AMENDMENT TO THE CALIFORNIA RULES OF COURT Adopted by the Judicial Council on March 11, 2022, effective March 14, 2022 1 Rule 4.300. Commitments to nonpenal institutions[Repealed] ..................................2 2 Rule 4.405.

Definitions ...............................................................................................2 3 Rule 4.406. Reasons ....................................................................................................5 4 Rule 4.408. Listing of factors not exclusive; sequence not significant ......................6 5 Rule 4.411.5. Probation officer’s presentence investigation report ............................6 6 Rule 4.414. Criteria affecting probation .....................................................................8 7 Rule 4.420.

Selection of term of imprisonment for offense........................................8 8 Rule 4.421. Circumstances in aggravation ...............................................................11 9 Rule 4.423. Circumstances in mitigation ..................................................................13 10 Rule 4.424. Consideration of applicability of

section 654 ........................................14 11 Rule 4.425. Factors affecting concurrent or consecutive sentences .........................14 12 Rule 4.427. Hate crimes ............................................................................................15 13 Rule 4.428. Factors affecting imposition of enhancements ......................................16 14 Rule 4.437. Statements in aggravation and mitigation .............................................18 15 Rule 4.447. Sentencing of enhancements .................................................................18 16 Rule 4.453.

Commitments to nonpenal institutions ..................................................19 17 18 19

2 1 Rule 4.300. Commitments to nonpenal institutions[Repealed] 2 3 When a defendant is convicted of a crime for which sentence could be imposed under 4 Penal Code

section 1170 and the court orders that he or she be committed to the 5 California Department of Corrections and Rehabilitation, Division of Juvenile Justice 6 under Welfare and Institutions Code

section 1731.5, the order of commitment must 7 specify the term of imprisonment to which the defendant would have been sentenced. The 8 term is determined as provided by Penal Code sections 1170 and 1170.1 and these rules, 9 as though a sentence of imprisonment were to be imposed. 10 11 Advisory Committee Comment 12 13 Commitments to the Department of Corrections and Rehabilitation, Division of Juvenile Justice 14 (formerly Youth Authority) cannot exceed the maximum possible incarceration in an adult 15 institution for the same crime. (See People v.

Olivas (1976) 17 Cal.3d 236.) 16 17 Under the indeterminate sentencing law, the receiving institution knew, as a matter of law from 18 the record of the conviction, the maximum potential period of imprisonment for the crime of 19 which the defendant was convicted. 20 21 Under the Uniform Determinate Sentencing Act, the court’s discretion as to length of term leaves 22 doubt as to the maximum term when only the record of convictions is present. 23 24 Rule 4.405.

Definitions 25 26 As used in this division, unless the context otherwise requires: 27 28 (1) * * * 29 30 (2) “Base term” is the determinate or indeterminate sentence imposed for the 31 commission of a crime, not including any enhancements that carry an additional 32 term of imprisonment. determinate term in prison or county jail under

section 33 1170(

h) selected from among the three possible terms prescribed by statute; the 34 determinate term in prison or county jail under

section 1170(

h) prescribed by 35 statute if a range of three possible terms is not prescribed; or the indeterminate term 36 in prison prescribed by statute. 37 38

(3) When a person is convicted of two or mo re felonies, the “principal term” is the 39 greatest determinate term of imprisonment imposed by the court for any of the 40 crimes, including any term imposed for applicable count-specific enhancements. 41 42

(4) When a person is convicted of two or more felonies, the “subordinate term” is t he 1 determinate term imposed for an offense, plus any count-specific enhancements 2 applicable to the offense ordered to run consecutively to the principal term. 3 4 (3) (5) “Enhancement” means an additional term of imprisonment added to the base term. 5 6 (6) “Offense” means the offense of conviction unless a different meaning is specified 7 or is otherwise clear from the context.

The term “instant” or “current” is used in 8 connection with “offense” or “offense of conviction” to distinguish the violation for 9 which the defendant is being sentenced from an enhancement, prior or subsequent 10 offense, or from an offense before another court. 11 12 (4) (7) “Aggravation,” or “circumstances in aggravation” “mitigation,” or “circumstances 13 in mitigation” means factors that justify the imposition of the upper prison term 14 referred to in Penal Code

section 1170(

b) and 1170.1, or factors that the court may 15 consider in exercising discretion authorized by statute and under these rules 16 including imposing the middle term instead of a low term, denying probation, 17 ordering consecutive sentences, or determining whether to exercise discretion 18 pursuant to Penal Code

section 1385(c). that the court may consider in its broad 19 sentencing discretion authorized by statute and under these rules. 20 21 (8) “Mitigation” or “circumstances in mitigation” means factors that the court may 22 consider in its broad sentencing discretion authorized by statute and under these 23 rules. 24 25 (5) (9) “Sentence choice” means the selection of any disposition of the case that does not 26 amount to a dismissal, acquittal, or grant of a new trial. 27 28 (6) (10) “Section” means a

section of the Penal Code. 29 30 (7) (11) “Imprisonment” means confinement in a state prison or county jail under

section 31 1170(h). 32 33 (8) (12) “Charged” means charged in the indictment or information. 34 35 (9) (13) “Found” means admitted by the defendant or found to be true by the trier of fact 36 upon trial. 37 38 (10) (14) “Mandatory supervision” means the period of supervision defined in

section 39 1170(h)(5)(A), (B). 40 41 (11) (15) “Postrelease community supervision” means the period of supervision governed 42 by

section 3451 et seq. 43

4 1 (12) (16) “Risk/needs assessment” means a standardized, validated evaluation tool 2 designed to measure an offender’s actuarial risk factors and specific needs that, if 3 successfully addressed, may reduce the likelihood of future criminal activity. 4 5 (13) (17) “Evidence-based practices” means supervision policies, procedures, programs, 6 and practices demonstrated by scientific research to reduce recidivism among 7 individuals under probation, parole, or postrelease supervision. 8 9 (14) (18) “Community-based corrections program” means a program consisting of a 10 system of services for felony offenders under local supervision dedicated to the 11 goals stated in

section 1229(c)(1)–(5). 12 13 (15) (19) “Local supervision” means the supervision of an adult felony offender on 14 probation, mandatory supervision, or postrelease community supervision. 15 16 (16) (20) “County jail” means local county correctional facility. 17 18 Advisory Committee Comment 19 20 Following the United States Supreme Court decision in Cunningham v. California (2007) 549 21 U.S. 270, the Legislature amended the determinate sentencing law to remove the presumption that 22 the court is to impose the middle term on a sentencing triad, absent aggravating or mitigating 23 circumstances. (See Sen.

Bill 40; Stats. 2007, ch. 3.) It subsequently amended sections 186.22, 24 186.33, 1170.1, 12021.5, 12022.2, and 12022.4 to eliminate the presumptive middle term for an 25 enhancement. (See Sen.

Bill 150; Stats. 2009, ch. 171.) Instead of finding facts in support of a 26 sentencing choice, courts are now required to state reasons for the exercise of judicial discretion 27 in sentencing. 28 29 The Legislature amended the determinate sentencing law to require courts to order imposition of 30 a sentence or enhancement not to exceed the middle term unless factors in aggravation justify 31 imposition of the upper term and are stipulated to by the defendant or found true beyond a 32 reasonable doubt at trial by the jury or by the judge in a court trial. (See Sen.

Bill 567; Stats. 33 2021, ch. 731.) However, in determining whether to impose the upper term for a criminal offense, 34 the court may consider as an aggravating factor that a defendant has suffered one or more prior 35 convictions, based on certified records of conviction. This exception may not be used to select the 36 upper term of an enhancement. 37 38 The court may exercise its judicial discretion in imposing the middle term or low term and must 39 state the facts and reasons on the record for choosing the sentence imposed.

In exercising this 40 discretion between the middle term and the low term, the court may rely on aggravating factors 41 that have not been stipulated to by the defendant or proven beyond a reasonable doubt. (People v. 42 Black (2007) 41 Cal.4th 799.) 43

5 1 The Legislature also amended the determinate sentencing law to require courts to order 2 imposition of the low term when the court finds that certain factors contributed to the commission 3 of the crime unless the court finds that it would not be in the interests of justice to do so because 4 the aggravating factors outweigh the mitigating factors. (Pen. Code, § 1170(b)(6).) 5 6 Rule 4.406. Reasons 7 8 (a) * * * 9 (

b) When reasons required 10 11 Sentence choices that generally require a statement of a reason include, but are not 12 limited to: 13 14

(1) Granting probation wh en the defendant is presumptively ineligible for 15 probation; 16 17

(2) Denying probation when the defendant is presumptively eligible for 18 probation; 19 20

(3) Declining to commit an eligible juvenile found amenable to treatment to the 21 Department of Corrections and Rehabilitation, Division of Juvenile Justice; 22 23 (4)

(3) Selecting a term for either an offense or an enhancement one of the three 24 authorized terms in prison or county jail under

section 1170(

h) referred to in 25

section 1170(

b) for either a base term or an enhancement; 26 27 (5)

(4) Imposing consecutive sentences; 28 29 (6)

(5) Imposing full consecutive sentences under

section 667.6(

c) rather than 30 consecutive terms under

section 1170.1(a), when the court has that choice; 31 32 (7)

(6) Waiving a restitution fine; 33 34 (8)

(7) Granting relief under

section 1385; and 35 36 (9)

(8) Denying mandatory supervision in the interests of justice under

section 37 1170(h)(5)(A). 38 39 Advisory Committee Comment 40 41 * * * 42 43

6 Rule 4.408. Listing of factors not exclusive; sequence not significant 1 2 (a)–(b) * * * 3 Advisory Committee Comment 4 5 The variety of circumstances presented in felony cases is so great that no listing of criteria could 6 claim to be all-inclusive. (Cf., Evid. Code, § 351.) 7 8 The court may impose a sentence or enhancement exceeding the middle term only if the facts 9 underlying the aggravating factor were stipulated to by the defendant or found true beyond a 10 reasonable doubt at trial by the jury or by the judge in a court trial. (Pen.

Code, § 1170(b)(2).) 11 12 However, in determining whether to impose the upper term for a criminal offense, the court may 13 consider as an aggravating factor that a defendant has suffered one or more prior convictions, 14 based on certified records of conviction. This exception may not be used to select the upper term 15 of an enhancement. (Pen.

Code, § 1170(b)(3).) 16 17 The Legislature also amended the determinate sentencing law to require courts to order 18 imposition of the low term when the court finds that certain factors contributed to the commission 19 of the crime unless the court finds that it would not be in the interests of justice to do so because 20 the aggravating factors outweigh the mitigating factors. (Pen. Code, § 1170(b)(6).) 21 22 23 Rule 4.411.5. Probation officer’s presentence investigation report 24 25 (

a) Contents 26 27 A probation officer’s presentence investigation report in a felony case must include 28 at least the following: 29 30

(1) A face sheet showing at least: 31 32 (

A) The defendant’s name and other identifying data; 33 34 (

B) The case number; 35 36 (

C) The crime of which the defendant was convicted, and any 37 enhancements which were admitted or found true; 38 39 (

D) Any factors in aggravation including whether the factors were 40 stipulated to by the defendant, found true beyond a reasonable doubt at 41 trial by a jury, or found true beyond a reasonable doubt by a judge in a 42 court trial; 43

7 1 (D) (

E) The date of commission of the crime, the date of conviction, and any 2 other dates relevant to sentencing; 3 4 (E) (

F) The defendant’s custody status; and 5 6 (F) (

G) The terms of any agreement on which a plea of guilty was based. 7 8 (2)–(5) * * * 9 10

(6) Any relevant facts concerning the defendant’s social history, including those 11 categories enumerated in

section 1203.10, organized under appropriate 12 subheadings, including, whenever applicable, “Family,” “Education,” 13 “Employment and income,” “Military,” “Medical/psychological,” “Record of 14 substance abuse or lack thereof,” and any other relevant subheadings. This 15 includes: 16 17 (

A) fF acts relevant to whether the defendant may be suffering from sexual 18 trauma, traumatic brain injury, posttraumatic stress disorder, substance 19 abuse, or mental health problems as a result of his or her U.S. military 20 service; and 21 22 (

B) Factors listed in

section 1170(b)(6) and whether the current offense is 23 connected to those factors. 24 25 (7)–(9) * * * 26 27

(10) Any mitigating factors pursuant to

section 1385(c). 28 29 (10)

(11) The probation officer’s recommendation. When requested by the 30 sentencing judge or by standing instructions to the probation department, the 31 report must include recommendations concerning the length of any prison or 32 county jail term under

section 1170(

h) that may be imposed, including the 33 base term, the imposition of concurrent or consecutive sentences, and the 34 imposition or striking of the additional terms for enhancements charged and 35 found. 36 37 (11)

(12) Detailed information on presentence time spent by the defendant in 38 custody, including the beginning and ending dates of the period or periods of 39 custody; the existence of any other sentences imposed on the defendant 40 during the period of custody; the amount of good behavior, work, or 41 participation credit to which the defendant is entitled; and whether the sheriff 42 or other officer holding custody, the prosecution, or the defense wishes that a 43

8 hearing be held for the purposes of denying good behavior, work, or 1 participation credit. 2 3 (12)

(13) A statement of mandatory and recommended restitution, restitution fines, 4 and other fines, fees, assessments, penalties, and costs to be assessed against 5 the defendant; including chargeable probation services and attorney fees 6 under

section 987.8 when appropriate, findings concerning the defendant’s 7 ability to pay, and a recommendation whether any restitution order should 8 become a judgment under

section 1203(

j) if unpaid.; and, when appropriate, 9 any finding concerning the defendant’s ability to pay. 10 11 (13)

(14) Information pursuant to Penal Code

section 29810(c): 12 13 (A)–(B) * * * 14 15 (b)–(c) * * * 16 17 Rule 4.414. Criteria affecting probation 18 19 Criteria affecting the decision to grant or deny probation include facts relating to the 20 crime and facts relating to the defendant. 21 22 (a)–(b) * * * 23 24 (

c) Suitability for probation 25 26 In determining the suitability of the defendant for probation, the court may consider 27 factors in aggravation and mitigation, whether or not the factors have been 28 stipulated to by the defendant or found true beyond a reasonable doubt at trial by a 29 jury or the judge in a court trial. 30 31 Advisory Committee Comment 32 33 * * * 34 35 Rule 4.420. Selection of term of imprisonment for offense 36 37 (

a) When a sentence judgment of imprisonment is imposed, or the execution of a 38 sentence judgment of imprisonment is ordered suspended, the sentencing judge 39 must, in their sound discretion, order imposition of a sentence not to exceed the 40 middle term, except as otherwise provided in paragraph (b). select the upper, 41

9 middle, or lower term on each count for which the defendant has been convicted, as 1 provided in

section 1170(

b) and these rules. 2 3 (

b) The court may only choose an upper term when (1) there are circumstances in 4 aggravation of the crime that justify the imposition of an upper term, and (2) the 5 facts underlying those circumstances have been (

i) stipulated to by the defendant, 6 (ii) found true beyond a reasonable doubt at trial by a jury, or (iii) found true 7 beyond a reasonable doubt by the judge in a court trial. 8 9 (

c) Notwithstanding paragraphs (

a) and (b), the court may consider the fact of the 10 defendant’s prior convictions based on a certified record of conviction without it 11 having been stipulated to by the defendant or found true beyond a reasonable doubt 12 at trial by a jury or the judge in a court trial. This exception does not apply to the 13 use of the record of a prior conviction in selecting the upper term of an 14 enhancement. 15 16 (b) (

d) In selecting between the middle and lower terms of imprisonment, exercising his 17 or her discretion in selecting one of the three authorized terms of imprisonment 18 referred to in

section 1170(b), the sentencing judge may consider circumstances in 19 aggravation or mitigation, and any other factor reasonably related to the sentencing 20 decision. The court may consider factors in aggravation and mitigation, whether or 21 not the factors have been stipulated to by the defendant or found true beyond a 22 reasonable doubt at trial by a jury or the judge in a court trial. The relevant 23 circumstances may be obtained from the case record, the probation officer’s report, 24 other reports and statements properly received, statements in aggravation or 25 mitigation, and any evidence introduced at the sentencing hearing. 26 27 (

e) Notwithstanding

section 1170(b)(1), and unless the court finds that the aggravating 28 circumstances outweigh the mitigating circumstances such that imposition of the 29 lower term would be contrary to the interests of justice, the court must order 30 imposition of the lower term if any of the following was a contributing factor in the 31 commission of the offense: 32 33

(1) The defendant has experienced psychological, physical, or childhood trauma, 34 including, but not limited to, abuse, neglect, exploitation, or sexual violence; 35 36

(2) The defendant is a youth, or was a youth as defined under

section 1016.7(b) 37 at the time of the commission of the offense; or 38 39

(3) Prior to the instant offense, or at the time of the commission of the offense, 40 the defendant is or was a victim of intimate partner violence or human 41 trafficking. 42 43

10 (

f) Paragraph (

e) does not preclude the court from imposing the lower term even if 1 there is no evidence of the circumstances listed in paragraph (e). 2 3 (c) (

g) To comply with

section 1170(b)(5), a fact charged and found as an enhancement 4 may be used as a reason for imposing a particular term only if the court has 5 discretion to strike the punishment for the enhancement and does so. The use of a 6 fact of an enhancement to impose the upper term of imprisonment is an adequate 7 reason for striking the additional term of imprisonment, regardless of the effect on 8 the total term. 9 10 (d) (

h) A fact that is an element of the crime on which punishment is being imposed may 11 not be used to impose a particular term. 12 13 (e) (

i) The reasons for selecting one of the three authorized terms of imprisonment 14 referred to in

section 1170(

b) must be stated orally on the record. 15 16 Advisory Committee Comment 17 18 The determinate sentencing law authorizes the court to select any of the three possible terms of 19 imprisonment even though neither party has requested a particular term by formal motion or 20 informal argument.

Section 1170(

b) vests the court with discretion to impose any of the three 21 authorized terms of imprisonment and requires that the court state on the record the reasons for 22 imposing that term. 23 24 It is not clear whether the reasons stated by the judge for selecting a particular term qualify as 25 “facts” for the purposes of the rule prohibition on dual use of facts. Until the issue is clarified, 26 judges should avoid the use of reasons that may constitute an impermissible dual use of facts.

For 27 example, the court is not permitted to use a reason to impose a greater term if that reason also is 28 either (1) the same as an enhancement that will be imposed, or (2) an element of the crime. The 29 court should not use the same reason to impose a consecutive sentence as to impose an upper 30 term of imprisonment. (People v. Avalos (1984) 37 Cal.3d 216, 233.) It is not improper to use the 31 same reason to deny probation and to impose the upper term. (People v.

Bowen (1992) 11 32 Cal.App.4th 102, 106.) 33 34 The rule makes it clear that a fact charged and found as an enhancement may, in the alternative, 35 be used as a factor in aggravation. 36 37 People v. Riolo (1983) 33 Cal.3d 223, 227 (and note 5 on 227) held that

section 1170.1(

a) does 38 not require the judgment to state the base term (upper, middle, or lower) and enhancements, 39 computed independently, on counts that are subject to automatic reduction under the one-third 40 formula of

section 1170.1(a). 41 42

11 Even when sentencing is under

section 1170.1, however, it is essential to determine the base term 1 and specific enhancements for each count independently, in order to know which is the principal 2 term count. The principal term count must be determined before any calculation is made using the 3 one-third formula for subordinate terms. 4 5 In addition, the base term (upper, middle, or lower) for each count must be determined to arrive at 6 an informed decision whether to make terms consecutive or concurrent; and the base term for 7 each count must be stated in the judgment when sentences are concurrent or are fully consecutive 8 (i.e., not subject to the one-third rule of

section 1170.1(a)). 9 10 Case law suggests that in determining the “interests of justice” the court should consider the 11 constitutional rights of the defendant and the interests of society represented by the people; the 12 defendant’s background and prospects, including the presence or absence of a record; the nature 13 and circumstances of the crime and the defendant’s level of involvement; the factors in 14 aggravation and mitigation including the specific factors in mitigation of Penal Code

section 15 1170(b)(6); and the factors that would motivate a “reasonable judge” in the exercise of their 16 discretion. The court should not consider whether the defendant has simply pled guilty, factors 17 related to controlling the court’s calendar, or antipathy toward the statutory scheme. (See People 18 v. Romero (1996) 13 Cal.4th 947; People v. Dent (1995) 38 Cal.App.4th 1726; People v. 19 Kessel (1976) 61 Cal.App.3d 322; People v. Orin (1975) 13 Cal.3d 937.) 20 21 Rule 4.421.

Circumstances in aggravation 22 23 Circumstances in aggravation include factors relating to the crime and factors relating to 24 the defendant. 25 26 (a)–(c) * * * 27 28 Advisory Committee Comment 29 30 Circumstances in aggravation may justify imposition of the middle or upper of three possible 31 terms of imprisonment. (Section 1170(b).) 32 33 The list of circumstances in aggravation includes some facts that, if charged and found, may be 34 used to enhance the sentence. 35 36 Courts may not impose a sentence greater than the middle term except when aggravating factors 37 justifying the imposition of the upper term have been stipulated to by the defendant or found true 38 beyond a reasonable doubt at trial by the jury or the judge in a court trial.

These requirements do 39 not apply to consideration of aggravating factors for the lower or middle term. If the court finds 40 that any of the factors listed in

section 1170(b)(6)(A–

C) were a contributing factor to the 41 commission of the offense, the court must impose the lower term (see rule 4.420(e)) unless the 42 court finds that the aggravating factors outweigh the mitigating factors to such a degree that 43

12 imposing the lower term would be contrary to the interests of justice. In this instance, since the 1 court is not addressing the imposition of the upper term, the court may consider factors in 2 aggravation that have not been stipulated to by the defendant or found true beyond a reasonable 3 doubt at trial by the jury or the judge in a court trial. 4 5 In determining whether to impose the upper term for a criminal offense, the court may consider as 6 an aggravating factor that a defendant has suffered one or more prior convictions, based on a 7 certified record of conviction.

This exception may not be used to select the upper term of an 8 enhancement. 9 10 This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is 11 included, in part, in the comment to rule 4.420. 12 13 Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a 14 taking or loss of great value may be circumstances in aggravation even if not meeting the 15 statutory

definitions for enhancements or charged as an enhancement. 16 17 Facts concerning the defendant’s prior record and personal history may be considered. By 18 providing that the defendant’s prior record and simultaneous convictions of other offenses may 19 not be used both for enhancement and in aggravation,

section 1170(

b) indicates that these and 20 other facts extrinsic to the commission of the crime may be considered in aggravation in 21 appropriate cases. 22 23 Refusal to consider the personal characteristics of the defendant in imposing sentence may raise 24 serious constitutional questions.

The California Supreme Court has held that sentencing decisions 25 must take into account “the nature of the offense and/or the offender, with particular regard to the 26 degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In 27 re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further 28 incarceration because “it appears that neither the circumstances of his offense nor his personal 29 characteristics establish a danger to society sufficient to justify such a prolonged period of 30 imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, 31 justice generally requires . . . that there be taken into account the circumstances of the offense 32 together with the character and propensities of the offender.” (Pennsylvania ex rel.

Sullivan v. 33 Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 34 189.) 35 36 Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of 37 the cases that had relied on that circumstance in aggravation were reversed on appeal because 38 there was only a single victim in a particular count. 39 40 Old age or youth of the victim may be circumstance in aggravation; see

section 1170.85(b). Other 41 statutory circumstances factors in aggravation are listed, for example, in sections 422.76, 1170.7, 42 1170.71, 1170.8, and 1170.85, and may be considered to impose the upper term if stipulated to by 43

13 the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court 1 trial. 2 3 Rule 4.423. Circumstances in mitigation 4 5 Circumstances in mitigation include factors relating to the crime and factors relating to 6 the defendant. 7 8 (

a) Factors relating to the crime 9 10 Factors relating to the crime include that: 11 12 (1)–(9) * * * 13 14

(10) If a firearm was used in the commission of the offense, it was unloaded or 15 inoperable. 16 17 (

b) Factors relating to the defendant 18 19 Factors relating to the defendant include that: 20 21 (1)–(2) * * * 22 23

(3) The defendant experienced psychological, physical, or childhood trauma, 24 including, but not limited to, abuse, neglect, exploitation, or sexual violence 25 and it was a factor in the commission of the crime; 26 27

(4) The commission of the current offense is connected to the defendant’s prior 28 victimization or childhood trauma, or mental illness as defined by

section 29 1385(c); 30 31

(5) The defendant is or was a victim of intimate partner violence or human 32 trafficking at the time of the commission of the offense, and it was a factor in 33 the commission of the offense; 34 35

(6) The defendant is under 26 years of age, or was under 26 years of age at the 36 time of the commission of the offense; 37 38

(7) The defendant was a juvenile when they committed the current offense; 39 40 (3)

(8) The defendant voluntarily acknowledged wrongdoing before arrest or at an 41 early stage of the criminal process; 42 43

14 (4)

(9) The defendant is ineligible for probation and but for that ineligibility would 1 have been granted probation; 2 3

(10) Application of an enhancement could result in a sentence over 20 years; 4 5

(11) Multiple enhancements are alleged in a single case; 6 7

(12) Application of an enhancement could result in a discriminatory racial impact; 8 9

(13) An enhancement is based on a prior conviction that is over five years old; 10 11 (5)

(14) The defendant made restitution to the victim; and 12 13 (6)

(15) The defendant’s prior performance on probation, mandatory supervision, 14 postrelease community supervision, or parole was satisfactory. 15 16 (c) * * * 17 18 Advisory Committee Comment 19 20 * * * 21 22 Rule 4.424. Consideration of applicability of

section 654 23 24 Before determining whether to impose either concurrent or consecutive sentences on all 25 counts on which the defendant was convicted, the court must determine whether the 26 proscription in

section 654 against multiple punishments for the same act or omission 27 requires a stay of execution of the sentence imposed on some of the counts. If a stay of 28 execution is required due to the prohibition against multiple punishments for the same 29 act, the court has discretion to choose which act or omission will be punished and which 30 will be stayed. 31 32 Rule 4.425. Factors affecting concurrent or consecutive sentences 33 34 Factors affecting the decision to impose consecutive rather than concurrent 35 sentences include: 36 37 (a) * * * 38 39 (

b) Other facts and limitations 40 41 Any circumstances in aggravation or mitigation, whether or not the factors have 42 been stipulated to by the defendant or found true beyond a reasonable doubt at trial 43

15 by a jury or the judge in a court trial, may be considered in deciding whether to 1 impose consecutive rather than concurrent sentences, except: 2 3

(1) A fact used to impose the upper term; 4 5

(2) A fact used to otherwise enhance the defendant’s sentence in prison or county 6 jail under

section 1170(h); and 7 8

(3) A fact that is an element of the crime. may not be used to impose consecutive 9 sentences. 10 11 Advisory Committee Comment 12 13 * * * 14 15 Rule 4.427. Hate crimes 16 17 (a)–(b) * * * 18 19 (

c) Hate crime enhancement 20 21 If a hate crime enhancement is pled and proved, the punishment for a felony 22 conviction must be enhanced under

section 422.75 unless the conviction is 23 sentenced as a felony under

section 422.7. 24 25

(1) The following enhancements app ly: 26 27 (

A) An enhancement of a term in state prison as provided in

section 28 422.75(a). Personal use of a firearm in the commission of the offense is 29 an aggravating factor that must be considered in determining the 30 enhancement term. 31 32 (

B) An additional enhancem ent of one year in state prison for each prior 33 felony conviction that constitutes a hate crime as defined in

section 34 422.55. 35 36

(2) The court may strike enhancements under (

c) if it finds mitigating 37 circumstances under rule 4.423, or pursuant to

section 1385(

c) and states 38 those mitigating circumstances on the record. 39 40

(3) The punishment for any enhancement under (

c) is in addition to any other 41 punishment provided by law. 42 43

16 (d)–(e) * * * 1 Advisory Committee Comment 2 3 Multiple enhancements for prior convictions under subdivision (c)(1)(

B) may be imposed if the 4 prior convictions have been brought and tried separately. (Pen. Code, § 422.75(d).) 5 6 In order to impose the upper term based on

section 422.75, the fact of the enhancement pursuant 7 to sections 422.55 or 422.6 must be stipulated to by the defendant or found true beyond a 8 reasonable doubt at trial by the jury or the judge in a court trial. 9 10 Any enhancement alleged pursuant to this

section may be dismissed pursuant to

section 1385(c). 11 12 Rule 4.428. Factors affecting imposition of enhancements 13 14 (

a) Enhancements punishable by one of three terms 15 16 If an enhancement is punishable by one of three terms, the court must, in its sound 17 discretion, order imposition of a sentence not to exceed the middle term, unless 18 there are circumstances in aggravation that justify the imposition of a term of 19 imprisonment exceeding the middle term, and the facts underlying those 20 circumstances have been stipulated to by the defendant, or have been found true 21 beyond a reasonable doubt at trial by the jury or by the judge in a court trial. 22 , in its discretion, impose the term that best serves the interest of justice and state 23 the reasons for its sentence choice on the record at the time of sentencing.

In 24 exercising its discretion in selecting the appropriate term, the court may consider 25 factors in mitigation and aggravation as described in these rules or any other factor 26 authorized by rule 4.408. 27 28 (

b) Striking or dismissing enhancements under

section 1385 29 30 If the court has discretion under

section 1385(

a) to strike an enhancement in the 31 interests of justice, the court also has the authority to strike the punishment for the 32 enhancement under

section 1385(cb). In determining whether to strike the entire 33 enhancement or only the punishment for the enhancement, the court may consider 34 the effect that striking the enhancement would have on the status of the crime as a 35 strike, the accurate reflection of the defendant’s criminal conduct on his or her 36 record, the effect it may have on the award of custody credits, and any other 37 relevant consideration. 38 39 (

c) D ismissing enhancements under

section 1385(c) 40 41

(1) The court shall exercise the discretion to dismiss an enhancement if it is in 1 the furtherance of justice to do so, unless the dismissal is prohibited by 2 initiative statute. 3 4

(2) In exercising its discretion under

section 1385(c), the court must consider and 5 afford great weight to evidence offered by the defendant to prove that any of 6 the mitigating circumstances in

section 1385(

c) are present. 7 8 (

A) Proof of the presence of one or more of these circumstances weighs 9 greatly in favor of dismissing the enhancement, unless the court finds 10 that dismissal of the enhancement would endanger public safety. 11 12 (

B) The circumstances listed in 1385(

c) are not exclusive. 13 14 (C) “Endanger public safety” means there is a likelihood that the dismissal 15 of the enhancement would result in physical injury or other serious 16 danger to others. 17 18

(3) If the court dismisses the enhancement pursuant to 1385(c), then both the 19 enhancement and its punishment must be dismissed. 20 21 Advisory Committee Comment 22 23 Case law suggests that in determining the “furtherance of justice” the court should consider the 24 constitutional rights of the defendant and the interests of society represented by the people; the 25 defendant’s background and prospects, including the presence or absence of a record; the nature 26 and circumstances of the crime and the defendant’s level of involvement; the factors in 27 aggravation and mitigation including the specific factors in mitigation of

section 1385(c); and the 28 factors that would motivate a “reasonable judge” in the exercise of their discretion. The court 29 should not consider whether the defendant has simply pled guilty, factors related to controlling 30 the court’s calendar, or antipathy toward the statutory scheme. (See People v. Romero (1996) 13 31 Cal.4th 947; People v. Dent (1995) 38 Cal.App.4th 1726; People v. Kessel (1976) 61 Cal.App.3d 32 322; People v. Orin (1975) 13 Cal.3d 937.) 33 34 How to afford great weight to a mitigating circumstance is not further explained in

section 1385. 35 The court is not directed to give conclusive weight to the mitigating factors, and must still engage 36 in a weighing of both mitigating and aggravating factors. A review of case law suggests that the 37 court can find great weight when there is an absence of “substantial evidence of countervailing 38 considerations of sufficient weight to overcome” the presumption of dismissal when the 39 mitigating factors are present. (People v.

Martin (1996) 42 Cal.3d 437.) In exercising this 40 discretion, the court may rely on aggravating factors that have not been stipulated to by the 41 defendant or proven beyond a reasonable doubt at trial by a jury or a judge in a court trial. 42 (People v. Black (2007) 41 Cal.4th 799.) 43

18 1 Rule 4.437. Statements in aggravation and mitigation 2 3 (a)–(e) * * * 4 5 Advisory Committee Comment 6 7

Section 1170(b)(4) states in part: 8 9 “At least four days prior to the time set for imposition of judgment, either party or the victim, or 10 the family of the victim if the victim is deceased, may submit a statement in aggravation or 11 mitigation to dispute facts in the record or the probation officer’s report, or to present additional 12 facts.” 13 14 This provision means that the statement is a document giving notice of intention to dispute 15 evidence in the record or the probation officer’s report, or to present additional facts. 16 17 The statement itself cannot be the medium for presenting new evidence, or for rebutting 18 competent evidence already presented, because the statement is a unilateral presentation by one 19 party or counsel that will not necessarily have any indicia of reliability.

To allow its factual 20 assertions to be considered in the absence of corroborating evidence would, therefore, constitute a 21 denial of due process of law in violation of the United States (14th Amend.) and California (art. I, 22 § 7) Constitutions. 23 24 The requirement that the statement include notice of intention to rely on new evidence will 25 enhance fairness to both sides by avoiding surprise and helping to ensure that the time limit on 26 pronouncing sentence is met.

This notice may include either party’s intention to provide evidence 27 to prove or contest the existence of a factor in mitigation that would require imposition of the low 28 term for the underlying offense or dismissal of an enhancement. 29 30 Rule 4.447. Sentencing of enhancements 31 32 (

a) Enhancements resulting in unlawful sentences 33 34 Except pursuant to

section 1385(c), Aa court may not strike or dismiss an 35 enhancement solely because imposition of the term is prohibited by law or exceeds 36 limitations on the imposition of multiple enhancements. Instead, the court must: 37 38

(1) Impose a sentence for the aggregate term of imprisonment computed without 39 reference to those prohibitions or limitations; and 40 41

(2) Stay execution of the part of the term that is prohibited or exceeds the 1 applicable limitation. The stay will become permanent once the defendant 2 finishes serving the part of the sentence that has not been stayed. 3 4 (

b) Multiple enhancements 5 6 Notwithstanding

section 1385(c), Iif a defendant is convicted of multiple 7 enhancements of the same type, the court must either sentence each enhancement 8 or, if authorized, strike the enhancement or its punishment. While the court may 9 strike an enhancement, the court may not stay an enhancement except as provided 10 in (

a) or as authorized by

section 654. 11 12 Advisory Committee Comment 13 14 Subdivision (a). Statutory restrictions may prohibit or limit the imposition of an enhancement in 15 certain situations. (See, for example, sections 186.22(b)(1), 667(a)(2), 667.61(f), 1170.1(

f) and 16 (g), 12022.53(e)(2) and (f), and Vehicle Code

section 23558.) 17 18

Section 1385(

c) requires that in the furtherance of justice certain enhancements be dismissed 19 unless dismissal is prohibited by any initiative statute. 20 21 Present practice of staying execution is followed to avoid violating a statutory prohibition or 22 exceeding a statutory limitation, while preserving the possibility of imposition of the stayed 23 portion should a reversal on appeal reduce the unstayed portion of the sentence. (See People v. 24 Gonzalez (2008) 43 Cal.4th 1118, 1129–1130; People v.

Niles (1964) 227 Cal.App.2d 749, 756.) 25 26 Only the portion of a sentence or component thereof that exceeds a limitation is prohibited, and 27 this rule provides a procedure for that situation. This rule applies to both determinate and 28 indeterminate terms. 29 30 Subdivision (b). A court may stay an enhancement if

section 654 applies. (See People v. Bradley 31 (1998) 64 Cal.App.4th 386; People v. Haykel (2002) 96 Cal.App.4th 146, 152.) 32 33 Rule 4.453. Commitments to nonpenal institutions 34 35 When a defendant is convicted of a crime for which sentence could be imposed under 36 Penal Code

section 1170 and the court orders that he or she be committed to the 37 California Department of Corrections and Rehabilitation, Division of Juvenile Justice 38 under Welfare and Institutions Code

section 1731.5, the order of commitment must 39 specify the term of imprisonment to which the defendant would have been sentenced. The 40 term is determined as provided by Penal Code sections 1170 and 1170.1 and these rules, 41 as though a sentence of imprisonment were to be imposed. 42 43

20 Advisory Committee Comment 1 2 Commitments to the Department of Corrections and Rehabilitation, Division of Juvenile Justice 3 (formerly Youth Authority) cannot exceed the maximum possible incarceration in an adult 4 institution for the same crime. (See People v.

Olivas (1976) 17 Cal.3d 236.) 5 6 Under the indeterminate sentencing law, the receiving institution knew, as a matter of law from 7 the record of the conviction, the maximum potential period of imprisonment for the crime of 8 which the defendant was convicted. 9 10 Under the Uniform Determinate Sentencing Act, the court’s discretion as to length of term leaves 11 doubt as to the maximum term when only the record of convictions is present. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39