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Name: People v. Sanders
Case #: B206569
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 09/22/2010

An indeterminate term for an enhancement does not merge with the determinate offense thereby making the entire sentence controlled by the indeterminate sentencing law. Appellant was convicted of, inter alia, two counts of attempted murder without premeditation (Pen. Code, § 664, subd. (a)) and corresponding firearm-use enhancements (Pen. Code, § 12022.53, subd. (d)). The court imposed a 7-year sentence on count 1, plus 25-to-life for the firearm-use enhancement. The court also imposed a full consecutive 7-year term on count two and 25-to-life for the remaining firearm-use enhancement. Appellant argued the sentence on count 2 should have been calculated under the determinate sentencing law as 1/3 the midterm. (Pen. Code, § 1170.1, subd. (a).) The appellate court agreed. The sentences on a count and an enhancement are distinct; they do not merge unless the Legislature expressly so provides. Additionally, the sentencing court considers the sentence for the base term, not an enhancement to decide whether to apply determinate or indeterminate sentencing provisions. (People v. Montes (2003) 31 Cal.4th 350.) In this case, because the sentence on the principal term was a determinate term, Penal Code section 1170.1 applies, and the sentence on the consecutive, subordinate offense should have been calculated at 1/3 the mid term.