AB-124 SENTENCING AND CHILD SEX CRIMES

Identity as a victim of sexual violence is hard.  But, internalizing as a victim of sexual violence and then being accused of sexual violence can be even harder.  If you are accused/charged for a sex crime, and experienced childhood trauma/have a mental illness as listed below, AB 124 may be beneficial when negotiating a plea deal.  

California Assembly Bill (AB) 124 amended section 1170 of the Penal Code.  As relevant, it now reads: 

“Unless the court finds that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: 

The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.”  (See Penal Code section 1170, subds. (b)(6) & (b)(6)(A).”  

What this means is that if the defendant can show to the court that he/she was a direct victim of childhood abuse, neglect, exploitation, or sexual violence, the court is required to impose a mitigated sentence.  

For example, let’s say you are being charged with PC 288 – Lewd Acts with a Minor Child Under 14.  PC 288(a) is a felony.  It has a mitigated sentence of 3 years, a mid term sentence of 6 years, and an aggravated sentence of 8 years in prison.  Now, when you were a child, you were sexually assaulted by your father at age 5.  You experienced sexual trauma that carried into your adulthood.  With the law under AB 124, your attorney should have a mitigation report prepared to share with the court and DA that you should not get the mid-term of 6 years or the aggravated term of 8 years, but the mitigated term of 3 years due to your documented childhood trauma.  

There is the possibility that the court may sentence you to the mid or aggravated sentence if the aggravating circumstances outweigh the mitigating circumstances – but, that is why it is key to have an attorney familiar with the rules and court to make these arguments for you.  

Also note – there additionally is a presumption for the lower term when someone has mental illness when committing a sex crime.  What one may have to do is get a psychological evaluation to determine what the contributing mental illness is when the sex crime was committed.  It is incredibly important to investigate and understand the accused’s full background and history to ensure all mitigating factors are explored.  An experienced attorney will have the right questions to ask to get the correct information from you.  Old school reports, previous diagnosis, and doctor notes are helpful in gathering information for building the mitigation report.  When one’s exposure is higher, say, life in prison or 30 years, arguing for the mitigated sentence is key particularly when one has the trauma and illness described in this article. 

Lastly, AB 124 is retroactive.  What that means is that it can be used not only now, but for people who have already been sentenced.  If you were sentenced to a sex crime but your attorney never brought up the fact that you are either a survivor of sexual abuse, have sexual trauma in the past, have a mental illness, etc. – you may be able to bring that up now and be re-sentenced to something lower.  Arguing AB-124 may help you reduce a very harsh sentence and or argue for a better one.  It is time to act now and contact an attorney who can help you find relief.