Keelen

This case raises an issue of first impression under the “three strikes” law (Pen. Code § 667, subds. (b)-(i)). In calculating a sentence under section 667, subdivision (e)(2)(A)(i)—“[t]hree times the term otherwise provided as punishment”—is the trial court required to select the upper term for the offense as “the term” to be tripled, or may the court exercise its usual sentencing discretion and select either the upper, middle or lower term? We conclude the trial court retains its discretion under section 1170, subdivision (b) to select the upper, middle or lower term as appropriate. Because the trial court in this case mistakenly believed it had to select the upper term as the term to be tripled under section 667, subdivision (e)(2)(A)(i), we remand the matter for resentencing.

Facts and Proceedings Below

A jury convicted defendant of attempted murder, spousal abuse and possession of a firearm by a felon and found in the commission of the attempted murder he personally used a firearm and inflicted great bodily injury on the victim. The jury also found defendant previously had been convicted of two residential burglaries.

The trial court sentenced defendant as follows:…