California

Criminal Procedure

Rule 4.452 – Determinate sentence consecutive to prior determinate sentence

(a) If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations:

(1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case.

(2) The court in the current case must make a new determination of which count, in the combined cases, represents the principal term, as defined in section 1170.1(a). The principal term is the term with the greatest punishment imposed including conduct enhancements. If two terms of imprisonment have the same punishment, either term may be selected as the principal term.

(3) Discretionary decisions of courts in the previous cases may not be changed by the court in the current case. Such decisions include the decision to impose one of the three authorized terms of imprisonment referred to in section 1170(b), making counts in prior cases concurrent with or consecutive to each other, or the decision that circumstances in mitigation or in the furtherance of justice justified striking the punishment for an enhancement. However, if a previously designated principal term becomes a subordinate term after the resentencing, the subordinate term will be limited to one-third the middle base term as provided in section 1170.1(a).

(4) If all previously imposed sentences and the current sentence being imposed by the second or subsequent court are under section 1170(h), the second or subsequent court has the discretion to specify whether a previous sentence is to be served in custody or on mandatory supervision and the terms of such supervision, but may not, without express consent of the defendant, modify the sentence on the earlier sentenced charges in any manner that will (i) increase the total length of the sentence imposed by the previous court; (ii) increase the total length of the custody portion of the sentence imposed by the previous court; (iii) increase the total length of the mandatory supervision portion of the sentence imposed by the previous court; or (iv) impose additional, more onerous, or more restrictive conditions of release for any previously imposed period of mandatory supervision.

(5) If the second or subsequ en t court imposes a sentence to state prison because the def endant is ineligible f or sentencing under section 1170(h), the jurisdiction of the second or subsequent court to impose a prison sentence applies solely to the current case. The defendant must be returned to the original sentencing court for potential resentencing on any previous case or cases sentenced under section 1170(h). The original sentencing court must convert all remaining custody and mandatory supervision time imposed in the previous case to state prison custody time and must determine whether its sentence is concurrent with or consecutive to the state prison term imposed by the second or subsequent court and incorporate that sentence into a single aggregate term as required by this rule. (A)(4) does not apply-and the consent of the defendant is not required-for this conversion and resentencing.

(6) In cases in which a sentence is imposed under the provisions of section 1170(h) and the sentence has been imposed by courts in two or more counties, the second or subsequent court must determine the county or counties of incarceration or supervision, including the order of service of such incarceration or supervision. To the extent reasonably possible, the period of mandatory supervision must be served in one county and after completion of any period of incarceration. In accordance with rule 4.472, the second or subsequent court must calculate the defendant’s remaining custody and supervision time.

(7) In making the determination under (a)(6), the court must exercise retion after consideration of the following factors:

(A) The relative length of custody or supervision required for each case;

(B) Whether the cases in each county are to be served concurrently or consecutively;

(C) The nature and quality of treatment programs available in each county, if known;

(D) The nature and extent of the defendant’s current enrollment and participation in any treatment program;

(E)The nature and extent of the defendant’s ties to the community, including employment, duration of residence, family attachments, and property holdings;

(F) The nature and extent of supervision available in each county, if known;

(G) The factors listed in rule 4.530(f); and

(H) Any other factor relevant to such determination.

(8) If after the court’s determination in accordance with (a)(6) the defendant is ordered to serve only a custody term without supervision in another county, the defendant must be transported at such time and under such circumstances as the court directs to the county where the custody term is to be served. The defendant must be transported with an abstract of the court’s judgment as required by section 1213(a), or other suitable documentation showing the term imposed by the court and any custody credits against the sentence. The court may order the custody term to be served in another county without also transferring jurisdiction of the case in accordance with rule 4.530.

(9) If after the court’s determination in accordance with (a)(6) the defendant is ordered to serve a period of supervision in another county, 3 whether with or without a term of custody, the matter must be transferred for the period of supervision in accordance with provisions of rule 4.530(f), (g), and (h).

(Subd (a) amended effectively January 1, 2021; previously adopted as an unlettered subdivision; relettered and amended as subdivision (a) July 1, 2019.)

Cal. R. Ct. 4.452

Rule 4.452 amended effective January 1, 2021; Rule 4.452 amended effective July 1, 2019; Rule 4.452 amended effective January 1, 2018; amended effective January 1, 2017; adopted as rule 452 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003, January 1, 2007, and May 23, 2007.

Advisory Committee Comment

The restrictions of (a)(3) do not apply to circumstances where a previously imposed base term is made a consecutive term on resentencing. If the court selects a consecutive sentence structure, and since there can be only one principal term in the final aggregate sentence, if a previously imposed full base term becomes a subordinate consecutive term, the new consecutive term normally will become one-third the middle term by operation of law (§ 1170.1(a) ).

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