Rule 4.447. Sentencing of enhancements

(a) Enhancements resulting in unlawful sentences.

A court may not strike or dismiss an enhancement solely because imposition of the term is prohibited by law or exceeds limitations on the imposition of multiple enhancements. Instead, the court must:

(1)  Impose a sentence for the aggregate term of imprisonment computed without reference to those prohibitions or limitations; and

(2)  Stay execution of the part of the term that is prohibited or exceeds the applicable limitation. The stay will become permanent once the defendant finishes serving the part of the sentence that has not been stayed.

(Subd (a) adopted effective January 1, 2018.)

(b) Multiple enhancements.

If a defendant is convicted of multiple enhancements of the same type, the court must either sentence each enhancement or, if authorized, strike the enhancement or its punishment. While the court may strike an enhancement, the court may not stay an enhancement except as provided in (a) or as authorized by section 654.

(Subd (b) adopted effective January 1, 2018.)

Rule 4.447 amended effective January 1, 2018; adopted as rule 447 effective July 1, 1977; previously amended and renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1, 1991, July 1, 2003, and January 1, 2007.

Advisory Committee Comment

Subdivision (a)..Statutory restrictions may prohibit or limit the imposition of an enhancement in certain situations. (See, for example, sections 186.22(b)(1), 667(a)(2), 667.61(f), 1170.1(f) and (g), 12022.53(e)(2) and (f), and Vehicle Code section 23558.)

Present practice of staying execution is followed to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130; People v. Niles (1964) 227 Cal.App.2d 749, 756.)

Only the portion of a sentence or component thereof that exceeds a limitation is prohibited, and this rule provides a procedure for that situation. This rule applies to both determinate and indeterminate terms.

Subdivision (b)..A court may stay an enhancement if section 654 applies. (See People v. Bradley (1998) 64 Cal.App.4th 386; People v. Haykel (2002) 96 Cal.App.4th 146, 152.)

Rules that reference this rule: N/A