Cal. R. 4.408

As amended through March 15, 2024

Rule 4.408 - Listing of factors not exclusive; sequence not significant

(a) The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using 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, 2018; previously amended effective January 1, 2007.)

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

Cal. R. Ct. 4.408

Rule 4.408 amended effective 3/14/2022; amended effective 1/1/2018; amended effective 1/1/2007; adopted as rule 408 effective 7/1/1977; previously renumbered effective 1/1/2001.

Advisory Committee Comment

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, Section 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.

The court may impose a sentence or enhancement exceeding the middle term only if the facts underlying the aggravating factor were stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (Pen. Code, § 1170(b)(2).)

However, 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 certified records of conviction. This exception may not be used to select the upper term of an enhancement. (Pen. Code, § 1170(b)(3).)

The Legislature also amended the determinate sentencing law to require courts to order imposition of the low term when the court finds that certain factors contributed to the commission of the crime unless the court finds that it would not be in the interests of justice to do so because the aggravating factors outweigh the mitigating factors. (Pen. Code, § 1170(b)(6).)