California Penal Code Section 1170.1 - Interpretation

Section 1170.1 subdivision (a) provides: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. the principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. the subordinate term for each consecutive offense shall consist of one-third of the middle term 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 imposed for any specific enhancements applicable to those subordinate offenses." 1. In People v. Tassell (1984) 36 Cal.3d 77, the Supreme Court stated: "Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; (2) those which go to the nature of the offense. Enhancements for prior convictions--authorized by sections 667.5, 667.6 and 12022.1--are of the first sort. The second kind of enhancements--those which arise from the circumstances of the crime--are typified by sections 12022.5 and 12022.7: was a firearm used or was great bodily injury inflicted? Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence. Section 1170.1 . . . makes it very clear that enhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence." (People v. Tassell, supra, 36 Cal.3d at p. 90, italics added, fn. omitted.) "The general observations contained in the above quotation from Tassell are equally valid, and equally applicable, to cases in which sentences are imposed concurrently. Irrespective of whether a defendant's various sentences on multiple convictions are imposed so as to run consecutively or concurrently, section 667.5, subdivision (b) enhancements 'do not attach to particular counts.'" ( People v. Smith (1992) 10 Cal.App.4th 178, 182.) 2. In People v. Nguyen (1999) 21 Cal. 4th 197, 205 87 Cal. Rptr. 2d 198, 980 P.2d 905, the People asserted the three strikes law totally abrogated the sentencing scheme established by section 1170.1. Their argument here is more circumscribed. They contend that where a two strike defendant has already been sentenced for an offense, the sentence cannot be modified pursuant to section 1170.1 upon a subsequent conviction because of the command of section 1170.12, subdivision (a)(8) that "any sentence imposed pursuant to this section will be imposed consecutive to any other sentence which the defendant is already serving." Under the People's reasoning, a defendant tried and convicted of multiple offenses in a single proceeding is sentenced under the sentencing parameters set forth in section 1170.1, while a defendant tried and convicted in separate proceedings is not. There is no reason to suspect the Legislature intended such disparate treatment. As the Supreme Court ruled in Nguyen, " unless the Three Strikes law expressly abrogates the relevant provisions of section 1170.1," the statute should be applied according to its terms and the resulting sentence doubled, consistent with the language of section 1170.12. ( People v. Nguyen, supra, 21 Cal. 4th at pp. 203-204.)