# AMENDMENTS TO THE CALIFORNIA RULES OF COURT (2017)

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## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

AMENDMENTS TO THE CALIFORNIA RULES OF COURT
Adopted by the Judicial Council on September 14–15, 2017, effective January 1, 2018
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Rule 2.893. Appointment of interpreters in court proceedings .................................. 4

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Rule 4.102. Uniform bail and penalty schedules—traffic, boating, fish and game,
forestry, public utilities, parks and recreation, business licensing ............................ 10

4

Rule 4.130. Mental competency proceedings ........................................................... 10

5

Division 5. Sentencing-Determinate Felony Sentencing Law ...................................... 12

6

Rule 4.403. Application ............................................................................................ 12

7

Rule 4.405. Definitions ............................................................................................. 13

8

Rule 4.406. Reasons.................................................................................................. 15

9

Rule 4.408. Criteria Listing of factors not exclusive; sequence not significant ....... 17

10

Rule 4.409. Consideration of criteria relevant factors .............................................. 18

11

Rule 4.410. General objectives in sentencing ........................................................... 18

12

Rule 4.411. Presentence investigations and reports .................................................. 19

13

Rule 4.411.5. Probation officer’s presentence investigation report .......................... 22

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Rule 4.412. Reasons—agreement to punishment as an adequate reason and as
abandonment of certain claims ................................................................................. 23

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Rule 4.413. Probation eligibility when probation is limited Grant of probation when
defendant is presumptively ineligible for probation ................................................. 24

18

Rule 4.415. Criteria affecting the imposition of mandatory supervision .................. 25

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Rule 4.420. Selection of term of imprisonment ........................................................ 26

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Rule 4.421. Circumstances in aggravation ............................................................... 27

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Rule 4.423. Circumstances in mitigation .................................................................. 29

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Rule 4.425. Criteria Factors affecting concurrent or consecutive sentences ............ 29

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Rule 4.428. Criteria Factors affecting imposition of enhancements ......................... 30

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Rule 4.433. Matters to be considered at time set for sentencing .............................. 31

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Rule 4.435. Sentencing on revocation of probation, mandatory supervision, and
postrelease community supervision .......................................................................... 33

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Rule 4.437. Statements in aggravation and mitigation ............................................. 34

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Rule 4.447. Limitations on enhancements Sentencing of enhancements ................. 35

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Rule 4.451. Sentence consecutive to or concurrent with indeterminate term or to
term in other jurisdiction ........................................................................................... 36

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Rule 4.452. Determinate sentence consecutive to prior determinate sentence ......... 38

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Rule 8.25. Service, filing, and filing fees ................................................................. 38

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Rule 8.36. Substituting parties; substituting or withdrawing attorneys ................... 39

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Rule 8.100. Filing the appeal ................................................................................... 39

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Rule 8.137. Settled statement.................................................................................... 40

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Rule 8.212. Service and filing of briefs ................................................................... 47

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Rule 8.248. Prehearing conference .......................................................................... 48

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Rule 8.256. Oral argument and submission of the cause ......................................... 49

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Rule 8.264. Filing, finality, and modification of decision ....................................... 49

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Rule 8.272. Remittitur.............................................................................................. 50

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Rule 8.278. Costs on appeal ..................................................................................... 52

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Rule 8.336. Preparing, certifying, and sending the record....................................... 52

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Rule 8.380. Petition for writ of habeas corpus filed by petitioner not represented by
an attorney................................................................................................................. 53

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Rule 8.384. Petition for writ of habeas corpus filed by an attorney for a party ........ 53

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Rule 8.452. Writ petition to review order setting hearing under Welfare and
Institutions Code section 366.26 ............................................................................... 54

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Rule 8.456. Writ petition under Welfare and Institutions Code section 366.28 to
review order designating or denying specific placement of a dependent child after
termination of parental rights .................................................................................... 54

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Rule 8.495. Review of Workers’ Compensation Appeals Board cases .................... 55

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Rule 8.500. Petition for review ................................................................................ 55

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Rule 8.508. Petition for review to exhaust state remedies ....................................... 57

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Rule 8.512. Ordering review .................................................................................... 57

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Rule 8.528. Disposition............................................................................................ 58

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Rule 8.532. Filing, finality, and modification of decision ....................................... 59

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Rule 8.540. Remittitur.............................................................................................. 59

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Rule 8.600. In general .............................................................................................. 60

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Rule 8.630. Briefs by parties and amicus curiae ....................................................... 61

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Rule 8.634. Transmitting exhibits; augmenting the record in the Supreme Court .. 62

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Rule 8.882. Briefs by parties and amici curiae ........................................................ 62

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Rule 8.887. Decisions .............................................................................................. 63

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Rule 8.931. Petitions filed by persons not represented by an attorney ..................... 64

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Rule 8.972. Petitions filed by persons not represented by an attorney ..................... 64

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Rule 8.1005. Certification for transfer by the appellate division ............................. 65

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Rule 8.1007. Transmitting record to Court of Appeal ............................................. 65

1

Rule 8.1018. Finality and remittitur ......................................................................... 66

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Rule 10.40. Appellate Advisory Committee ............................................................ 67

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Rule 10.62. Court Facilities Advisory Committee................................................... 67

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Rule 10.67. Judicial Branch Workers’ Compensation Program Advisory Committee
................................................................................................................................... 68

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Rule 10.102. Acceptance of gifts ............................................................................. 68

7

Rule 10.104. Limitation on contracting with former employees ............................. 69

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Rule 10.452. Minimum education requirements, expectations, and
recommendations ...................................................................................................... 69

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Rule 10.471. Minimum education requirements for Supreme Court and Court of
Appeal clerks/executive officers administrators ....................................................... 71

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13

Rule 10.472. Minimum education requirements for Supreme Court and Court of
Appeal managing attorneys, supervisors, and other personnel ................................. 73

14

Rule 10.481. Approved providers; approved course criteria ................................... 75

15

Rule 10.1004. Court of Appeal administrative presiding justice ............................. 75

16

Rule 10.1008. Courts of Appeal with more than one division................................. 76

17

Rule 10.1020. Reviewing court clerk/executive officer administrator .................... 76

18

Rule 10.1028. Preservation and destruction of Court of Appeal records ................ 79

19

Standard 4.35. Court use of risk/needs assessments at sentencing ........................... 80

20

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Rule 2.893. Appointment of interpreters in court proceedings
(a)

Application
This rule applies to all trial court proceedings in which the court appoints an
interpreter for a Limited English Proficient (LEP) person. This rule applies to
spoken language interpreters in languages designated and not designated by the
Judicial Council.

(b)

Definitions
As used in this rule:
(1)

“Designated language” means a language selected by the Judicial Council for
the development of a certification program under Government Code section
68562;

(2)

“Certified interpreter” means an interpreter who is certified by the Judicial
Council to interpret a language designated by the Judicial Council under
Government Code section 68560 et seq.;

(3)

“Registered interpreter” means an interpreter in a language not designated by
the Judicial Council, who is qualified by the court under the qualification
procedures and guidelines adopted by the Judicial Council, and who has
passed a minimum of an English fluency examination offered by a testing
entity approved by the Judicial Council under Government Code section
68560 et seq.;

(4)

“Noncertified interpreter” means an interpreter who is not certified by the
Judicial Council to interpret a language designated by the Judicial Council
under Government Code section 68560 et seq.;

(5)

“Nonregistered interpreter” means an interpreter in a language not designated
by the Judicial Council who has not been qualified under the qualification
procedures and guidelines adopted by the Judicial Council under Government
Code section 68560 et seq.;

(6)

“Provisionally qualified” means an interpreter who is neither certified nor
registered but has been qualified under the good cause and qualification
procedures and guidelines adopted by the Judicial Council under Government
Code section 68560 et seq.;

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(7)

(c)

“Temporary interpreter” means an interpreter who is not certified, registered,
or provisionally qualified, but is used one time, in a brief, routine matter.

Appointment of certified or registered interpreters
If a court appoints a certified or registered court interpreter, the judge in the
proceeding must require the following to be stated on the record:

(d)

(1)

The language to be interpreted;

(2)

The name of the interpreter;

(3)

The interpreter’s current certification or registration number;

(4)

A statement that the interpreter’s identification has been verified as required
by statute;

(5)

A statement that the interpreter is certified or registered to interpret in the
language to be interpreted; and

(6)

A statement that the interpreter was administered the interpreter’s oath or that
he or she has an oath on file with the court.

Appointment or use of noncertified or nonregistered interpreters
(1)

When permissible
If after a diligent search a certified or registered interpreter is not available,
the judge in the proceeding may either appoint a noncertified or nonregistered
interpreter who has been provisionally qualified under (d)(3) or, in the
limited circumstances specified in (d)(4), may use a noncertified or
nonregistered interpreter who is not provisionally qualified.

(2)

Required record
In all cases in which a noncertified or nonregistered interpreter is appointed
or used, the judge in the proceeding must require the following to be stated
on the record:
(A)

The language to be interpreted;

(B)

A finding that a certified or registered interpreter is not available and a
statement regarding whether a Certification of Unavailability of
Certified or Registered Interpreter (form INT-120) for the language to
be interpreted is on file for this date with the court administrator;

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(3)

(C)

A finding that good cause exists to appoint a noncertified or
nonregistered interpreter;

(D)

The name of the interpreter;

(E)

A statement that the interpreter is not certified or registered to interpret
in the language to be interpreted;

(F)

A finding that the interpreter is qualified to interpret in the proceeding
as required in (d)(3) or (d)(4); and

(G)

A statement that the interpreter was administered the interpreter’s oath.

Provisional qualification
(A)

(B)

A noncertified or nonregistered interpreter is provisionally qualified if
the presiding judge of the court or other judicial officer designated by
the presiding judge:
(i)

Finds the noncertified or nonregistered interpreter to be
provisionally qualified following the Procedures to Appoint a
Noncertified or Nonregistered Spoken Language Interpreter as
Either Provisionally Qualified or Temporary (form INT-100INFO); and

(ii)

Signs an order allowing the interpreter to be considered for
appointment on Qualifications of a Noncertified or Nonregistered
Spoken Language Interpreter (form INT-110). The period
covered by this order may not exceed a maximum of six months.

To appoint a provisionally qualified interpreter, in addition to the
matters that must be stated on the record under (d)(2), the judge in the
proceeding must state on the record:
(i)

A finding that the interpreter is qualified to interpret the
proceeding, following procedures adopted by the Judicial Council
(see forms INT-100-INFO, INT-110, and INT-120);

(ii)

A finding, if applicable, that good cause exists under (f)(1)(B)
for the court to appoint the interpreter beyond the time
ordinarily allowed in (f); and

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(iii)

(4)

Temporary use
At the request of an LEP person, a temporary interpreter may be used to
prevent burdensome delay or in other unusual circumstances if:
(A)

(B)

(e)

If a party has objected to the appointment of the proposed
interpreter or has waived the appointment of a certified or
registered interpreter.

The judge in the proceeding finds on the record that:
(i)

The LEP person has been informed of their right to an
interpreter and has waived the appointment of a certified or
registered interpreter or an interpreter who could be
provisionally qualified by the presiding judge as provided in
(d)(3);

(ii)

Good cause exists to appoint an interpreter who is not certified,
registered, or provisionally qualified; and

(iii)

The interpreter is qualified to interpret that proceeding,
following procedures adopted by the Judicial Council (see
forms INT-100-INFO and INT-140).

The use of an interpreter under this subdivision is limited to a single
brief, routine matter before the court. The use of the interpreter in this
circumstance may not be extended to subsequent proceedings without
again following the procedure set forth in this subdivision.

Appointment of intermediary interpreters working between two languages
that do not include English
An interpreter who works as an intermediary between two languages that do not
include English (a relay interpreter) is not eligible to become certified or registered.
However, a relay interpreter can become provisionally qualified if the judge finds
that he or she is qualified to interpret the proceeding following procedures adopted
by the Judicial Council (see forms INT-100-INFO, INT-110, and INT-120). The
limitations in (f) below do not apply to relay interpreters.

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(f)

Limit on appointment of provisionally qualified noncertified and
nonregistered interpreters
(1)

A noncertified or nonregistered interpreter who is provisionally qualified
under (d)(3) may not interpret in any trial court for more than any four
six-month periods, except in the following circumstances:
(A) A noncertified interpreter of Spanish may be allowed to interpret for no
more than any two six-month periods in counties with a population
greater than 80,000.
(B)

A noncertified or nonregistered interpreter may be allowed to interpret
more than any four six-month periods, or any two six-month periods
for an interpreter of Spanish under (f)(1)(A), if the judge in the
proceeding makes a specific finding on the record in each case in which
the interpreter is sworn that good cause exists to appoint the interpreter,
notwithstanding the interpreter’s failure to achieve Judicial Council
certification.

(2)

Except as provided in (f)(3), each six-month period under (f)(1) begins on the
date a presiding judge signs an order under (d)(3)(A)(ii) allowing the
noncertified or nonregistered interpreter to be considered for appointment.

(3)

If an interpreter is provisionally qualified under (d)(3) in more than one court
at the same time, each six-month period runs concurrently for purposes of
determining the maximum periods allowed in this subdivision.

(4)

Beginning with the second six-month period under (f)(1), a noncertified or
nonregistered interpreter may be appointed if he or she meets all of the
following conditions:
(A)

The interpreter has taken the State of California Court Interpreter
Written Exam at least once during the 12 calendar months before the
appointment;

(B)

The interpreter has taken the State of California’s court interpreter
ethics course for interpreters seeking appointment as a noncertified or
nonregistered interpreter, or is certified or registered in a different
language from the one in which he or she is being appointed; and

(C)

The interpreter has taken the State of California’s online court
interpreter orientation course, or is certified or registered in a different
language from the one in which he or she is being appointed.

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(5)

Beginning with the third six-month period under (f)(1), a noncertified or
nonregistered interpreter may be appointed if he or she meets all of the
following conditions:
(A)

The interpreter has taken and passed the State of California Court
Interpreter Written Exam with such timing that he or she is eligible to
take a Bilingual Interpreting Exam; and

(B)

The interpreter has taken either the Bilingual Interpreting Exam or the
relevant Oral Proficiency Exam(s) for his or her language pairing at
least once during the 12 calendar months before the appointment.

(6)

The restrictions in (f)(5)(B) do not apply to any interpreter who seeks
appointment in a language pairing for which no exam is available.

(7)

The restrictions in (f)(4) and (5) may be waived by the presiding judge for
good cause whenever there are fewer than 25 certified or registered
interpreters enrolled on the Judicial Council’s statewide roster for the
language requiring interpretation.
Advisory Committee Comment

Subdivisions (c) and (d)(2). When a court reporter is transcribing the proceedings, or an
electronic recording is being made of the proceedings, a judge may satisfy the “on the record”
requirement by stating the required details of the interpreter appointment in open court. If there is
no court reporter and no electronic recording is being made, the “on the record” requirement may
be satisfied by stating the required details of the interpreter appointment and documenting them in
writing—such as in a minute order, the official clerk’s minutes, a formal order, or even a
handwritten document—that is entered in the case file.
Subdivision (d)(4). This provision is intended to allow for the one-time use of a noncertified or
nonregistered interpreter who is not provisionally qualified to interpret for an LEP person in a
courtroom event. This provision is not intended to be used to meet the extended or ongoing
interpretation needs of LEP court users.
Subdivision (b)(7) and (d)(4). When determining whether the matter before the court is a “brief,
routine matter” for which a noncertified or nonregistered interpreter who has not been
provisionally qualified may be used, the judicial officer should consider the complexity of the
matter at issue and likelihood of potential impacts on the LEP person’s substantive rights,
keeping in mind the consequences that could flow from inaccurate or incomplete interpretation of
the proceedings.
Rule 2.893 adopted effective January 1, 2018.

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Rule 4.102. Uniform bail and penalty schedules—traffic, boating, fish and game,
forestry, public utilities, parks and recreation, business licensing
***
Note:
Courts may obtain copies of the Uniform Bail and Penalty Schedules by contacting:
Criminal Justice Services
Judicial Council of California
455 Golden Gate Avenue
San Francisco, CA 94102-3688
(415) 865-7611
or
www.courts.ca.gov/7532.htm
Rule 4.102 amended effective January 1, 2018; adopted as rule 850 effective January 1, 1965;
previously renumbered as rule 4.102 and amended effective January 1, 2001; previously
amended effective January 1, 1970, January 1, 1971, July 1, 1972, January 1, 1973, January 1,
1974, July 1, 1975, July 1, 1979, July 1, 1980, July 1, 1981, January 1, 1983, July 1, 1984, July 1,
1986, January 1, 1989, January 1, 1990, January 1, 1993, January 1, 1995, January 1, 1997,
July 1, 2004, January 1, 2007, July 1, 2013, and January 1, 2016.

Rule 4.130. Mental competency proceedings
(a)

Application
(1)

This rule applies to proceedings in the superior court under Penal Code
section 1367 et seq. to determine the mental competency of a criminal
defendant.

(2)

The requirements of subdivision (d)(2) apply only to a formal competency
evaluation ordered by the court under Penal Code section 1369(a).

(3)

The requirements of subdivision (d)(2) do not apply to a brief preliminary
evaluation of the defendant’s competency if:
(A)

The parties stipulate to a brief preliminary evaluation; and

(B)

The court orders the evaluation in accordance with a local rule of court
that specifies the content of the evaluation and the procedure for its
preparation and submission to the court.

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

(b)–(c) * * *
(d)

Examination of defendant after initiation of mental competency proceedings
(1)

***

(2)

Any court-appointed experts must examine the defendant and advise the
court on the defendant’s competency to stand trial. Experts’ reports are to be
submitted to the court, counsel for the defendant, and the prosecution. The
report must include the following:
(A)

A brief statement of the examiner’s training and previous experience as
it relates to examining the competence of a criminal defendant to stand
trial and preparing a resulting report;

(B)

A summary of the examination conducted by the examiner on the
defendant, including a current diagnosis under the most recent version
of the Diagnostic and Statistical Manual of Mental Disorders, if
possible, of the defendant’s mental disorder and a summary of the
defendant’s mental status;

(C)

A detailed analysis of the competence of the defendant to stand trial
using California’s current legal standard, including the defendant’s
ability or inability to understand the nature of the criminal proceedings
or assist counsel in the conduct of a defense in a rational manner as a
result of a mental disorder;

(D)

A summary of an assessment—conducted for malingering or feigning
symptoms, if clinically indicated—which may include, but need not be
limited to, psychological testing;

(E)

Under Penal Code section 1369, a statement on whether treatment with
antipsychotic or other medication is medically appropriate for the
defendant, whether the treatment is likely to restore the defendant to
mental competence, a list of likely or potential side effects of the
medication, the expected efficacy of the medication, possible
alternative treatments, whether it is medically appropriate to administer
antipsychotic or other medication in the county jail, and whether the
defendant has capacity to make decisions regarding antipsychotic or
other medication. If an examining psychologist is of the opinion that a
referral to a psychiatrist is necessary to address these issues, the

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psychologist must inform the court of this opinion and his or her
recommendation that a psychiatrist should examine the defendant;

(3)

(F)

A list of all sources of information considered by the examiner,
including legal, medical, school, military, regional center, employment,
hospital, and psychiatric records; the evaluations of other experts; the
results of psychological testing; police reports; criminal history;
statement of the defendant; statements of any witnesses to the alleged
crime; booking information, mental health screenings, and mental
health records following the alleged crime; consultation with the
prosecutor and defendant’s attorney; and any other collateral sources
considered in reaching his or her conclusion; and

(G)

A recommendation, if possible, for a placement or type of placement or
treatment program that is most appropriate for restoring the defendant
to competency.

***

(Subd (d) amended effective January 1, 2018.)

(e)–(f) * * *
Rule 4.130 amended effective January 1, 2018; adopted effective January 1, 2007.

Division 5. Sentencing-Determinate Felony Sentencing Law
Rule 4.403. Application
These rules apply to criminal cases in which the defendant is convicted of one or more
offenses punishable as a felony by (1) a determinate sentence imposed under Penal Code
part 2, title 7, chapter 4.5 (commencing with section 1170) and (2) an indeterminate
sentence imposed under section 1168(b) only if it is imposed relative to other offenses
with determinate terms or enhancements.
Rule 4.403 amended effective January 1, 2018; adopted as rule 403 effective July 1, 1977;
previously amended and renumbered effective January 1, 2001; previously amended effective
July 1, 2003, January 1, 2007, and January 1, 2017.

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Advisory Committee Comment
The sentencing rules do not apply to offenses carrying a life term or other indeterminate sentences
for which sentence is imposed under section 1168(b).
The operative portions of section 1170 deal exclusively with prison sentences; and the mandate to
the Judicial Council in section 1170.3 is limited to criteria affecting the length of prison sentences,
sentences in county jail under section 1170(h), and the grant or denial of probation.

Rule 4.405. Definitions
As used in this division, unless the context otherwise requires:
(1)

***

(2)

“Base term” is the determinate term in prison term or county jail under section
1170(h) selected from among the three possible terms prescribed by statute; or the
determinate term in prison term or county jail under section 1170(h) prescribed by
law statute if a range of three possible terms is not prescribed; or the indeterminate
term in prison prescribed by statute.

(3)

***

(4)

“Aggravation,” or “circumstances in aggravation,” “mitigation,” or “circumstances
in mitigation” means factors that the court may consider in its broad sentencing
discretion in imposing one of the three authorized terms of imprisonment referred
to in section 1170(b) authorized by statute and under these rules.

(5)

“Mitigation” or circumstances in mitigation” means factors that the court may
consider in its broad discretion in imposing one of the three authorized terms of
imprisonment referred to in section 1170(b) or factors that may justify the court in
striking the additional punishment for an enhancement when the court has
discretion to do so.

(6)(5) “Sentence choice” means the selection of any disposition of the case that does not
amount to a dismissal, acquittal, or grant of a new trial.
(7)(6) “Section” means a section of the Penal Code.
(8)(7) “Imprisonment” means confinement in a state prison or county jail under section
1170(h).

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(9)(8) “Charged” means charged in the indictment or information.
(10)(9) “Found” means admitted by the defendant or found to be true by the trier of fact
upon trial.
(11)(10) “Mandatory supervision” means the period of supervision defined in section
1170(h)(5)(A), (B).
(12)(11) “Postrelease community supervision” means the period of supervision governed
by section 3451 et seq.
(12) “Risk/needs assessment” means a standardized, validated evaluation tool designed
to measure an offender’s actuarial risk factors and specific needs that, if
successfully addressed, may reduce the likelihood of future criminal activity.
(13)–(16) * * *
Rule 4.405 amended effective January 1, 2018; adopted as rule 405 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective July 28, 1977,
January 1, 1991, July 1, 2003, January 1, 2007, May 23, 2007, and January 1, 2017.
Advisory Committee Comment
“Base term” is the term of imprisonment selected under section 1170(b) from the three possible
terms. (See section 1170(a)(3); People v. Scott (1994) 9 Cal.4th 331, 349.) Following the United
States Supreme Court decision in Cunningham v. California (2007) 549 U.S. 270, the Legislature
amended the determinate sentencing law to remove the presumption that the court is to impose the
middle term on a sentencing triad, absent aggravating or mitigating circumstances. (See Sen. Bill
40; Stats. 2007, ch. 3.) It subsequently amended sections 186.22, 186.33, 1170.1, 12021.5,
12022.2, and 12022.4 to eliminate the presumptive middle term for an enhancement. (See Sen.
Bill 150; Stats. 2009, ch. 171.) Instead of finding facts in support of a sentencing choice, courts
are now required to state reasons for the exercise of judicial discretion in sentencing. To comply
with those changes, these rules were also amended. In light of those amendments, for clarity, the
phrase “base term” in (4) and (5) was replaced with “one of the three authorized prison terms.”
This language was subsequently changed to “three authorized terms of imprisonment” to
incorporate county jail sentences under section 1170(h) in light of more recent legislative
amendments to the determinate sentencing law. (See Assem. Bill 109; Stats. 2011, ch. 15.) It is an
open question whether the definitions in (4) and (5) apply to enhancements for which the statute
provides for three possible terms. The Legislature in SB 40 amended section 1170(b) but did not
modify sections 1170.1(d), 12022.2(a), 12022.3(b), or any other section providing for an
enhancement with three possible terms. The latter sections provide that “the court shall impose the
middle term unless there are circumstances in aggravation or mitigation.” (See, e.g., section
1170.1(d).) It is possible, although there are no cases addressing the point, that this enhancement

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triad with the presumptive imposition of the middle term runs afoul of Cunningham. Because of
this open question, rule 4.428(b) was deleted.
“Enhancement.” The facts giving rise to an enhancement, the requirements for pleading and
proving those facts, and the court’s authority to strike the additional term are prescribed by
statutes. See, for example, sections 667.5 (prior prison terms), 12022 (being armed with a firearm
or using a deadly weapon), 12022.5 (using a firearm), 12022.6 (excessive taking or damage),
12022.7 (great bodily injury), 1170.1(e) (pleading and proof), and 1385(c) (authority to strike the
additional punishment). Note: A consecutive sentence is not an enhancement. (See section
1170.1(a); People v. Tassell (1984) 36 Cal.3d 77, 90 [overruled on other grounds in People v.
Ewoldt (1994) 7 Cal.4th 380, 401].)
“Sentence choice.” Section 1170(c) requires the judge to state reasons for the sentence choice.
This general requirement is discussed in rule 4.406.
“Imprisonment” in state prison or county jail under section 1170(h) is distinguished from
confinement in other types of facilities.
“Charged” and “found.” Statutes require that the facts giving rise to all enhancements be charged
and found. See section 1170.1(e).
Item (13), see sections 17.5(a)(9) and 3450(b)(9).
Item (15), see section 1229(e).

Rule 4.406. Reasons
(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 or, if applicable, state that the judge has no 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.)

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(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)

Imposing a prison sentence or sentence in county jail under section 1170(h)
and thereby denying probation 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 an
eligible juvenile found amenable to treatment;

(4)

Selecting one of the three authorized prison terms in prison or county jail
under section 1170(h) referred to in section 1170(b) for either an offense a
base term or an enhancement;

(5)–(6) * * *
(7)

Striking the punishment for an enhancement;

(8)(7) Waiving a restitution fine;
(9)

Not committing an eligible defendant to the California Rehabilitation Center;

(10)(8) Striking an enhancement or prior conviction allegation Granting relief
under section 1385(a); and
(11)(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.

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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.

Rule 4.408. Criteria Listing of factors not exclusive; sequence not significant
(a)

The enumeration in these rules of some criteria for the making of discretionary
sentencing decisions does not prohibit the application of additional criteria
reasonably related to the decision being made. 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.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
2007.)

(b)

***

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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.
Advisory Committee Comment
Enumerations of criteria in these rules are not exclusive. 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.)

Rule 4.409. Consideration of criteria relevant factors
Relevant criteria factors enumerated in these rules must be considered by the sentencing
judge, and will be deemed to have been considered unless the record affirmatively
reflects otherwise.
Rule 4.409 amended effective January 1, 2018; adopted as rule 409 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective January 1, 2007.
Advisory Committee Comment
Relevant criteria factors are those applicable to the facts in the record of the case; not all criteria
factors will be relevant to each case. The judge’s duty is similar to the duty to consider the
probation officer’s report. Section 1203.
In deeming the sentencing judge to have considered relevant criteria factors, the rule applies the
presumption of Evidence Code section 664 that official duty has been regularly performed. (See
People v. Moran (1970) 1 Cal.3d 755, 762 [trial court presumed to have considered referring
eligible defendant to California Youth Authority in absence of any showing to the contrary, citing
Evidence Code section 664].)

Rule 4.410. General objectives in sentencing
(a)

***

(b)

Because in some instances these objectives may suggest inconsistent dispositions,
the sentencing judge must consider which objectives are of primary importance in
the particular case. The sentencing judge should be guided by statutory statements
of policy, the criteria in these rules, and the any other facts and circumstances of
relevant to the case.

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(Subd (b) amended effective January 1, 2018; previously lettered effective July 1, 2003;
adopted as part of unlettered subd effective July 1, 1977; former subd (b) amended and
relettered as part of subd (a) effective July 1, 2003.)
Rule 4.410 amended effective January 1, 2018; adopted as rule 410 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective July 1, 2003,
January 1, 2007, and January 1, 2017.
Advisory Committee Comment
Statutory expressions of policy include:
Welfare and Institutions Code section 1820 et seq., which provides partnership funding for county
juvenile ranches, camps, or forestry camps.
Section 1203(b)(3), which requires that eligible defendants be considered for probation and
authorizes probation if circumstances in mitigation are found or justice would be served.
Section 1170(a)(1), which expresses the policies of uniformity, proportionality of terms of
imprisonment to the seriousness of the offense, and the use of imprisonment as punishment. It
also states that “the purpose of sentencing is public safety achieved through punishment,
rehabilitation, and restorative justice.”
Sections 17.5, 1228, and 3450, which express the policies promoting reinvestment of criminal
justice resources to support community-based corrections programs and evidence-based practices
to improve public safety through a reduction in recidivism.
Other statutory provisions that prohibit the grant of probation in particular cases.

Rule 4.411. Presentence investigations and reports
(a)

Eligible defendant When required
If the defendant is eligible for probation or a term of imprisonment in county jail
under section 1170(h), the court must refer the matter to the probation officer for a
presentence investigation and report. Waivers of the presentence report should not
be accepted except in unusual circumstances. Except As provided in subdivision
(b), the court must refer the case to the probation officer for:
(1)

A presentence investigation and report if the defendant:

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(2)

(A)

Is statutorily eligible for probation or a term of imprisonment in county
jail under section 1170(h); or

(B)

Is not eligible for probation but a report is needed to assist the court
with other sentencing issues, including the determination of the proper
amount of restitution fine;

A supplemental report if a significant period of time has passed since the
original report was prepared.

(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
2007, and January 15, 2015.)

(b)

Ineligible defendant Waiver of the investigation and report
Even if the defendant is not eligible for probation or a term of imprisonment in
county jail under section 1170(h), the court should refer the matter to the probation
officer for a presentence investigation and report. The parties may stipulate to the
waiver of the probation officer’s investigation and report in writing or in open court
and entered in the minutes, and with the consent of the court. In deciding whether
to consent to the waiver, the court should consider whether the information in the
report would assist in the resolution of any current or future sentencing issues, or
would assist in the effective supervision of the person. A waiver under this section
does not affect the requirement under section 1203c that a probation report be
created when the court commits a person to state prison.
(Subd (b) amended effective January 1, 2018; previously amended effective January 1,
2015.)

(c)

Supplemental reports
The court must order a supplemental probation officer’s report in preparation for
sentencing proceedings that occur a significant period of time after the original
report was prepared.

(d)

Purpose of presentence investigation report
Probation officers’ reports are used by judges in determining the appropriate term
of imprisonment in prison or county jail under section 1170(h) and by the
Department of Corrections and Rehabilitation, Division of Adult Operations in
deciding on the type of facility and program in which to place a defendant. The
reports are also used by courts in deciding whether probation is appropriate,
whether a period of mandatory supervision should be denied in the interests of

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justice under section 1170(h)(5)(A), and the appropriate length and conditions of
probation and mandatory supervision. Section 1203c requires a probation officer’s
report on every person sentenced to prison; ordering the report before sentencing in
probation-ineligible cases will help ensure a well-prepared report.
Rule 4.411 amended effective January 1, 2018; adopted as rule 418 effective July 1, 1977;
previously amended and renumbered as rule 411 effective January 1, 1991; previously
renumbered effective January 1, 2001; previously amended effective January 1, 2006, January 1,
2007, and January 1, 2015.
Advisory Committee Comment
Section 1203 requires a presentence report in every felony case in which the defendant is eligible
for probation. Subdivision (a) requires a presentence report in every felony case in which the
defendant is eligible for a term of imprisonment in county jail under section 1170(h). Because
such a probation investigation and report are valuable to the judge and to the jail and prison
authorities, waivers of the report and requests for immediate sentencing are discouraged, even
when the defendant and counsel have agreed to a prison sentence or a term of imprisonment in
county jail under section 1170(h).
When considering whether to waive a presentence investigation and report, courts should consider
that probation officers’ reports are used by (1) courts in determining the appropriate term of
imprisonment in prison or county jail under section 1170(h); (2) courts in deciding whether
probation is appropriate, whether a period of mandatory supervision should be denied in the
interests of justice under section 1170(h)(5)(A), and the appropriate length and conditions of
probation and mandatory supervision; (3) the probation department in supervising the defendant;
and (4) the Department of Corrections and Rehabilitation, Division of Adult Operations, in
deciding on the type of facility and program in which to place a defendant.
Notwithstanding a defendant’s statutory ineligibility for probation or term of imprisonment in
county jail under section 1170(h), a presentence investigation and report should be ordered to
assist the court in deciding the appropriate sentence and to facilitate compliance with section
1203c.
This rule does not prohibit pre-conviction, pre-plea reports as authorized by section 1203.7.
Subdivision (c) (a)(2) is based on case law that generally requires a supplemental report if the
defendant is to be resentenced a significant time after the original sentencing, as, for example,
after a remand by an appellate court, or after the apprehension of a defendant who failed to appear
at sentencing. The rule is not intended to expand on the requirements of those cases.
The rule does not require a new investigation and report if a recent report is available and can be
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true if a report is needed only for the Department of Corrections and Rehabilitation because the
defendant has waived a report and agreed to a prison sentence. If a full report was prepared in
another case in the same or another jurisdiction within the preceding six months, during which
time the defendant was in custody, and that report is available to the Department of Corrections
and Rehabilitation, it is unlikely that a new investigation is needed.
This rule does not prohibit pre-conviction, pre-plea reports as authorized by section 1203.7.

Rule 4.411.5. Probation officer’s presentence investigation report
(a)

Contents
A probation officer’s presentence report in a felony case must include at least the
following:
(1)–(4) * * *
(5)

Information concerning the victim of the crime, including:
(A)

***

(B)

Any physical or psychological injuries suffered by the victim;

(B)(C) The amount of the victim’s monetary loss, and whether or not it is
covered by insurance; and
(C)(D) Any information required by law.
(6)–(7) * * *
(8)

Any available, reliable risk/needs assessment information. The defendant’s
relevant risk factors and needs as identified by a risk/needs assessment, if
such an assessment is performed, and such other information from the
assessment as may be requested by the court.

(9)–(12) * * *
(13) Information pursuant to Penal Code section 29810(c):
(A)

Whether the defendant has properly complied with Penal Code section
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investigation or declared by the defendant on the Prohibited Persons
Relinquishment Form, and
(B)

Whether the defendant has timely submitted a completed Prohibited
Persons Relinquishment Form.

(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
1991, July 1, 2003, January 1, 2007, January 1, 2015, and January 1, 2017.)

(b)–(c) * * *
Rule 4.411.5 amended effective January 1, 2018; adopted as rule 419 effective July 1, 1981;
previously amended and renumbered as rule 411.5 effective January 1, 1991; previously
renumbered effective January 1, 2001; previously amended effective July 1, 2003, January 1,
2007, January 1, 2015, and January 1, 2017.

Rule 4.412. Reasons—agreement to punishment as an adequate reason and as
abandonment of certain claims
(a)

Defendant’s agreement as reason
It is an adequate reason for a sentence or other disposition that the defendant,
personally and by counsel, has expressed agreement that it be imposed and the
prosecuting attorney has not expressed an objection to it. The agreement and lack of
objection must be recited on the record. This section does not authorize a sentence
that is not otherwise authorized by law.

(b)

Agreement to sentence abandons section 654 claim
By agreeing to a specified term in prison or county jail under section 1170(h)
personally and by counsel, a defendant who is sentenced to that term or a shorter
one abandons any claim that a component of the sentence violates section 654’s
prohibition of double punishment, unless that claim is asserted at the time the
agreement is recited on the record.
Advisory Committee Comment

Subdivision (a). This subdivision is intended to relieve the court of an obligation to give reasons
if the sentence or other disposition is one that the defendant has accepted and to which the
prosecutor expresses no objection. The judge may choose to give reasons for the sentence even
though not obligated to do so.

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Judges should also be aware that there may be statutory limitations on “plea bargaining” or on the
entry of a guilty plea on the condition that no more than a particular sentence will be imposed. At
the time this comment was drafted, Such limitations appeared, for example, in sections 1192.5
and 1192.7.
Subdivision (b). This subdivision is based on the fact that a defendant who, with the advice of
counsel, expresses agreement to a specified prison term of imprisonment normally is
acknowledging that the term is appropriate for his or her total course of conduct. This subdivision
applies to both determinate and indeterminate terms.

Rule 4.413. Probation eligibility when probation is limited Grant of probation when
defendant is presumptively ineligible for probation
(a)

Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most
cases, the defendant is presumptively eligible for probation; in some cases, the
defendant is presumptively ineligible; and in some cases, probation is not allowed.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
2007.)

(b)

Probation in unusual cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in
unusual cases where the interests of justice would best be served,” or a substantially
equivalent provision, the court should apply the criteria in (c) to evaluate whether
the statutory limitation on probation is overcome; and if it is, the court should then
apply the criteria in rule 4.414 to decide whether to grant probation.
(Subd (b) amended effective January 1, 2018; previously amended effective July 1, 2003,
and January 1, 2007.)

(c)

Facts showing unusual case Factors overcoming the presumption of
ineligibility
The following facts factors may indicate the existence of an unusual case in which
probation may be granted if otherwise appropriate:
(1)

Facts Factors relating to basis for limitation on probation

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A fact factor or circumstance indicating that the basis for the statutory
limitation on probation, although technically present, is not fully applicable to
the case, including:

(2)

(A)

The fact factor or circumstance giving rise to the limitation on
probation is, in this case, substantially less serious than the
circumstances typically present in other cases involving the same
probation limitation, and the defendant has no recent record of
committing similar crimes or crimes of violence; and

(B)

***

Facts Factors limiting defendant’s culpability
A fact factor or circumstance not amounting to a defense, but reducing the
defendant’s culpability for the offense, including:
(A)–(C) * * *

(3)

Results of risk/needs assessment
Along with all other relevant information in the case, the court may consider
the results of a risk/needs assessment of the defendant, if one was performed.
The weight of a risk/needs assessment is for the court to consider in its
sentencing discretion.

(Subd (c) amended effective January 1, 2018; previously amended effective January 1,
2007.)
Rule 4.413 amended effective January 1, 2018; adopted as rule 413 effective January 1, 1991;
previously renumbered effective January 1, 2001; previously amended effective July 1, 2003, and
January 1, 2007.
Advisory Committee Comment
Subdivision (c)(3). Standard 4.35 of the California Standards of Judicial Administration provides
courts with additional guidance on using the results of a risk/needs assessment at sentencing.

Rule 4.415. Criteria affecting the imposition of mandatory supervision
(a)–(b) * * *

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(c)

Criteria affecting conditions and length of mandatory supervision
In exercising discretion to select the appropriate period and conditions of
mandatory supervision, factors the court may consider include:
(1)–(7) * * *
(8)

The defendant’s specific needs and risk factors identified by a risk/needs
assessment, if available; and

(9)

***

(Subd (c) amended effective January 1, 2018.)

(d)

***

Rule 4.415 amended effective January 1, 2018; adopted effective January 1, 2015; previously
amended effective January 1, 2017.
Advisory Committee Comment
***
Subdivision (c)(8). Standard 4.35 of the California Standards of Judicial Administration provides
courts with additional guidance on using the results of a risk/needs assessment at sentencing.

Rule 4.420. Selection of term of imprisonment
(a)–(b) * * *
(c)

To comply with section 1170(b), a fact charged and found as an enhancement may
be used as a reason for imposing the upper a particular term only if the court has
discretion to strike the punishment for the enhancement and does so. The use of a
fact of an enhancement to impose the upper term of imprisonment is an adequate
reason for striking the additional term of imprisonment, regardless of the effect on
the total term.
(Subd (c) amended effective January 1, 2018; adopted effective January 1, 1991.)

(d)

A fact that is an element of the crime upon which punishment is being imposed
may not be used to impose a greater particular term.

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(Subd (d) amended effective January 1, 2018; adopted effective January 1, 1991;
previously amended effective January 1, 2007, May 23, 2007, and January 1, 2008.)

(e)

***

Rule 4.420 amended effective January 1, 2018; adopted as rule 439 effective July 1, 1977;
previously amended and renumbered as rule 420 effective January 1, 1991; previously
renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1,
2007, May 23, 2007, January 1, 2008, and January 1, 2017.

Rule 4.421. Circumstances in aggravation
Circumstances in aggravation include factors relating to the crime and factors relating to
the defendant.
(a)–(b) * * *
(c)

Other factors
Any other factors statutorily declared to be circumstances in aggravation or that
reasonably relate to the defendant or the circumstances under which the crime was
committed.
(Subd (c) amended effective January 1, 2018; adopted effective January 1, 1991;
previously amended effective January 1, 2007, and May 23, 2007.)

Rule 4.421 amended effective January 1, 2018; adopted as rule 421 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,
January 1, 2007, May 23, 2007, and January 1, 2017.
Advisory Committee Comment
Circumstances in aggravation may justify imposition of the middle or upper of three possible
terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be
used to enhance the sentence. The This rule does not deal with the dual use of the facts; the
statutory prohibition against dual use is included, in part, in the comment to rule 4.420.
Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a
taking or loss of great value may be circumstances in aggravation even if not meeting the
statutory definitions for enhancements or charged as an enhancement.

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Facts concerning the defendant’s prior record and personal history may be considered. By
providing that the defendant’s prior record and simultaneous convictions of other offenses may
not be used both for enhancement and in aggravation, section 1170(b) indicates that these and
other facts extrinsic to the commission of the crime may be considered in aggravation in
appropriate cases. This resolves whatever ambiguity may arise from the phrase “circumstances in
aggravation . . . of the crime.” The phrase “circumstances in aggravation or mitigation of the
crime” necessarily alludes to extrinsic facts.
Refusal to consider the personal characteristics of the defendant in imposing sentence would also
may raise serious constitutional questions. The California Supreme Court has held that sentencing
decisions must take into account “the nature of the offense and/or the offender, with particular
regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639,
654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In In re Rodriguez the court released
petitioner from further incarceration because “[I]it appears that neither the circumstances of his
offense nor his personal characteristics establish a danger to society sufficient to justify such a
prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) (Footnote omitted,
emphasis added.) “For the determination of sentences, justice generally requires . . . that there be
taken into account the circumstances of the offense together with the character and propensities of
the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with
approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)
The scope of “circumstances in aggravation or mitigation” under section 1170(b) is, therefore,
coextensive with the scope of inquiry under the similar phrase in section 1203.
The 1990 amendments to this rule and the comment included the deletion of most section
numbers. These changes recognize changing statutory section numbers and the fact that there are
numerous additional code sections related to the rule, including numerous statutory enhancements
enacted since the rule was originally adopted.
Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion; cases in
which that possible circumstance in aggravation was relied on were frequently reversed. Some of
the cases that had relied on that circumstance in aggravation were reversed on appeal because
there was only a single victim in a particular count.
Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b).
Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7,
1170.71, 1170.8, and 1170.85.

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Rule 4.423. Circumstances in mitigation
Circumstances in mitigation include factors relating to the crime and factors relating to
the defendant.
(a)–(b) * * *
(c)

Other factors
Any other factors statutorily declared to be circumstances in mitigation or that
reasonably relate to the defendant or the circumstances under which the crime was
committed.
(Subd (c) adopted effective January 1, 2018.)

Rule 4.423 amended effective January 1, 2018; adopted as rule 423 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,
July 1, 1993, January 1, 2007, May 23, 2007, and January 1, 2017.
Advisory Committee Comment
See comment to rule 4.421.
This rule applies both to mitigation for purposes of motions under section 1170(b) and to
circumstances in mitigation justifying the court in striking the additional punishment provided for
an enhancement.
Some listed circumstances can never apply to certain enhancements; for example, “the amounts
taken were deliberately small” can never apply to an excessive taking under section 12022.6, and
“no harm was done” can never apply to infliction of great bodily injury under section 12022.7. In
any case, only the facts present may be considered for their possible effect in mitigation.
See also rule 4.409; only relevant criteria need be considered.
Since only the fact of restitution is considered relevant to mitigation, no reference to the
defendant’s financial ability is needed. The omission of a comparable factor from rule 4.421 as a
circumstance in aggravation is deliberate.

Rule 4.425. Criteria Factors affecting concurrent or consecutive sentences
Criteria Factors affecting the decision to impose consecutive rather than concurrent
sentences include:

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(a)

Criteria Facts relating to crimes
Facts relating to the crimes, including whether or not:
(1)

The crimes and their objectives were predominantly independent of each
other;

(2)

The crimes involved separate acts of violence or threats of violence; or

(3)

The crimes were committed at different times or separate places, rather than
being committed so closely in time and place as to indicate a single period of
aberrant behavior.

(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
1991, and January 1, 2007.)

(b)

Other criteria facts and limitations
Any circumstances in aggravation or mitigation may be considered in deciding
whether to impose consecutive rather than concurrent sentences, except:
(1)

A fact used to impose the upper term;

(2)

A fact used to otherwise enhance the defendant’s sentence in prison or
county jail under section 1170(h); and

(3)

A fact that is an element of the crime may not be used to impose consecutive
sentences.

Subd (b) amended effective January 1, 2018; previously amended effective January 1,
1991, January 1, 2007, and January 1, 2017.)
Rule 4.425 amended effective January 1, 2018; adopted as rule 425 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,
January 1, 2007, and January 1, 2017.

Rule 4.428. Criteria Factors affecting imposition of enhancements
(a)

Enhancements punishable by one of three terms

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If an enhancement is punishable by one of three terms, the court must, in its
discretion, impose the term that best serves the interest of justice and state the
reasons for its sentence choice on the record at the time of sentencing. In exercising
its discretion in selecting the appropriate term, the court may consider factors in
mitigation and aggravation as described in these rules or any other factor authorized
by rule 4.408.
If the judge has statutory discretion to strike the additional term for an enhancement
in the furtherance of justice under section 1385(c) or based on circumstances in
mitigation, the court may consider and apply any of the circumstances in mitigation
enumerated in these rules or, under rule 4.408, any other reasonable circumstances
in mitigation or in the furtherance of justice.
The judge should not strike the allegation of the enhancement.
(Subd (a) was adopted effective January 1, 2018.)

(b)

Striking enhancements under section 1385
If the court has discretion under section 1385(a) to strike an enhancement in the
interests of justice, the court also has the authority to strike the punishment for the
enhancement under section 1385(c). In determining whether to strike the entire
enhancement or only the punishment for the enhancement, the court may consider
the effect that striking the enhancement would have on the status of the crime as a
strike, the accurate reflection of the defendant’s criminal conduct on his or her
record, the effect it may have on the award of custody credits, and any other
relevant consideration.
(Subd (b) was adopted effective January 1, 2018.)

Rule 4.428 amended effective January 1, 2018; adopted as rule 428 effective January 1, 1991;
previously renumbered effective January 1, 2001; previously amended effective January 1, 1998,
July 1, 2003, January 1, 2007, May 23, 2007, January 1, 2008, and January 1, 2011.

Rule 4.433. Matters to be considered at time set for sentencing
(a)

***

(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.

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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)–(5) * * *
(d)

***

(e)

When a sentence of imprisonment is imposed under (c) or under rule 4.435, the
sentencing judge must inform the defendant:
(1)–(2) * * *
(3)

Of any period of mandatory supervision imposed under section
1170(h)(5)(A), and (B), in addition to any period imprisonment for a
violation of mandatory supervision.

(Subd (e) amended effective January 1, 2018; previously amended effective July 28, 1977,
January 1, 1979, July 1, 2003, January 1, 2007, and January 1, 2017.)
Rule 4.433 amended effective January 1, 2018; 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, January 1, 2008, and January 1,
2017.

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Rule 4.435. Sentencing on revocation of probation, mandatory supervision, and
postrelease community supervision
(a)

When the defendant violates the terms of probation, mandatory supervision, or
postrelease community supervision or is otherwise subject to revocation of
probation supervision, the sentencing judge may make any disposition of the case
authorized by statute. In deciding whether to permanently revoke supervision, the
judge may consider the nature of the violation and the defendant’s past
performance on supervision.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
1991.)

(b)

On revocation and termination of probation supervision under section 1203.2, when
the sentencing judge determines that the defendant will be committed to prison or
county jail under section 1170(h):
(1)

If the imposition of sentence was previously suspended, the judge must
impose judgment and sentence after considering any findings previously
made and hearing and determining the matters enumerated in rule 4.433(c).
The length of the sentence must be based on circumstances existing at the
time probation supervision was granted, and subsequent events may not be
considered in selecting the base term or in deciding whether to strike the
additional punishment for enhancements charged and found.

(2)

***

(Subd (b) amended effective January 1, 2018; previously amended effective July 1, 2003,
January 1, 2006, January 1, 2007, and January 1, 2017.)
Rule 4.435 amended effective January 1, 2018; adopted as rule 435 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,
July 1, 2003, January 1, 2006, January 1, 2007, and January 1, 2017.
Advisory Committee Comment
Subdivision (a) makes it clear that there is no change in the court’s power, on finding cause to
revoke and terminate probation supervision under section 1203.2(a), to continue the defendant on
probation supervision.
The restriction of subdivision (b)(1) is based on In re Rodriguez (1975) 14 Cal.3d 639, 652:
“[T]he primary term must reflect the circumstances existing at the time of the offense.”

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A judge imposing imprisonment on revocation of probation will have the power granted by
section 1170(d) to recall the commitment on his or her own motion within 120 days after the date
of commitment, and the power under section 1203.2(e) to set aside the revocation of probation,
for good cause, within 30 days after the court has notice that execution of the sentence has
commenced.
Consideration of conduct occurring after the granting of probation should be distinguished from
consideration of preprobation conduct that is discovered after the granting of an order of
probation and before sentencing following a revocation and termination of probation. If the
preprobation conduct affects or nullifies a determination made at the time probation was granted,
the preprobation conduct may properly be considered at sentencing following revocation and
termination of probation. (See People v. Griffith (1984) 153 Cal.App.3d 796, 801.) While People
v. Griffith refers only to probation, this rule likely will apply to any form of supervision.

Rule 4.437. Statements in aggravation and mitigation
(a)–(e) * * *
Advisory Committee Comment
Section 1170(b) states in part:
“At least four days prior to the time set for imposition of judgment, either party or the victim, or
the family of the victim if the victim is deceased, may submit a statement in aggravation or
mitigation to dispute facts in the record or the probation officer’s report, or to present additional
facts.”
This provision means that the statement is a document giving notice of intention to dispute
evidence in the record or the probation officer’s report, or to present additional facts.
The statement itself cannot be the medium for presenting new evidence, or for rebutting
competent evidence already presented, because the statement is a unilateral presentation by one
party or counsel that will not necessarily have any indicia of reliability. To allow its factual
assertions to be considered in the absence of corroborating evidence would, therefore, constitute a
denial of due process of law in violation of the United States (14th Amend.) and California (art. I,
§ 7) Constitutions.
“[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the
requirements of the Due Process Clause. Even though the defendant has no substantive right to a
particular sentence within the range authorized by statute, the sentencing is a critical stage of the
criminal proceeding at which he is entitled to the effective assistance of counsel . . . . The

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defendant has a legitimate interest in the character of the procedure which leads to the imposition
of sentence . . . .” Gardner v. Florida (1977) 430 U.S. 349, 358.
The use of probation officers’ reports is permissible because the officers are trained objective
investigators. Williams v. New York (1949) 337 U.S. 241. Compare sections 1203 and 1204.
People v. Peterson (1973) 9 Cal.3d 717, 727, expressly approved the holding of United States v.
Weston (9th Cir. 1971) 448 F.2d 626 that due process is offended by sentencing on the basis of
unsubstantiated allegations that were denied by the defendant. Cf., In re Hancock (1977) 67
Cal.App.3d 943, 949.
The requirement that the statement include notice of intention to rely on new evidence will
enhance fairness to both sides by avoiding surprise and helping to ensure that the time limit on
pronouncing sentence is met.

Rule 4.447. Limitations on enhancements Sentencing of enhancements
No finding of an enhancement may be stricken or dismissed because imposition of the
term either is prohibited by law or exceeds limitations on the imposition of multiple
enhancements. The sentencing judge must impose sentence for the aggregate term of
imprisonment computed without reference to those prohibitions and limitations, and must
thereupon stay execution of so much of the term as is prohibited or exceeds the applicable
limit. The stay will become permanent on the defendant’s service of the portion of the
sentence not stayed.
(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

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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.)

Rule 4.451. Sentence consecutive to or concurrent with indeterminate term or to
term in other jurisdiction
(a)

When a defendant is sentenced under section 1170 and the sentence is to run
consecutively to or concurrently with a sentence imposed under section 1168(b) in
the same or another proceeding, the judgment must specify the determinate term
imposed under section 1170 computed without reference to the indeterminate
sentence, must order that the determinate term be served consecutively to or
concurrently with the sentence under section 1168(b), and must identify the
proceedings in which the indeterminate sentence was imposed. The term under
section 1168(b), and the date of its completion or parole date of parole or
postrelease community supervision, and the sequence in which the sentences are

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deemed or served, will be determined by correctional authorities as provided by
law.
Subd (a) amended effective January 1, 2018; previously amended effective January 1,
1979, July 1, 2003, and January 1. 2007.)

(b)

When a defendant is sentenced under sections 1168 or 1170 and the sentence is to
run consecutively to or concurrently with a sentence imposed by a court of the
United States or of another state or territory, the judgment must specify the
determinate term imposed under sections 1168(b) or 1170 computed without
reference to the sentence imposed by the other jurisdiction, must order that the
determinate term be served commencing on the completion of the sentence imposed
by the other jurisdiction, and must identify the other jurisdiction and the
proceedings in which the other sentence was imposed, and must indicate whether
the sentences are imposed concurrently or consecutively. If the term imposed is to
be served consecutively to the term imposed by the other jurisdiction, the court
must order that the California term be served commencing on the completion of the
sentence imposed by the other jurisdiction.
(Subd (b) amended effective January 1, 2018; previously amended January 1, 2007.)

Rule 4.451 amended effective January 1, 2018; adopted as rule 451 effective July 1, 1977;
previously renumbered effective January 1, 2001; previously amended effective January 1, 1979,
July 1, 2003, and January 1, 2007.
Advisory Committee Comment
Subdivision (a). The provisions of section 1170.1(a), which use a one-third formula to calculate
subordinate consecutive terms, can logically be applied only when all the sentences are imposed
under section 1170. Indeterminate sentences are imposed under section 1168(b). Since the
duration of the indeterminate term cannot be known to the court, subdivision (a) states the only
feasible mode of sentencing. (See People v. Felix (2000) 22 Cal.4th 651, 654–657; People v.
McGahuey (1981) 121 Cal.App.3d 524, 530–532.)
Subdivision (b). On the authority to sentence consecutively to the sentence of another
jurisdiction and the effect of such a sentence, see In re Helpman (1968) 267 Cal.App.2d 307 and
cases cited at note 3, id. at page 310, footnote 3. The mode of sentencing required by subdivision
(b) is necessary to avoid the illogical conclusion that the total of the consecutive sentences will
depend on whether the other jurisdiction or California is the first to pronounce judgment.

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Rule 4.452. Determinate sentence consecutive to prior determinate sentence
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)

***

(2)

The judge 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 the judges in the previous cases may not be changed by
the judge 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).

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

Rule 8.25. Service, filing, and filing fees
(a)–(b) * * *
(c)

Filing fees
(1)–(3) * * *
(4)

If the party fails to take the action specified in a notice given under (2)(3), the
reviewing court may strike the document, but may vacate the striking of the
document for good cause.

(Subd (c) amended effective January 1, 2018; adopted effective October 28, 2011.)

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Rule 8.25 amended effective January 1, 2018; adopted as rule 40.1 effective January 1, 2005;
previously amended and renumbered effective January 1, 2007; previously amended effective
January 1, 2009, July 1, 2010, January 1, 2011, October 28, 2011, and July 1, 2012.

Rule 8.36. Substituting parties; substituting or withdrawing attorneys
(a)–(b)
(c)

***

Withdrawing attorney
(1)

An attorney may request withdrawal by filing a motion to withdraw. Unless
the court orders otherwise, the motion need be served only on the party
represented and the attorneys directly affected.

(2)

The proof of service need not include the address of the party represented.
But if the court grants the motion, the withdrawing attorney must promptly
provide the court and the opposing party with the party’s current or last
known address and telephone number.

(3)

In all appeals and in original proceedings related to a superior court
proceeding, the reviewing court clerk must notify the superior court of any
ruling on the motion.

(4)

If the motion is filed in any proceeding pending in the Supreme Court after
grant of review, the clerk/executive officer of the Supreme Court clerk must
also notify the Court of Appeal of any ruling on the motion.

(Subd (c) amended effective January 1, 2018.)
Rule 8.36 amended effective January 1, 2018; repealed and adopted as rule 48 effective January
1, 2005; renumbered effective January 1, 2007.

Rule 8.100. Filing the appeal
(a)

***

(b)

Fee and deposit
(1)

Unless otherwise provided by law, the notice of appeal must be accompanied
by the $775 filing fee under Government Code sections 68926 and
68926.1(b), an application for a waiver of court fees and costs on appeal
under rule 8.26, or an order granting such an application. The fee may be paid
by check or money order payable to “Clerk/Executive Officer, Court of

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Appeal”; if the fee is paid in cash, the clerk must give a receipt. The fee may
also be paid by any method permitted by the court pursuant to rules 2.258 and
8.78.
(2)

The appellant must also deposit $100 with the superior court clerk as required
under Government Code section 68926.1, unless otherwise provided by law
or the superior court waives the deposit.

(3)

The clerk must file the notice of appeal even if the appellant does not present
the filing fee, the deposit, or an application for, or order granting, a waiver of
fees and costs.

(Subd (b) amended effective January 1, 2018; previously amended effective August 17,
2003, January 1, 2007, July 1, 2009, July 27, 2012, and January 1, 2016.)

(c)–(g)

***

Rule 8.100 amended effective January 1, 2018; repealed and adopted as rule 1 effective January
1, 2002; previously amended and renumbered as rule 8.100 effective January 1, 2007; previously
amended effective January 1, 2003, August 17, 2003, January 1, 2008, July 1, 2009, July 27,
2012, January 1, 2014, and January 1, 2016.
Advisory Committee Comment
Subdivision (a). * * *
Subdivision (b). In the interest of consistency, subdivision (b)(1) recommends a preferred
wording—“Clerk, Court of Appeal”—for the name of the payee of checks or money orders for
the filing fee. The provision is not mandatory.
Subdivision (c)(2). * * *
Subdivision (e). * * *

Rule 8.137. Settled statement
(a)

Description
A settled statement is a summary of the superior court proceedings approved by the
superior court. An appellant may either elect under (b)(1) or move under (b)(2) to
use a settled statement as the record of the oral proceedings in the superior court,
instead of a reporter’s transcript.

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

(a)(b) Motion to use When a settled statement may be used
(1)

An appellant may elect in his or her notice designating the record on appeal
under rule 8.121 to use a settled statement as the record of the oral
proceedings in the superior court without filing a motion under (2) if:
(A)

The designated oral proceedings in the superior court were not reported
by a court reporter; or

(B)

The appellant has an order waiving his or her court fees and costs.

(1)(2) An appellant intending to proceed under this rule for reasons other than those
listed in (1) must serve and file in superior court with its notice designating
the record on appeal under rule 8.121 a motion to use a settled statement
instead of a reporter’s transcript or both a reporter’s and clerk’s transcripts.
(2)(A) The motion must be supported by a showing that:
(A)(i) A substantial cost saving will result and the statement can be
settled without significantly burdening opposing parties or the
court;
(B)(ii) The designated oral proceedings were not reported or cannot be
transcribed; or
(C)(iii) Although the appellant does not have a fee waiver, he or she is
unable to pay for a reporter’s transcript and funds are not
available from the Transcript Reimbursement Fund (see rule
8.130(c)). A party proceeding in forma pauperis is deemed
unable to pay for a transcript.
(3)(B) If the court denies the motion, the appellant must file a new notice
designating the record on appeal under rule 8.121 within 10 days after
the superior court clerk sends, or a party serves, the order of denial.
(3)

An appellant’s notice under (1) or motion under (2) must:
(A)

Specify the date of each oral proceeding to be included in the settled
statement;

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(B)

(4)

Identify whether each proceeding designated under (A) was reported by
a court reporter and, if so, for each such proceeding:
(i)

Provide the name of the court reporter, if known; and

(ii)

Identify whether a certified transcript has previously been
prepared by checking the appropriate box on Appellant’s Notice
Designating Record on Appeal (Unlimited Civil Case) (form
APP-003) or, if that form is not used, placing an asterisk before
that proceeding in the notice.

If the designated oral proceedings in the superior court were reported by a
court reporter:
(A)

(B)

Within 10 days after the appellant serves either a notice under (1) or a
motion under (2), the respondent may serve and file a notice indicating
that he or she is electing to provide a reporter’s transcript in lieu of
proceeding with a settled statement. The respondent must also either:
(i)

Deposit a certified transcript of all of the proceedings designated
by the appellant under (3) and any additional proceedings
designated by the respondent under rule 8.130(b)(3)(C); or

(ii)

Serve and file a notice that the respondent is requesting
preparation, at the respondent’s expense, of a reporter’s transcript
of all proceedings designated by the appellant under (3) and any
additional proceedings designated by the respondent. This notice
must be accompanied by either the required deposit for the
reporter’s transcript under rule 8.130(b)(1) or the reporter’s
written waiver of the deposit in lieu of all or a portion of the
deposit under rule 8.130(b)(3)(A).

If the respondent timely deposits the certified transcript as required
under (i), the appellant’s motion to use a settled statement will be
dismissed. If the respondent timely files the notice and makes the
deposit or files the waiver as provided under (ii), the appellant’s
motion to use a settled statement will be dismissed and the clerk must
promptly send the reporter notice of the designation and of the deposit,
waiver, or both—and notice to prepare the transcript—as provided
under rule 8.130(d).

(Subd (b) relettered, renumbered and amended effective January 1, 2018; adopted as subd
(a); previously amended effective January 1, 2007, January 1, 2008 and January 1, 2016.)

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(b)(c) Time to file; contents of proposed statement
(1)

Within 30 days after the superior court clerk sends, or a party serves, an order
granting a motion to use If the respondent does not file a notice under
(b)(4)(A) electing to provide a reporter’s transcript in lieu of proceeding with
a settled statement, the appellant must serve and file a proposed statement in
superior court within 30 days after filing its notice under (b)(1) or within 30
days after the superior court clerk sends, or a party serves, an order granting a
motion under (b)(2) a condensed narrative of the oral proceedings that the
appellant believes necessary for the appeal. Subject to the court’s approval in
settling the statement, the appellant may present some or all of the evidence
by question and answer.

(2)

Appellants who are not represented by an attorney are encouraged to file their
proposed statement on Proposed Statement on Appeal (Unlimited Civil Case)
(form APP-014). The court may order an appellant to use form APP-014. If
the condensed narrative describes less than all the testimony, the appellant
must state the points to be raised on appeal; the appeal is then limited to those
points unless, on motion, the reviewing court permits otherwise.

(3)

An appellant intending to use a settled statement instead of both reporter’s
and clerk’s transcripts must accompany the condensed narrative with copies
of all items required by rule 8.122(b)(1), showing the dates required by rule
8.122(b)(2).

(4)

Within 20 days after the appellant serves the condensed narrative, the
respondent may serve and file proposed amendments.

(5)

The proposed statement and proposed amendments may be accompanied by
copies of any document includable in the clerk’s transcript under rule
8.122(b)(3) and (4).

(Subd (c) relettered and amended effective January 1, 2018; adopted as subd (b);
previously amended effective January 1, 2007, January 1, 2008, and January 1, 2016.)

(d)

Contents of proposed statement
The proposed statement must:
(1)

Contain a statement of the points the appellant is raising on appeal. If the
condensed narrative under (2) covers only a portion of the oral proceedings,
the appeal is then limited to the points identified in the statement unless the

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reviewing court determines that the record permits the full consideration of
another point or, on motion, the reviewing court permits otherwise.
(2)

(3)

Contain a condensed narrative of the oral proceedings that the appellant
specified under (b)(3).
(A)

The condensed narrative must include a concise factual summary of the
evidence and the testimony of each witness relevant to the points that
the appellant states under (1) are being raised on appeal. Subject to the
court’s approval in settling the statement, the appellant may present
some or all of the evidence by question and answer. Any evidence or
portion of a proceeding not included will be presumed to support the
judgment or order appealed from.

(B)

If one of the points that the appellant states will be raised on appeal is a
challenge to the giving, refusal, or modification of a jury instruction,
the condensed narrative must include any instructions submitted orally
and not in writing and must identify the party that requested the
instruction and any modification.

Have attached to it a copy of the judgment or order being appealed.

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

(e)

Respondent’s response to proposed statement
Within 20 days after the appellant serves the proposed statement, the respondent
may serve and file either:
(1)

Proposed amendments to the proposed statement; or

(2)

A notice indicating that he or she is electing to provide a reporter’s
transcript in lieu of proceeding with a settled statement. The respondent
must also either:
(A)

Deposit a certified transcript of all the proceedings specified by the
appellant under (b)(3) of this rule and any additional proceedings
designated by the respondent under rule 8.130(b)(3)(C); or

(B)

Serve and file a notice that the respondent is requesting preparation, at
the respondent’s expense, of a reporter’s transcript of all proceedings
specified by the appellant under (b)(3) of this rule and any additional
proceedings designated by the respondent. This notice must be

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accompanied by either the required deposit for the reporter’s
transcript under rule 8.130(b)(1) or the reporter’s written waiver of
the deposit in lieu of all or a portion of the deposit under rule
8.130(b)(3)(A).
(Subd (e) adopted effective January 1, 2018.)

(c)(f) Settlement, preparation, and certification Review of appellant’s proposed
statement
(1)

The clerk must set a date for a settlement hearing by the trial judge that is No
later than 10 days after the respondent files proposed amendments or the time
to do so expires, whichever is earlier, and must give the parties at least five
days’ notice of the hearing date a party may request a hearing to review and
correct the proposed statement. No hearing will be held unless ordered by the
trial court judge, and the judge will not ordinarily order a hearing unless there
is a factual dispute about a material aspect of the trial court proceedings.

(2)

The trial court judge may order that a transcript be prepared as the record of
the oral proceedings instead of correcting a proposed statement on appeal if
the trial court proceedings were reported by a court reporter, the trial court
judge determines that doing so would save court time and resources, and the
court has a local rule permitting such an order. The court will pay for any
transcript ordered under this subdivision. At the hearing, the judge must settle
the statement and fix the times within which the appellant must prepare,
serve, and file it.

(3)

Except as provided in (2), if no hearing is ordered, no later than 10 days after
the time for requesting a hearing expires, the trial court judge must review the
proposed statement and any proposed amendments filed by the respondent
and take one of the following actions: If the respondent does not object to the
prepared statement within five days after it is filed, it will be deemed
properly prepared and the clerk must present it to the judge for certification.
(A)

If the proposed statement does not contain material required under (d),
the trial court judge may order the appellant to prepare a new proposed
statement. The order must identify the additional material that must be
included in the statement to comply with (d) and the date by which the
new proposed statement must be served and filed. If the appellant does
not serve and file a new proposed statement as directed, the appellant
will be deemed to be in default, and rule 8.140 will apply.

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(B)

(4)

(5)

If the trial court judge does not issue an order under (A), the judge must
either:
(i)

Make any corrections or modifications to the statement necessary
to ensure that it is an accurate summary of the evidence and the
testimony of each witness relevant to the points that the appellant
states under (d)(1) are being raised on appeal; or

(ii)

Identify the necessary corrections and modifications, and order
the appellant to prepare a statement incorporating these
corrections and modifications.

If a hearing is ordered, the court must promptly set the hearing date and
provide the parties with at least 5 days’ written notice of the hearing date. No
later than 10 days after the hearing, the trial court judge must either: The
parties’ stipulation that the statement as originally served or as prepared is
correct is equivalent to the judge’s certification.
(A)

Make any corrections or modifications to the statement necessary to
ensure that it is an accurate summary of the evidence and the testimony
of each witness relevant to the points that the appellant states under
(d)(1) are being raised on appeal; or

(B)

Identify the necessary corrections and modifications and order the
appellant to prepare a statement incorporating these corrections and
modifications.

The trial court judge must not eliminate the appellant’s specification of
grounds of appeal from the proposed statement.

(Subd (f) relettered, renumbered, and amended effective January 1, 2018; adopted as subd
(c).)

(g)

Review of the corrected statement
(1)

If the trial court judge makes any corrections or modifications to the
proposed statement under (f), the clerk must serve copies of the corrected or
modified statement on the parties. If under (f) the trial court judge orders the
appellant to prepare a statement incorporating corrections and modifications,
the appellant must serve and file the corrected or modified statement within
the time ordered by the court. If the appellant does not serve and file a
corrected or modified statement as directed, the appellant will be deemed to
be in default and rule 8.140 will apply.

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(2)

Within 10 days after the corrected or modified statement is served on the
parties, any party may serve and file proposed modifications or objections to
the statement.

(3)

Within 10 days after the time for filing proposed modifications or objections
under (2) has expired, the trial court judge must review the corrected or
modified statement and any proposed modifications or objections to the
statement filed by the parties. The procedures in (2) or in (f)(3) apply if the
trial court judge determines that further corrections or modifications are
necessary to ensure that the statement is an accurate summary of the evidence
and the testimony of each witness relevant to the points that the appellant
states under (d)(1) are being raised on appeal.

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

(h)

Certification of the statement on appeal
(1)

If the trial court judge does not order the preparation of a transcript under
(f)(2) in lieu of correcting the proposed statement or order any corrections or
modifications to the proposed statement under (f)(3), (f)(4), or (g)(3), the
judge must promptly certify the statement.

(2)

The parties may serve and file a stipulation that the statement as originally
served under (c) or as corrected or modified under (f)(3), (f)(4), or (g)(3) is
correct. Such a stipulation is equivalent to the judge’s certification of the
statement.

(3)

Upon certification of the statement under (1) or receipt of a stipulation under
(2), the certified statement must immediately be transmitted to the clerk for
filing of the record under rule 8.150.

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

Rule 8.137 amended effective January 1, 2018; repealed and adopted as rule 7 effective
January 1, 2002; previously amended and renumbered as rule 8.137 effective January 1,
2007; previously amended effective January 1, 2008, and January 1, 2016.
Rule 8.212. Service and filing of briefs
(a)

***

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(b)

***

(c)

Service
(1)

***

(2)

If a brief is not filed electronically under rules 8.70–8.79, one electronic copy
of each brief must be submitted to the Court of Appeal. For purposes of this
requirement, the term “brief” does not include a petition for rehearing or an
answer thereto.
(A)–(B) * * *
(C)

(3)

If it would cause undue hardship for the party filing the brief to submit
an electronic copy of the brief to the Court of Appeal, the party may
instead serve four paper copies of the brief on the Supreme Court. If the
brief discloses material contained in a sealed or conditionally sealed
record, the party serving the brief must comply with rule 8.46(f) and
attach a cover sheet that contains the information required by rule
8.204(b)(10). The clerk/executive officer of the Court of Appeal clerk
must promptly notify the Supreme Court of any court order unsealing
the brief. In the absence of such notice, the clerk/executive officer of
the Supreme Court clerk must keep all copies of the unredacted brief
under seal.

***

(Subd (c) amended effective January 1, 2018; previously amended effective January 1,
2004, January 1, 2005, January 1, 2007, January 1, 2008, January 1, 2013, January 1,
2014, and January 1, 2015.)
Rule 8.212 amended effective January 1, 2018; repealed and adopted as rule 15 effective January
1, 2002; previously amended and renumbered effective January 1, 2007; previously amended
effective January 1, 2003, January 1, 2004, January 1, 2005, July 1, 2005, January 1, 2008,
January 1, 2010, January 1, 2011, January 1, 2013, January 1, 2014, and January 1, 2015.

Rule 8.248. Prehearing conference
(a)–(d) * * *
Rule 8.248 amended effective January 1, 2016; repealed and adopted as rule 21 effective January
1, 2003; previously amended and renumbered as rule 8.248 effective January 1, 2007.

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Advisory Committee Comment
Subdivision (a). * * *
Subdivision (d). If a prehearing conference is ordered before the due date of the appellant’s
opening brief, the time to file the brief is not extended but tolled, in order to avoid unwarranted
lengthening of the briefing process. For example, if the conference is ordered 15 days after the
start of the normal 30-day briefing period, the rule simply suspends the running of that period;
when the period resumes, the party will not receive an automatic extension of a full 30 days but
rather the remaining 15 days of the original briefing period, unless the period is otherwise
extended.
Under subdivision (d) the tolling period continues “until the date [the Court of Appeal] sends
notice that the conference is concluded” (italics added). This provision is intended to
accommodate the possibility that the conference may not conclude on the date it begins.
Whether or not the conference concludes on the date it begins, subdivision (d) requires the
clerk/executive officer of the Court of Appeal clerk to send the parties a notice that the
conference is concluded. This provision is intended to facilitate the calculation of the new
briefing due dates.

Rule 8.256. Oral argument and submission of the cause
(a)

***

(b)

Notice of argument
The clerk/executive officer of the Court of Appeal clerk must send a notice of the
time and place of oral argument to all parties at least 20 days before the argument
date. The presiding justice may shorten the notice period for good cause; in that
event, the clerk/executive officer must immediately notify the parties by telephone
or other expeditious method.
(Subd (b) amended effective January 1, 2018.)

(c)–(e) * * *
Rule 8.256 amended effective January 1, 2018; repealed and adopted as rule 23 effective January
1, 2003; previously amended and renumbered effective January 1, 2007.

Rule 8.264. Filing, finality, and modification of decision

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(a)

Filing the decision
(1)

The clerk/executive officer of the Court of Appeal clerk must promptly file
all opinions and orders of the court and promptly send copies showing the
filing date to the parties and, when relevant, to the lower court or tribunal.

(2)

***

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

(b)

***

(c)

Modification of decision
(1)

A reviewing court may modify a decision until the decision is final in that
court. If the clerk’s office of the clerk/executive officer is closed on the date
of finality, the court may modify the decision on the next day the clerk’s
office is open.

(2)

***

(Subd (c) amended effective January 1, 2018.)

(d)

Consent to increase or decrease in amount of judgment
If a Court of Appeal decision conditions the affirmance of a money judgment on a
party’s consent to an increase or decrease in the amount, the judgment is reversed
unless, before the decision is final under (b), the party serves and files a copy of a
consent in the Court of Appeal. If a consent is filed, the finality period runs from
the filing date of the consent. The clerk/executive officer must send one filedendorsed copy of the consent to the superior court with the remittitur.
(Subd (d) amended effective January 1, 2018; previously amended effective January 1,
2016.)

Rule 8.264 amended effective January 1, 2018; repealed and adopted as rule 24 effective January
1, 2003; previously amended and renumbered as rule 8.264 effective January 1, 2007; previously
amended effective January 1, 2009, and January 1, 2016.

Rule 8.272. Remittitur
(a)

***

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(b)

Clerk’s duties
(1)

(2)

If a Court of Appeal decision is not reviewed by the Supreme Court:
(A)

The clerk/executive officer of the Court of Appeal clerk must issue a
remittitur immediately after the Supreme Court denies review, or the
period for granting review expires, or the court dismisses review under
rule 8.528(b); and

(B)

The clerk/executive officer must send the lower court or tribunal the
Court of Appeal remittitur and a filed-endorsed copy of the opinion or
order.

After Supreme Court review of a Court of Appeal decision:
(A)

On receiving the Supreme Court remittitur, the clerk/executive officer
of the Court of Appeal clerk must issue a remittitur immediately if
there will be no further proceedings in the Court of Appeal; and

(B)

The clerk must send the lower court or tribunal the Court of Appeal
remittitur, a copy of the Supreme Court remittitur, and a filed-endorsed
copy of the Supreme Court opinion or order.

(Subd (b) amended effective January 1, 2018; previously amended effective January 1,
2007, and January 1, 2016.)

(c)

***

(d)

Notice
(1)

The remittitur is deemed issued when the clerk/executive officer enters it in
the record. The clerk/executive officer must immediately send the parties
notice of issuance of the remittitur, showing the date of entry.

(2)

If, without requiring further proceedings in the trial court, the decision
changes the length of a state prison sentence, applicable credits, or the
maximum permissible confinement to the Department of Corrections and
Rehabilitation, Division of Juvenile Justice, the clerk/executive officer must
send a copy of the remittitur and opinion or order to either the Department of
Corrections and Rehabilitation or the Division of Juvenile Justice.

(Subd (d) amended effective January 1, 2018; previously amended effective January 1,
2007.)

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Rule 8.272 amended effective January 1, 2018; repealed and adopted as rule 26 effective January
1, 2003; previously amended effective January 1, 2007, January 1, 2008, and January 1, 2016.

Rule 8.278. Costs on appeal
(a)

***

(b)

Judgment for costs
(1)

The clerk/executive officer of the Court of Appeal clerk must enter on the
record, and insert in the remittitur, a judgment awarding costs to the
prevailing party under (a)(2) or as directed by the court under (a)(3), (a)(4),
or (a)(5).

(2)

If the clerk/executive officer fails to enter judgment for costs, the court may
recall the remittitur for correction on its own motion, or on a party’s motion
made not later than 30 days after the remittitur issues.

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

(c)–(d) * * *
Rule 8.278 amended effective January 1, 2018; adopted effective January 1, 2008; previously
amended effective January 1, 2013, and January 1, 2016.

Rule 8.336. Preparing, certifying, and sending the record
(a)–(g) * * *
(h)

Supervision of preparation of record
Each clerk/executive officer of the Court of Appeal clerk, under the supervision of
the administrative presiding justice or the presiding justice, must take all
appropriate steps to ensure that superior court clerks and reporters promptly
perform their duties under this rule. This provision does not affect the superior
courts’ responsibility for the prompt preparation of appellate records.
(Subd (h) amended effective January 1, 2018.)

Rule 8.336 amended effective January 1, 2018; repealed and adopted as rule 32 effective January
1, 2004; previously amended and renumbered as rule 8.336 effective January 1, 2007; previously
amended effective January 1, 2010, January 1, 2014, January 1, 2016, and January 1, 2017.

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Rule 8.380. Petition for writ of habeas corpus filed by petitioner not represented by
an attorney
(a)

Required Judicial Council form
A person who is not represented by an attorney and who petitions a reviewing court
for writ of habeas corpus seeking release from, or modification of the conditions of,
custody of a person confined in a state or local penal institution, hospital, narcotics
treatment facility, or other institution must file the petition on Petition for Writ of
Habeas Corpus (form MC-275). For good cause the court may permit the filing of
a petition that is not on that form, but the petition must be verified.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
2006, January 1, 2007, and January 1, 2009.)

(b)–(c) * * *
Rule 8.380 amended effective January 1, 2018; repealed and adopted as rule 60 effective January
1, 2005; previously amended and renumbered as rule 8.380 effective January 1, 2007; previously
amended effective January 1, 2006, January 1, 2009, January 1, 2014, and January 1, 2016.

Rule 8.384. Petition for writ of habeas corpus filed by an attorney for a party
(a)

Form and content of petition and memorandum
(1)

A petition for habeas corpus filed by an attorney need not be filed on Petition
for Writ of Habeas Corpus (form MC-275) but must contain the information
requested in that form and must be verified. All petitions filed by attorneys,
whether or not on form MC-275, must be either typewritten or produced on a
computer, and must comply with this rule and rules 8.40(b)–(c) relating to
document covers and rule 8.204(a)(1)(A) relating to tables of contents and
authorities. A petition that is not on form MC-275 must also comply with the
remainder of rules 8.204(a) and 8.204–(b).

(Subd (a) amended effective January 1, 2018; adopted as part of subd (b) effective January
1, 2006; previously amended and lettered as subd (a) effective January 1, 2009; previously
amended effective January 1, 2016.)

(2)–(3) * * *

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(b)–(d) * * *
Rule 8.384 amended effective January 1, 2018; adopted as rule 60.5 effective January 1, 2006;
previously amended and renumbered as rule 8.384 effective January 1, 2007; previously
amended effective January 1, 2009, January 1, 2014, January 1, 2016.

Rule 8.452. Writ petition to review order setting hearing under Welfare and
Institutions Code section 366.26
(a)

Petition
(1) * * *
(2)

The petition must be verified.

(2)(3) The petition must be accompanied by a memorandum.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
2007, and July 1, 2010.)

(b)–(i) * * *
Rule 8.452 amended effective January 1, 2018; adopted as rule 38.1 effective January 1, 2005;
previously amended and renumbered effective January 1, 2007; previously amended effective
January 1, 2006, July 1, 2010, and January 1, 2017.

Rule 8.456. Writ petition under Welfare and Institutions Code section 366.28 to
review order designating or denying specific placement of a dependent child
after termination of parental rights
(a)

Petition
(1)

***

(2)

The petition must be verified.

(2)(3) The petition must be accompanied by a memorandum.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
2007, and July 1, 2010.)

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(b)–(i) * * *
Rule 8.456 amended effective January 1, 2018; adopted as rule 38.3 effective January 1, 2005;
previously amended and renumbered effective January 1, 2007; previously amended effective
January 1, 2006, February 24, 2006, July 1, 2010, and January 1, 2017.

Rule 8.495. Review of Workers’ Compensation Appeals Board cases
(a)

Petition
(1)–(2) * * *
(3)

The petition must be verified.

(3)(4) The petition must be accompanied by proof of service of a copy of the
petition on the Secretary of the Workers’ Compensation Appeals Board in
San Francisco, or two copies if the petition is served in paper form, and one
copy on each party who appeared in the action and whose interest is adverse
to the petitioner. Service on the board’s local district office is not required.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1,
2007, and January 1, 2016.)

(b)–(c) * * *
Rule 8.495 amended effective January 1, 2018; repealed and adopted as rule 57 effective January
1, 2005; previously amended effective July 1, 2006, and January 1, 2016; previously amended
and renumbered as rule 8.494 effective January 1, 2007; previously renumbered as rule 8.495
effective January 1, 2009.

Rule 8.500. Petition for review
(a)–(d) * * *
(e)

Time to serve and file
(1)

A petition for review must be served and filed within 10 days after the Court
of Appeal decision is final in that court. For purposes of this rule, the date of
finality is not extended if it falls on a day on which the clerk’s office of the
clerk/executive officer is closed.

(2)

***

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(3)

If a petition for review is presented for filing before the Court of Appeal
decision is final in that court, the clerk/executive officer of the Supreme
Court clerk must accept it and file it on the day after finality.

(4)–(5) * * *
(Subd (e) amended effective January 1, 2018; previously amended effective January 1,
2007, and January 1, 2009.)

(f)

Additional requirements
(1)

The petition must also be served on the superior court clerk and the
clerk/

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Aca%3A645566ef311b0c6c. Public record. Not legal advice.