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Domestic Violence Sentencing Goals & Considerations
If one is asked to prepare a sentencing brief in a domestic violence case, perhaps after a trial wherein the jury convicted the client or prior to the client pleading in the open to the judge, the following sentencing goals and specific considerations should be addressed to the judge based on the facts of the case.
First, one should address the sentencing goals in general for a domestic violence case, which are:
- Stop the violence;
- Protect the victim, the children and other family members;
- Protect the general public (see California Rules of Court, Rule 4.410(a)(1));
- Hold the batterer accountable for the violent conduct (see California Rules of Court, Rule 4.410(a)(2));
- Provide restitution to the victim (see California Rules of Court, Rule 4.410(a)(6));
- Rehabilitate the batterer (see California Rules of Court, Rule 4.410(a)(3));
- Uphold the legislative intent to treat domestic violence as a serious crime.
In determining an appropriate sentence for a defendant, a court should engage in “an individualized consideration of the offense, the offender, and the public interest.” People v. Sandoval (2007) 41 Cal. 4th 825, 847, 62 Cal. Rptr. 3d 588, 605.
Enhanced sentences for domestic violence offenders have been upheld on appeal in the following situations related to the circumstances of the crime.
- Viciousness and callousness (California Rules of Court, Rule 4.421(a)(1); People v. Nevill (1985) 167 Cal. App. 3d 198, 205-206, 212 Cal. Rptr. 898 (defendant repeatedly fired semi-automatic rifle at his helpless wife at point-blank range in front of their 16-month-old child);
- Use of weapons (California Rules of Court, Rule 4.421(a)(2); People v. Betterton (1979) 93 Cal. App. 3d 406, 415, 155 Cal. Rptr. 537; see People v. Burton (2006) 143 Cal. App. 4th 447, 457-458, 49 Cal Rptr. 334 (use of gloves with sharp edges qualifies as dangerous weapon under Penal Code § 12022(b)(1) for purposes of enhancing corporal injury and torture convictions);
- Victim particularly vulnerable (California Rules of Court, Rule 4.421(a)(3); People v. Hoover (2000) 77 Cal. App. 4th 1020, 1031, 92 Cal. Rptr. 2d 208 (aggravated assault victim was particularly vulnerable because she was in a state of “acute alcohol intoxication” and because incident occurred in motel room); People v. Nevill, supra, 167 Cal. App. 3d at 204 – 205 (defendant exploited wife’s fear for welfare of her child in luring her away from work, then fired “fusillade” of bullets into unsuspecting, unarmed, physically and mentally abused woman in bedroom of her home as she sat on edge of her bed, and continued to blast away as she lay helpless after initial shots);
- Planning or sophistication indicating premeditation (California Rules of Court, Rule 4.421(a)(8); People v. Kozel (1982) 133 Cal. App. 3d 507, 517, 539-540, 184 Cal. Rptr. 208 (husband drove with pistol to estranged wife’s home, then her boyfriend’s home, reflecting planning);
- Defendant took advantage of a position of trust or confidence to commit the offense (California Rules of Court, Rule 4.421(a)(11); People v. Hoover, supra, 77 Cal. App. 4th at 1031 (defendant exploited his intimate knowledge of the victim to induce her to come to a motel room where she would be vulnerable to attack).
Factors related to defendant primarily concerns prior convictions (California Rules of Court, Rule 4.421(b)(2); People v. Arviso (1988) 201 Cal. App. 3d 1055, 1059, 247 Cal. Rptr. 559 (prior convictions were “numerous and of increasing seriousness”).
Other factors that certainly may increase the sentence are an enhancement for great bodily injury under circumstances involving domestic violence (Penal Code § 12022.7(e), an on-bail enhancement and the commission of a serious felony after a prior conviction for a serious felony (Penal Code § 667(a) (dissuading a victim under Penal Code § 136.1 is a serious felony under Penal Code § 1192.7(c)(37) that may be used as an enhancement under Penal Code § 667(a)).
As a defense attorney, in writing a sentencing brief, it would be prudent to address each of these factors, particularly to show they do not apply if they do not apply, to show an enhanced sentence is not supported.
For more information about sentencing in a domestic violence case, please click on the following articles:
