California Criminal Trial Manual

Consecutive Sentencing (PC 1170.1.)

• If a D is convicted in a single proceeding of more than one felony carrying a determinate sentence, sentencing court may order that the terms be served either concurrently or consecutively
• If a sentencing court imposes consecutive terms, PC 1170.1(a) specifies the normal method for calculating the overall prison term. With certain exceptions:

Principal Term + Subordinate Term + Applicable Additional Terms =
AGGREGATE TERM OF IMPRISONMENT

• Principal Term = greatest term of imprisonment imposed by court for any of the crimes
• Subordinate Term = one-third of the middle term of imprisonment for each felony + one-third of enhancement
  • If enhancement has triad, can be 1/3 of LT, MT, or UT (People v. Sandoval (1994) 30 Cal.App.4th 1288; People v. Hill (2004) 119 Cal.App.4th 85.)
• Applicable Additional Terms = added 1x to total term of imprisonment, and imposed full term
  • Prior convictions used for enhancement (“status enhancements”). (PC 1170.1(a).)
    • Ex: PC 667.5(b)
  • PC 12022.1 are part of additional term. (People v. Williams (2004) 34 Cal.4th 397.)
  • HS 11370.2(a)
• PC 1170.1(a) & Two Strike Defendants
  • PC 1170.1 applies to Two Strike defendants. (People v. Nguyen (1999) 21 Cal.4th 197.)
  • Subordinate term where PC 1170.12(c)(1) allegation = one-third middle term, doubled
• Exceptions (to 1/3 of term imposed calculation for c/s enhancements)

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• DSL Framework
  • Step 1: Determine the Principal Term
  • Step 2: Determine counts with 654 relationships
    • If there is a count w/ PC 654 relationship to previously identified principal term, the court may:
      • Confirm its principal term choice; OR
      • May select the lesser punished count with the 654 relationship as the crime for which the sentence shall be “imposed” and not stayed
    • PC 654 Mechanics: for all counts which will be stayed under PC 654, court must impose sentence (base term + enhancement), and then stay the imposition per PC 654, not just impose a concurrent sentence. (Cal. Rules of Court, Rule 4.424.)
  • Step 3: Consecutive (CS) or Concurrent (CC)
    • CC term occasionally results in D serving longer actual time in custody than a CS sentence
      • i.e. 1381 demand or mS violation where D already served most of the sentence
  • Step 4: Apply 1/3MT and 1/3 Enhancements rule to all CS sentences
  • Step 5: add priors (i.e. 5 year priors or prison priors)
    • Only time plan to use 667.5(a) (violent prison prior):
      • Current case serious felony
      • Prior case had 1 serious F, 1 violent F, c/c or c/s sentences imposed. Can use 1 for 667(a)(1), and 1 for 667.5
  • Step 6: Add 12022.1 (2y) enhancements

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• ISL Framework
  • For consecutive ISL terms -> impose FULL TERM consecutive. (PC 1168(b).)
  • MEPD for each c/s life term is served consecutively before parole eligibility

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• Mixed DSL/ISL
  • ISL & DSL sentences are calculated separately
  • When coupled w/ C/S sentences on DSL crimes or enhancements, the DSL portion of the sentence is served first (except PC 1170.1(c) enumerated in-prison/escape crimes) (In re Coleman (2015) 236 Cal.App.4th 1013.)
  • ISL sentence cannot be the principal term
  • No portion of c/s DSL sentence counts toward ISL MEPD

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Sentencing Formula: Mixed ISL/DSL Counts

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Consecutive Sentencing: Complex Issues

Crimes Committed in Prison (PC 1170.1(c).)

• General Rule: after D delivered to CDC, any new crime they commit shall be sentenced as a new sentence
  • Defendants temporarily removed from prison to jail still have been “delivered.”
• New sentence has new principal term, new subordinate terms, and new punishment for D’s priors. (PC 1170.1(c).)
• Scheme only applies to CDC; PC 1170(h) sentences are inapplicable

Multiple Cases in Multiple Counties Before D Sentenced to CJ/CDC

• CA Rules of Ct, Rule 4.452. Different rules depending on which scenario applies
• Scenario #1. Sentencing #1 (first in time) resulted in CDC sentence
  • First sentenced case: as usual
  • Second sentenced case: if 2nd judge chooses to run case #2, concurrent, no resentencing necessary
    • If 2nd judge chooses to run case #2 consecutive, there needs to be resentencing
    • Must pronounce a combined-sentence single aggregate term per 1170.1(a)
  • Judge #2 must respect discretionary choices of Judge #1
    • Can’t change CS v. CC w/n already sentenced cases, which triad choice, striking (or non-striking) of enhancement of their punishment under 1385
  • Switching Principal Term Not Disrespecting Discretionary Choice. If former “principal term” count becomes a 1/3 MT c/s subordinate count, that is not “altering a discretionary choice” by the original sentencing court – just a change in the sentence for that count mandated by law. (PC 1170.1; CRC Rule 4.452(a)(3).)
  • Priors. Just b/c 1st judge struck prior in 1st case, doesn’t mean 2nd judge must strike prior in 2nd case
• Scenario #2: when all sentencings are PC 1170(h)
  • Court must leave the in/out split alone from Sentencing #1, and figure out how much additional in/out split you want from your new counts. Add that to the already imposed in/out split.
  • Can’t change the mandatory supervision terms of release unless D consents
• Sentence #3: Original sentence was 1170(h) sentence; D first sentenced in another county; and now a later sentence requires a CDC commitment
  • Rule 4.452(a)(5)
  • 2nd judge only imposes sentence on the new case, then returns D to original sentencing court.