Rule 4.437. Statements in aggravation and mitigation

(a) Time for filing and service Statements in aggravation and mitigation referred to in section 1170(b) must be filed and served at least four days before the time set for sentencing under section 1191 or the time set for pronouncing judgment on revocation of probation under section 1203.2(c) if imposition of sentence was previously suspended.

(b) Combined statement A party seeking consideration of circumstances in aggravation or mitigation may file and serve a statement under section 1170(b) and this rule.

(c) Contents of statement A statement in aggravation or mitigation must include:

(1) A summary of evidence that the party relies on as circumstances justifying the imposition of a particular term; and

(2) Notice of intention to dispute facts or offer evidence in aggravation or mitigation at the sentencing hearing. The statement must generally describe the evidence to be offered, including a description of any documents and the names and expected substance of the testimony of any witnesses. No evidence in aggravation or mitigation may be introduced at the sentencing hearing unless it was described in the statement, or unless its admission is permitted by the sentencing judge in the interests of justice.

(d) Support required for assertions of fact Assertions of fact in a statement in aggravation or mitigation must be disregarded unless they are supported by the record in the case, the probation officer’s report or other reports properly filed in the case, or other competent evidence.

(e) Disputed facts In the event the parties dispute the facts on which the conviction rested, the court must conduct a presentence hearing and make appropriate corrections, additions, or deletions in the presentence probation report or order a revised report.

Committee Notes

(Subd (a) amended effective January 1, 2007.)

(Subd (b) amended effective January 1, 2007.)

(Subd (c) amended effective May 23, 2007; previously amended effective January 1, 2007.)

(Subd (d) amended effective January 1, 2007.)

(Subd (e) amended effective January 1, 2007; adopted effective January 1, 1991.)