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

(a)

(b)

Committee Notes

(Subd (a) amended effective January 1, 2018; previously amended effective January 1, 2007.)

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, § 351.)

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).)