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Felony Sentencing Guidelines in California Explained by Criminal Attorneys

 

Felony Sentencing Guidelines in California: What is a Felony?

Crimes in California are divided into three categories: Infractions, Misdemeanors, and Felonies. If you are charged with an infraction, you will typically be required to pay a fine and will not be punished further. Misdemeanors are defined as crimes that are punishable by incarceration in county jail for not more than 364 days. Felonies are crimes that are punishable by up to three years in county jail, by a state prison sentence up to life (with or without possibility of parole) or by the death penalty.

So, what penalties do you face if you are convicted of a felony offense? The answer is complex. Let our experienced felony sentencing attorneys at Wallin & Klarich explain how sentencing works.

Felony Sentencing Guidelines for California: Felony Punishment

If you are charged with a felony, the punishment can be severe and life altering. In California, a felony crime is punishable by imprisonment in the county jail, state prison or, in some cases, by the death penalty.

The felony attorneys at Wallin & Klarich can assist you through the complex legal process and may be able to help you reduce your felony sentence or gain a suspended sentence so that you can serve formal probation instead of spending time in jail or prison.

Determining Your Felony Sentence

If you plead guilty to a felony in a California court, you will be sentenced according to the terms of your plea bargain. If a jury found you guilty after a trial, the judge must sentence you to the punishment prescribed according to applicable California state law. However, that state law is not as simple as looking up the punishment for a particular crime and sentencing you.

So, how does a judge determine your felony sentence? This process is a lot more complicated than it sounds.

Felony Suspended Sentence: Am I Eligible for Felony Probation? (JCR 4.414)

felony sentencing guidelines
Felony sentencing guidelines allow a judge to sentence you to custody time or probation.

California law permits the judge, in some cases, to give you what is known as a “suspended sentence” (also referred to as “formal probation” or “felony probation”) in lieu of sentencing you to serve a jail sentence or a prison term. If the court grants felony probation in your case, your sentence in jail or prison is “suspended” pending your successful completion of the term of probation you receive.

If the judge is not allowed to grant you probation according to California law, the judge must sentence you to one of three terms of imprisonment under California’s Determinate Sentencing Law (California Penal Code Section 1170), unless the penalty for the crime for which you have been convicted carries a life sentence (meaning you could serve up to the rest of your life in prison) or the death penalty.

Who Qualifies for Felony Probation?

The court at the time of sentencing must review California Rules of Court Rule 4.414 to determine whether you will be granted probation or sentenced to prison or county jail after a felony conviction.

Whether you qualify for felony probation will depend on the court reviewing the following factors pertaining to your case:

  • The nature of the offense – How serious was the offense for which you have been convicted? Factors a judge will look at include:
    • Whether you were armed with or used a weapon
    • The vulnerability of the victim
    • Whether you inflicted physical or emotional injury upon the victim
    • The degree of monetary loss to the victim
    • Whether you were an active or a passive participant (i.e. were you coerced?)
    • Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur
    • Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on your part, and
    • Whether you took advantage of a position of trust or confidence to commit the crime.
  • The nature of the offender, including:
    • 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
    • Prior performance on probation or parole, and present probation or parole status
    • Willingness to comply with the terms of probation
    • Ability to comply with reasonable terms of probation as indicated by the your 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
    • The likely effect of imprisonment on you and your dependents
    • The adverse collateral consequences on your life resulting from the felony conviction
    • Whether you are remorseful, and
    • The likelihood that if not imprisoned you will be a danger to others

Felony Commitments after Realignment

Realignment refers to the Criminal Justice Realignment Act of 2011, which made vast changes to the sentencing of persons convicted of felony offenses in the state of California.

Realignment did not change the rules regarding felony probation eligibility. Instead, realignment made changes that come into play after the court decides you should not be granted probation.

Under the realignment legislation, if you have been charged with a crime that is punished pursuant to California Penal Code Section 1170(h), you must be sentenced to county jail if probation is denied. However, you must be sentenced to state prison under California Penal Code Section 1170(h)(3) if you:

  • Have been convicted of a felony and have been denied probation, or
  • Have any prior convictions for serious or violent felonies or crimes that require sex offender registration

The realignment legislation also made state prison time the default sentence for more than 70 California crimes. The default sentence in state prison is followed unless a different punishment is prescribed by law for those 70 crimes.

Consecutive vs. Concurrent Felony Sentences (JCR 4.425)

If you are convicted of more than one crime, the court can decide to sentence you to either consecutive or concurrent sentences.

felony sentencing guidelines in California
Felony sentencing guidelines in California may require you to serve time consecutively or concurrently.

Concurrent sentences are sentences served at the same time. This means that you begin serving time for both sentences at the same time, and you will be released from custody when the longer of the two sentence terms ends. For instance, if your concurrent sentences carry a prison term of three and six years respectively, you will serve six years in prison (minus credits you receive for good behavior).

Consecutive sentences are served individually. This means that when one sentence ends, the other begins. You will not be released until both sentences are served. So, if your consecutive sentences carry three and six year prison terms respectively, you will be required to serve nine years in prison (minus any good behavior credit you receive).

Under California Rules of Court Rule 4.425(a), the court will look to many different factors to determine if you should be sentenced to concurrent or consecutive sentences, including the type of crimes you committed, any prior convictions you have, and any other aggravating or mitigating circumstances.

Factors that the court will consider when determining whether you will serve a concurrent or consecutive sentence include the circumstances of the case, such as:

  • Whether your crimes were committed separately
  • Whether your crimes involved separate acts of violence or threats of violence, and
  • Whether your crimes were committed at different times or places

The court will also consider facts about you, including:

  • Any history of violent conduct that indicates a serious danger to society
  • Any prior convictions and the nature of those convictions
  • Whether you have served a prior prison term
  • Whether you were on probation or parole when the crime was committed, and
  • Your performance on probation or parole

In addition, judges will consider any aggravating or mitigating circumstances when deciding whether to hand down a consecutive or concurrent sentence (JCR 4.425(b)).

The court also must consider California Penal Code Section 654, which states that if one act violates multiple laws, you can be convicted of multiple crimes but can only be subject to one sentence for that act (JCR 4.424).

California Felony Sentencing Options (PC 1170(b))

felony sentence
The judge must weigh the aggravating and mitigating circumstances in your case before determining a prison term.

If you are convicted of a felony and the judge denies you probation, California Penal Code Section 1170(b) lays out three possible sentencing terms for a judge to consider. The judge will have to determine which sentence is appropriate based on the circumstances of your case.

The three possible sentencing terms for felonies include an upper term, a middle term and a lower term. The upper term is the most severe sentence and the lower term carries the least custody time.

The judge will look at aggravating and mitigating circumstances when deciding which term to sentence you to. If the judge finds that the aggravating factors outweigh the mitigating factors, you will be sentenced to the upper term. Similarly, if the judge finds that the mitigating factors outweigh the aggravating factors, you will be sentenced to the lower term.

If there are no aggravating or mitigating factors present in your case or if the judge believes the aggravating and mitigating factors are equally balanced, the judge must impose the middle term sentence (PC 1170(b)).

So, what are some aggravating and mitigating factors that the judge will consider when determining your felony sentence?

Aggravating Factors (JCR 4.421)

Under California Rules of Court Rule 4.421 (also called the Judicial Council Rules), aggravating circumstances the court may look to when determining your sentence term include that:

  • 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
  • You were armed with or used a weapon during the commission of the crime
  • The victim was particularly vulnerable
  • You induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in the commission
  • You induced a minor to commit or assist in the commission of the crime
  • You threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process
  • You were convicted of other crimes for which consecutive sentences could have been imposed, but for which concurrent sentences are being imposed
  • The manner in which the crime was carried out indicates planning, sophistication or professionalism
  • The crime involved an attempted or actual taking or damage of great monetary value
  • The crime involved a large quantity of contraband
  • You took advantage of a position of trust or confidence to commit the offense, and
  • The crime constitutes a hate crime under California Penal Code Section 422.55 and no hate crime sentence enhancements (California Penal Code Section 422.75) are imposed, and the crime is not subject to sentencing under California Penal Code Section 1170.8

The judge may also look to aggravating factors that relate to your prior conduct or criminal history, including whether:

  • You engaged in violent conduct that indicates a serious danger to society
  • You have prior convictions as an adult or sustained petitions in juvenile delinquency proceedings of increasing seriousness
  • You have served a prior prison term
  • You were on probation or parole when the crime was committed, and
  • Your prior performance on probation or parole was unsatisfactory

Mitigating Factors (JCR 4.423)

If the judge finds that the mitigating factors outweigh the aggravating factors in your case, the judge will impose the low term sentence. According to California Rules of Court Rule 4.423, mitigating factors the judge will consider when determining your felony sentence include that:

  • You were a passive participant or played a minor role in the crime
  • The victim was an initiator of, willing participant in, or aggressor or provoker of the incident
  • The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur
  • You participated in the crime under circumstances of coercion or duress, or your criminal conduct was partially excusable for some other reason not amounting to a defense
  • You, with no apparent predisposition to do so, were induced by others to participate in the crime
  • You exercised caution to avoid harm to persons or damage to property, the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim
  • You believed that you had a claim or right to the property taken, or for other reasons mistakenly believed that your conduct was legal
  • You were motivated by a desire to provide necessities for your family or self, and
  • You 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 your spouse, intimate cohabitant, or parent of your child, and the abuse does not amount to a defense.

The judge may also look to mitigating factors that relate to your prior conduct or criminal history, including whether:

  • You have no prior record or have an insignificant record of criminal conduct, considering the recency and frequency of prior crimes
  • You were suffering from a mental or physical condition that significantly reduced culpability for the crime
  • You voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process
  • You are ineligible for probation and but for that ineligibility would have been granted probation
  • You made restitution to the victim, and
  • Your prior performance on probation or parole was satisfactory

Statement of Mitigation and the Probation Report (CPC 1203)

If you are convicted of a felony and are eligible for probation, the court will refer the matter to a probation officer to review both the circumstances of your case and your criminal history. The court will consider the probation officer’s report when balancing any aggravating or mitigating circumstances.

felony sentencing attorney
An experienced felony sentencing attorney can help you prepare a Statement of Mitigation.

The report must be submitted to both the prosecution and your felony sentencing attorney at least nine days prior to the sentencing hearing so that both parties have an opportunity to review the report. After both the prosecution and your criminal defense attorney have a chance to review the probation report, they may each submit a statement to the court to consider at sentencing.

The experienced felony attorneys at Wallin & Klarich can prepare an extensive Statement of Mitigation for the court to consider at sentencing. The Statement of Mitigation will explain to the court why a probationary sentence, as opposed to a prison sentence, would be appropriate in your case. The Statement of Mitigation will also present information about any mitigating factors and why the judge, if he or she decides to deny probation, should impose a mitigated prison sentence.

It is important to note that the prosecution may also file a Statement of Aggravation that explains the prosecution’s argument as to why the court should not impose a mitigated sentence. For this reason, it is important that you hire an experienced criminal defense attorney that will be able to present a legally accurate and well-supported Statement of Mitigation.

What Happens at Felony Sentencing Hearings?

If you are convicted of a felony offense in California, the judge must decide what sentence you should receive. The judge is guided by the Judicial Council Rules that relate to felony sentencing. Your felony criminal lawyer should be familiar with all these rules.

For your review, we have included these rules below:

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

  1. Rule 4.401. Authority
  2. Rule 4.403. Application
  3. Rule 4.405. Definitions
  4. Rule 4.406. Reasons
  5. Rule 4.408. Criteria not exclusive; sequence not significant
  6. Rule 4.409. Consideration of criteria
  7. Rule 4.410. General objectives in sentencing
  8. Rule 4.411. Presentence investigations and reports
  9. Rule 4.411.5. Probation officer’s presentence investigation report
  10. Rule 4.412. Reasons—agreement to punishment as an adequate reason and as abandonment of certain claims
  11. Rule 4.413. Probation eligibility when probation is limited
  12. Rule 4.414. Criteria affecting probation
  13. Rule 4.420. Selection of term of imprisonment
  14. Rule 4.421. Circumstances in aggravation
  15. Rule 4.423. Circumstances in mitigation
  16. Rule 4.424. Consideration of applicability of section 654
  17. Rule 4.425. Criteria affecting concurrent or consecutive sentences
  18. Rule 4.426. Violent sex crimes
  19. Rule 4.427. Hate crimes
  20. Rule 4.428. Criteria affecting imposition of enhancements
  21. Rule 4.431. Proceedings at sentencing to be reported
  22. Rule 4.433. Matters to be considered at time set for sentencing
  23. Rule 4.435. Sentencing on revocation of probation
  24. Rule 4.437. Statements in aggravation and mitigation
  25. Rule 4.447. Limitations on enhancements
  26. Rule 4.451. Sentence consecutive to indeterminate term or to term in other jurisdiction
  27. Rule 4.452. Determinate sentence consecutive to prior determinate sentence
  28. Rule 4.453. Commitments to nonpenal institutions
  29. Rule 4.470. Notification of appeal rights in felony cases [Repealed]
  30. Rule 4.472. Determination of presentence custody time credit
  31. Rule 4.480. Judge’s statement under section 1203.01

Supervised Release for Felony Offenses

If you are convicted of a felony that must be punished by imprisonment in the county jail or state prison, supervision may follow your release. This can include parole or post-release community supervision (also referred to as “PRCS”).

If you served any sentence in state prison, you will be subject to parole upon release. If you served a sentence in county jail, you may be subject to PRCS after you are released.

If you are sentenced to serve a term in the county jail, realignment also provides the court another alternative. The court may subject you to serve out the whole sentence in the county jail, but may also give you what is known as a “split sentence,” which requires you spend a portion of your sentence in jail and the other portion under supervised probation.

Post Release Community Suspension (PRCS)

Post-release community suspension is part of the realignment legislation. PRCS is a process that allows you to be supervised by a local supervision agency rather than the state parole system. In other words, PRCS modifies which agency will supervise you upon your release from county jail.

PRCS also includes some benefits to you under supervised release. Under PRCS, you:

  • May not be subject to more than three years of supervision
  • May be eligible for early discharge after six months, and
  • Will be discharged from supervision after 12 months provided you do not violate the community supervision or return to custody

Felony Sentencing Guidelines FAQ

Now that you understand how the complex felony sentencing system works in California, there are probably some questions you have about these details.

Our experienced felony sentencing lawyers have been successfully defending clients facing felony charges for more than 35 years. Here are some of the most common questions we’ve received about felony sentencing along with our answers:

  1. If I am sent to county jail, do I have to serve my entire felony sentence before I am released?

No. Under the terms of realignment, you may qualify for a split sentence if you are sentenced to county jail. If this happens to you, the judge has the option to split your sentence between some custody time and release to the community under mandatory supervision.

  1. If the court imposes consecutive sentences for my felony conviction, do I have to serve the entire term for each sentence before I am released?

There are some crimes where you will have to serve a full consecutive sentence minus any good time credit you receive. Other crimes require that you serve a full term sentence on the primary charge minus any good time or work credit, but allow you to serve only one-third of the midterm sentence on the other crimes (PC 1170.1(a)). This concept is best described through examples.

If you are convicted of two separate counts of rape, the court can impose a sentence of eight years for both counts. You will be eligible to gain 15 percent of good time credit. You then would be required to serve 85 percent of the eight-year sentence for both counts. In other words, you would serve 85 percent of the total sentence of 16 years. This means you would end up serving a total of 13.6 years.

In another example, let’s say you are convicted of felony grand theft and the court imposes a mid-term sentence of two years in county jail. You can receive up to 50 percent of good time credit, which means you will end up serving a sentence of one year for the grand theft conviction. If the court sentences you to a consecutive sentence for another charge related to the same grand theft crime, then you would be sentenced to serve only one-third of the midterm two-year sentence. In this case, one-third of the two-year sentence equals eight months. Therefore, your total sentence would equal one year (for the felony grand theft conviction) and eight months (for the second conviction related to the grand theft crime).

  1. What is realignment?

Realignment was a law passed by the California legislature in 2011 to help reduce prison overcrowding. This was in response to a U.S. Supreme Court decision mandating that California reduce its prison population.

As a result of realignment, many convicted felons now serve their sentences in county jail or on supervised release rather than in state prison.

  1. Do all felony offenses qualify for realignment?

No. Both the nature of the offense and the nature of the offender come into play when the court considers punishment. Realignment laws in California specifically exclude certain crimes and certain offenders. Call our skilled felony sentencing attorneys today to learn if you or your loved one may qualify for realignment.

  1. How long will I be on post-release community supervision under the realignment law?

Each case is different, but you will be on post-release community supervision for no more than three years. As long as you are not returned to custody for any reason during the first 12 months of your supervision, your PRCS will likely last much less than three years. In fact, you may qualify for early discharge within six-months.

  1. Do I need to hire a criminal defense lawyer if I am facing a felony charge in California?

Felony charges carry significant and serious consequences. As you can see, the criminal justice system for felony offenses in California is extremely complex. That is why you should not hesitate to contact an experienced criminal defense attorney if you are accused of a felony in California.

The lawyers at Wallin & Klarich are willing to assist you to avoid the serious consequences and gain the best possible outcome in your case. Our felony attorneys are committed to vigorously advocating for you in your felony case.

How Can I Find a Felony Sentencing Attorney Near Me?

felony sentencing attorneys
Our felony sentencing attorneys can help you now!

If you or someone you love has been charged with a felony, it is vital that you contact an experienced felony attorney immediately to assist you. The legal process can be complex and difficult to understand, and your entire future is at stake. You need someone with experience to guide you through this difficult process and advocate zealously for you in court.

Our skilled and knowledgeable felony attorneys at Wallin & Klarich have more than 35 years of experience successfully defending clients accused of felony crimes. We have the knowledge and know-how necessary to fight for you to gain the best possible result in your case.

We have offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, our experienced felony lawyers are available to help near you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation regarding your case. We will get through this together.


 

California Judicial Council Rules

Rule 4.401. Authority

The rules in this division are adopted under Penal Code section 1170.3 and under the authority granted to the Judicial Council by the Constitution, article VI, section 6, to adopt rules for court administration, practice, and procedure.

Rule 4.401 amended effective January 1, 2007; adopted as rule 401 effective July 1, 1977; previously renumbered effective January 1, 2001.

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Rule 4.403. Application

These rules apply only to criminal cases in which the defendant is convicted of one or more offenses punishable as a felony by a determinate sentence imposed under Penal Code part 2, title 7, chapter 4.5 (commencing with section 1170).

Rule 4.403 amended effective January 1, 2007; adopted as rule 403 effective July 1, 1977; previously amended and renumbered effective January 1, 2001; previously amended effective July 1, 2003.

Advisory Committee Comment

The sentencing rules do not apply to offenses carrying a life term or other indeterminate sentences for which sentence is imposed under section 1168(b).

The operative portions of section 1170 deal exclusively with prison sentences; and the mandate to the Judicial Council in section 1170.3 is limited to criteria affecting the length of prison sentences and the grant or denial of probation. Criteria dealing with jail sentences, fines, or jail time and fines as conditions of probation, would substantially exceed the mandate of the legislation.

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Rule 4.405. Definitions

As used in this division, unless the context otherwise requires:

(1) “These rules” means the rules in this division.

(2) “Base term” is the determinate prison term selected from among the three possible terms prescribed by statute or the determinate prison term prescribed by law if a range of three possible terms is not prescribed.

(3) “Enhancement” means an additional term of imprisonment added to the base term.

(4) “Aggravation” or “circumstances in aggravation” means factors that the court may consider in its broad discretion in imposing one of the three authorized prison terms referred to in section 1170(b).

(5) “Mitigation” or “circumstances in mitigation” means factors that the court may consider in its broad discretion in imposing one of the three authorized prison terms referred to in section 1170(b) or factors that may justify the court in striking the additional punishment for an enhancement when the court has discretion to do so.

(6) “Sentence choice” means the selection of any disposition of the case that does not amount to a dismissal, acquittal, or grant of a new trial.

(7) “Section” means a section of the Penal Code.

(8) “Imprisonment” means confinement in a state prison.

(9) “Charged” means charged in the indictment or information.

(10) “Found” means admitted by the defendant or found to be true by the trier of fact upon trial.

Rule 4.405 amended effective May 23, 2007; adopted as rule 405 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1, 1991, July 1, 2003, and January 1, 2007.

Advisory Committee Comment

“Base term” is the term of imprisonment selected under section 1170(b) from the three possible terms. (See section 1170(a)(3); People v. Scott (1994) 9 Cal.4th 331, 349.) Following the United States Supreme Court decision in Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856.], the Legislature amended the determinate sentencing law. (See Sen. Bill 40; Stats. 2007, ch. 3.) To comply with those changes, these rules were also amended. In light of those amendments, for clarity, the phrase “base term” in (4) and (5) was replaced with “one of the three authorized prison terms.” It is an open question whether the definitions in (4) and (5) apply to enhancements for which the statute provides for three possible terms. The Legislature in SB 40 amended section 1170(b) but did not modify sections 1170.1(d), 12022.2(a), 12022.3(b), or any other section providing for an enhancement with three possible terms. The latter sections provide that “the court shall impose the middle term unless there are circumstances in aggravation or mitigation.” (See, e.g., section 1170.1(d).) It is possible, although there are no cases addressing the point, that this enhancement triad with the presumptive imposition of the middle term runs afoul of Cunningham. Because of this open question, rule 4.428(b) was deleted.

“Enhancement.” The facts giving rise to an enhancement, the requirements for pleading and proving those facts, and the court’s authority to strike the additional term are prescribed by statutes. See, for example, sections 667.5 (prior prison terms), 12022 (being armed with a firearm or using a deadly weapon), 12022.5 (using a firearm), 12022.6 (excessive taking or damage), 12022.7 (great bodily injury), 1170.1(e) (pleading and proof), and 1385(c) (authority to strike the additional punishment). Note: A consecutive sentence is not an enhancement. (See section 1170.1(a); People v. Tassell (1984) 36 Cal.3d 77, 90 [overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401].)

“Sentence choice.” Section 1170(c) requires the judge to state reasons for the sentence choice. This general requirement is discussed in rule 4.406.

“Imprisonment” is distinguished from confinement in other types of facilities.

“Charged” and “found.” Statutes require that the facts giving rise to all enhancements be charged and found. See section 1170.1(e).

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Rule 4.406. Reasons

(a) How given

If the sentencing judge is required to give reasons for a sentence choice, the judge must state in simple language the primary factor or factors that support the exercise of discretion or, if applicable, state that the judge has no discretion. The statement need not be in the language of these rules. It must be delivered orally on the record.

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

(b) When reasons required

Sentence choices that generally require a statement of a reason include:

(1) Granting probation;

(2) Imposing a prison sentence and thereby denying probation;

(3) Declining to commit to the Department of Corrections and Rehabilitation, Division of Juvenile Justice an eligible juvenile found amenable for treatment;

(4) Selecting one of the three authorized prison terms referred to in section 1170(b) for either an offense or an enhancement;

(5) Imposing consecutive sentences;

(6) Imposing full consecutive sentences under section 667.6(c) rather than consecutive terms under section 1170.1(a), when the court has that choice;

(7) Striking the punishment for an enhancement;

(8) Waiving a restitution fine;

(9) Not committing an eligible defendant to the California Rehabilitation Center; and

(10) Striking an enhancement or prior conviction allegation under section 1385(a).

(Subd (b) amended effective May 23, 2007; previously amended effective January 1, 2001, July 1, 2003, January 1, 2006, and January 1, 2007.)

Rule 4.406 amended effective May 23, 2007; adopted as rule 406 effective January 1, 1991; previously amended and renumbered effective January 1, 2001; previously amended effective July 1, 2003, January 1, 2006, and January 1, 2007.

Advisory Committee Comment

This rule is not intended to expand the statutory requirements for giving reasons, and is not an independent interpretation of the statutory requirements.

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Rule 4.408. Criteria not exclusive; sequence not significant

(a) The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge.

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

(b) The order in which criteria are listed does not indicate their relative weight or importance.

Rule 4.408 amended effective January 1, 2007; adopted as rule 408 effective July 1, 1977; previously renumbered effective January 1, 2001.

Advisory Committee Comment

Enumerations of criteria in these rules are not exclusive. The variety of circumstances presented in felony cases is so great that no listing of criteria could claim to be all-inclusive. (Cf., Evid. Code, § 351.)

The relative significance of various criteria will vary from case to case. This, like the question of applicability of various criteria, will be decided by the sentencing judge.

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Rule 4.409. Consideration of criteria

Relevant criteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise.

Rule 4.409 amended effective January 1, 2007; adopted as rule 409 effective July 1, 1977; previously renumbered effective January 1, 2001.

Advisory Committee Comment

Relevant criteria are those applicable to the facts in the record of the case; not all criteria will be relevant to each case. The judge’s duty is similar to the duty to consider the probation officer’s report. Section 1203.

In deeming the sentencing judge to have considered relevant criteria, the rule applies the presumption of Evidence Code section 664 that official duty has been regularly performed. See People v. Moran (1970) 1 Cal.3d 755 (trial court presumed to have considered referring eligible defendant to California Youth Authority in absence of any showing to the contrary, citing Evidence Code section 664).

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Rule 4.410. General objectives in sentencing

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime; and

(7) Achieving uniformity in sentencing.

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

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case.

(Subd (b) lettered effective July 1, 2003; adopted as part of unlettered subd effective July 1, 1977; former subd (b) amended and relettered as part of subd (a) effective July 1, 2003.)

Rule 4.410 amended effective January 1, 2007; adopted as rule 410 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003.

Advisory Committee Comment

Statutory expressions of policy include:

Welfare and Institutions Code section 1820 et seq., which provides partnership funding for county juvenile ranches, camps, or forestry camps.

Section 1203(b)(3), which requires that eligible defendants be considered for probation and authorizes probation if circumstances in mitigation are found or justice would be served.

Section 1170(a)(1), which expresses the policies of uniformity, proportionality of prison terms to the seriousness of the offense, and the use of imprisonment as punishment.

Other statutory provisions that prohibit the grant of probation in particular cases.

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Rule 4.411. Presentence investigations and reports

(a) Eligible defendant

If the defendant is eligible for probation, the court must refer the matter to the probation officer for a presentence investigation and report. Waivers of the presentence report should not be accepted except in unusual circumstances.

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

(b) Ineligible defendant

Even if the defendant is not eligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report.

(c) Supplemental reports

The court must order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.

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

(d) Purpose of presentence investigation report

Probation officers’ reports are used by judges in determining the appropriate length of a prison sentence and by the Department of Corrections and Rehabilitation, Division of Adult Operations in deciding on the type of facility and program in which to place a defendant, and are also used in deciding whether probation is appropriate. Section 1203c requires a probation officer’s report on every person sentenced to prison; ordering the report before sentencing in probation-ineligible cases will help ensure a well-prepared report.

(Subd (d) amended effective January 1, 2007; previously amended effective January 1, 2006.)

Rule 4.411 amended effective January 1, 2007; adopted as rule 418 effective July 1, 1977; previously amended and renumbered as rule 411 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective January 1, 2006.

Advisory Committee Comment

Section 1203 requires a presentence report in every felony case in which the defendant is eligible for probation. Because such a probation investigation and report are valuable to the judge and to the jail and prison authorities, waivers of the report and requests for immediate sentencing are discouraged, even when the defendant and counsel have agreed to a prison sentence.

Notwithstanding a defendant’s statutory ineligibility for probation, a presentence investigation and report should be ordered to assist the court in deciding the appropriate sentence and to facilitate compliance with section 1203c.

This rule does not prohibit pre-conviction, pre-plea reports as authorized by section 1203.7.

Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, after a remand by an appellate court, or after the apprehension of a defendant who failed to appear at sentencing. The rule is not intended to expand on the requirements of those cases.

The rule does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances. This is particularly true if a report is needed only for the Department of Corrections and Rehabilitation because the defendant has waived a report and agreed to a prison sentence. If a full report was prepared in another case in the same or another jurisdiction within the preceeding six months, during which time the defendant was in custody, and that report is available to the Department of Corrections and Rehabilitation, it is unlikely that a new investigation is needed.

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Rule 4.411.5. Probation officer’s presentence investigation report

(a) Contents

A probation officer’s presentence investigation report in a felony case must include at least the following:

(1) A face sheet showing at least:

(A) The defendant’s name and other identifying data;

(B) The case number;

(C) The crime of which the defendant was convicted;

(D) The date of commission of the crime, the date of conviction, and any other dates relevant to sentencing;

(E) The defendant’s custody status; and

(F) The terms of any agreement on which a plea of guilty was based.

(2) The facts and circumstances of the crime and the defendant’s arrest, including information concerning any co-defendants and the status or disposition of their cases. The source of all such information must be stated.

(3) A summary of the defendant’s record of prior criminal conduct, including convictions as an adult and sustained petitions in juvenile delinquency proceedings. Records of an arrest or charge not leading to a conviction or the sustaining of a petition may not be included unless supported by facts concerning the arrest or charge.

(4) Any statement made by the defendant to the probation officer, or a summary thereof, including the defendant’s account of the circumstances of the crime.

(5) Information concerning the victim of the crime, including:

(A) The victim’s statement or a summary thereof, if available;

(B) The amount of the victim’s loss, and whether or not it is covered by insurance; and

(C) Any information required by law.

(6) Any relevant facts concerning the defendant’s social history, including those categories enumerated in section 1203.10, organized under appropriate subheadings, including, whenever applicable, “Family,” “Education,” “Employment and income,” “Military,” “Medical/psychological,” “Record of substance abuse or lack thereof,” and any other relevant subheadings.

(7) Collateral information, including written statements from:

(A) Official sources such as defense and prosecuting attorneys, police (subsequent to any police reports used to summarize the crime), probation and parole officers who have had prior experience with the defendant, and correctional personnel who observed the defendant’s behavior during any period of presentence incarceration; and

(B) Interested persons, including family members and others who have written letters concerning the defendant.

(8) An evaluation of factors relating to disposition. This section must include:

(A) A reasoned discussion of the defendant’s suitability and eligibility for probation, and, if probation is recommended, a proposed plan including recommendation for the conditions of probation and any special need for supervision;

(B) If a prison sentence is recommended or is likely to be imposed, a reasoned discussion of aggravating and mitigating factors affecting the sentence length; and

(C) A discussion of the defendant’s ability to make restitution, pay any fine or penalty that may be recommended, or satisfy any special conditions of probation that are proposed.

Discussions of factors affecting suitability for probation and affecting the sentence length must refer to any sentencing rule directly relevant to the facts of the case, but no rule may be cited without a reasoned discussion of its relevance and relative importance.

(9) The probation officer’s recommendation. When requested by the sentencing judge or by standing instructions to the probation department, the report must include recommendations concerning the length of any prison term that may be imposed, including the base term, the imposition of concurrent or consecutive sentences, and the imposition or striking of the additional terms for enhancements charged and found.

(10) Detailed information on presentence time spent by the defendant in custody, including the beginning and ending dates of the period or periods of custody; the existence of any other sentences imposed on the defendant during the period of custody; the amount of good behavior, work, or participation credit to which the defendant is entitled; and whether the sheriff or other officer holding custody, the prosecution, or the defense wishes that a hearing be held for the purposes of denying good behavior, work, or participation credit.

(11) A statement of mandatory and recommended restitution, restitution fines, other fines, and costs to be assessed against the defendant, including chargeable probation services and attorney fees under section 987.8 when appropriate, findings concerning the defendant’s ability to pay, and a recommendation whether any restitution order should become a judgment under section 1203(j) if unpaid.

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

(b) Format

The report must be on paper 8-½ by 11 inches in size and must follow the sequence set out in (a) to the extent possible.

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

(c) Sources

The source of all information must be stated. Any person who has furnished information included in the report must be identified by name or official capacity unless a reason is given for not disclosing the person’s identity.

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

Rule 4.411.5 amended effective January 1, 2007; adopted as rule 419 effective July 1, 1981; previously amended and renumbered as rule 411.5 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003.

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Rule 4.412. Reasons—agreement to punishment as an adequate reason and as abandonment of certain claims

(a) Defendant’s agreement as reason

It is an adequate reason for a sentence or other disposition that the defendant, personally and by counsel, has expressed agreement that it be imposed and the prosecuting attorney has not expressed an objection to it. The agreement and lack of objection must be recited on the record. This section does not authorize a sentence that is not otherwise authorized by law.

(Subd (a) amended effective January 1, 2007; previously amended effective January 1, 2001.)

(b) Agreement to sentence abandons section 654 claim

By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.

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

Rule 4.412 amended effective January 1, 2007; adopted as rule 412 effective January 1, 1991; previously amended and renumbered effective January 1, 2001.

Advisory Committee Comment

Subdivision (a). This subdivision is intended to relieve the court of an obligation to give reasons if the sentence or other disposition is one that the defendant has accepted and to which the prosecutor expresses no objection. The judge may choose to give reasons for the sentence even though not obligated to do so.

Judges should also be aware that there may be statutory limitations on “plea bargaining” or on the entry of a guilty plea on the condition that no more than a particular sentence will be imposed. At the time this comment was drafted, such limitations appeared, for example, in sections 1192.5 and 1192.7.

Subdivision (b). This subdivision is based on the fact that a defendant who, with the advice of counsel, expresses agreement to a specified prison term normally is acknowledging that the term is appropriate for his or her total course of conduct. This subdivision applies to both determinate and indeterminate terms.

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Rule 4.413. Probation eligibility when probation is limited

(a) Consideration of eligibility

The court must determine whether the defendant is eligible for probation.

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

(b) Probation in unusual cases

If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

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

(c) Facts showing unusual case

The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Facts relating to basis for limitation on probation

A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Facts limiting defendant’s culpability

A fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

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

Rule 4.413 amended effective January 1, 2007; adopted as rule 413 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003.

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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 4.424. Consideration of applicability of section 654

Before determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of execution of the sentence imposed on some of the counts.

Rule 4.424 amended effective January 1, 2011; adopted as rule 424 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective January 1, 2007.

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Rule 4.425. Criteria affecting concurrent or consecutive sentences

Criteria affecting the decision to impose consecutive rather than concurrent sentences include:

(a) Criteria relating to crimes

Facts relating to the crimes, including whether or not:

(1) The crimes and their objectives were predominantly independent of each other;

(2) The crimes involved separate acts of violence or threats of violence; or

(3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.

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

(b) Other criteria and limitations

Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except:

(1) A fact used to impose the upper term;

(2) A fact used to otherwise enhance the defendant’s prison sentence; and

(3) A fact that is an element of the crime may not be used to impose consecutive sentences.

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

Rule 4.425 amended effective January 1, 2007; adopted as rule 425 effective July 1, 1977; previously amended effective January 1, 1991; previously renumbered effective January 1, 2001.

Advisory Committee Comment

The sentencing judge should be aware that there are some cases in which the law mandates consecutive sentences.

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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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Rule 4.427. Hate crimes

(a) Application

This rule is intended to assist judges in sentencing in felony hate crime cases. It applies to:

(1) Felony sentencing under section 422.7;

(2) Convictions of felonies with a hate crime enhancement under section 422.75; and

(3) Convictions of felonies that qualify as hate crimes under section 422.55.

(b) Felony sentencing under section 422.7

If one of the three factors listed in section 422.7 is pled and proved, a misdemeanor conviction that constitutes a hate crime under section 422.55 may be sentenced as a felony. The punishment is imprisonment in state prison as provided by section 422.7.

(c) Hate crime enhancement

If a hate crime enhancement is pled and proved, the punishment for a felony conviction must be enhanced under section 422.75 unless the conviction is sentenced as a felony under section 422.7.

(1) The following enhancements apply:

(A) An enhancement of a term in state prison as provided in section 422.75(a). Personal use of a firearm in the commission of the offense is an aggravating factor that must be considered in determining the enhancement term.

(B) An additional enhancement of one year in state prison for each prior felony conviction that constitutes a hate crime as defined in section 422.55.

(2) The court may strike enhancements under (c) if it finds mitigating circumstances under rule 4.423 and states those mitigating circumstances on the record.

(3) The punishment for any enhancement under (c) is in addition to any other punishment provided by law.

(d) Hate crime as aggravating factor

If the defendant is convicted of a felony, and the facts of the crime constitute a hate crime under section 422.55, that fact must be considered a circumstance in aggravation in determining the appropriate punishment under rule 4.421 unless:

(1) The court imposed a hate crime enhancement under section 422.75; or

(2) The defendant has been convicted of an offense subject to sentencing under section 1170.8.

(e) Hate crime sentencing goals

When sentencing a defendant under this rule, the judge must consider the principal goals for hate crime sentencing.

(1) The principal goals for hate crime sentencing, as stated in section 422.86, are:

(A) Punishment for the hate crime committed;

(B) Crime and violence prevention, including prevention of recidivism and prevention of crimes and violence in prisons and jails; and

(C) Restorative justice for the immediate victims of the hate crimes and for the classes of persons terrorized by the hate crimes.

(2) Crime and violence prevention considerations should include educational or other appropriate programs available in the community, jail, prison, and juvenile detention facilities. The programs should address sensitivity or similar training or counseling intended to reduce violent and antisocial behavior based on one or more of the following actual or perceived characteristics of the victim:

(A) Disability;

(B) Gender;

(C) Nationality;

(D) Race or ethnicity;

(E) Religion;

(F) Sexual orientation; or

(G) Association with a person or group with one or more of these actual or perceived characteristics.

(3) Restorative justice considerations should include community service and other programs focused on hate crime prevention or diversity sensitivity. Additionally, the court should consider ordering payment or other compensation to programs that provide services to violent crime victims and reimbursement to the victim for reasonable costs of counseling and other reasonable expenses that the court finds are a direct result of the defendant’s actions.

Rule 4.427 adopted effective January 1, 2007.

Advisory Committee Comment

Multiple enhancements for prior convictions under subdivision (c)(1)(B) may be imposed if the prior convictions have been brought and tried separately. (Pen. Code, § 422.75(d).

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Rule 4.428. Criteria affecting imposition of enhancements

If an enhancement is punishable by one of three terms, the court must, in its discretion, impose the term that best serves the interest of justice and state the reasons for its sentence choice on the record at the time of sentencing.

If the judge has statutory discretion to strike the additional term for an enhancement in the furtherance of justice under section 1385(c) or based on circumstances in mitigation, the court may consider and apply any of the circumstances in mitigation enumerated in these rules or, under rule 4.408, any other reasonable circumstances in mitigation or in the furtherance of justice.

The judge should not strike the allegation of the enhancement.

Rule 4.428 amended effective January 1, 2011; adopted as rule 428 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective January 1, 1998, July 1, 2003, January 1, 2007, May 23, 2007, and January 1, 2008.

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Rule 4.431. Proceedings at sentencing to be reported

All proceedings at the time of sentencing must be reported.

Rule 4.431 amended effective January 1, 2007; adopted as rule 431 effective July 1, 1977; previously renumbered effective January 1, 2001.

Advisory Committee Comment

Reporters’ transcripts of the sentencing proceedings are required on appeal (rule 8.420), and when the defendant is sentenced to prison (section 1203.01).

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Rule 4.433. Matters to be considered at time set for sentencing

(a) In every case, at the time set for sentencing under section 1191, the sentencing judge must hold a hearing at which the judge must:

(1) Hear and determine any matters raised by the defendant under section 1201; and

(2) Determine whether a defendant who is eligible for probation should be granted or denied probation, unless consideration of probation is expressly waived by the defendant personally and by counsel.

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

(b) If the imposition of a sentence is to be suspended during a period of probation after a conviction by trial, the trial judge must identify and state circumstances that would justify imposition of one of the three authorized prison terms referred to in

section 1170(b) if probation is later revoked. The circumstances identified and stated by the judge must be based on evidence admitted at the trial or other circumstances properly considered under rule 4.420(b).

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

(c) If a sentence of imprisonment is to be imposed, or if the execution of a sentence of imprisonment is to be suspended during a period of probation, the sentencing judge must:

(1) Determine, under section 1170(b), whether to impose one of the three authorized prison terms referred to in section 1170(b) and state on the record the reasons for imposing that term.

(2) Determine whether any additional term of imprisonment provided for an enhancement charged and found will be stricken;

(3) Determine whether the sentences will be consecutive or concurrent if the defendant has been convicted of multiple crimes;

(4) Determine any issues raised by statutory prohibitions on the dual use of facts and statutory limitations on enhancements, as required in rules 4.420(c) and 4.447; and

(5) Pronounce the court’s judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.

(Subd (c) amended effective May 23, 2007; previously amended effective July 28, 1977, July 1, 2003, and January 1, 2007.)

(d) All these matters must be heard and determined at a single hearing unless the sentencing judge otherwise orders in the interests of justice.

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

(e) When a sentence of imprisonment is imposed under (c) or under rule 4.435, the sentencing judge must inform the defendant, under section 1170(c), of the parole period provided by section 3000 to be served after expiration of the sentence in addition to any period of incarceration for parole violation.

(Subd (e) amended effective January 1, 2007; previously amended effective July 28, 1977, January 1, 1979, and July 1, 2003.)

Rule 4.433 amended effective January 1, 2008; adopted as rule 433 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1, 1979, July 1, 2003, January 1, 2007, and May 23, 2007.

Advisory Committee Comment

This rule summarizes the questions that the court is required to consider at the time of sentencing, in their logical order.

Subdivision (a)(2) makes it clear that probation should be considered in every case, without the necessity of any application, unless the defendant is statutorily ineligible for probation.

Under subdivision (b), when imposition of sentence is to be suspended, the sentencing judge is not to make any determinations as to possible length of a prison term on violation of probation (section 1170(b)). If there was a trial, however, the judge must state on the record the circumstances that would justify imposition of one of the three authorized prison terms based on the trial evidence.

Subdivision (d) makes it clear that all sentencing matters should be disposed of at a single hearing unless strong reasons exist for a continuance.

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Rule 4.435. Sentencing on revocation of probation

(a) When the defendant violates the terms of probation or is otherwise subject to revocation of probation, the sentencing judge may make any disposition of the case authorized by statute.

(Subd (a) amended effective January 1, 1991.)

(b) On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison:

(1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c).

The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.

(2) If the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation for the term prescribed in that judgment.

(Subd (b) amended effective January 1, 2007; previously amended effective July 1, 2003, and January 1, 2006.)

Rule 4.435 amended effective January 1, 2007; adopted as rule 435 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, July 1, 2003, and January 1, 2006.

Advisory Committee Comment

Subdivision (a) makes it clear that there is no change in the court’s power, on finding cause to revoke and terminate probation under section 1203.2(a), to continue the defendant on probation.

The restriction of subdivision (b)(1) is based on In re Rodriguez (1975) 14 Cal.3d 639, 652: “[T]he primary term must reflect the circumstances existing at the time of the offense.”

A judge imposing a prison sentence on revocation of probation will have the power granted by section 1170(d) to recall the commitment on his or her own motion within 120 days after the date of commitment, and the power under section 1203.2(e) to set aside the revocation of probation, for good cause, within 30 days after the court has notice that execution of the sentence has commenced.

Consideration of conduct occurring after the granting of probation should be distinguished from consideration of preprobation conduct that is discovered after the granting of an order of probation and before sentencing following a revocation and termination of probation. If the preprobation conduct affects or nullifies a determination made at the time probation was granted, the preprobation conduct may properly be considered at sentencing following revocation and termination of probation. (See People v. Griffith (1984) 153 Cal.App.3d 796, 801.)

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Rule 4.437. Statements in aggravation and mitigation

(a) Time for filing and service

Statements in aggravation and mitigation referred to in section 1170(b) must be filed and served at least four days before the time set for sentencing under section 1191 or the time set for pronouncing judgment on revocation of probation under section 1203.2(c) if imposition of sentence was previously suspended.

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

(b) Combined statement

A party seeking consideration of circumstances in aggravation or mitigation may file and serve a statement under section 1170(b) and this rule.

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

(c) Contents of statement

A statement in aggravation or mitigation must include:

(1) A summary of evidence that the party relies on as circumstances justifying the imposition of a particular term; and

(2) Notice of intention to dispute facts or offer evidence in aggravation or mitigation at the sentencing hearing. The statement must generally describe the evidence to be offered, including a description of any documents and the names and expected substance of the testimony of any witnesses. No evidence in aggravation or mitigation may be introduced at the sentencing hearing unless it was described in the statement, or unless its admission is permitted by the sentencing judge in the interests of justice.

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

(d) Support required for assertions of fact

Assertions of fact in a statement in aggravation or mitigation must be disregarded unless they are supported by the record in the case, the probation officer’s report or other reports properly filed in the case, or other competent evidence.

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

(e) Disputed facts

In the event the parties dispute the facts on which the conviction rested, the court must conduct a presentence hearing and make appropriate corrections, additions, or deletions in the presentence probation report or order a revised report.

(Subd (e) amended effective January 1, 2007; adopted effective January 1, 1991.)

Rule 4.437 amended effective May 23, 2007; adopted as rule 437 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1, 1991, and January 1, 2007.

Advisory Committee Comment

Section 1170(b) states in part:

“At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer’s report, or to present additional facts.”

This provision means that the statement is a document giving notice of intention to dispute evidence in the record or the probation officer’s report, or to present additional facts.

The statement itself cannot be the medium for presenting new evidence, or for rebutting competent evidence already presented, because the statement is a unilateral presentation by one party or counsel that will not necessarily have any indicia of reliability. To allow its factual assertions to be considered in the absence of corroborating evidence would, therefore, constitute a denial of due process of law in violation of the United States (14th Amend.) and California (art. I, § 7) Constitutions.

“[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel . . . . The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence . . . .” Gardner v. Florida (1977) 430 U.S. 349, 358.

The use of probation officers’ reports is permissible because the officers are trained objective investigators. Williams v. New York (1949) 337 U.S. 241. Compare sections 1203 and 1204. People v. Peterson (1973) 9 Cal.3d 717, 727, expressly approved the holding of United States v. Weston (9th Cir. 1971) 448 F.2d 626 that due process is offended by sentencing on the basis of unsubstantiated allegations that were denied by the defendant. Cf., In re Hancock (1977) 67 Cal.App.3d 943, 949.

The requirement that the statement include notice of intention to rely on new evidence will enhance fairness to both sides by avoiding surprise and helping to ensure that the time limit on pronouncing sentence is met. Rule 4.447. Limitations on enhancements

No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant’s service of the portion of the sentence not stayed.

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Rule 4.447. Limitations on enhancements

Rule 4.447 amended effective January 1, 2007; adopted as rule 447 effective July 1, 1977; previously amended and renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1, 1991, and July 1, 2003.

Advisory Committee Comment

Statutory restrictions may prohibit or limit the imposition of an enhancement in certain situations. (See, for example, sections 186.22(b)(1), 667(a)(2), 667.61(f), 1170.1(f) and (g), 12022.53(e)(2) and (f), and Vehicle Code section 23558.)

Present practice of staying execution is followed to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. See People v. Niles (1964) 227 Cal.App.2d 749, 756.

Only the portion of a sentence or component thereof that exceeds a limitation is prohibited, and this rule provides a procedure for that situation. This rule applies to both determinate and indeterminate terms.

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Rule 4.451. Sentence consecutive to indeterminate term or to term in other jurisdiction

(a) When a defendant is sentenced under section 1170 and the sentence is to run consecutively to a sentence imposed under section 1168(b) in the same or another proceeding, the judgment must specify the determinate term imposed under section 1170 computed without reference to the indeterminate sentence, must order that the determinate term be served consecutively to the sentence under section 1168(b), and must identify the proceedings in which the indeterminate sentence was imposed. The term under section 1168(b), and the date of its completion or parole date, and the sequence in which the sentences are deemed served, will be determined by correctional authorities as provided by law.

(Subd (a) amended effective January 1, 2007; previously amended effective January 1, 1979, and July 1, 2003.)

(b) When a defendant is sentenced under section 1170 and the sentence is to run consecutively to a sentence imposed by a court of the United States or of another state or territory, the judgment must specify the determinate term imposed under section 1170 computed without reference to the sentence imposed by the other jurisdiction, must order that the determinate term be served commencing on the completion of the sentence imposed by the other jurisdiction, and must identify the other jurisdiction and the proceedings in which the other sentence was imposed.

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

Rule 4.451 amended effective January 1, 2007; adopted as rule 451 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1979, and July 1, 2003.

Advisory Committee Comment

The provisions of section 1170.1(a), which use a one-third formula to calculate subordinate consecutive terms, can logically be applied only when all the sentences are imposed under section 1170. Indeterminate sentences are imposed under section 1168(b). Since the duration of the indeterminate term cannot be known to the court, subdivision (a) states the only feasible mode of sentencing. (See People v. Felix (2000) 22 Cal.4th 651, 654–657; People v. McGahuey (1981) 121 Cal.App.3d 524, 530–532.)

On the authority to sentence consecutively to the sentence of another jurisdiction and the effect of such a sentence, see In re Helpman (1968) 267 Cal.App.2d 307 and cases cited at note 3, id. at 310. The mode of sentencing required by subdivision (b) is necessary to avoid the illogical conclusion that the total of the consecutive sentences will depend on whether the other jurisdiction or California is the first to pronounce judgment.

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Rule 4.452. Determinate sentence consecutive to prior determinate sentence

If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations:

(1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case.

(2) The judge in the current case must make a new determination of which count, in the combined cases, represents the principal term, as defined in section 1170.1(a).

(3) Discretionary decisions of the judges in the previous cases may not be changed by the judge in the current case. Such decisions include the decision to impose one of the three authorized prison terms referred to in section 1170(b), making counts in prior cases concurrent with or consecutive to each other, or the decision that circumstances in mitigation or in the furtherance of justice justified striking the punishment for an enhancement.

Rule 4.452 amended effective May 23, 2007; adopted as rule 452 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003, and January 1, 2007.

Advisory Committee Comment

The restrictions of subdivision (3) do not apply to circumstances where a previously imposed base term is made a consecutive term on resentencing. If the judge selects a consecutive sentence structure, and since there can be only one principal term in the final aggregate sentence, if a previously imposed full base term becomes a subordinate consecutive term, the new consecutive term normally will become one-third the middle term by operation of law (section 1170.1(a)).

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Rule 4.453. Commitments to nonpenal institutions

When a defendant is convicted of a crime for which sentence could be imposed under Penal Code section 1170 and the court orders that he or she be committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice under Welfare and Institutions Code section 1731.5, the order of commitment must specify the term of imprisonment to which the defendant would have been sentenced. The term is determined as provided by Penal Code sections 1170 and 1170.1 and these rules, as though a sentence of imprisonment were to be imposed.

Rule 4.453 amended effective January 1, 2007; adopted as rule 453 effective July 1, 1977; previously amended and renumbered effective January 1, 2001; previously amended effective July 28, 1977, and January 1, 2006.

Advisory Committee Comment

Commitments to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (formerly Youth Authority) cannot exceed the maximum possible incarceration in an adult institution for the same crime. (See People v. Olivas (1976) 17 Cal.3d 236.)

Under the indeterminate sentencing law, the receiving institution knew, as a matter of law from the record of the conviction, the maximum potential period of imprisonment for the crime of which the defendant was convicted.

Under the Uniform Determinate Sentencing Act, the court’s discretion as to length of term leaves doubt as to the maximum term when only the record of convictions is present.

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Rule 4.470. Notification of appeal rights in felony cases [Repealed]

Rule 4.470 repealed effective January 1, 2013; adopted as rule 250 effective January 1, 1972; previously amended and renumbered as rule 470 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 1972, January 1, 1977, and January 1, 2007.

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Rule 4.472. Determination of presentence custody time credit

At the time of sentencing, the court must cause to be recorded on the judgment or commitment the total time in custody to be credited on the sentence under sections 2900.5, 2933.1(c), and 2933.2(c). On referral of the defendant to the probation officer for an investigation and report under section 1203(b) or 1203(g), or on setting a date for sentencing in the absence of a referral, the court must direct the sheriff, probation officer, or other appropriate person to report to the court and notify the defendant or defense counsel and prosecuting attorney within a reasonable time before the date set for sentencing as to the number of days that defendant has been in custody and for which he or she may be entitled to credit. Any challenges to the report must be heard at the time of sentencing.

Rule 4.472 amended effective January 1, 2007; adopted as rule 252 effective January 1, 1977; previously amended and renumbered as rule 472 effective January 1, 1991; previously amended and renumbered effective January 1, 2001; previously amended effective July 1, 2003.

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Rule 4.480. Judge’s statement under section 1203.01

A sentencing judge’s statement of his or her views under section 1203.01 respecting a person sentenced to the Department of Corrections and Rehabilitation, Division of Adult Operations is required only in the event that no probation report is filed. Even though it is not required, however, a statement should be submitted by the judge in any case in which he or she believes that the correctional handling and the determination of term and parole should be influenced by information not contained in other court records.

The purpose of a section 1203.01 statement is to provide assistance to the Department of Corrections and Rehabilitation, Division of Adult Operations in its programming and institutional assignment and to the Board of Parole Hearings with reference to term fixing and parole release of persons sentenced indeterminately, and parole waiver of persons sentenced determinately. It may amplify any reasons for the sentence that may bear on a possible suggestion by the Secretary of the Department of Corrections and Rehabilitation or the Board of Parole Hearings that the sentence and commitment be recalled and the defendant be resentenced. To be of maximum assistance to these agencies, a judge’s statements should contain individualized comments concerning the convicted offender, any special circumstances that led to a prison sentence rather than local incarceration, and any other significant information that might not readily be available in any of the accompanying official records and reports.

If a section 1203.01 statement is prepared, it should be submitted no later than two weeks after sentencing so that it may be included in the official Department of Corrections and Rehabilitation, Division of Adult Operations case summary that is prepared during the time the offender is being processed at the Reception-Guidance Center of the Department of Corrections and Rehabilitation, Division of Adult Operations.

Rule 4.480 amended effective January 1, 2007; adopted as section 12 of the Standards of Judicial Administration effective January 1, 1973; previously amended and renumbered effective January 1, 2001; previously amended effective July 1, 1978, July 1, 2003, and January 1, 2006.

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*California Sentencing Rules Pertaining to Penal Code 273.5 Retrieved from http://next.westlaw.com on March 6, 2013.

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