Does the one-third-the-midterm rule of section 1170.1, subdivision (a) apply to a sentence stayed under section 654?

Thus, "[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) Indeed a sentence "cannot be both consecutive and stayed simultaneously because the two are mutually exclusive." (Ibid.)

Accordingly, the trial court's decision to sentence defendant to one-third the midterm pursuant to section 1170.1, subdivision (a), and to stay the execution of that sentence under section 654, was in error. Instead, the trial court should have imposed the full two-year midterm sentence on count 2, then stayed execution of that sentence pursuant to section 654. (People v. Alford (2010) 180 Cal.App.4th 1463, 1469-1472.)

A reviewing court has the inherent authority to correct an unauthorized sentence. (People v. Relkin (2016) 6 Cal.App.5th 1188 [exercising inherent authority to impose full midterm sentence rather than one-third midterm and stay execution pursuant to section 654]; see People v. Smith (2001) 24 Cal.4th 849, 852.) We exercise that authority to correct the unauthorized sentence.

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