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 prison term;
(4)The defendant was on probation or parole when the crime was committed; and
(5)The defendant's prior performance on probation or parole was unsatisfactory.
(Subd (b) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation.
(Subd (c) amended effective May 23, 2007; adopted effective January 1, 1991; previously amended effective January 1, 2007.)
Rule 4.421 amended effective May 23, 2007; adopted as rule 421 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, and January 1, 2007.
Advisory Committee Comment
Circumstances in aggravation may justify imposition of the upper of three possible prison terms. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. The rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in rule 4.420.
Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements.
Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases. This resolves whatever ambiguity may arise from the phrase "circumstances in aggravation . . . of the crime." The phrase "circumstances in aggravation or mitigation of the crime" necessarily alludes to extrinsic facts.
Refusal to consider the personal characteristics of the defendant in imposing sentence would also 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 In re Rodriguez the court released petitioner from further incarceration because "[I]t 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 655.) (Footnote omitted, emphasis 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 v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)
The scope of "circumstances in aggravation or mitigation" under section 1170(b) is, therefore, coextensive with the scope of inquiry under the similar phrase in section 1203.
The 1990 amendments to this rule and the comment included the deletion of most section numbers. These changes recognize changing statutory section numbers and the fact that there are numerous additional code sections related to the rule, including numerous statutory enhancements enacted since the rule was originally adopted.
Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion; cases in which that possible circumstance in aggravation was relied on were frequently reversed on appeal because there was only a single victim in a particular count.
Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 1170.7, 1170.71, 1170.75, 1170.8, and 1170.85.