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Sex or Pornography Addiction as Mitigating Sentencing Factor

Posted by Dmitry Gorin | Mar 21, 2022

An Overview Of Criminal Sentencing in California

California Penal Code 667.71 PC imposes a sentence of 25-years-to-life in prison for habitual sex offenders. It's defined as anyone convicted of certain sex crimes and then convicted again later of the same sex crime or another qualifying sex offense.

California Penal Code 667.71 - Habitual Sex Offender

The PC 667.71 habitual sexual offender law applies to serious sexual-related offenses such as Penal Code 261 PC rape, Penal Code 288 PC lewd acts with a minor, Penal Code 286 PC sodomy, and Penal Code 287 PC oral copulation with a minor.

When an individual is convicted of a crime in California, state law describes the maximum possible penalty for the given criminal offense. Judges determine an appropriate sentence based on the facts and circumstances of the case.

If an individual is convicted of a crime, they will be interviewed and evaluated to help the judge decide what sentence is appropriate. The prosecutor and defense can present evidence for the judge to consider before imposing a sentence at a sentencing hearing.

Evidence that can increase an individual's sentence is an aggravating factor, while evidence that can support leniency is a mitigating factor. In this article by our Los Angeles criminal defense lawyers, we will look at the law below.

What is a Habitual Sex Offender in California?

Penal Code 667.71 describes a habitual sex offender as “someone who has been previously convicted of one or more of the offenses listed in subsection (c) and convicted in the new proceeding of one of those crimes. The offenses listed include the following:

  • Penal Code 261 PC – rape,
  • Penal Code 261.4 PC – rape in concert,
  • Penal Code 269 PC – aggravated sexual assault of a child,
  • Penal Code 286 PC – sodomy,
  • Penal Code 287 – oral copulation with a minor,
  • Penal Code 289 PC – foreign object penetration,
  • Penal Code 288 PC - lewd or lascivious acts,
  • Penal Code 207 PC – kidnapping,
  • Penal Code 208 PC – kidnapping a minor under 14,
  • Penal Code 209 PC – aggravated kidnapping for sex.

Mitigation Explained

A mitigating factor can be presented to the court to get a more lenient sentence. The judge's role is to assess each case individually, so an appropriate and just penalty is imposed. If two people commit the same crime separately, the judge will consider several factors regarding the individuals, facts, and circumstances before issuing a sentence.

If the individuals had different levels of culpability or have different levels of criminal experience, then the judge will likely impose other sentences on them.

A first-time offender will often be treated differently by a court than someone with several previous convictions. This makes it even more essential to present mitigating factors to the judge if this is not your first time facing a criminal charge. In California, the factors to be considered for mitigation are listed in two groups: factors relating to the crime and the defendant. They are explained below:

Mitigating Factors Related to the Crime

Factors relating to the crime are found within the California Rules of Court at Rule 4.423(a), and they include:

  • Evidence defendant was a minor actor or passive participant in the crime;
  • The victim in the case was an aggressor, provoker, initiated or willingly participated in the incident;
  • The crime occurred because of a circumstance that is unlikely to repeat;
  • Defendant was coerced, induced, or committed the conduct under duress;
  • The defendant was careful and exercised caution during the incident;
  • The defendant believed they had a legal claim during the incident;
  • The defendant committed the offense out of necessity; and
  • The defendant suffered abuse by the victim of the crime.

Mitigating Factors Related to the Defendant

Factors relating to the defendant are found within the California Rules of Court at 4.423(b), and they include:

  • The defendant is a first-time offender or has a minimal prior criminal record;
  • The defendant suffered from a mental or physical condition that contributed to the offense;
  • The defendant cooperated and took responsibility early in the prosecution of the case;
  • The defendant would be granted probation if eligible;
  • The defendant paid any owed restitution to the victim;
  • The defendant's prior history on probation or parole is evidence that they would be successful again if given the opportunity.

The court is also permitted to review any other factors for mitigation allowed by statute or that reasonably relate to the case under Rule 4.423(c). The defendant's responsibility is to demonstrate how a factor reasonably relates to the case and why it should be considered a mitigating factor if it is not explicitly listed under the rule.

How a Sex or Pornography Addiction Can Be a Mitigating Factor

If a case is related to a criminal sexual offense, then evidence of a sex or pornography addiction may be considered as a mitigating factor by a judge.

This type of mitigating factor generally relates to the defendant's mental health. Simply stating that a defendant has sex or pornography addiction is likely not enough to make a difference at sentencing, so it is essential for any discussion about addiction to be accompanied by an evaluation and plan by a mental health professional.

How a Sex or Pornography Addiction Can Be a Mitigating Factor

If the defendant shows a proactive approach towards their rehabilitation, a judge may properly consider this a mitigating factor. Proactive measures include taking part in counseling, taking prescribed medications, and showing a willingness to follow the court's orders.

A court can also view actions from addiction as an aggravating factor at sentencing if the defendant has repeatedly failed to get their addiction under control. Anyone accused under Penal Code 667.71 of being a habitual sex offender can challenge the allegations. We might be able to convince the district attorney to reduce or even dismiss a charge.

Common defenses include showing no probable cause, the confession was coerced, or you were wrongfully arrested and falsely accused. Under California law, a police officer must have probable cause to detain or arrest someone. In other words, there has to be a reasonable belief that someone committed a crime based on circumstances.

If you were detained or arrested without probable cause, any evidence gathered could be excluded from the case by the judge. Often, this will force the prosecution to reduce or dismiss the charges. Eisner Gorin LLP is located in Los Angeles County, and we represent people across Southern California. You can contact us for an initial case review at (310) 328-3776 or fill out our contact form.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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