Can a fact that is not an element of the crime be used to aggravate a sentence?

California, United States of America


The following excerpt is from People v. Rajskup, F070819 (Cal. App. 2016):

"'A fact that is an element of the crime shall not be used to impose the upper term.' However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) "The essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110.)

Other Questions


Does a defendant who committed a crime under a different sentencing scheme that existed at the time he committed the crime be sentenced to a different sentence? (California, United States of America)
In what circumstances will a jury consider other crimes as aggravating factors in sentencing a convicted murderer's sentence? (California, United States of America)
When a crime does not qualify as a lesser included offense because all of its elements are not subsumed within the elements of the charged crime or the charging allegations? (California, United States of America)
Does a judge have to resent the sentence of an adult convicted of a sexual assault for using an element of the crime as an aggravating factor? (California, United States of America)
Is a fact that is an element of the crime as an aggravating factor in determining the severity of the sentence? (California, United States of America)
Can a defendant who served a prior prison sentence for non-sexually violent crimes receive additional enhancements to his sentence under section 12022.6 of the California Criminal Code when his sentence is not yet final? (California, United States of America)
Does a jury have to consider a defendant's age at the time of the crime as an aggravating factor in their sentencing? (California, United States of America)
What is the role of a court in sentencing a defendant to a sentence that is within the legislatively determined limits of a criminal sentence? (California, United States of America)
If a jury finds that a person sentenced to death for a crime committed while on death row has not been found guilty of the crime, does this constitute a miscarriage of justice? (California, United States of America)
In what circumstances will a jury find that a prosecutor's comment that a victim consented to the crime was not an aggravating factor under section 190.3 aggravation be harmless? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.