PC 288 | Sentencing & Punishment


Sentencing and Punishment for Lewd and Lascivious Acts with a child – PC 288

Have you been charged with lewd and lascivious acts with a minor in California? The state of California takes punishment for sex offenses seriously, especially sex offenses committed against children. If you are charged with committing a lewd or lascivious acts with a child under California Penal Code 288 you face the possibility of a lengthy prison sentence and having to register as a sex offender for the rest of your life. For this reason, it is vital that you contact an experienced criminal defense attorney to help you avoid these consequences.

Sentencing and Punishment for Violation of Penal Code 288 May Vary Upon the Following:

 

    1. The child was under the age of 14 when lewd act occurred – Penal Code 288 (a);

 

    1. The lewd act committed upon the child was by means of force, violence, duress, menace, or fear – Penal Code 288 (b)(1); and/or

 

  1. The child was between the ages of 14 and 15, and the offender is at least 10 years older than the child – Penal Code 288 (c)(1)


Sentence for Lewd or Lascivious Acts with a Child – Penal Code 288 (a)

California Penal Code section 288 (a) is a felony. If you are convicted of lascivious acts with a child under 288(a) PC you face imprisonment in the state prison for three, six, or eight years. In some cases a person convicted of PC 288(a) may be eligible for probation. If the court finds that you are eligible for probation, the court may instead sentence you to probation instead of a prison term. If you are eligible for probation the court will look to the factors listed under California Rules of Court 4.414 to determine if you should be sentenced to probation. The court may choose to impose a jail sentence as one of the conditions of your probation.

If the court denies you probation then the court must determine if you should be sentenced to three, six, or eight years in prison. In making this decision the court must review the aggravating and mitigating factors of your case. (CRC 4.421 and 4.423). California Rules of Court 4.421 lists the aggravating factors the court must consider, while California Rules of Court 4.423 lists the mitigating factors the court must consider. After reviewing the aggravating and mitigating factors of your case the court may impose the upper, middle or lower sentence. (CRC 4.420). If the aggravating factors of your crime outweigh the mitigating factors you will likely be sentenced to the upper prison term, which under California Penal Code section 288(a) is eight years. If the court believes that the mitigating factors outweigh the aggravating factors then the court would impose a three year prison sentence. If the court believes that the aggravating and mitigating factors are equal in weight the court is required to impose the mid term of six years in prison.

Further, if you are convicted under California Penal Code section 288(a) the court may impose a fine of $10,000 in addition to a prison sentence. The court will look to the surrounding circumstances of the crime to determine if a fine should be imposed, including the seriousness of the offense as well as  whether you received any economic gain as a result of the crime.

 

Sentencing for Lewd or Lascivious Acts with a Child using Force, Threat, or Duress PC 288 (b)(1)

If you are convicted of using force, threat, or duress to commit a lewd or lascivious act with a minor, the sentence is even more severe. A violation of California Penal Code section 288(b) is a felony. A violation of California Penal Code section 288(b) is punished by imprisonment in the state prison for five, eight, or ten years.

Have you been charged with lewd or lascivious acts upon a minor under PC 288? Let us help you now.

Under 288 (b) the court must sentence you to prison time. Call us for a free consultation 877-4-NO-JAIL

If you are convicted of a violation of Penal Code Section 288(b) you will not be eligible for probation. The court must sentence you to prison for one of the three terms outlined above. To determine whether you should be sentenced to five, eight, or ten years the court will weigh the aggravating factors listed under CRC 4.421 against the mitigating factors listed under CRC 4.423. The court will then decide whether to sentence you to the upper, middle or lower term.

A conviction under California Penal Code section 288(b) is considered a violent sex crime. (CRC 4.426 and CPC 667.6). If you are charged pursuant to California Penal Code 288(b) for multiple offenses the court will look to the requirements listed in CRC 4.426 to determine if you should be sentenced to a full, separate and consecutive prison term for each sex offense.

The court may also require that you pay a $10,000 fine, depending on the circumstances and seriousness of the crime you committed.


Sentencing for Lewd or Lascivious Acts with a Minor Aged 14 or 15 PC 288 (c)(1)

If you are found to be guilty of committing lewd or lascivious acts with a minor aged 14 or 15, and you were ten years older than the minor at the time of the offense you can also be subject to a prison sentence. California Penal Code section 288(c) is a “wobbler,” which means it can be charged as a misdemeanor or a felony. If you are charged with a misdemeanor you face up to one year in the county jail, but if you are charged with a felony you can be sentenced to imprisonment in the state prison for one, two, or three years. To decide whether you should be sentenced to one, two, or three years, the court will weigh the aggravating and mitigating factors listed in CRC 4.421 and CRC 4.423.

A felony conviction under California Penal Code section 288.5 is also considered a violent sex crime, according to California Penal Code 667.6. For that reason, if you are convicted of multiple violent sex crimes the court will look to the requirements in CRC 4.426 to determine if you should be sentenced to a full, separate and consecutive prison term for each individual offense.

Terms of Probation for Violation or Penal Code 288

If the court grants you probation for a felony offense under California Penal Code section 288 the length of that probation will range from three to five years. If you are placed on probation you will be required to comply with the terms of your probation for the entire probationary period. Common probation terms include:

    1. You must meet with your probation officer on a regular basis
    2. You must not violate any other laws
    3. You must pay a fine
    4. You must attend counseling
    5. You must register as a sex offender per Penal Code Section 290
    6. You must not be in the presence of a minor unless supervised by another approved adult
    7. You must submit your person and property to search and seizure upon the request of a police or probation officer
    8. You must serve a jail sentence in county jail as a condition of your probation

The court may impose any other conditions as additional terms of your probation so long as they are related to the crime for which you were convicted.

If you do not comply with the terms of your probation you may be required to attend a probation violation hearing. At the hearing, the judge will evaluate the evidence against you to determine whether you did violate the terms of your probation. If you are found guilty of violating your probation the judge may impose new probation terms including serving a jail sentence, extend the term of your probation or revoke your probation and sentence you to one of the three prison terms allowed by law.

Sex Offender Registration PC 290

If you are convicted for PC 288 (lewd and lascivious acts with a minor, you will be required to register as a sex offender for the rest of your life.

Sex offender registration will follow you the rest of your life. Call us at 877-4-NO-JAIL to talk about your specific case.

If you are convicted of committing any lewd or lascivious act upon a minor under California Penal Code section 288, you will be required to register as a sex offender for the rest of your life. (CPC 290). The duty to register as a sex offender is perhaps one of the most devastating penalties you face if convicted of a sex crime in California. If you are registered as a sex offender it can affect both your current and future employment. You will be restricted from living in certain areas. In addition, if you are registered as a sex offender your name, address, and information about the crime you were convicted of will be placed on the internet and be available for the public to view.

Rules the Court Must Follow When Sentencing You if You Are Convicted of Child Molestation

The California Rules of Court describe how the court must decide what your punishment should be if you are convicted of child molestation under California Penal Code section 288. For this reason, it is important that you and your attorney understand the California Rules of Court. The Rules describe the factors the court must consider when deciding whether you should be sentenced to probation or go to state prison. (CRC 4.414).

If the court denies you probation, the California Rules of Court provide factors and criteria for the judge to consider when determining which of three possible jail sentences he or she should impose. (CRC 4.421 and CRC 4.423).Below you will find a list of all of the California Rules of Court that relate to California Penal Code section 288. In addition, for your reference, you can access all of the California Rules of Court here.

Wallin & Klarich Can Help

An experienced attorney can help you with your case, call 877-4-NO-JAIL for a free phone consultation.

If you are charged with child molestation it is important that you contact an experienced criminal defense attorney to help you fight the charges and keep your name off of the registered sex offender list. The attorneys at Wallin & Klarich have over 30 years of experience successfully defending clients accused of sex offenses. Wallin & Klarich understands that allegations related to sex offenses, including lewd and lascivious acts with a minor, can have a devastating impact on your life.

Call Wallin & Klarich today to discuss your options under the circumstances of your case at 1-877-4-NO-JAIL (1-877-466-5245). We have offices located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. We will get through this together.


California Sentencing Rules Pertaining to Penal Code 288.

California Rules of Court, Title Four, Division Five. Sentencing – Determinate Sentencing Law.

  1. Rule 4.414. Criteria affecting probation
  2. Rule 4.420. Selection of term of imprisonment
  3. Rule 4.421. Circumstances in aggravation
  4. Rule 4.423. Circumstances in mitigation
  5. Rule 4.426. Violent sex crimes

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Rule 4.414. Criteria affecting probation

Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.

(a) Facts relating to the crime

Facts relating to the crime include:

(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;

(2) Whether the defendant was armed with or used a weapon;

(3) The vulnerability of the victim;

(4) Whether the defendant inflicted physical or emotional injury;

(5) The degree of monetary loss to the victim;

(6) Whether the defendant was an active or a passive participant;

(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;

(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and

(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.

(Subd (a) amended effective January 1, 2007; previously amended effective January 1, 1991.)

(b) Facts relating to the defendant

Facts relating to the defendant include:

(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;

(2) Prior performance on probation or parole and present probation or parole status;

(3) Willingness to comply with the terms of probation;

(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;

(5) The likely effect of imprisonment on the defendant and his or her dependents;

(6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;

(7) Whether the defendant is remorseful; and

(8) The likelihood that if not imprisoned the defendant will be a danger to others.

(Subd (b) amended effective January 1, 2007; previously amended effective January 1, 1991, and July 1, 2003.)

Rule 4.414 amended effective January 1, 2007; adopted as rule 414 effective July 1, 1977; previously amended effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003.

Advisory Committee Comment

The sentencing judge’s discretion to grant probation is unaffected by the Uniform Determinate Sentencing Act (§ 1170(a)(3)).

The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community. Each criterion points to evidence that the likelihood of success is great or small. A single criterion will rarely be determinative; in most cases, the sentencing judge will have to balance favorable and unfavorable facts.

Under criteria (b)(3) and (b)(4), it is appropriate to consider the defendant’s expressions of willingness to comply and his or her apparent sincerity, and whether the defendant’s home and work environment and primary associates will be supportive of the defendant’s efforts to comply with the terms of probation, among other factors.
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Rule 4.420. Selection of term of imprisonment

(a) When a sentence of imprisonment is imposed, or the execution of a sentence of imprisonment is ordered suspended, the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170(b) and these rules.

(Subd (a) amended effective May 23, 2007; previously amended effective July 28, 1977, January 1, 1991, and January 1, 2007.)

(b) In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.

(Subd (b) amended effective January 1, 2008; previously amended effective July 28, 1977, January 1, 1991, January 1, 2007, and May 23, 2007.)

(c) To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.

(Subd (c) adopted effective January 1, 1991.)

(d) A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.

(Subd (d) amended effective January 1, 2008; adopted effective January 1, 1991; previously amended effective January 1, 2007, and May 23, 2007.)

(e) The reasons for selecting one of the three authorized prison terms referred to in section 1170(b) must be stated orally on the record.

(Subd (e) amended effective May 23, 2007; previously amended and relettered effective January 1, 1991; previously amended effective July 28, 1977, and January 1, 2007.)

Rule 4.420 amended effective January 1, 2008; adopted as rule 439 effective July 1, 1977; previously amended and renumbered as rule 420 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1, 2007, and May 23, 2007.

Advisory Committee Comment

The determinate sentencing law authorizes the court to select any of the three possible prison terms even though neither party has requested a particular term by formal motion or informal argument. Section 1170(b) vests the court with discretion to impose any of the three authorized prison terms and requires that the court state on the record the reasons for imposing that term.

It is not clear whether the reasons stated by the judge for selecting a particular term qualify as “facts” for the purposes of the rule prohibition on dual use of facts. Until the issue is clarified, judges should avoid the use of reasons that may constitute an impermissible dual use of facts. For example, the court is not permitted to use a reason to impose a greater term if that reason also is either (1) the same as an enhancement that will be imposed, or (2) an element of the crime. The court should not use the same reason to impose a consecutive sentence as to impose an upper term of imprisonment. (People v. Avalos (1984) 37 Cal.3d 216, 233.) It is not improper to use the same reason to deny probation and to impose the upper term. (People v. Bowen (1992) 11 Cal.App.4th 102, 106.)

The rule makes it clear that a fact charged and found as an enhancement may, in the alternative, be used as a factor in aggravation.

People v. Riolo (1983) 33 Cal.3d 223, 227 (and note 5 on 227) held that section 1170.1(a) does not require the judgment to state the base term (upper, middle, or lower) and enhancements, computed independently, on counts that are subject to automatic reduction under the one-third formula of section 1170.1(a).

Even when sentencing is under section 1170.1, however, it is essential to determine the base term and specific enhancements for each count independently, in order to know which is the principal term count. The principal term count must be determined before any calculation is made using the one-third formula for subordinate terms.

In addition, the base term (upper, middle, or lower) for each count must be determined to arrive at an informed decision whether to make terms consecutive or concurrent; and the base term for each count must be stated in the judgment when sentences are concurrent or are fully consecutive (i.e., not subject to the one-third rule of section 1170.1(a)).

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Rule 4.421. Circumstances in aggravation

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.

(a) Factors relating to the crime

Factors relating to the crime, whether or not charged or chargeable as enhancements include that:

(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;

(2) The defendant was armed with or used a weapon at the time of the commission of the crime;

(3) The victim was particularly vulnerable;

(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;

(5) The defendant induced a minor to commit or assist in the commission of the crime;

(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;

(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;

(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;

(9) The crime involved an attempted or actual taking or damage of great monetary value;

(10) The crime involved a large quantity of contraband; and

(11) The defendant took advantage of a position of trust or confidence to commit the offense.

(12) The crime constitutes a hate crime under section 422.55 and:

(A) No hate crime enhancements under section 422.75 are imposed; and

(B) The crime is not subject to sentencing under section 1170.8.

(Subd (a) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)

(b) Factors relating to the defendant

Factors relating to the defendant include that:

(1) The defendant has engaged in violent conduct that indicates a serious danger to society;

(2) The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;

(3) The defendant has served a prior prison term;

(4) The defendant was on probation or parole when the crime was committed; and

(5) The defendant’s prior performance on probation or parole was unsatisfactory.

(Subd (b) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)

(c) Other factors

Any other factors statutorily declared to be circumstances in aggravation.

(Subd (c) amended effective May 23, 2007; adopted effective January 1, 1991; previously amended effective January 1, 2007.)

Rule 4.421 amended effective May 23, 2007; adopted as rule 421 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, and January 1, 2007.

Advisory Committee Comment

Circumstances in aggravation may justify imposition of the upper of three possible prison terms. (Section 1170(b).)

The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. The rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements.

Facts concerning the defendant’s prior record and personal history may be considered. By providing that the defendant’s prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases. This resolves whatever ambiguity may arise from the phrase “circumstances in aggravation . . . of the crime.” The phrase “circumstances in aggravation or mitigation of the crime” necessarily alludes to extrinsic facts.

Refusal to consider the personal characteristics of the defendant in imposing sentence would also raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425. In In re Rodriguez the court released petitioner from further incarceration because “[I]t appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at 655.) (Footnote omitted, emphasis added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

The scope of “circumstances in aggravation or mitigation” under section 1170(b) is, therefore, coextensive with the scope of inquiry under the similar phrase in section 1203.

The 1990 amendments to this rule and the comment included the deletion of most section numbers. These changes recognize changing statutory section numbers and the fact that there are numerous additional code sections related to the rule, including numerous statutory enhancements enacted since the rule was originally adopted.

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion; cases in which that possible circumstance in aggravation was relied on were frequently reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 1170.7, 1170.71, 1170.75, 1170.8, and 1170.85.

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Rule 4.423. Circumstances in mitigation

Circumstances in mitigation include factors relating to the crime and factors relating to the defendant.

(a) Factors relating to the crime

Factors relating to the crime include that:

(1) The defendant was a passive participant or played a minor role in the crime;

(2) The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;

(3) The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;

(4) The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;

(5) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;

(6) The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;

(7) The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;

(8) The defendant was motivated by a desire to provide necessities for his or her family or self; and

(9) The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant’s spouse, intimate cohabitant, or parent of the defendant’s child; and the abuse does not amount to a defense.

(Subd (a) amended effective May 23, 2007; previously amended effective January 1, 1991, July 1, 1993, and January 1, 2007.)

(b) Factors relating to the defendant

Factors relating to the defendant include that:

(1) The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;

(2) The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;

(3) The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;

(4) The defendant is ineligible for probation and but for that ineligibility would have been granted probation;

(5) The defendant made restitution to the victim; and

(6) The defendant’s prior performance on probation or parole was satisfactory.

(Subd (b) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)

Rule 4.423 amended effective May 23, 2007; adopted as rule 423 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, July 1, 1993, and January 1, 2007.

Advisory Committee Comment

See comment to rule 4.421.

This rule applies both to mitigation for purposes of motions under section 1170(b) and to circumstances in mitigation justifying the court in striking the additional punishment provided for an enhancement.

Some listed circumstances can never apply to certain enhancements; for example, “the amounts taken were deliberately small” can never apply to an excessive taking under section 12022.6, and “no harm was done” can never apply to infliction of great bodily injury under section 12022.7. In any case, only the facts present may be considered for their possible effect in mitigation.

See also rule 4.409; only relevant criteria need be considered.

Since only the fact of restitution is considered relevant to mitigation, no reference to the defendant’s financial ability is needed. The omission of a comparable factor from rule 4.421 as a circumstance in aggravation is deliberate.

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Rule 4.426. Violent sex crimes

(a) Multiple violent sex crimes

When a defendant has been convicted of multiple violent sex offenses as defined in section 667.6, the sentencing judge must determine whether the crimes involved separate victims or the same victim on separate occasions.

(1) Different victims

If the crimes were committed against different victims, a full, separate, and consecutive term must be imposed for a violent sex crime as to each victim, under section 667.6(d).

(2) Same victim, separate occasions

If the crimes were committed against a single victim, the sentencing judge must determine whether the crimes were committed on separate occasions. In determining whether there were separate occasions, the sentencing judge must consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect on his or her actions and nevertheless resumed sexually assaultive behavior. A full, separate, and consecutive term must be imposed for each violent sex offense committed on a separate occasion under section 667.6(d).

(Subd (a) amended effective January 1, 2007.)

(b) Same victim, same occasion; other crimes

If the defendant has been convicted of multiple crimes, including at least one violent sex crime, as defined in section 667.6, or if there have been multiple violent sex crimes against a single victim on the same occasion and the sentencing court has decided to impose consecutive sentences, the sentencing judge must then determine whether to impose a full, separate, and consecutive sentence under section 667.6(c) for the violent sex crime or crimes instead of including the violent sex crimes in the computation of the principal and subordinate terms under section 1170.1(a). A decision to impose a fully consecutive sentence under section 667.6(c) is an additional sentence choice that requires a statement of reasons separate from those given for consecutive sentences, but which may repeat the same reasons. The sentencing judge is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 and 4.423, as well as any other reasonably related criteria as provided in rule 4.408.

(Subd (b) amended effective January 1, 2007; previously amended effective July 1, 2003.)

Rule 4.426 amended effective January 1, 2007; adopted as rule 426 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003.

Advisory Committee Comment

Section 667.6(d) requires a full, separate, and consecutive term for each of the enumerated violent sex crimes that involve separate victims, or the same victim on separate occasions. Therefore, if there were separate victims or the court found that there were separate occasions, no other reasons are required.

If there have been multiple convictions involving at least one of the enumerated violent sex crimes, the court may impose a full, separate, and consecutive term for each violent sex crime under section 667.6(c). (See People v. Coleman (1989) 48 Cal.3d 112, 161.) A fully consecutive sentence under section 667.6(c) is a sentence choice, which requires a statement of reasons. The court may not use the same fact to impose a sentence under section 667.6(c) that was used to impose an upper term. (See rule 4.425(b).) If the court selects the upper term, imposes consecutive sentences, and uses section 667.6(c), the record must reflect three sentencing choices with three separate statements of reasons, but the same reason may be used for sentencing under section 667.6(c) and to impose consecutive sentences. (See People v. Belmontes (1983) 34 Cal.3d 335, 347–349.)

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California Penal Code 288

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