Error and/or relief
It was error for the trial court to impose the full term for an enhancement attached to the offense that was designated as a subordinate term.
First Holding:
A sentencing court has a duty to impose the punishment prescribed by law, and has no discretion to deviate from the statutorily specified penalty. When the trial court has imposed a sentence that could not lawfully be imposed under any circumstance in the particular case, it has imposed an unauthorized sentence that must be corrected even if raised for the first time on appeal.
Authority:
PEN 12
People v. Martinez (2015) 240 Cal.App.4th 1006, 1012
People v. Anderson (2020) 9 Cal.5th 946, 962
Second Holding:
Defendant was convicted of two or more felonies. Section 1170.1(a) required the trial court to select a principal term and designate the terms for his other convictions as subordinate terms. The conviction carrying the greatest term of imprisonment is designated the principal term. For the conviction designated as the principal term, the court must impose the full term. Subordinate terms and their applicable enhancements receive one-third of the middle term. The count to which the enhancement was designated as a subordinate term, so the court should have imposed only one-third of its middle term rather than its full term.
Authority:
PEN 1170.1(a)
People v. Nguyen (1999) 21 Cal.4th 197, 202
Third Holding:
Counts that are subject to full-term sentencing under PC 667.6 are not to be including in any determination under section 1170.1. Thus, it was not error for the court to designate count 7 (which was not subject to section 667.6) as the principal term (to be served as a full term) under section 1170.1 even though the court had imposed sentence on two other counts as full term under section 667.6.
Authority:
People v. Pelayo (1999) 69 Cal.App.4th 115
[GARY NOTE: though the purpose for which Pelayo was cited continues to be true, Pelayo’s recitation of section 1170.1’s treatment of enhancements on subordinate terms is outdated, as section 1170.1 has since been amended to include enhancements on subordinate terms whether or not the subordinate term was for a violent felony.]