People v. Henderson ( 2020 )

Filed 9/14/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B298366
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA437882)
v.
LEVEL OMEGA HENDERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Frederick N. Wapner, Judge. Affirmed.
Rudolph J. Alejo, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Blythe J. Leszkay and Kristen J.
Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury found Level Omega Henderson guilty on two counts
of assault with a semiautomatic firearm (one for each of two
victims), one count of possession of a firearm by a felon, and one
count of assault by means likely to produce great bodily injury.
The trial court sentenced Henderson to a prison term of 27 years,
which included consecutive terms on the two convictions for
assault with a semiautomatic firearm.
Henderson argues his trial lawyer provided ineffective
assistance by failing to call a percipient witness. Henderson also
argues he is entitled to a new sentencing hearing because the
trial court did not recognize it had discretion under the three
strikes law to impose concurrent sentences on the two convictions
for assault with a semiautomatic firearm. We conclude
Henderson has not shown in this appeal that his trial attorney
provided ineffective assistance at trial because the record does
not disclose why his lawyer chose not to call the witness or that
his attorney’s decision was below the standard of care. We also
conclude the trial court did not have discretion to impose
concurrent sentences on the two convictions for assault with a
semiautomatic firearm. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Henderson Gets into a Fight
In March 2015 Henderson fought with Daniel Tillett in the
courtyard of an apartment complex. At one point Henderson
walked away from the area where they were fighting and went to
his car. William Aguilar, who had been making some repairs at
the apartment building, saw Henderson open the trunk of the car
2
and walk back toward the courtyard holding a semiautomatic
handgun. Aguilar called the 911 emergency operator.
A few minutes later Henderson returned to his car and
drove away. 1 After Henderson left, Aguilar went to the courtyard
and saw Tillett and a woman named Tiffany. Tillett was
bleeding from his face. Aguilar agreed to take Tillett to the
hospital, but before they left, Henderson returned to the
courtyard holding the same gun Aguilar had seen before. With
his right hand Henderson hit Tillett in the face with the butt of
the gun, and with his left hand he hit Tillett with an uppercut to
his jaw. Tillett fell to the ground. Tiffany yelled at Henderson,
“Please do not kill my baby’s daddy.” Henderson pointed the gun
in a “sweeping motion” at both Tiffany and Aguilar. Aguilar ran
to his truck, saw a police car, and flagged it down.
Two police officers went to the apartment complex and saw
Henderson standing over Tillett on the ground. Henderson hit
Tillett several more times before fleeing to a vacant apartment
unit. The officers did not follow Henderson into the apartment.
Five minutes later, Henderson walked out of the apartment
unarmed. The police searched the apartment and discovered a
torn window screen in the bathroom. The police also found a
semiautomatic handgun on the ground in a small atrium “directly
below the window.” The only access to the atrium was through
the windows of a few apartments and the roof of the apartment
building.
1 It is not clear whether Henderson encountered Tillett again
between when Aguilar first saw Henderson and when Henderson
returned to his car.
3
B. The People Charge Henderson with Multiple Crimes
The People charged Henderson with one count of assault
with a semiautomatic firearm on Tillett (Pen. Code, § 245,
subd. (b), count 1), 2 one count of assault with a semiautomatic
firearm on Aguilar (count 5), one count of possession of a firearm
by a felon (§ 29800, subd. (a)(1), count 3), and one count of assault
by means likely to produce great bodily injury on Tillett (§ 245,
subd. (a)(4), count 4). 3 The People alleged that Henderson had
four prior serious or violent felony convictions within the
meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12),
that Henderson had two prior serious felony convictions within
the meaning of section 667, subdivision (a)(1), and that
Henderson served four prior separate prison terms within the
meaning of section 667.5, subdivision (b).
C. A Jury Convicts Henderson on All Counts
At trial the People called several witnesses, including
Aguilar and the two police officers who arrived at the apartment
complex. The People did not call Tillett or Tiffany. The parties
stipulated Henderson had been convicted of a felony. Henderson
did not call any witnesses. The jury found Henderson guilty on
all counts.
2 Statutory references are to the Penal Code.
3 The People also charged Henderson with one count of
possession of a firearm with a prior violent conviction (§ 29900,
subd. (a)(1), count 2), but at trial the court granted the People’s
motion to dismiss that count.
4
D. The Trial Court Denies Henderson’s Motion for New
Trial
Prior to sentencing, the trial court granted Henderson’s
motion to represent himself under Faretta v. California (1975)
422 U.S. 806 [95 S. Ct. 2525]. After several continuances,
however, and at Henderson’s request, the court appointed new
counsel for Henderson. Henderson filed a motion for new trial,
attaching a handwritten declaration from Tiffany stating that,
“during the course of the physical altercation” between
Henderson and Tillett, she did not see Henderson “with any
weapon” and that she saw Henderson and Tillett “fighting with
their fists only.” Henderson also attached a transcript of his
investigator’s interview with Tiffany where Tiffany stated that
neither the prosecutor nor Henderson’s prior attorney
subpoenaed her to testify and that, had she been served with a
subpoena, she would have testified. Henderson argued, among
other things, that his prior lawyer rendered ineffective assistance
by failing to “fully investigate and secure the attendance of”
Tiffany at trial. The trial court denied Henderson’s motion for
new trial.
E. The Trial Court Sentences Henderson
In a bifurcated proceeding, the trial court found true all of
the prior conviction allegations. On Henderson’s motion, the
court struck three of Henderson’s four prior serious or violent
felony convictions under the three strikes law, one of his two
prior serious felony convictions under section 667, subdivision
(a)(1), and all of his four prior prison terms under section 667.5,
subdivision (b). The trial court sentenced Henderson to a prison
term of 27 years, consisting of the upper term of nine years on
5
count 1, doubled under the three strikes law, a consecutive term
of four years on count 5 (one-third the middle term of six years,
doubled under the three strikes law), and five years for the
remaining enhancement under section 667, subdivision (a)(1).
The court also imposed and stayed under section 654 a three-year
term on count 3 and a four-year term on count 4. Henderson
timely appealed.
DISCUSSION
A. Henderson Has Not Shown His Trial Counsel
Provided Ineffective Assistance at Trial
Henderson argues his trial attorney provided ineffective
assistance by failing to interview Tiffany and call her to testify at
trial. Henderson contends his attorney’s performance was
deficient because Tiffany’s statement that she did not see
Henderson with a gun “would have directly supported”
Henderson’s theory at trial that he “never used a gun” during his
fight with Tillett. The People argue Henderson cannot establish
his trial counsel’s performance was deficient because the record
does not disclose why counsel did not call Tiffany as a witness.
“To make out a claim that counsel rendered constitutionally
ineffective assistance, ‘the defendant must first show counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms.
Second, the defendant must show resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been
different.’” (People v. Hoyt (2020) 8 Cal. 5th 892, 958 (Hoyt);
accord, People v. Mai (2013) 57 Cal. 4th 986, 1009.) “Whether
6
counsel’s performance was deficient, and whether any deficiency
prejudiced defendant, are mixed questions of law and fact subject
to our independent review.” (In re Gay (2020) 8 Cal. 5th 1059,
1073.)
“Usually, ‘ineffective assistance [of counsel claims are]
more appropriately decided in a habeas corpus proceeding.’”
(Hoyt, supra, 8 Cal.5th at p. 958.) On direct appeal, “we may
reverse ‘only if (1) the record affirmatively discloses counsel had
no rational tactical purpose for the challenged act or omission, (2)
counsel was asked for a reason and failed to provide one, or (3)
there simply could be no satisfactory explanation.’” (People v.
Arredondo (2019) 8 Cal. 5th 694, 711; see People v. Mai, supra,
57 Cal.4th at p. 1009.) “‘All other claims of ineffective assistance
are more appropriately resolved in a habeas corpus proceeding.’”
(Hoyt, at p. 958.)
Henderson does not argue (1) or (2), and nothing in the
record affirmatively discloses his trial counsel had no rational
tactical purposes for not interviewing Tiffany or calling her as a
witness or indicates that anyone asked his attorney why she did
not or that she failed to respond to such an inquiry. Henderson
argues only (3): His trial counsel’s decision not to call Tiffany
was “per se unreasonable”; i.e., there could be no satisfactory
explanation for her decision.
But there were several reasons Henderson’s trial counsel
may have decided not to call Tiffany, reasons to which we defer.
(See People v. Carrasco (2014) 59 Cal. 4th 924, 989 [“The decision
whether to call certain witnesses is a ‘matter[ ] of trial tactics and
strategy which a reviewing court generally may not second-
guess.’”]; People v. Wang (2020) 46 Cal. App. 5th 1055, 1088
[defendant failed to show “there could be no rational tactical
7
purpose for defense counsel’s failure to call” a witness where the
record did “not affirmatively reveal the lack of a rational tactical
purpose for not calling the . . . witness”]; cf. People v. Bolin (1998)
18 Cal. 4th 297, 334 [“Whether to call certain witnesses is . . . a
matter of trial tactics, unless the decision results from
unreasonable failure to investigate.”].) First, Henderson’s trial
counsel may not have found Tiffany’s account of the incident and
proposed testimony credible. (See Lord v. Wood (9th Cir. 1999)
184 F.3d 1083, 1095, fn. 8 [“A lawyer who interviews the witness
can rely on his assessment of their articulateness and
demeanor—factors we are not in a position to second-guess.”].)
Even if Tiffany told trial counsel she did not see Henderson with
a gun, counsel reasonably could have concluded, based on her
evaluation of Tiffany as a witness, that the risks of putting
Tiffany on the stand and having her say something different or
harmful were too great. (Cf. People v. Freeman (1994) 8 Cal. 4th
450, 522-523 [there was “no basis for finding ineffective
assistance of counsel” where the reviewing court could not
“determine on appeal the tactical reasons for the approach
counsel took,” counsel may have preferred making an argument
to the jury “to having witnesses testify and be subject to cross-
examination,” and “we do not know what the witnesses might
have said if asked”].)
Second, had trial counsel for Henderson called Tiffany to
testify at trial, the prosecutor may have elicited additional facts
on cross-examination that supported the People’s case or
damaged Henderson’s defenses. For example, Aguilar testified
that he did not see the beginning of the fight between Henderson
and Tillett and that he did not see what happened after he
observed Henderson walk from his car to the apartment complex
8
with the gun. And by the time Aguilar saw Tillett, Tillett was
already bleeding from his face. Tiffany’s testimony could have
filled in some of the gaps in Aguilar’s testimony. In addition, the
People charged Henderson not only with assault with a
semiautomatic firearm, but also with assault by means likely to
produce great bodily injury. Even if Tiffany testified she did not
see Henderson with a gun, she may have testified she saw
Henderson hit Tillett, which would have provided further
evidence in support of the latter charge.
Third, in closing argument Henderson’s trial counsel used
Tiffany’s (and Tillett’s) absence from the trial to argue the People
had not met their burden of proof beyond a reasonable doubt. In
particular, counsel argued the People “denied” the jury the true
story by failing to call the people “who know the real story about
what happened” and “who know the full picture.” (See
Harrington v. Richter (2011) 562 U.S. 86, 109 [131 S. Ct. 770] [“To
support a defense argument that the prosecution has not proved
its case it sometimes is better to try to cast pervasive suspicion of
doubt than to strive to prove a certainty that exonerates.”].)
To be sure, if there were evidence Henderson’s trial counsel
did not even try to find and interview Tiffany, Henderson might
be able to show his attorney’s performance was deficient. (See In
re Gay, supra, 8 Cal.5th at p. 1076 [an attorney’s duty to render
effective assistance includes the “‘duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary’”]; see, e.g., id. at p. 1078
[where the defendant was charged with shooting a police officer,
his attorney acted unreasonably in failing to interview two
witnesses who may have testified the codefendant was the
shooter]; Riley v. Payne (9th Cir. 2003) 352 F.3d 1313, 1317-1319
9
[attorney acted unreasonably by failing to interview a witness
who was with the defendant and the victim shortly before the
alleged assault occurred and would have offered testimony
favorable to the defendant’s theory of self-defense].) As
Henderson concedes, however, the record does not indicate either
way whether, let alone affirmatively show, trial counsel for
Henderson attempted to locate and interview Tiffany (or, if she
did, what she learned during her investigation). (See People v.
Mayfield (1993) 5 Cal. 4th 142, 188 [“tactical choices presented to
us on a silent record . . . are better evaluated by way of a petition
for writ of habeas corpus, and on direct appeal we reject them”].)
B. The Trial Court Did Not Have Discretion To Impose
Concurrent Sentences on the Two Convictions for
Assault with a Semiautomatic Firearm
The trial court imposed consecutive sentences on count 1,
assault with a semiautomatic firearm on Tillett, and count 5,
assault with a semiautomatic firearm on Aguilar. In imposing
consecutive sentences for these two convictions, the court stated
that, “as to count 5,” the “three strikes law requires that on
serious or violent felonies, two or more, that they be sentenced
consecutively.”
Citing People v. Hendrix (1997) 16 Cal. 4th 508 (Hendrix),
where the Supreme Court held “consecutive sentences are not
mandated under [section 667,] subdivision (c)(7) if all of the
serious or violent current felony convictions are ‘committed on
the same occasion’” (Hendrix, at p. 512), Henderson argues the
trial court erred in failing to recognize it had discretion to impose
10
concurrent sentences on counts 1 and 5. 4 The People argue the
trial court did not have discretion to impose concurrent sentences
because Proposition 36, approved by the voters in 2012, 15 years
after the Supreme Court’s decision in Hendrix, eliminated a trial
court’s discretion to impose concurrent sentences and requires
the court to impose consecutive sentences “where the defendant
has multiple current strike convictions.” Henderson cites several
cases that have agreed with his position. (See People v. Marcus
(2020) 45 Cal. App. 5th 201 (Marcus); People v. Gangl (2019) 42
Cal. App. 5th 58 (Gangl); People v. Buchanan (2019) 39
Cal. App. 5th 385 (Buchanan); People v. Torres (2018) 23
Cal. App. 5th 185 (Torres).) In three of these cases, however, a
dissenting justice agreed with the People’s position. (See Marcus,
at p. 215 (conc. & dis. opn. of Krause, J.); Gangl, at pp. 72-80
(conc. & dis. opn. of Krause, J.); Buchanan, at pp. 392-398
(conc. & dis. opn. of Needham, J.).)
We agree with the People and the dissenting justices in
Marcus, Gangl, and Buchanan that Proposition 36 eliminated the
trial court’s discretion to impose concurrent sentences on
multiple current serious or violent felony convictions.
1. Hendrix
Section 667, subdivision (c), provides in relevant part:
“Notwithstanding any other law, if a defendant has been
convicted of a felony and it has been pled and proved that the
4 Henderson does not challenge the trial court’s
determination that his convictions on counts 1 and 5 were for
serious or violent felonies under the three strikes law. (See
§ 1192.7, subd. (c)(31) [defining assault with a semiautomatic
firearm in violation of section 245 as a “serious felony”].)
11
defendant has one or more prior serious or violent felony
convictions, as defined in subdivision (d), the court shall adhere
to each of the following: . . . [¶] (6) If there is a current
conviction for more than one felony count not committed on the
same occasion, and not arising from the same set of operative
facts, the court shall sentence the defendant consecutively on
each count . . . . [¶] (7) 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.”
In Hendrix, supra, 16 Cal. 4th 508 the Supreme Court
considered whether a trial court has discretion to impose
concurrent sentences under section 667, subdivision (c)(7), where
the defendant is convicted of multiple serious or violent felonies
the defendant committed at the same time. (Hendrix, at
pp. 511-513.) The Supreme Court first considered the language
of section 667, subdivision (c)(6), and explained that, because
subdivision (c)(6) “clearly provides that consecutive sentencing is
mandatory for any current felony convictions ‘not committed on
the same occasion, and not arising from the same set of operative
facts,’” by implication “consecutive sentences are not mandatory
under subdivision (c)(6) if the multiple current felony convictions
are ‘committed on the same occasion’ or ‘aris[e] from the same set
of operative facts.’” (Hendrix, at pp. 512-513.)
Turning to section 667, subdivision (c)(7), the Supreme
Court held that the phrase “‘more than one serious or violent
felony as described in paragraph (6)’ refer[ed] to multiple current
convictions for serious or violent felonies ‘not committed on the
12
same occasion, and not arising from the same set of operative
facts.’” (Hendrix, supra, 16 Cal.4th at p. 513.) Therefore, the
Supreme Court held, “when a defendant is convicted of two or
more current serious or violent felonies ‘not committed on the
same occasion, and not arising from the same set of operative
facts,’ not only must the court impose the sentences for these
serious or violent offenses consecutive to each other, it must
also impose these sentences ‘consecutive to the sentence for any
other conviction for which the defendant may be consecutively
sentenced in the manner prescribed by law.’” (Hendrix, at
p. 513.) Again, the Supreme Court explained that, “[b]y
implication, consecutive sentences are not mandated under
subdivision (c)(7) if all of the serious or violent current felony
convictions are ‘committed on the same occasion’ or ‘aris[e] from
the same set of operative facts.’” (Hendrix, at p. 513.) The
Supreme Court affirmed these holdings in People v. Deloza (1998)
18 Cal. 4th 585 and People v. Lawrence (2000) 24 Cal. 4th 219.
2. Proposition 36
Before voters adopted Proposition 36 in 2012, subdivisions
(c)(6) and (c)(7) of section 667 were substantially similar to
subdivisions (a)(6) and (a)(7) of section 1170.12—the initiative
version of the three strikes law. (See former § 1170.12,
subds. (a)(6)-(a)(7), added by Prop. 184, § 1, as approved by voters
Gen. Elec. (Nov. 8, 1994) and amended by Prop. 36, § 4, as
approved by voters Gen. Elec. (Nov. 6, 2012); People v. Lawrence,
supra, 24 Cal.4th at p. 222, fn. 1 [“‘[t]he relevant portions of the
initiative version of the three strikes law adopted by the voters in
November 1994 (§ 1170.12), and the March 1994 legislative
version (§ 667, subds. (b)-(i)), are virtually identical’”].)
13
Proposition 36 amended section 1170.12, subdivision (a)(7), as
follows: 5 “If there is a current conviction for more than one
serious or violent felony as described in subdivision (a)(6)
subdivision (b), 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.” (§ 1170.12, subd. (a)(7), as amended
by Prop. 36, § 4, as approved by voters Gen. Elec. (Nov. 6, 2012).)
Section 1170.12, subdivision (b), lists the felonies that
qualify as serious or violent under the three strikes law.
Therefore, because subdivision (a)(7) now refers to serious or
violent felony convictions “described in subdivision (b),” rather
than serious or violent felony convictions “described in
subdivision (a)(6),” section 1170.12, subdivision (a)(7), “now
applies not only when [current] serious or violent felonies were
not committed on the same occasion or did not arise from the
same set of operative facts, but whenever a defendant is
convicted of multiple serious or violent felonies.” (Torres, supra,
23 Cal.App.5th at p. 201; accord Gangl, supra, 42 Cal.App.5th at
p. 69; see Marcus, supra, 45 Cal.App.5th at p. 212 [section
1170.12, “subdivision (a)(7) no longer applies only to ‘serious or
violent felonies “not committed on the same occasion, and not
arising from the same set of operative facts,”’” but to “all cases
where the current multiple felonies are serious and/or violent—
5 Strikethrough indicates deleted language; bold indicates
added language.
14
even when those felonies were committed at the same time and
involve the same facts”].) 6
3. Proposition 36 Eliminated a Trial Court’s
Discretion To Impose Concurrent Sentences on
Convictions for Multiple Serious or Violent
Felonies
“We interpret statutes added or amended by voter initiative
. . . in the same manner we interpret those enacted by the
Legislature.” (People v. Jessup (2020) 50 Cal. App. 5th 83, 87; see
People v. Valenzuela (2019) 7 Cal. 5th 415, 423 [“In construing
[an] initiative, ‘we apply the same principles that govern
statutory construction.’”].) “Where a law is adopted [or amended]
by the voters, ‘their intent governs.’ [Citation.] In determining
that intent, ‘we turn first to the language of the statute, giving
the words their ordinary meaning.’” (People v. Buycks (2018) 5
Cal. 5th 857, 879-880; accord, People v. Herrera (2020) 52
Cal. App. 5th 982, 990.) “‘[I]f the language is clear and
unambiguous there is no need for construction, nor is it necessary
to resort to indicia of the intent . . . of the voters (in the case of a
provision adopted by the voters).’” (People v. Valencia (2017)
3 Cal. 5th 347, 357; accord, People v. Kelly (2018) 28 Cal. App. 5th
886, 897.) “[W]e presume the voters intended the meaning
apparent from that language, and we may not add to the statute
6 Proposition 36 did not amend the nearly identical language
of section 667, subdivision (c)(7). As the court in Torres
explained, this appears to have been an oversight. (Torres,
supra, 23 Cal.App.5th at p. 202.) Because “we cannot read the
electorate’s change of its language as having no meaning,” “the
later-enacted initiative version of the law controls . . . .” (Ibid.)
15
or rewrite it to conform to some assumed intent not apparent
from that language.” (People v. Superior Court (Pearson) (2010)
48 Cal. 4th 564, 571; accord, Herrera, at p. 991.)
The plain language of section 1170.12, subdivision (a)(7), as
amended, requires a court to impose consecutive sentences on
convictions for multiple serious or violent felonies. Subdivision
(a)(7) now refers to serious or violent felonies described in
subdivision (b)—the provision that defines serious or violent
felonies—rather than serious or violent felonies described in
subdivision (a)(6). Therefore, it applies “whether or not those
serious and/or violent felonies were committed on the same
occasion and arose under the same set of operative facts.”
(Marcus, supra, 45 Cal.App.5th at p. 213; see Gangl, supra,
42 Cal.App.5th at p. 69; Torres, supra, 23 Cal.App.5th at p. 201.)
Subdivision (a)(7) requires the court to “impose the sentence for
each [serious or violent felony] conviction consecutive to the
sentence for any other conviction for which the defendant may be
consecutively sentenced . . . .” Any other conviction for which the
defendant may be consecutively sentenced includes the current
conviction(s) for the other serious or violent felony or felonies.
Therefore, “under the plain language of section 1170.12,
subdivision (a)(7), consecutive sentences—including sentences
consecutive to each other—must be imposed on more than one
serious or violent felony” conviction. (Buchanan, supra,
39 Cal.App.5th at p. 397 (conc. & dis . opn. of Needham, J.); see
Gangl, at p. 79 (conc. & dis. opn. of Krause, J.) [“when a
defendant is convicted of more than one current serious or violent
felony,” subdivision (a)(7) “mandates that each serious or violent
felony conviction be sentenced ‘consecutive to the sentence for
any other conviction for which the defendant may be
16
consecutively sentenced . . . ,’ including any other serious or
violent felony”].) As a leading treatise on California sentencing
law explained: “The amendment to section 1170.12(a)(7) appears
to abrogate Hendrix as to serious and violent crimes. . . . The
change now requires the court to sentence multiple current
serious or violent felonies consecutively, whether or not they
occurred on the same occasion or out of the same set of operative
facts.” (Couzens et al., California Three Strikes Sentencing (The
Rutter Group 2018) § 8:1.) 7
The court in Torres and the majority opinions in Buchanan,
Gangl, and Marcus interpreted amended subdivision (a)(7) of
section 1170.12 differently. According to these courts,
subdivision (a)(7) requires only that “other crimes must be
sentenced consecutively to the serious and/or violent felonies
sentenced either consecutively or concurrently” under subdivision
(a)(6). (Marcus, supra, 45 Cal.App.5th at pp. 212-213; see Gangl,
supra, 42 Cal.App.5th at p. 71; Torres, supra, 23 Cal.App.5th at
p. 201.) But, according to these opinions, Proposition 36 did not
implicitly overrule Hendrix, and trial courts still have “discretion
to sentence serious and/or violent felon[y convictions]
concurrently” under subdivision (a)(6). (Marcus, at p. 213; see
Gangl, at p. 71; Torres, at p. 201.)
The problem with this interpretation is that it is not what
section 1170.12 says. Before the voters adopted Proposition 36,
section 1170.12, subdivision (a)(7), applied to multiple serious or
7 The current version of the treatise acknowledges the
holding of Torres “[n]otwithstanding the amendment” to section
1170.12, subdivision (a)(7).) (Couzens et al., California Three
Strikes Sentencing (2019 supp.) § 8:1.)
17
violent felony convictions “as described by subdivision (a)(6)”—
i.e., multiple serious or violent felony convictions not committed
on the same occasion and not arising from the same set of facts.
Therefore, the Supreme Court’s holding in Hendrix that courts
had discretion to impose concurrent sentences when the
defendant committed the felonies on the same occasion or the
felonies arose from the same set of facts was consistent with
subdivisions (c)(6) and (c)(7) of section 667 and subdivisions (a)(6)
and (a)(7) of section 1170.12. But because the voters amended
subdivision (a)(7) to refer to felonies described in subdivision
(b)—i.e., serious and violent felonies—rather than felonies
described in subdivision (a)(6), subdivision (a)(7) now requires the
court to impose consecutive sentences on convictions for any and
all serious or violent felonies. (See People v. Santa Ana (2016)
247 Cal. App. 4th 1123, 1142 [“‘[a]s a general rule, in construing
statutes, “[w]e presume the Legislature [or, here, the electorate]
intends to change the meaning of a law when it alters the
statutory language [citation], as for example when it deletes
express provisions of the prior version”’”]; see also People v.
Mendoza (2000) 23 Cal. 4th 896, 916.) When the voters amended
section 1170.12, subdivision (a)(7), they did not include an
exception that would allow the court to impose concurrent
sentences on felony convictions that fall outside the scope of
section 1170.12, subdivision (a)(6). The voters could have
approved such an exception, but they did not, and we cannot add
it. (See Johnson v. County of Mendocino (2018) 25 Cal. App. 5th
1017, 1031 [“[w]e cannot add to the initiative a [new provision],
in the guise of legal interpretation”]; People v. Roach (2016) 247
Cal. App. 4th 178, 184 [“to construe [Proposition 47] in the manner
appellant requests would require this court to insert new
18
language into the statute,” and “[e]ven assuming the result
appellant urges would better further the intent of the voters, this
court cannot add to the statute on that basis”].) 8
In Hendrix the Supreme court held that section 667,
subdivision (c)(6), “applies to any current felony conviction,”
whether or not the felony is serious or violent. (See Hendrix,
supra, 16 Cal.4th at p. 512.) The court in Torres reasoned that,
because “no change was made to the language of section 1170.12,
subdivision (a)(6),” the voters must have intended that courts
“retain discretion to impose concurrent sentences for felonies
(including serious and/or violent felonies) committed on the same
occasion or arising from the same set of operative facts.” (See
Torres, supra, 23 Cal.App.5th at pp. 200-201.) The majorities in
Gangl and Marcus adopted similar reasoning. (See Marcus,
supra, 45 Cal.App.5th at p. 211 [“Proposition 36 did not amend
section 1170.12, subdivision (a)(6), and therefore, as held
by Hendrix in its analysis of the parallel provision–subdivision
(c)(6) of section 667–subdivision (a)(6) continues to apply
to all felonies”]; Gangl, supra, 42 Cal.App.5th at p. 69 [“Notably,
the Hendrix court first determined that all felonies must be
sentenced under section 667, subdivision (c)(6) before it ever
considered the meaning of section 667, subdivision (c)(7).”].)
8 As the dissenting justice in Gangl observed, the voters
could have amended section 1170.12, subdivision (a)(7), to read,
for example: If there is a current conviction for more than one
serious or violent felony as described in subdivision (b), the court
shall impose the sentence for each such serious or violent felony
conviction concurrently or consecutively under subdivision (a)(6),
and then impose the sentence for any other conviction
consecutively. (See Gangl, supra, 42 Cal.App.5th at p. 78
(conc. & dis. opn. of Krause, J.).)
19
It is true that section 1170.12, subdivision (a)(6), previously
applied and continues to apply to all felonies. But the court in
Torres assumed, incorrectly in our view, that because the voters
did not amend subdivision (a)(6), they intended courts to retain
discretion to impose concurrent sentences on multiple serious or
violent felony convictions. This assumption ignores the actual
language of subdivisions (a)(6) and (a)(7) and the relationship
between the two provisions. (See People v. Murphy (2001) 25
Cal. 4th 136, 142 [“[w]e do not . . . consider the statutory language
‘in isolation,’” but instead “look to ‘the entire substance of the
statute . . . in order to determine the scope and purpose of the
provision’”]; People v. Santa Ana, supra, 247 Cal.App.4th at
p. 1141 [same]; see also Gangl, supra, 42 Cal.App.5th at p. 68
[“we cannot read section 1170.12, subdivision (a)(7) in isolation of
the entire section in which it exists,” but “must read it in the
context of the preceding subdivision”].)
As Justice Mosk explained in his concurring opinion in
Hendrix, section 667, subdivision (c)(6), provides a “general” rule
that applies to “all felonies” (as does section 1170.12, subdivision
(a)(6)). (Hendrix, supra, 16 Cal.4th at p. 518 (conc. opn. of
Mosk, J.).) Subdivisions (c)(6) of section 667 and (a)(6) of section
1170.12 require a court to impose consecutive sentences on
convictions for felonies that the defendant did not commit on the
same occasion and that do not arise from the same set of facts.
The rule applies regardless of whether the felonies are serious or
violent. Section 1170.12, subdivision (a)(7), adds an additional
requirement for one subset of felonies: serious and violent ones.
(See Hendrix, at p. 518 (conc. opn. of Mosk, J.) [describing section
667, subdivision (c)(7), as a “special” rule “for only ‘serious or
violent felon[ies]’”].) For convictions for serious or violent felonies
20
only, amended section 1170.12, subdivision (a)(7), separately
requires that the court impose the sentences consecutive to the
sentences on other crimes (including each other), regardless of
whether the court otherwise would have discretion to impose
concurrent sentences. As the dissenting justice in Gangl stated:
“Concluding that consecutive sentences are (or are
not) mandatory under paragraph (6) says nothing about whether
they are mandatory under amended paragraph (7). The two
subdivisions exist in harmony as separate consecutive sentencing
provisions.” (Gangl, supra, 42 Cal.App.5th at pp. 77-78 (conc. &
dis. opn. of Krause, J.), fn. omitted.) The voters did not need to
amend the general rule of subdivision (a)(6), which continues to
apply to all felonies, to create the specific rule of subdivision
(a)(7), which applies only to certain felonies.
The majority in Gangl also reasoned that its interpretation
of section 1170.12, subdivision (a)(7), was consistent with the
Official Voter Information Guide of Proposition 36. So is ours.
Although where, as here, the statutory language “‘is clear and
unambiguous,’” there is no need “‘to resort to indicia of the
intent . . . of the voters’” (People v. Valencia, supra, 3 Cal.5th at
p. 357), the extrinsic evidence of voter intent in approving
Proposition 36 supports our interpretation. Nothing in the
Official Voter Information Guide suggests the voters intended
courts to retain discretion to impose concurrent sentences on
convictions for serious or violent felonies. Nor is there any
mention of the Supreme Court’s holding in Hendrix or any
discussion (other than the proposed amendments to the Penal
Code) of concurrent or consecutive sentences. Moreover, the
Legislative Analyst described the purposes of Proposition 36 as
“reduc[ing] prison sentences served under the three strikes law
21
by certain third strikers whose current offenses are nonserious,
non-violent felonies.” (Ballot Pamp., Gen. Elec. (Nov. 6, 2012)
analysis of Prop. 36 by the Legislative Analyst, p. 49.) The
proponents of Proposition 36 argued that “[c]riminal justice
experts and law enforcement leaders carefully crafted Prop. 36 so
that truly dangerous criminals will receive no benefits
whatsoever from the reform” and that “[t]he Three Strikes law
will continue to punish dangerous career criminals who commit
serious violent crimes—keeping them off the streets . . . .” (Ballot
Pamp., Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36,
p. 52; see People v. Johnson (2015) 61 Cal. 4th 674, 686
[Proposition 36 “reflect[s] an intent to ‘make the punishment fit
the crime’ and ‘make room in prison for dangerous felons’”].)
Requiring a court to impose consecutive sentences where the
defendant is convicted of multiple serious or violent felonies,
rather than leaving sentencing to the trial court’s discretion, is
consistent with these stated purposes of Proposition 36.
22
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
DILLON, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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