Rule 4.414. Criteria affecting probation
Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
(a) Facts relating to the crime
Facts relating to the crime include:
(1)The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
(2)Whether the defendant was armed with or used a weapon;
(3)The vulnerability of the victim;
(4)Whether the defendant inflicted physical or emotional injury;
(5)The degree of monetary loss to the victim;
(6)Whether the defendant was an active or a passive participant;
(7)Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
(8)Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and
(9)Whether the defendant took advantage of a position of trust or confidence to commit the crime.
(Subd (a) amended effective January 1, 2007; previously amended effective January 1, 1991.)
(b) Facts relating to the defendant
Facts relating to the defendant include:
(1)Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
(2)Prior performance on probation or parole and present probation or parole status;
(3)Willingness to comply with the terms of probation;
(4)Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
(5)The likely effect of imprisonment on the defendant and his or her dependents;
(6)The adverse collateral consequences on the defendant's life resulting from the felony conviction;
(7)Whether the defendant is remorseful; and
(8)The likelihood that if not imprisoned the defendant will be a danger to others.
(Subd (b) amended effective January 1, 2007; previously amended effective January 1, 1991, and July 1, 2003.)
Rule 4.414 amended effective January 1, 2007; adopted as rule 414 effective July 1, 1977; previously amended effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003.
Advisory Committee Comment
The sentencing judge's discretion to grant probation is unaffected by the Uniform Determinate Sentencing Act (§ 1170(a)(3)).
The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community. Each criterion points to evidence that the likelihood of success is great or small. A single criterion will rarely be determinative; in most cases, the sentencing judge will have to balance favorable and unfavorable facts.
Under criteria (b)(3) and (b)(4), it is appropriate to consider the defendant's expressions of willingness to comply and his or her apparent sincerity, and whether the defendant's home and work environment and primary associates will be supportive of the defendant's efforts to comply with the terms of probation, among other factors.