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Penal Code section 1170 and Selecting a Term of Imprisonment when Probation Denied or Unavailable

Penal Code section 1170 discusses how a Court should impose a term in state prison where Probation is denied. (See Cal. Penal Code § 1170). Prior to January 1, 2022, a Court had vast discretion to impose one of three terms: the High Term, Middle Term, or Lower Term – called a “triad” in legal circles because there are three terms. (See Cal. Penal Code § 1170(b), see also Cal. Rules of Court, Rule 4.420). For instance, assault with a deadly weapon under Penal Code section 245(a)(1) has a Low Term of 2 years, Middle Term of 3 years, and Upper Term of 4 years, so the “triad” would be “2y-3y-4y”. (See Cal. Penal Code § 1170(b)).

The New, Outstanding Changes to Penal Code section 1170

As of January 1, 2022, however, the Court “shall” impose a sentence no greater than the Middle-Term. (See Cal. Penal Code § 1170(b)(1)). The Upper Term may only be imposed if either the defendant “stipulates”, or agrees, to the Upper Term, or if a Jury or Court at Trial find “aggravating factors” (see Cal. Rules of Court, Rule 4.421) beyond a reasonable doubt to be true:

(b) (1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
Cal. Penal Code § 1170(b)(1)-(2), emphasis added.

Thus, it is much harder to the Upper Term to be imposed unless there is specific finding of a Jury or Judge that the case deserves to be considered an aggravated offense.

What qualifies as “factors in aggravation”? These factors are laid out in Rule of Court 4.421, which breaks the factors down as “related to the crime” and “related to the defendant”:

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.

Cal. Rules of Court, Rule 4.421.

In addition to the Middle-Term being the highest term the Court can impose unlss found true by jury, court, or agreed to by the defendant, the new version of Penal Code section 1170 also created avenues wherein the Court must impose the Lower Term where the defendant is youthful (under 26 years old – see Cal. Penal Code § 1016.7), or has a history of trauma or abuse in their background, except in limited circumstances:

(6) . . . [U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
See Cal. Penal Code § 1170(b)(6), emphasis added.

Therefore, a defendant under 26 years old, has a history of trauma, or was the victim of domestic violence or trafficking, “shall” be granted the Lower Term unless the Court can point to specific reasons where it would not be in the interests of justice to do so.

Clearly, the law has changed greatly to benefit defendants who are not granted Probation to avoid the longest term of imprisonment provided by law in most situations.

However, in order to get the best result on a given case, an experienced, dedicated criminal defense team as those at Honeychurch & Giambona is needed to avoid prison in the first instance, or to develop a defense that will persuade the Court that their client deserves a lower sentence than that sought by the District Attorney.

Call Honeychurch & Giambona Today

At Honeychurch & Giambona, we have defended countless clients since 1978 to achieve outstanding results against aggressive prosecution and an overly punitive justice system. If you or a loved one is currently facing criminal charges in Solano County, Napa County, or Yolo County, the stakes are high and you need the best defense team on your side to help.

Call us today for a free consultation as to how we can assist you to achieve the best possible results in your case, taking advantage of all avenues the law allows to your benefit in this difficult time in your life.


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