Sentencing

Charging

Penal Code Section 12022.1 This is a two-year enhancement for committing a crime while released on bail or own recognizance. Subdivision (c) specifically states that the allegation may be pleaded in a Complaint, but need not be proved at the preliminary hearing. The allegation must, however, be pleaded in the Information or Indictment. 2. Prior Convictions Prior convictions, which are status enhancements, may be added to the Information or Indictment whenever it is discovered that not all prior convictions have been alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995) 38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001) 91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

Admissible evidence

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

Granting probation

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.) 67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be alleged and proved, for example, Penal Code section 1203(k); however, allegations that merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71 Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896; McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

Presumptive ineligible

There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

Statement of reasons

“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

Misdemeanor sentencing

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

Sentencing error

Failing to state reasons

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

Enhancements

An enhancement is defined as an additional term of imprisonment or penalty added to the base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court, California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime. (People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293; People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it is inextricably bound to the underlying crime, and the facts that are relied upon to establish the enhancement must have occurred during the time of the offense. (People v. Walls (1978) 85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v. Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term set for each offense, and a status enhancement is added once at the end of the determinate term calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code section 1170.11 lists specific enhancements that relate to the circumstances of the crime. Enhancement allegations are not considered part of the accusatory pleading for purposes of defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond (1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v. Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements are disregarded when determining the applicable statute of limitations. In other words, the enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code § 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for each separate crime for which the enhancement is found true. In other words, the law does not limit charging or imposing enhancements only once for a criminal event; rather enhancements should be charged and imposed for each crime during that event. (See People v. King (1993) 5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000) Defendant Conduct Enhancements (2015) 3 530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002) 27 Cal.4th 735.) Conduct enhancements should be pled in the criminal Complaint and proved at the preliminary hearing. An enhancement may be included on the Information, even if not initially alleged in the Complaint, provided sufficient evidence to support the enhancement was presented at the preliminary hearing. Otherwise, the defendant may challenge the sufficiency of an enhancement allegation by way of a Penal Code section 995 motion. (People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.) If the incorrect code section is pled or the enhancement is attached to the wrong count, the court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439; People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra; People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining When the defendant enters into a plea bargain that includes an enhancement that the defendant knows is unauthorized by law, in exchange for a lesser sentence than could otherwise be imposed, the defendant will be estopped from attacking the imposition of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v. Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined Most enhancements require the prohibited conduct to be “during the commission” or “in the commission” of a crime. The phrase “in the commission” has been given an expansive interpretation and means more than simply “while committing” or “while engaged in.” (People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases illustrate this concept: • People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant was “in the commission” of a robbery when he was in flight from officers and struck a pedestrian. • People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery victim sustained GBI while trying to push the fleeing defendant from a van. • People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI enhancement may apply to leaving the scene of an accident in violation of Vehicle Code section 20001(a) if the injury was inflicted as part of one continuous transaction, but not if the injury was inflicted prior to the flight. • People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of” in Penal Code section 12022.53(d) has the same meaning as identical or equivalent language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus, a firearm is discharged “in the commission of” a felony within the meaning of Penal Code section 12022.53(d) if the underlying felony and the discharge of the firearm are part of one continuous transaction, including flight after the felony to a place of temporary safety. • People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense, the gun facilitates that crime and has the requisite purpose or effect with respect to its commission. • People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement “during the commission” of a robbery, the robbery may be spread over a considerable distance and varying periods of time. A robbery begins with the commission of any of the elements and concludes after all the elements have been satisfied and the defendant has reached a place of relative safety. The gun use enhancement applies if the “use” aids in completing any of the essential elements of the crime. • People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code section 667.61(e)(2), “during the commission of a burglary” refers to that period of time between the burglar’s initial entry with the requisite intent and the burglar’s escape to a place of temporary safety People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement, such use may be deemed to occur “in the commission of” the offense if it occurred before, during, or after the technical completion of the felonious sex act. The operative question is whether the sex offense posed a greater threat of harm, i.e., was more culpable because the defendant used a deadly weapon to threaten or maintain control over the victim. • People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s sentence may be enhanced for arming as long as he [or she] has a weapon available for use at any point during the course of a continuing offense (conspiracy). • People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially used a firearm to subdue the two female victims and tie them up. He then committed robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the enhancement for gun use in the sex crimes, claiming that he only displayed the gun at the outset of the crime spree. The court held that the firearm use enhancement liability continued for as long as the defendant “utilized a gun at least as an aid in completing an essential element of a subsequent crime.” The court explained: In considering whether a gun use occurred, the jury may consider a “video” of the entire encounter; it is not limited to a “snapshot” of the moments immediately preceding a sex offense. Thus, a jury could reasonably conclude that although defendant’s presence with the victims was sporadic, the control and fear created by his initial firearm display continued throughout the encounter. (Id. at 1011.) [Note: This case has an excellent and extensive discussion on the definition of “use” of a firearm.] • People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code section 12022.5, the use of a firearm during escape from the crime scene is a use during the commission of the crime. The defendant had left the burglary scene with a police officer in pursuit, but his companion was detained at the scene, and the defendant used the weapon when he returned to free her. The companion had stolen items on her person and could implicate the defendant in the burglary. Thus, the burglary had not been completed. • People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code section 12022.4 creates an enhancement for furnishing a firearm during the commission of a crime. Although the defendant actually furnished it before the crime, the court held that the statutory language must be read as contemplating a time frame other than simply the time of the actual act element of the felony. • People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim after removal from a burglary situs is “during the commission” of the burglary. • People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary was complete upon entry with the requisite intent and that the alleged enhancement conduct did not occur “during the commission” of the burglary. This was rejected by the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.) Enhancements imposed on attempted crimes are not reduced by half the normal term for the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447; People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.) 1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code

Section 1170.1(f)

The defendant’s use of a firearm or weapon during the commission of a crime may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53); however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f); People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant uses two weapons during the commission of the crime. (People v. Jones (2000) 82 Cal.App.4th 485.) 2. Multiple Weapon Enhancements on Multiple Crimes When the defendant uses a weapon during the commission of multiple crimes, a weapons enhancement is permitted for each crime. (King, supra; People v. Palacios (2007) 41 Cal.4th 720.) 3. Multiple Injury Enhancements on the Same Victim on a Single Crime—

Penal Code Section 1170.1(g)

The defendant’s infliction of injury during the commission of a crime may result in the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b)); however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck (1999) 76 Cal.App.4th 759 [cert. for part. pub.].) 4. Multiple Injury Enhancements for Multiple Victims Where multiple victims are injured, multiple injury enhancements are permitted. (People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App. 4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment for the enhancement—with stated reasons based on the general provisions of Penal Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett (1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen. Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th 1420 [cert. for part. pub.].)

Rules of Court

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;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(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 any other facts and circumstances relevant to the case.

Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation

(a) Consideration of eligibility The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible 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.

(c) Factors overcoming the presumption of ineligibility The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation A factor 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 factor 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) Factors limiting defendant's culpability A factor 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.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

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. (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 term in prison or county jail under section 1170(h); (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and (5) The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. (c) Other factors Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed. Credits (Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

Comment

ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).) The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to 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 or charged as an enhancement.

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.

Refusal to consider the personal characteristics of the defendant in imposing sentence may 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 Rodriguez the court released petitioner from further incarceration because “it 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 p. 655, fn. omitted, italics 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 ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were 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 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

Resentencing

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)