Rule 4.408
Listing of factors not exclusive; sequence not significant
Felony Sentencing Law
Rule Text
(a) The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge.
(b) The order in which criteria are listed does not indicate their relative weight or importance.
Plain-English Summary (for reference only — not a substitute for the rule text above)
When a judge decides on a sentence, they are not limited to only the factors listed in the court rules. They can consider other things too, as long as those extra factors make sense for the case. If a judge does use additional factors, they must say so out loud during the sentencing hearing.
The order in which factors appear in the rules does not mean some factors matter more than others. A factor listed first is not more important than one listed last.
Summary generated March 14, 2026
Committee Notes
The variety of circumstances presented in felony cases is so great that no listing of criteria could claim to be all-inclusive. (Cf., Evid. Code, § 351.)
The court may impose a sentence or enhancement exceeding the middle term only if the facts underlying the aggravating factor were stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (Pen. Code, § 1170(b)(2).)
However, 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 certified records of conviction. This exception may not be used to select the upper term of an enhancement. (Pen. Code, § 1170(b)(3).)
The Legislature also amended the determinate sentencing law to require courts to order imposition of the low term when the court finds that certain factors contributed to the commission of the crime unless the court finds that it would not be in the interests of justice to do so because the aggravating factors outweigh the mitigating factors. (Pen. Code, § 1170(b)(6).)
Rule 4.408 amended effective January 1, 2018; adopted as rule 408 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 2007.
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