California

Criminal Procedure

Criminal Procedure

Rule 4.433 – Matters to be considered at time set for sentencing

(a) In every case, at the time set for sentencing under section 1191, the sentencing judge must hold a hearing at which the judge must:

(1) Hear and determine any matters raised by the defendant under section 1201;
(2) Determine whether a defendant who is eligible for probation should be granted or denied probation, unless consideration of probation is expressly waived by the defendant personally and by counsel; and
(3) Determine whether to deny a period of mandatory supervision in the interests of justice under section 1170(h)(5)(A).

(Subd (a) amended effective January 1, 2017; previously amended effective January 1, 2007.)

(b)

If the imposition of a sentence is to be suspended during a period of probation after a conviction by trial, the trial judge must identify and state circumstances that would justify imposition of one of the three authorized terms of imprisonment referred to in section 1170(b), or any enhancement, if probation is later revoked. The circumstances identified and stated by the judge must be based on evidence admitted at the trial or other circumstances properly considered under rule 4.420(b).

(Subd (b) amended effective January 1, 2018; previously amended effective July 28, 1977, January 1, 2007, May 23, 2007, January 1, 2008, and January 1, 2017.)

(c) If a sentence of imprisonment is to be imposed, or if the execution of a sentence of imprisonment is to be suspended during a period of probation, the sentencing judge must:

(1) Determine, under section 1170(b), whether to impose one of the three authorized terms of imprisonment referred to in section 1170(b), or any enhancement, and state on the record the reasons for imposing that term;

(Subd (c) amended effective January 1, 2018; previously amended effective July 28, 1977, July 1, 2003, January 1, 2007, May 23, 2007, and January 1, 2017.)

(2) Determine whether any additional term of imprisonment provided for an enhancement charged and found will be stricken;
(3) Determine whether the sentences will be consecutive or concurrent if the defendant has been convicted of multiple crimes;
(4) Determine any issues raised by statutory prohibitions on the dual use of facts and statutory limitations on enhancements, as required in rules 4.420(c) and 4.447; and
(5) Pronounce the court’s judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.

(Subd (c) amended effective January 1, 2017; previously amended effective July 28, 1977, July 1, 2003, January 1, 2007, and May 23, 2007.)

(d) All these matters must be heard and determined at a single hearing unless the sentencing judge otherwise orders in the interests of justice.
(e) When a sentence of imprisonment is imposed under (c) or under rule 4.435, the sentencing judge must inform the defendant:

(1) Under section 1170(c) of the parole period provided by section 3000 to be served after expiration of the sentence, in addition to any period of incarceration for parole violation;
(2) Of the period of postrelease community supervision provided by section 3456 to be served after expiration of the sentence, in addition to any period of incarceration for a violation of postrelease community supervision; or
(3) Of any period of mandatory supervision imposed under section 1170(h)(5)(A) and (B), in addition to any period of imprisonment for a violation of mandatory supervision.

Cal. R. Ct. 4.433

Rule 4.433 amended effective January 1, 2018; amended effective January 1, 2017; adopted as rule 433 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1, 1979, July 1, 2003, January 1, 2007, May 23, 2007, and January 1, 2008.

Advisory Committee Comment

This rule summarizes the questions that the court is required to consider at the time of sentencing, in their logical order.

Subdivision (a)(2) makes it clear that probation should be considered in every case, without the necessity of any application, unless the defendant is statutorily ineligible for probation.

Under subdivision (b), when imposition of sentence is to be suspended, the sentencing judge is not to make any determinations as to possible length of a term of imprisonment on violation of probation (ยง 1170(b) ). If there was a trial, however, the judge must state on the record the circumstances that would justify imposition of one of the three authorized terms of imprisonment based on the trial evidence.

Subdivision (d) makes it clear that all sentencing matters should be disposed of at a single hearing unless strong reasons exist for a continuance.