upper term jail time on a conviction or plea because appellate court could not conclude jury would have found circumstances true beyond reasonable doubt. In any event, the term selected still must be explained on the record and is subject to review on appeal.

A Domestic violence lawyer will explain to their defendant clients that there is a split of authority about whether an upper sentence term can be imposed on the basis of misdemeanor convictions that were not raised by the court as a ground for imposing the upper term. Ddefendant's unmentioned prior misdemeanor convictions qualified as aggravating circumstance that justified imposition of upper term, with reliance on court-found facts of "planning and sophistication" and defendant's unmentioned prior misdemeanor convictions was error requiring remand for resentencing.

Prior juvenile adjudications, like adult convictions, can be used to increase the term of a sentence without the need for a jury to find the adjudication beyond a reasonable doubt. No constitutional ban on using juvenile adjudication as strike prior).

To better understand the distinction between enhancements and aggravating factors and their possible interplay in a particular case, consider the situation in which a defendant has feloniously assaulted a victim and the charging document includes an enhancement for the infliction of great bodily injury. The enhancement would be pleaded and proved at a preliminary examination. If the magistrate issued a holding order, the enhancement would need to be proved before a jury beyond a reasonable doubt for the additional term to be imposed. A possible aggravating factor in this case is that during the course of the assault charged, the defendant demonstrated a callous and demeaning attitude toward the victim and evidence to this effect was produced at trial. If this factor was raised in connection with sentencing, the defendant would have the right to have the trial court state it on the record and have the court make findings. Use of aggravating factors simply involves the exercise of traditional sentencing discretion by the trial court.

At the Orange County Law Office of David P Schwarz we aggressively advocate for our domestic violence defendants. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at

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