Does the one-third-the-midterm rule apply to a consecutive sentence?

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.

Other Questions


What are the reasons for a sentencing court to sentence a defendant to two consecutive terms of consecutive sentences under section 654 of the Criminal Code? (California, United States of America)
Does the doctrine of forfeiture apply to sentencing decisions where a defendant is ordered to serve a sentence that runs concurrently or consecutively? (California, United States of America)
If a defendant has multiple convictions in the same proceeding, can the sentencing court order that any determinate sentence be served concurrently or consecutively? (California, United States of America)
Can a sentencing court impose consecutive sentences on a defendant who has been convicted of two or more crimes? (California, United States of America)
Can a defendant who is serving a sentence under the Three Strikes Act apply for habeas corpus to challenge the sentence on appeal? (California, United States of America)
Does a sentencing court have to state the reasons for its sentence choice on the record at the time of sentencing? (California, United States of America)
What is the role of a court in sentencing a defendant to a sentence that is within the legislatively determined limits of a criminal sentence? (California, United States of America)
Is a defendant entitled to a comparative sentence review equivalent to that provided for determinately sentenced felons under the "disparate sentence" statute? (California, United States of America)
What is the current state of the law on the Eighth Amendment, the "narrow proportionality principle" that applies to sentences for non-capital sentences? (California, United States of America)
Does a person who remains in custody prior to sentencing receive credit against their prison sentence for all those days spent in custody before sentencing? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.