Rule 4.420. Selection of term of imprisonment

(a)

(b)

(c)

(d)

(e)

(1) The defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence;

(2) The defendant is a youth, or was a youth as defined under section 1016.7(b) at the time of the commission of the offense; or

(3) Prior to the instant offense, or at the time of the commission of the offense, the defendant is or was a victim of intimate partner violence or human trafficking.

(f)

(g)

(h)

(i)

Committee Notes

(Subd (a) amended effective March 14, 2022; previously amended effective July 28, 1977, January 1, 1991, January 1, 2007, and May 23, 2007.)

(Subd (b) adopted effective March 14, 2022.)

(Subd (c) adopted effective March 14, 2022.)

(Subd (d) relettered and amended effective March 14, 2022; adopted as Subd (b); previously amended effective July 28, 1977, January 1, 1991, January 1, 2007, May 23, 2007, January 1, 2008, and January 1, 2017.)

(Subd (e) adopted effective March 14, 2022.)

(Subd (f) adopted effective March 14, 2022.)

(Subd (g) relettered and amended effective March 14, 2022; adopted as Subd (c) effective January 1, 1991; previously amended effective January 1, 2018.

(Subd (h) relettered effective March 14, 2022; adopted as Subd (d) effective January 1, 1991; previously amended effective January 1, 2007, May 23, 2007, and January 1, 2018.)

(Subd (i) relettered effective March 14, 2022; previously amended and relettered effective January 1, 1991; previously amended effective July 28, 1977, January 1, 2007, May 23, 2007, and January 1, 2017.)

Advisory Committee Comment

It is not clear whether the reasons stated by the judge for selecting a particular term qualify as "facts" for the purposes of the rule prohibition on dual use of facts. Until the issue is clarified, judges should avoid the use of reasons that may constitute an impermissible dual use of facts. For example, the court is not permitted to use a reason to impose a greater term if that reason also is either (1) the same as an enhancement that will be imposed, or (2) an element of the crime. The court should not use the same reason to impose a consecutive sentence as to impose an upper term of imprisonment. (People v. Avalos(1984) 37 Cal.3d 216, 233.) It is not improper to use the same reason to deny probation and to impose the upper term. (People v. Bowen(1992) 11 Cal.App.4th 102, 106.)

The rule makes it clear that a fact charged and found as an enhancement may, in the alternative, be used as a factor in aggravation.

People v. Riolo(1983) 33 Cal.3d 223, 227 (and note 5 on 227) held that section 1170.1(a) does not require the judgment to state the base term (upper, middle, or lower) and enhancements, computed independently, on counts that are subject to automatic reduction under the one-third formula of section 1170.1(a).

Even when sentencing is under section 1170.1, however, it is essential to determine the base term and specific enhancements for each count independently, in order to know which is the principal term count. The principal term count must be determined before any calculation is made using the one-third formula for subordinate terms.

In addition, the base term (upper, middle, or lower) for each count must be determined to arrive at an informed decision whether to make terms consecutive or concurrent; and the base term for each count must be stated in the judgment when sentences are concurrent or are fully consecutive (i.e., not subject to the one-third rule of section 1170.1(a)).

Case law suggests that in determining the "interests 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 Penal Code section 1170(b)(6); 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. (SeePeople 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.)