(a) How given.
If the sentencing judge is required to give reasons for a sentence choice, the judge must state in simple language the primary factor or factors that support the exercise of discretion. The statement need not be in the language of the statute or these rules. It must be delivered orally on the record. The court may give a single statement explaining the reason or reasons for imposing a particular sentence or the exercise of judicial discretion, if the statement identifies the sentencing choices where discretion is exercised and there is no impermissible dual use of facts.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1, 2007.)
(b) When reasons required.
Sentence choices that generally require a statement of a reason include, but are not limited to:
(1) Granting probation when the defendant is presumptively ineligible for probation;
(2) Denying probation when the defendant is presumptively eligible for probation;
(3) Declining to commit an eligible juvenile found amenable to treatment to the Department of Corrections and Rehabilitation, Division of Juvenile Justice;
(4) Selecting one of the three authorized terms in prison or county jail under section 1170(h) referred to in section 1170(b) for either a base term or an enhancement;
(5) Imposing consecutive sentences;
(6) Imposing full consecutive sentences under section 667.6(c) rather than consecutive terms under section 1170.1(a), when the court has that choice;
(7) Waiving a restitution fine;
(8) Granting relief under section 1385; and
(9) Denying mandatory supervision in the interests of justice under section 1170(h)(5)(A).
(Subd (b) amended and renumbered effective January 1, 2018; previously amended effective January 1, 2001, July 1, 2003, January 1, 2006, January 1, 2007, May 23, 2007, and January 1, 2017.)
Rule 4.406 amended effective January 1, 2018; adopted as rule 406 effective January 1, 1991; previously amended and renumbered effective January 1, 2001; previously amended effective July 1, 2003, January 1, 2006, January 1, 2007, May 23, 2007, and January 1, 2017.
Advisory Committee Comment
This rule is not intended to expand the statutory requirements for giving reasons, and is not an independent interpretation of the statutory requirements.
The court is not required to separately state the reasons for making each sentencing choice so long as the record reflects the court understood it had discretion on a particular issue and its reasons for making the particular choice. For example, if the court decides to deny probation and impose the upper term of punishment, the court may simply state: "I am denying probation and imposing the upper term because of the extensive losses to the victim and because the defendant's record is increasing in seriousness." It is not necessary to state a reason after exercising each decision.
The court must be mindful of impermissible dual use of facts in stating reasons for sentencing choices. For example, the court is not permitted to use a reason to impose a greater term if that reason also is either (1) the same as an enhancement that will be imposed, or (2) an element of the crime. The court should not use the same reason to impose a consecutive sentence and to impose an upper term of imprisonment. (People v. Avalos (1984) 37 Cal.3d 216, 233.) It is not improper to use the same reason to deny probation and to impose the upper term. (People v. Bowen (1992) 11 Cal.App.4th 102, 106.)
Whenever relief is granted under section 1385, the court's reasons for exercising that discretion must be stated orally on the record and entered in the minutes if requested by a party or if the proceedings are not recorded electronically or reported by a court reporter. (Pen. Code, § 1385(a).) Although no legal authority requires the court to state reasons for denying relief, such a statement may be helpful in the appellate review of the exercise of the court's discretion.