California, United States of America
The following excerpt is from People v. Yim, A141404 (Cal. App. 2015):
Yim contends the sentence violates sections 1170 and 1170.1, as well as rule 4.451 of the California Rules of Court.4 Specifically, while it was lawful to impose the full determinate upper term of 9 years for the attempted murder and 20 years for the enhancement on count 2, it should have imposed only one-third that much3 years for the attempted murder and 6 years 8 months on the enhancementfor counts 3 and 4. Respondent agrees in principle but notes that the sentence for attempted murder on counts 3 and 4 should be one-third of the 7-year midterm, not one-third of the 9-year upper term. (See 664, subd. (a) [punishment for attempted murder is 5, 7 or 9 years]; 1170.1 [sentence on subordinate counts should be one-third the middle term (and one-third the term of an enhancement corresponding to those counts)]; People v. Moody
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(2002) 96 Cal.App.4th 987, 994 [term for firearm use enhancement on a subordinate count is one-third the term]; see generally People v. Neely (2009) 176 Cal.App.4th 787, 797-798 [explaining sentencing procedure for determinate and indeterminate terms].)
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