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Criminal Defense Attorneys

How are More Than One Sentencing Enhancement Applied?

It is not uncommon for the jury to find true facts that allow sentencing on a gun enhancement, a gang enhancement, a prison prior and a prior “Strike.”  How does the judge then sentence defendant, especially when the enhancements are found true for multiple counts, i.e., in a case with convictions for second degree murder, assault with a deadly weapon, intimidating a witness and a felon in possession of a firearm.
 
Penal Code § 1170.1 governs the imposition of sentences when there are more than one sentence enhancement found true by the jury or judge. 

Section 1170.1(f) provides that when two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest (longest) of those enhancements may be imposed for that offense.

This subdivision does not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury.  Penal Code § 1170.1(g) allows that when two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements may be imposed for that offense.  People v. Mercado (2013) 216 Cal.App.4th 67, 94 (both Penal Code §§ 12022.7 and 12022.9 punish infliction of great bodily injury; therefore 12022.7 enhancement must be stricken). 

This subdivision, however, does not limit that application of other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm.  See People v. Ahmed (2011) 53 Cal.4th 156, 168 (legislative history makes it clear that the sentencing court is permitted to impose one weapon and one great bodily injury enhancement for all crimes). 

Note that before January 1, 1998, only one enhancement could be imposed for each offense.  For example, if there were both a weapons enhancement and a great bodily injury enhancement, one would have been stayed.  This is important to understand and appreciate when seeking resentencing under Penal Code § 1170.1(b)(1) (Assembly Bill 865 for military veterans) or in any other resentencing petition because the new sentence could actually be longer, rather than shortened.

It is critical to also understand that when a person is punished on multiple felony counts and there are consecutive (not concurrent) terms being imposed under Penal Code §§ 669 and 1170, the consecutive terms are called subordinate terms under 1170.1(a).  “The subordinate term for each consecutive offense shall consist of one-third of the middle terms of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposes of any specific enhancements applicable to those subordinate offenses.”  Penal Code § 1170.1(a).

Subordinate terms may come from different cases or counties and may even include probation violation cases.  See, e.g., People v. Riggs (2001) 86 Cal.App.4th 1126.  The subordinate term rules apply even when there are separate cases, or cases from different counties.  Penal Code § 669; California Rules of Court, Rule 4.452.

A notable exception to the one-third-of-the middle-term rule is in specified sex offenses.  Penal Code § 667.6 provides for alternative sentencing scheme to 1170.1, allowing for full-term consecutive sentencing in specified cases.  If an offense is one specified in Penal Code § 667.6, the number of enhancements that may be imposed is not limited; each of the enhancements shall be a full and separately served term.  Penal Code § 1170.1(h). 

Note that when individuals are sentenced to consecutive terms in which one term (whether principal or subordinate) is punishable by state prison must serve the aggregate sentence in state prison.  Penal Code § 1170.1(a).  The same is true for defendants sentenced to consecutive terms for which one term is punishable by state prison; they must serve their sentences in state prison even if the term for any other offense specifies imprisonment in the county jail under Penal Code § 1170(h).  Penal Code § 669(d); People v. Torres (2013) 213 Cal.App.4th 1151, 1160.

We hope this article helps clarify the often-confusing situation when there are multiple convictions for multiple counts and multiple enhancements that apply.  It often is not as simple, thankfully (except in certain sex offenses), as adding every maximum term up and each enhancement to find out the total sentence length.

For more information about sentencing enhancements, please click on the following articles:
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