California, United States of America
The following excerpt is from People v. McNeely, B298163 (Cal. App. 2020):
On appeal we affirmed McNeely's convictions but remanded for resentencing based on two sentencing errors. (See People v. Togiola (July 31, 2018, B281918) [nonpub. opn.].) First, because McNeely had not waived his right to a jury trial on the on-bail
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enhancement, the court erred in making that finding and imposing the enhancement.
Second, the court erred in imposing one-third the middle term for the offense of dissuading a witness. We explained section 1170.15 required the court, if it elected to impose consecutive sentences, to impose a full consecutive term of imprisonment for the felony of dissuading a witness. (See People v. Togiola, supra, B281918, citing 1170.15 ["[n]otwithstanding subdivision (a) of Section 1170.1, which provides for the imposition of a subordinate term for a consecutive offense of one-third the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony . . . , the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed"].) Observing the trial court had the discretion to impose concurrent or consecutive sentences ( 669, subd. (a) [unless otherwise specified, trial court has discretion to sentence concurrently or consecutively]), we declined the Attorney General's request to modify the sentence by imposing a full consecutive subordinate term for dissuading a witness and remanded the matter to the trial court to exercise its discretion whether to impose a concurrent or consecutive sentence on that count. (People v. Togiola, supra, B281918; see People v. Woodworth (2016) 245 Cal.App.4th 1473, 1478-1479 [nothing in section 1170.15 mandates consecutive sentences for a
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section 136.1 offense; trial court retains discretion under section 669 to impose concurrent sentence for that offense].)
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