Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
Facts relating to the crime, whether or not charged or chargeable as enhancements, include the fact that:
Facts relating to the defendant include the fact that:
(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 1991, January 1, 2007, and May 23, 2007.)
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.)
Cal. R. Ct. 4.421
Advisory Committee Comment
Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (§ 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.
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.