California, United States of America
The following excerpt is from People v. Perry, C078998 (Cal. App. 2016):
"The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) The trial court selected defendant's conviction for first degree robbery as the principle term. If the conviction on that term were ever invalidated, a full term sentence on the stayed term would come into effect. (Ibid.) Thus, a full term sentence must be imposed on defendant's conviction for active participation in a criminal street gang and then stayed. Because that sentence should be commensurate with the trial court's determination of defendant's punishment, we remand this matter to the trial court for a determination of whether the full lower, middle, or upper term should be imposed and then stayed.
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