Trial court erred by imposing a consecutive prior serious felony enhancement (Pen. Code, § 667, subd. (a)) as to a determinate term for a count where sentencing had been stayed under Penal Code section 654. Defendants Tua and Seau were both convicted of murder, attempted murder, assault with a deadly weapon, and witness intimidation, with various enhancements. Each admitted a prior serious felony conviction under section 667, subdivision (a). Their sentences included both indeterminate and determinate terms. Under the determinate sentencing law, the trial court stayed the sentence for the assault count under section 654 and ordered the sentence for the witness intimidation count to run concurrently to the indeterminate terms. On appeal, defendants presented an issue of first impression, arguing that the trial court erroneously imposed a consecutive five-year prior serious felony enhancement as to the determinate sentence for assault. Held: Partial reversal and remand for resentencing. Prior serious felony enhancements are added once to each count on which an indeterminate sentence is imposed and once for the combined counts on which an aggregate determinate term has been imposed. After analyzing section 667, subdivision (a) and relevant case law, the Court of Appeal determined that “where the trial court is required to stay a determinate sentence under section 654 or exercises its discretion to run the determinate sentence concurrently with the indeterminate sentence, the prior serious felony enhancement that attaches to those determinate counts must also be stayed or ordered to run concurrently.” Here, the determinate counts were either stayed or run concurrently with the indeterminate term, and the trial court erred by imposing a consecutive five-year prior serious felony enhancement as to the determinate sentence. [Editor’s Note: The Court of Appeal noted that the trial court made a minor sentencing error by expressly linking the determinate prior serious felony enhancement to the assault count. If it had been proper to impose the prior serious felony enhancement, it should have been imposed on the aggregate determinate sentence, not a single count.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069731.PDF