Can a jury consider child endangerment, witness intimidation and weapon possession while in custody as aggravating circumstances?

California, United States of America


The following excerpt is from People v. Prieto, 133 Cal.Rptr.2d 18, 30 Cal.4th 226, 66 P.3d 1123 (Cal. 2003):

According to defendant, the trial court erred by instructing the jury that it could consider three unadjudicated crimeschild endangerment ( 273a), witness intimidation ( 136.1) and weapon possession while in custody ( 4574)as aggravating circumstances under section 190.3, factor (b). Citing People v. Cooper, supra, 53 Cal.3d at page 841, 281 Cal.Rptr. 90, 809 P.2d 865, defendant contends these three offenses do not constitute aggravating circumstances, because they do not inherently involve force or violence. (See 190.3, factor (b) [evidence of unadjudicated criminal activity is admissible as an aggravating circumstance only if it "involved the use or attempted use of force or violence or the express or implied threat to use force or violence"].) Defendant is wrong.

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