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Supreme Court of California: After Amendments to Three Strikes Law, Courts Retain Concurrent Sentencing Discretion for Qualifying Offenses Committed on Same Occasion or Arising From Same Operative Facts

by Douglas Ankney

The Supreme Court of California held that after amendments to the Three Strikes law, trial courts retain the concurrent sentencing discretion that was first enunciated in People v. Hendrix, 941 P.2d 64 (Cal. 1997), when sentencing on qualifying offenses committed on the same occasion or arising from the same set of facts.

Level Omega Henderson hit Daniel Tillett in the head with the butt of his gun and punched him with his other hand. Henderson then pointed his gun at Tillett’s girlfriend and at William Aguilar. Police were summoned, and officers saw Henderson strike Tillett several times.

Henderson was charged with assault by means of force likely to produce great bodily injury, possession of a firearm by a felon, and two counts of assaulting Tillett and Aguilar with a semiautomatic firearm. Additionally, the information alleged Henderson had received four prior strikes and two prior serious felony convictions and that he had served four prior prison terms. The jury found him guilty as charged, and in a bifurcated proceeding, the judge found true the prior conviction allegations. The trial court struck all of the prior conviction allegations, except for one strike and one prior serious felony conviction. The trial court sentenced Henderson to an aggregate term of 27 years. The trial court stated: “[T]he Three Strikes law requires that on serious or violent felonies, two or more, that they be sentenced consecutively.”

Henderson argued on appeal that “the trial court erroneously believed it had no discretion to impose concurrent terms for the assaults on Aguilar and Tillett, even though they occurred on the same occasion.” The Court of Appeal affirmed, holding that the trial court lacked discretion to impose concurrent terms on multiple serious or violent felonies after passage of the Reform Act of Proposition 36. Because Courts of Appeal of California were divided on the issue of whether courts have discretion to impose concurrent terms on multiple serious or violent felonies after passage of the Reform Act, the California Supreme Court granted review.

The Court stated that the “Three Strikes law ‘consists of two, nearly identical statutory schemes.’” People v. Conley, 373 P.3d 435 (Cal. 2016). In March 1994, the Legislature codified its version of the Three Strikes law in Penal Code §§ 667(b) - (j).” (Note: all statutory references are to the California Penal Code.) A ballot initiative that year added § 1170.12, which is almost identical to § 667.

The Court provided the following explanation of the Three Strikes law framework: “The Three Strikes scheme comes into play when a defendant is charged with new felony offenses but has previously been convicted of designated serious or violent felonies. Although these prior convictions are sometimes referred to as ‘strikes,’ the Three Strikes law itself does not use that term, instead defining ‘serious’ or ‘violent’ felonies with specificity. Serious felonies are defined in § 1192.7, subdivision (c), while the violent felony definition appears in § 667.5, subdivision (c)…. The previously suffered convictions that subject a defendant to the Three Strikes scheme are often referred to as prior convictions, and are distinguished from newly filed charges, referred to as current felonies.”

“When the Three Strikes scheme applies, sentences for current qualifying offenses must be ordered to run consecutively to each other if the current offenses occur on separate occasions and do not arise from the same set of operative facts.” §§ 667(c)(6), 1170.12(a)(6). For purposes of § 667(c)(6), “felonies are committed ‘on the same occasion’ if they were committed within ‘close temporal and spacial proximity’ of one another.” People v. Lawrence, 6 P.3d 228 (Cal. 2000). “Offenses arise ‘from the same set of operative facts’ when they ‘shar[e] common acts or criminal conduct that serves to establish the elements of the current felony offenses of which the defendant stands convicted.’” Id. In Hendrix, the Court explained that, “by its terms, subdivision (c)(6) required the imposition of consecutive sentences for each current felony not committed on the same occasion and not arising from the same set of operative facts.... Conversely, ‘[b]y implication, consecutive sentences are not mandatory under subdivision (c)(6) if the multiple current felony convictions are committed on the same occasion or arise from the same set of operative facts.’” Hendrix. This is known as “the Hendrix rule,” the Court advised.

However, former § 667(c)(7) provided: “If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” The Court explained that “the qualifying felony ‘described in paragraph (6)’ is one that occurred on a separate occasion and did not arise from the same set of facts.” Hendrix.

Applying the foregoing principles, the trial court in the present case had the discretion to impose concurrent sentences against Henderson because his offenses occurred on the same occasion, the Court stated. Notably, however, the Reform Act amended § 1170.12(a)(7), which is identical to § 667(c)(7), by replacing the words “as described in paragraph (6)” with “as described in subdivision (b).” And subdivision (b) merely describes the qualifying felonies.

This opened the door for the argument and conclusion that the Hendrix rule was abrogated by the amendment because § 1170.12(a)(7) now requires consecutive sentences for all current violent or serious felonies under the Three Strikes law. The change in the language of § 1170(a)(7), the People argued, meant that § 1170.12(b)(6)’s limitation of consecutive sentences to only current serious or violent felonies not committed on the same occasion or arising from the same set of facts no longer applies.

The Court observed “[w]hen the language of a statute is ambiguous – that is, when the words of the statute are susceptible to more than one reasonable meaning, given their usual and ordinary meaning and considered in the context of the statute as a whole – we consult other indicia of the Legislature’s [or electorate’s] intent, including such extrinsic aids as legislative history and public policy.” Union of Medical Marijuana Patients, Inc., v. City of San Diego, 446 P.3d 317 (Cal. 2019).

The Court concluded that the statute is ambiguous because the word “conviction” is colloquially understood to refer to a finding of guilt on a single count but the statute uses the word “as a collective term describing multiple, relevant counts for which the defendant has been convicted.” See §§ 1170.12(a)(6), (a)(7). As such, § 1170.12(a)(7)’s phrase “If there is a current conviction for more than one serious or violent felony as described in paragraph (6)” could mean each count of conviction (as in Henderson’s case), or it could mean separate groups of multiple counts that occurred on separate occasions (and would be inapplicable to Henderson’s case).

Because the statute is ambiguous, the Court “look[ed] to the overall context of the initiative, tak[ing] into account that it was adopted to reform an existing scheme, and look[ing] to the ballot materials as a tool to deduce voter intent.” People v. Arroyo, 364 P.3d 168 (Cal. 2016). After doing so, the Court concluded that the voters did not specifically address the issue of concurrent sentencing in this context. However, the Court presumed that the drafters of Proposition 36 and the voters “were aware of the longstanding Hendrix rule.” And “Proposition 36 neither refers to Hendrix nor states its express intent to overrule longstanding Supreme Court precedent.” People v. Marcus, 45 Cal. App. 5th 201 (2020). The Court stated that it could “not presume that ... the voters intended the initiative to effect a change in law that was not expressed or strongly implied in either the text of the initiative or the analyses and arguments in the official ballot pamphlet.” People v. Valencia, 397 P.3d 936 (Cal. 2017).

Thus, the Court held that, “after the Reform Act, a trial court retains the Hendrix concurrent sentencing discretion when sentencing on qualifying offenses committed on the same occasion or arising from the same set of operative facts.”

Accordingly, the Court remanded for a new sentencing hearing with instructions that Henderson, pursuant to People v. Hanson, 1 P.3d 650 (Cal. 2000), may not be sentenced to an aggregate term greater than he had initially received. See: People v. Henderson, 520 P.3d 116 (Cal. 2023), as modified by People v. Henderson, 2020 Cal. LEXIS 492 (2023).  



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