When a defendant has been convicted of a charge of attempted murder under section 1170.1 of the California Criminal Code, can the Court modify the sentence to include a spousal rape conviction?

Under either scenario, the modification resulted in an unauthorized sentence. The spousal rape conviction is punishable by an indeterminate term sentence and, thus, cannot be selected as the "principal term" for crimes, such as attempted murder, punishable by determinate sentences. (See People v. Neely (2009) 176 Cal.App.4th 787, 797 [holding that an unauthorized sentence results where a crime punishable by an indeterminate sentence is used as "principal term" under section 1170.1].) And the assault conviction cannot serve as the principal term for the attempted murder conviction under section 1170.1 because the attempted murder conviction carries a longer sentence than an assault

Page 11

conviction. (See 1170.1; People v. Felix (2000) 22 Cal.4th 651, 655 [explaining, "if a defendant is convicted of more than one offense carrying a determinate term, and the trial court imposes consecutive sentences, the term with the longest sentence is the 'principal term'; any term consecutive to the principal term is a 'subordinate term.' ( 1170.1, subd. (a).)"].) Accordingly, the sentence on the attempted murder conviction cannot stand.