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2.5: Concurrent versus Consecutive Sentences

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    The severity of a sentence usually hinges on two major factors. The first is the seriousness of the offense. The other, which is much more complex, is the presence of aggravating or mitigating circumstances. In general, the more serious the crime, the harsher the punishment. Listed below, are the California Rules of Court which identify the specific criteria for both mitigating and aggravating circumstances.

     

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    2019 California Rules of Court

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    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)image-1.gifThe 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)image-1.gifThe defendant was armed with or used a weapon at the time of the commission of the crime;

    (3)image-1.gifThe victim was particularly vulnerable;

    (4)image-1.gifThe 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)image-1.gifThe defendant induced a minor to commit or assist in the commission of the crime;

    (6)image-1.gifThe defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;

    (7)image-1.gifThe defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;

    (8)image-1.gifThe manner in which the crime was carried out indicates planning, sophistication, or professionalism;

    (9)image-1.gifThe crime involved an attempted or actual taking or damage of great monetary value;

    (10)image-1.gifThe crime involved a large quantity of contraband; and

    (11)image-1.gifThe defendant took advantage of a position of trust or confidence to commit the offense.

    (12)image-1.gifThe crime constitutes a hate crime under section 422.55 and:

    (A)image-1.gifNo hate crime enhancements under section 422.75 are imposed; and

    (B)image-1.gifThe 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)image-1.gifThe defendant has engaged in violent conduct that indicates a serious danger to society;

    (2)image-1.gifThe defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;

    (3)image-1.gifThe defendant has served a prior term in prison or county jail under section 1170(h);

    (4)image-1.gifThe defendant was on probation, mandatory supervision, post release community supervision, or parole when the crime was committed; and

    (5)image-1.gifThe defendant's prior performance on probation, mandatory supervision, post release 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.

    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.

    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.)

    Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were 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 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

     

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    Rule 4.423. Circumstances in mitigation

    Circumstances in mitigation include factors relating to the crime and factors relating to the defendant.

    (a) Factors relating to the crime

    Factors relating to the crime include that:

    (1)image-1.gifThe defendant was a passive participant or played a minor role in the crime;

    (2)image-1.gifThe victim was an initiator of, willing participant in, or aggressor or provoker of the incident;

    (3)image-1.gifThe crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;

    (4)image-1.gifThe defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;

    (5)image-1.gifThe defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;

    (6)image-1.gifThe defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;

    (7)image-1.gifThe defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;

    (8)image-1.gifThe defendant was motivated by a desire to provide necessities for his or her family or self; and

    (9)image-1.gifThe defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense.

    (Subd (a) amended effective May 23, 2007; previously amended effective January 1, 1991, July 1, 1993, and January 1, 2007.)

    (b) Factors relating to the defendant

    Factors relating to the defendant include that:

    (1)image-1.gifThe defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;

    (2)image-1.gifThe defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;

    (3)image-1.gifThe defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;

    (4)image-1.gifThe defendant is ineligible for probation and but for that ineligibility would have been granted probation;

    (5)image-1.gifThe defendant made restitution to the victim; and

    (6)image-1.gifThe defendant's prior performance on probation, mandatory supervision, post release community supervision, or parole was satisfactory.

    (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 mitigation or that reasonably relate to the defendant or the circumstances under which the crime was committed.

    (Subd (c) adopted effective January 1, 2018.)

    Rule 4.423 amended effective January 1, 2018; adopted as rule 423 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, July 1, 1993, January 1, 2007, May 23, 2007, and January 1, 2017.


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