2024 California Rules of Court
Rule 4.421. Circumstances in aggravation
Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(Subd (a) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and
(5) The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory.
(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 1991, January 1, 2007, and May 23, 2007.)
(c) Other factors
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.)
Rule 4.421 amended effective January 1, 2018; adopted as rule 421 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, January 1, 2007, May 23, 2007, and January 1, 2017.
Advisory Committee Comment
Courts may not impose a sentence greater than the middle term except when aggravating factors justifying the imposition of the upper term have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or the judge in a court trial. These requirements do not apply to consideration of aggravating factors for the lower or middle term. If the court finds that any of the factors listed in section 1170(b)(6)(A-C) were a contributing factor to the commission of the offense, the court must impose the lower term (see rule 4.420(e)) unless the court finds that the aggravating factors outweigh the mitigating factors to such a degree that imposing the lower term would be contrary to the interests of justice. In this instance, since the court is not addressing the imposition of the upper term, the court may consider factors in aggravation that have not been stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or the judge in a court trial.
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 a certified record of conviction. This exception may not be used to select the upper term of an enhancement.
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 4.420.
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.)
Other statutory factors in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85, and may be considered to impose the upper term if stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial.