Circumstances in aggravation

Circumstances in Aggravation

(a) Factors relating to the crime

Rule 4.421(a)(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;

CALCRIM 3224

1. During the commission of the crime[s], the defendant (used great violence[,]/ [or ]inflicted great bodily harm[,]/ [or ]threatened to inflict great bodily harm[,]/ [or ]committed (other/an) act[s] showing a high degree of cruelty, viciousness, or callousness); AND 2. The (type/level) of (violence[,]/ [or ]bodily harm[,]/ [or ]threat of bodily harm[,]/ [or ]cruelty, viciousness, or callousness) was distinctively worse than what was necessary to commit the crime[s].

Force, Violence, or Threat Beyond What is Necessary to Accomplish Criminal Purpose. People v. Karsai (1982) 131 Cal.App.3d 224, 239 [182 Cal.Rptr. 406]; see also People v. Cortez (1980) 103 Cal.App.3d 491, 496 [163 Cal.Rptr. 1]; People v. Harvey (1984) 163 Cal.App.3d 90, 116 [208 Cal.Rptr. 910]; People v. Garcia (1989) 209 Cal.App.3d 790, 793–794 [257 Cal.Rptr. 495]. • Viciousness Not Equivalent To Violence. People v. Reed (1984) 157 Cal.App.3d 489, 492 [203 Cal.Rptr. 659]. • Actual Bodily Harm Not Required. People v. Duran (1982) 130 Cal.App.3d 987, 990 [182 Cal.Rptr. 17].

Rule 4.421(a)(2) The defendant was armed with or used a weapon at the time of the commission of the crime;

CALCRIM 3225.

To prove this allegation, the People must prove that the defendant, while committing the crime[s][ in Count[s] ] (knowingly carried a weapon[,]/ [or ]knowingly had a weapon available for use[,]/ [or ]intentionally displayed a weapon in a menacing manner[,]/ [or ]intentionally (fired/ [or ]attempted to fire) a weapon[,]/ [or ]intentionally (struck[,]/ [or ]stabbed[,]/ [or ]slashed[,]/ [or ]hit][,]/ [or ]attempted to (strike[,]/ [or ]stab[,]/ [or ]slash[,]/ [or ]hit) another person with a weapon).] [A device, instrument, or object that is capable of being used to inflict injury or death may be a weapon.

• Arming Includes Available for Use. People v. Garcia (1986) 183 Cal.App.3d 335, 350 [228 Cal.Rptr. 87].

Rule 4.421(a)(3) The victim was particularly vulnerable;

CALCRIM 3226.

1. <insert name of victim> (suffered/ [or ]was threatened with suffering) a loss, injury, or harm as the result of the crime[s]; AND 2. <insert name of victim> was particularly vulnerable. Particularly vulnerable includes being defenseless, unguarded, unprotected, or otherwise susceptible

“Particularly Vulnerable” Defined. People v. DeHoyos (2013) 57 Cal.4th 79, 154–155 [158 Cal.Rptr.3d 797, 303 P.3d 1]; People v. Spencer (1996) 51 Cal.App.4th 1208, 1223 [59 Cal.Rptr.2d 627]; People v. Price (1984) 151 Cal.App.3d 803, 814 [199 Cal.Rptr. 99]; People v. Ramos (1980) 106 Cal.App.3d 591, 607 [165 Cal.Rptr. 179]; People v. Smith (1979) 94 Cal.App.3d 433, 436 [156 Cal.Rptr. 502].

• Vulnerability Cannot Be Based Solely on Age if Age Is Element of Offense. People v. Dancer (1996) 45 Cal.App.4th 1677, 1693–1694 [53 Cal.Rptr.2d 282], disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [65 Cal.Rptr.2d 1, 938 P.2d 986]; People v. Quinones (1988) 202 Cal.App.3d 1154, 1159 [249 Cal.Rptr. 435], disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 244–245 [119 Cal.Rptr.3d 775, 245 P.3d 410]; People v. Ginese (1981) 121 Cal.App.3d 468, 476–477 [175 Cal.Rptr. 383]; People v. Flores (1981) 115 Cal.App.3d 924, 927 [171 Cal.Rptr. 777].

Victims of vehicular manslaughters are not "vulnerable," within the meaning of aggravation, because all vehicular manslaughter victims are vulnerable. (People v. Piceno (1987) 195 Cal.App.3d 1353, 1358-1359; People v. Bloom (1983) 142 Cal.App.3d 310.)

4.421(a)(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;

CALCRIM 3227

1. The defendant induced others to participate in the commission of the crime[s]; OR 2. The defendant occupied a position of leadership or dominance over other participants during commission of the crime[s].

More Than One Participant Required. People v. Berry (1981) 117 Cal.App.3d 184, 198 [172 Cal.Rptr. 756, 763–764]. • Leadership Not Equivalent to Dominance. People v. Kellett (1982) 134 Cal.App.3d 949, 961 [185 Cal.Rptr. 1]. • Factor Requires More Than Being Willing Participant. People v. Searle (1989) 213 Cal.App.3d 1091, 1097 [261 Cal.Rptr. 898].

Rule 4.421(a)(5) The defendant induced a minor to commit or assist in the commission of the crime;

CALCRIM 3228.

1. The defendant induced a minor to commit the crime[s];

OR

2. The defendant induced a minor to assist in the commission of the crime[s].

Induced means persuaded, convinced, influenced, or instructed.

Rule 4.421(a)(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;

CALCRIM 3229.

To prove this allegation, the People must prove that the defendant (threatened [a ]witness[es]/ [or ]prevented [a ]witness[es] from testifying/ [or ]dissuaded [a ]witness[es] from testifying/ [or ]suborned perjury/[or ] <insert other illegal activity that interfered with the judicial process>).

Rule 4.421 (a)(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;

CALCRIM 3230.

To prove this allegation, the People must prove that the defendant’s manner of committing the crime involved planning, sophistication, or professionalism.

Whether the manner of committing the crime involves planning, sophistication, or professionalism depends on the totality of the circumstances surrounding the offense.

Planning refers to conduct before the crime, preparing for its commission.

Sophistication refers to conduct demonstrating knowledge or awareness of the complexities or details involved in committing the crime.

Professionalism refers to conduct demonstrating particular experience or expertise.

• “Planning, Sophistication, Professionalism” Defined. People v. Mathews (1980) 102 Cal.App.3d 704, 710 [162 Cal.Rptr. 615]; People v. Stewart (1983) 140 Cal.App.3d 11, 17 [189 Cal.Rptr. 141]; People v. Charron (1987) 193 Cal.App.3d 981, 994–995 [238 Cal.Rptr. 660]; People v. Dancer (1996) 45 Cal.App.4th 1677, 1695 [53 Cal.Rptr.2d 282], disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [65 Cal.Rptr.2d 1, 938 P.2d 986].

Rule 4.421(a)(9) The crime involved an attempted or actual taking or damage of great monetary value;

CALCRIM 3231.

During the commission of the crime[s], the defendant (attempted to take/ [or ]actually took/damaged) <insert description of item>; AND 2. The monetary value of the <insert description of item or damage to item> was great.

Great Monetary Value. People v. Wright (1982) 30 Cal.3d 705, 707 & 714 [180 Cal.Rptr. 196, 639 P.2d 267] [losses of $2,300 and $3,250 qualified]; People v. Berry (1981) 117 Cal.App.3d 184, 197 [172 Cal.Rptr. 756] [damage of $450 did not qualify]; People v. Bejarano (1981) 114 Cal.App.3d 693, 705–706 [173 Cal.Rptr. 71] [loss of rifle, shotgun, and television did not qualify].

Rule 4.421(a)(10) The crime involved a large quantity of contraband; and

The <insert description of contraband> was contraband; AND 2. The quantity of <insert description of contraband> was large.

Rule 4.421(a)(11) The defendant took advantage of a position of trust or confidence to commit the offense.

CALCRIM 3233.

1. (Prior to/During) the commission of the crime, the defendant (had/developed) a relationship with <insert name of victim or other person>; 2. This relationship allowed the defendant to occupy a position of trust or caused <insert name of victim or other person> to have confidence in the defendant; AND 3. The defendant took advantage of this position of trust or confidence to commit the crime.

• Factor Focuses on Special Status to Victim. People v. DeHoyos (2013) 57 Cal.4th 79, 155 [158 Cal.Rptr.3d 797, 303 P.3d 1]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1262–1263 [131 Cal.Rptr.2d 628] [quasi-paternal relationship]; People v. Dancer (1996) 45 Cal.App.4th 1677, 1694–1695 [53 Cal.Rptr.2d 282] [defendant intentionally cultivated friendship], disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [65 Cal.Rptr.2d 1, 938 P.2d 986]; People v. Franklin (1994) 25 Cal.App.4th 328, 337–338 [30 Cal.Rptr.2d 376] [stepfather entrusted with care]; People v. Clark (1992) 12 Cal.App.4th 663, 666 [15 Cal.Rptr.2d 709] [stepfather entrusted with care]; People v. Jones (1992) 10 Cal.App.4th 1566, 1577 [14 Cal.Rptr.2d 9] [legal parent].

Rule 4.421(a)(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:

Rule 4.421(b)(1) The defendant has engaged in violent conduct that indicates a serious danger to society;

CALCRIM 3224.

1. The defendant has engaged in violent conduct; AND 2. The violent conduct, considered in light of all the evidence presented[ and the defendant’s background], shows that the defendant is a serious danger to society.

[To determine whether the defendant is a serious danger to society, you may consider the defendant’s conduct before or after commission of the crime[ as well as evidence about the defendant’s background].

Danger to Society: Subsequent Conduct Can Be Considered. People v. Gonzales (1989) 208 Cal.App.3d 1170, 1173 [256 Cal.Rptr. 669].

Rule 4.421(b)(5) The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 1991, January 1, 2007, and May 23, 2007.)

Rule 4.421(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.

(Subd (c) amended effective January 1, 2018; adopted effective January 1, 1991; previously amended effective January 1, 2007, and May 23, 2007.)

Rule 4.421 amended effective January 1, 2018; adopted as rule 421 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, January 1, 2007, May 23, 2007, and January 1, 2017.

Advisory Committee Comment

Courts may not impose a sentence greater than the middle term except when aggravating factors justifying the imposition of the upper term have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or the judge in a court trial. These requirements do not apply to consideration of aggravating factors for the lower or middle term. If the court finds that any of the factors listed in section 1170(b)(6)(A-C) were a contributing factor to the commission of the offense, the court must impose the lower term (see rule 4.420(e)) unless the court finds that the aggravating factors outweigh the mitigating factors to such a degree that imposing the lower term would be contrary to the interests of justice. In this instance, since the court is not addressing the imposition of the upper term, the court may consider factors in aggravation that have not been stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or the judge in a court trial.

In determining whether to impose the upper term for a criminal offense, the court may consider as an aggravating factor that a defendant has suffered one or more prior convictions, based on a certified record of conviction. This exception may not be used to select the upper term of an enhancement.

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.

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.)

Other statutory factors in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85, and may be considered to impose the upper term if stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial.