Cal. R. 4.428

As amended through July 24, 2024

Rule 4.428 - Factors affecting imposition of enhancements

(a)Enhancements punishable by one of three terms

If an enhancement is punishable by one of three terms, the court must, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

(Subd (a) was adopted effective January 1, 2018.)

(b)Striking or dismissing enhancements under section 1385

If the court has discretion under section 1385(a) to strike an enhancement in the interests of justice, the court also has the authority to strike the punishment for the enhancement under section 1385(b). In determining whether to strike the entire enhancement or only the punishment for the enhancement, the court may consider the effect that striking the enhancement would have on the status of the crime as a strike, the accurate reflection of the defendant's criminal conduct on his or her record, the effect it may have on the award of custody credits, and any other relevant consideration.

(Subd (b) was adopted effective January 1, 2018.)

(c)Dismissing enhancements under section 1385(c)

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

(2) In exercising its discretion under section 1385(c), the court must consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in section 1385(c) are present.

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

(B) The circumstances listed in 1385(c) are not exclusive.

(C) "Endanger public safety" means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

(3) If the court dismisses the enhancement pursuant to 1385(c), then both the enhancement and its punishment must be dismissed.

Cal. R. Ct. 4.428

Rule 4.428 amended effective 3/14/2022; amended effective 1/1/2018; amended effective 1/1/2011; adopted as rule 428 effective 1/1/1991; previously renumbered effective 1/1/2001; previously amended effective 1/1/1998, 7/1/2003, 1/1/2007, 5/23/2007, and 1/1/2008.

Advisory Committee Comment

Case law suggests that in determining the "furtherance of justice" the court should consider the constitutional rights of the defendant and the interests of society represented by the people; the defendant's background and prospects, including the presence or absence of a record; the nature and circumstances of the crime and the defendant's level of involvement; the factors in aggravation and mitigation including the specific factors in mitigation of section 1385(c); and the factors that would motivate a "reasonable judge" in the exercise of their discretion. The court should not consider whether the defendant has simply pled guilty, factors related to controlling the court's calendar, or antipathy toward the statutory scheme. (See People v. Romero (1996) 13 Cal.4th 947; People v. Dent (1995) 38 Cal.App.4th 1726; People v. Kessel (1976) 61 Cal.App.3d 322; People v. Orin (1975) 13 Cal.3d 937.)

How to afford great weight to a mitigating circumstance is not further explained in section 1385. The court is not directed to give conclusive weight to the mitigating factors, and must still engage in a weighing of both mitigating and aggravating factors. A review of case law suggests that the court can find great weight when there is an absence of "substantial evidence of countervailing considerations of sufficient weight to overcome" the presumption of dismissal when the mitigating factors are present. (People v. Martin (1996) 42 Cal.3d 437.) In exercising this discretion, the court may rely on aggravating factors that have not been stipulated to by the defendant or proven beyond a reasonable doubt at trial by a jury or a judge in a court trial. (People v. Black (2007) 41 Cal.4th 799.)