People v. Marcus

Filed 2/13/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C087059
Plaintiff and Respondent, (Super. Ct. No. 17FE010993)
v.
DEMETRIOUS MONTRAIL MARCUS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Allen H.
Sumner, Judge. Affirmed with directions.
William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans,
Supervising Deputy Attorney General, Cameron M. Goodman, Deputy Attorney General,
for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts I, III, and IV.
1
In People v. Hendrix (1997) 16 Cal. 4th 508 (Hendrix), our high court clarified that
trial courts had discretion under the statutory scheme then in place to impose concurrent
sentences in cases where there are current convictions for more than one violent felony.
Of course, this holding did not signal that concurrent sentences were required, merely
that concurrent sentencing was available as a tool trial courts could employ when
fashioning an appropriate sentence for the conduct reflected by the various counts of
conviction before them at sentencing.
This discretion has been the law for over 20 years.
We agree with the majority of our colleagues who have recently decided this issue
that Hendrix remains valid in the face of Proposition 36, which passed in November of
2012. Recognizing that our view is not shared by all who have addressed this question,
and with respect for opinions that differ from ours, we conclude that Proposition 36 did
not function to strip the trial courts of their long-held discretion to fashion an appropriate
sentence in cases such as this one. Trial judges retain their discretion to decide how to
best fashion an appropriate sentence in cases such as this. We detail our reasoning below
in the published portion of our opinion, as it differs slightly from those who have
preceded us in reaching this conclusion.
In the unpublished portion of our opinion, we analyze defendant’s remaining
claims of error and conclude that prejudicial error does not appear, but the case must be
remanded for another sentencing issue. Because the trial court mistakenly thought it
lacked any discretion to consider concurrent sentencing options, and for other reasons
explained herein, we remand for exercise of discretion and resentencing and otherwise
affirm.
INTRODUCTION
Defendant Demetrious Montrail Marcus and an accomplice broke into an
apartment occupied by an elderly couple and other family members. After robbing the
2
victims at gunpoint, defendant and his partner left with various property and were chased
by the son and grandson; the son was shot during the chase.
A jury found defendant guilty of two counts of first degree robbery, assault with a
firearm, and being a felon in possession of a firearm, and found true several
enhancements for personal use of a firearm as well as allegations that defendant had
suffered a prior strike, had a prior serious felony conviction, and had served a prior prison
term. The trial court sentenced defendant to an aggregate term of 29 years in state prison.
On appeal defendant contends the trial court erred in declining to excuse a juror
who expressed concern for the safety of the alleged victims during deliberation, and by
failing to recognize it had discretion to impose concurrent sentences for the robbery
counts. He also seeks a remand to allow the trial court, under recent statutory
amendments, to exercise discretion to strike the prior serious felony enhancement.
We conclude that the trial court misunderstood its discretion to impose concurrent
sentences for crimes committed on the same occasion or arising under the same set of
operative facts and agree with the parties that a remand is necessary to allow the court to
consider striking the prior serious felony enhancement. We also note that the court failed
to specify a sentence on count four and direct it to do so on remand, as we explain post.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying the counts of conviction are not relevant to the two claims
raised on appeal; we decline to recite them in any detail. It suffices to say that defendant
was charged with the first degree robbery of a father (Pen. Code, § 211; count one)1 and
his adult son (ibid.; count two), assault with a firearm on the grandfather, who was also in
the house at the time of the robbery, (§ 245, subd. (a)(2); count three) and being a felon in
possession of a firearm (§ 29800, subd. (a)(1), count four).
1 Further undesignated statutory references are to the Penal Code.
3
It was alleged that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12), a
prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term
(§ 667.5, subd. (b)).
For counts one and two, it was alleged that defendant personally used a firearm.
(§ 12022.53, subd. (b).) For count one, it was further alleged that defendant personally
discharged a firearm (§ 12022.53, subd. (c)) and caused great bodily injury to the father
by shooting him in the shoulder (id., subd. (d)). For count three, it was alleged that
defendant personally used a firearm thereby elevating the offense to a serious and violent
felony. (§§ 12022.53, subd. (a), 1192.7, subd. (c)(8), 667.5, subd. (c)(8).)
The jury found defendant guilty on all counts, and found that he personally used a
firearm for each count (§§ 12022.53, subd. (b), 12022.5, subd. (a)). For count one, the
jury found not true that defendant discharged a firearm causing great bodily injury.
(§ 12022.53, subds. (c)-(d).)2 In bifurcated proceedings, the jury found the prior strike,
prior serious felony, and prior prison term allegations true.
After denying defendant’s Romero3 motion, the court sentenced him to an
aggregate term of 29 years in state prison. As relevant here, the court imposed a sentence
of four years, doubled to eight years due to defendant’s prior strike, for the robbery of the
father, and a consecutive term of one year four months, doubled to two years eight
months, for the robbery of the son; we provide additional detail post in our Discussion.
The court stayed sentence pursuant to section 654 on count four but did not orally
pronounce the sentence. The court also added five years consecutive to the 24-year total
of counts one through three and their attendant enhancements for the section 667,
subdivision (a), serious felony enhancement.
2 Defendant committed the robberies with an accomplice, and the father testified he
could not see which man shot him during the chase that followed the armed robbery.
3 People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
4
DISCUSSION
I
Discharge of a Juror
Defendant contends the trial court erred in refusing to dismiss Juror No. 7 for
misconduct during deliberations. He argues the evidence shows the juror disregarded the
court’s instruction not to consider sympathy, bias, or punishment in reaching his decision,
and instead was improperly sympathetic towards the victims. Such misconduct, in
defendant’s view, was presumptively prejudicial, and the People failed to rebut the
presumption. We disagree.
A. Background
Before closing arguments, the court instructed the jury pursuant to CALCRIM No.
200 as follows: “You must decide what the facts are. It’s up to all of you and you alone
to decide what happened based only on the evidence that has been presented to you in
this trial. [¶] Do not let bias, sympathy, prejudice, or public opinion influence your
decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys,
defendant, or alleged victims, based on gender, nationality, national origin, race or
ethnicity, religion, sexual orientation, age, or socioeconomic status. [¶] You must reach
your verdict without any consideration of punishment. [¶] You must follow the law as I
explain it to you even if you disagree with it.”
After two days of deliberations, the jury submitted Question No. 4, asking in part:
“What instructions do we follow in the case that another juror or jurors cannot follow the
instructions given?” Before responding, the court called the jury foreperson into the
courtroom for more information.
According to the foreperson, Juror No. 7 had been reminded not to discuss
“[p]otential punishment, safety of people who may have been on the stand testifying,
[and the] consequences from any decision that is made either way.” While Juror No. 7
5
acknowledged that he knew he was not supposed to consider such things, he told the
other jurors he “can’t help but think about” it.
After the foreperson left the courtroom, the trial court called in Juror No. 7 and
admonished him not to let bias, sympathy, prejudice, or public opinion influence his
decision by rereading CALCRIM No. 200. The court reminded Juror No. 7 that bias
included bias for or against the witnesses, attorneys, defendant or alleged victims, and
that the jury was required to reach its verdict without considering punishment.
Juror No. 7 responded that he was not discussing punishment but that he was
concerned for the safety of the victims depending on what the jury found. While the
court acknowledged that it was “human” to have such concerns, the law required that the
juror set aside those concerns and base his decision on the facts of the case. When the
court asked whether Juror No. 7 was “confident” that he could do that, the juror
responded, “I am confident with that, your Honor.”
Juror No. 7 then volunteered that he would be willing to “[step] aside” to be
replaced by an alternate if the court or the other jurors felt he was not in the “right frame
of mind,” but that he “[felt] okay” to continue deliberating in light of the court’s
admonishment. The court responded, “[t]hat’s not a basis for removing a juror.” The
court then gave the example that dismissal would be proper for a juror who was unwilling
to follow a law that he disagreed with in the context of a hypothetical marijuana
possession case, and Juror No. 7 said: “That would not be the case with myself, your
Honor. No sir.”
The court then asked Juror No. 7 again: “Are you comfortable, are you confident
that you can follow the instruction to not let bias, sympathy, prejudice, considerations of
punishment, or any other factor outside the instructions affect your verdict?” Juror No. 7
responded, “I am at this point in time, your Honor. Yes, I am.” He was “struggling this
morning, but it’s better now.”
6
After a sidebar with counsel, the trial court then asked Juror No. 7 whether he was
fearful for his own safety or concerned for other parties involved in the case. Juror No. 7
said he was not concerned for his own safety, but that he would “prefer that at the end of
this trial that all the violence that has occurred ceases completely.” He then again assured
the court that he was confident that he could continue deliberating without letting the
impermissible factors influence his decision. Before excusing Juror No. 7 to return to the
jury room, the court stated: “Now, if you feel that changes as you go along with your
deliberations [¶]. . . [¶] will you let us know?” Juror No. 7 assured the court that he
would let the court know “immediately” if he continued to have such concerns.
Defense counsel objected to Juror No. 7 remaining on the jury, arguing that his
actions showed he was unable to follow the law and was biased in favor of the witnesses
and against defendant. The trial court summarized the issue as whether the record
showed a demonstrable reality that Juror No. 7 could not follow the law. The court then
ruled that the record did not show a demonstrable reality that Juror No. 7 was unable to
perform the duties of a juror within the meaning of section 1089 (providing for discharge
of sitting jurors at any time for inability to perform their duties) or case law. While the
court acknowledged that the juror was troubled by the violence discussed at trial and was
concerned about the possibility of future violence, the court did not necessarily view the
concerns as favoring a verdict for one side or the other. In the court’s view, Juror No. 7
may have been concerned for the safety of various people whether defendant was
convicted or not, especially in light of testimony that one of the victims was considering
resolving the dispute himself in “street fashion.” The court further found Juror No. 7
credible when he assured the court that he could now follow the instructions as given and
when he agreed he would immediately alert the court if he could not follow CALCRIM
No. 200.
The trial court reconvened the jury in the courtroom and told the jurors it wanted
to “stress” CALCRIM No. 200 and reread a portion to them. The court then added, “Let
7
us know if any further instruction would be helpful in moving your deliberations along, if
there are specific questions that you’d like answered, if additional argument by counsel
on a particular point would be helpful” “if there’s anything more you need from us, you
can send back another note.”
B. Applicable Law
“An accused has a constitutional right to a trial by an impartial jury.” (In re
Hamilton (1999) 20 Cal. 4th 273, 293 (Hamilton); U.S. Const., Amends. VI and XIV; Cal.
Const., art. I, § 16.) “An impartial jury is one in which no member has been improperly
influenced [citations] and every member is ‘ “capable and willing to decide the case
solely on the evidence before it.” ’ ” (Hamilton, at p. 294.)
Under section 1089, a trial court may dismiss a juror and replace him with an
alternate if it finds the juror is unable to perform his or her duty. “A deliberating juror’s
refusal to follow the law set forth in the instructions” constitutes “a failure to perform the
juror’s duties, and is grounds for discharge.” (People v. Alexander (2010) 49 Cal. 4th
846, 926; Hamilton, supra, 20 Cal.4th at p. 305 [“A sitting juror commits misconduct by
violating her oath, or by failing to follow the instructions and admonitions given by the
trial court”].)
“The trial court’s authority to discharge a juror includes the authority to conduct
an appropriate investigation concerning whether there is good cause to do so, and the
authority to take ‘less drastic steps [than discharge] where appropriate to deter any
misconduct or misunderstanding it has reason to suspect.’ ” (People v. Alexander, supra,
49 Cal.4th at p. 926; People v. Lomax (2010) 49 Cal. 4th 530, 588 [“When a court is
informed of allegations which, if proven true, would constitute good cause for a juror’s
removal, a hearing is required”].) To avoid intruding unnecessarily upon the sanctity of
the jury’s deliberations, the court’s inquiry into possible grounds for juror discharge
should be as limited in scope as possible; the inquiry should focus on the jurors’ conduct,
not the content of deliberations, and should cease once the court is satisfied the juror at
8
issue is participating in deliberations and has not expressed an intention to disregard the
court’s instructions or otherwise commit misconduct. (Alexander, at pp. 926-927; People
v. Cleveland (2001) 25 Cal. 4th 466, 485.)
The decision of whether or not to replace a juror rests in the trial court’s
discretion. (People v. Cleveland, supra, 25 Cal.4th at pp. 474, 478 [the decision to
discharge a juror and to order an alternate juror to serve is in the sound discretion of the
trial court].) Although we review a trial court’s ruling under section 1089 for abuse of
discretion (People v. Armstrong (2016) 1 Cal.5th 432, 450), such review involves a
“ ‘heightened standard [that] more fully reflects an appellate court’s obligation to protect
a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury.’ ”
(Ibid.) “[T]he juror’s ‘inability to perform’ his or her duty ‘must appear in the record as a
demonstrable reality.’ ” (Ibid.)
C. Analysis
Defendant argues that Juror No. 7 “engaged in misconduct requiring his removal
[from] the jury.” He challenges the trial court’s findings as erroneous. But the court’s
findings are supported by substantial evidence. As we have described, the court
reasonably viewed the foreman’s note as indicating that one juror was having difficulty
following the court’s instructions on the law and had announced that difficulty to the rest
of the jurors well before any verdict had been reached. The court recognized that Juror
No. 7’s misgivings could arguably qualify as improper consideration of bias, sympathy,
or punishment in contravention of the court’s instruction not to consider those factors in
reaching a verdict. After questioning Juror No. 7 and obtaining assurances that he could
disregard his safety concerns and decide the case only on the evidence presented during
trial, the court found Juror No. 7 credible. That is, the court accepted the juror’s
representation that he could abide by the court’s instruction, and particularly CALCRIM
No. 200, which the court reminded Juror No. 7 meant that he could not let bias,
9
sympathy, prejudice, or public opinion influence his decision and he could not consider
punishment.
Because the court was able to question Juror No. 7 directly, observing his
responses and demeanor in person, we defer to the court’s credibility determination. (See
People v. Lomax, supra, 49 Cal.4th at p. 590; People v. Fuiava (2012) 53 Cal. 4th 622,
714 [appellate court declined to reassess the weight of the evidence before the trial court
where the trial court credited juror’s confession that he could not follow the court’s
instruction because of personal bias in dismissing the juror].) “[T]rial courts are
frequently confronted with conflicting evidence on the question whether a deliberating
juror has exhibited a disqualifying bias.” (Lomax, at p. 590.) “In such circumstances, the
trial court must weigh the credibility of those testifying and draw upon its own
observations of the jurors throughout the proceedings. We defer to factual
determinations based on these assessments.” (Ibid.)
On this record, we cannot say the court abused its discretion in finding that Juror
No. 7’s inability to discharge his duties did not appear as a demonstrable reality. While
he may have initially failed to follow CALCRIM No. 200 and confided in the other jurors
that he was having difficulty, after his first and only conversation with the court (where it
was patiently explained to him that although his humanity was recognized and
understood by all, the instruction specifically forbade the considerations he was voicing)
the juror indicated that his difficulty had eased. Although defendant stresses the juror’s
assurance that he could follow the instructions “at this point in time,” when read in
context, coming as it did only seconds before the juror added that his earlier struggles had
eased, the temporal reference was just as likely to reference the past than the future, as
defendant suggests. The trial court could reasonably conclude after that exchange that
discharge was unwarranted given that Juror No. 7 avowed not to let bias, sympathy, or
10
prejudice affect his verdict, and also agreed to inform the court “immediately” if he was
unable to do so in the future--assurances the court found credible.4
Nor can we say that defendant was prejudiced by Juror No. 7 remaining on the
jury. While juror misconduct usually raises a rebuttable presumption of prejudice
(Hamilton, supra, 20 Cal.4th at p. 296), whether an individual verdict must be overturned
for jury misconduct is resolved under the substantial likelihood test--an objective
standard. (Ibid.) “Any presumption of prejudice is rebutted, and the verdict will not be
disturbed, if the entire record in the particular case, including the nature of the
misconduct or other event, and the surrounding circumstances, indicates there is no
reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant.” (Ibid.) Our Supreme Court has recognized
that the substantial likelihood test “is a pragmatic one.” (Ibid.) It is “mindful of the ‘day-
to-day realities of courtroom life’ [citation] and of “society’s strong competing interest in
the stability of criminal verdicts.” (Ibid.)
This case is unlike People v. Echavarria (2017) 13 Cal.App.5th 1255, upon which
defendant relies. There, the court found the People failed to rebut the presumption of
prejudice where a juror who claimed to have worked in a prison informed the other jurors
during deliberations that while the defendant “could ‘walk tomorrow’ with time served”
if found guilty of second degree murder, that outcome would be far less likely if the
verdict were in the first degree. (Id. at pp. 1262, 1268-1269.) While one juror cautioned
that the jury could not consider information that did not come from the court, not all
jurors heard the admonition. (Id. at pp. 1262, 1268.)
4 While we recognize that our Supreme Court in People v. Daniels (1991) 52 Cal. 3d 815
at page 865 observed that a judge may reasonably conclude that a juror who has violated
instructions to refrain from discussing the case or reading newspaper accounts of the trial
cannot be counted on to follow instructions in the future, nothing in the opinion indicates
that a trial court is required to reach such a conclusion.
11
The Echavarria court noted that the gravity of the misconduct may affect the
quantum of proof necessary to rebut the presumption of prejudice. (People v.
Echavarria, supra, 13 Cal.App.5th at pp. 1266-1267.) To evaluate the seriousness of the
misconduct, the court considered whether the extraneous information about sentencing
(1) was discussed during the guilt phase of the proceedings; (2) was presented by a
person who appeared to have some authority on the subject; (3) was personal to the
defendant rather than just conceptual; and (4) whether the discussion was lengthy or
brief. (Id. at p. 1267.)
Applying those same factors here, it is readily apparent that this case differs
markedly from Echavarria. Here, Juror No. 7 did not discuss the effect of certain
verdicts, but merely pondered the safety of witnesses in the abstract. And unlike the juror
in Echavarria, here there is no evidence that Juror No. 7 had particular expertise in
security or “safety”; he was an electrician. Finally, here Juror No. 7 was warned by the
foreperson and then the court that he could not consider anything other than the evidence
presented, and the court then admonished the entire jury and read the applicable portion
of CALCRIM No. 200.
Juror No. 7 had agreed to “immediately” notify the court if he continued to
struggle and never did; further, none of the other jurors complained again that Juror No. 7
was behaving inappropriately. A reasonable inference from this evidence is that after
airing his concerns with the court and the court reemphasizing his duty to consider only
the evidence presented, Juror No. 7 followed the court’s instructions in reaching a
verdict.5
5 Although defendant argues the other jurors were unlikely to report further instances of
misconduct because the trial court never told them to return with any additional concerns,
we disagree. By interviewing both the jury foreperson and Juror No. 7, and by
admonishing and partially reinstructing the jury, the court made clear to the jurors that
following the court’s instructions was critical and that such concerns were taken
12
Any presumption of prejudice arising from Juror No. 7’s misconduct is
sufficiently rebutted by evidence contained in the record. We therefore reject defendant’s
juror misconduct claim. We see no substantial likelihood that Juror No. 7 was actually
biased against defendant.
II
Discretion Regarding Sentencing on the Robbery Counts
Defendant argues the trial court mistakenly failed to recognize its discretion to
impose concurrent terms as to the two robbery counts. We agree.
A. Background
At sentencing, the trial court stated its intent to run the sentence for count two, the
robbery of the son, concurrent to the sentence for count one, the robbery of the father.
The court found that the crimes “arose at the same time,” and it observed that a
concurrent sentence for count two was “proportionate to the crime itself given the jury’s
finding that [defendant] was either not the shooter or they were not convinced beyond a
reasonable doubt that he was the shooter.”
The prosecutor argued that the court lacked discretion to sentence defendant
concurrently as to counts one and two because he was found guilty of violent felonies
against two victims. The court ultimately agreed.
B. Analysis
Defendant was charged under both the legislative version of the three strikes law,
section 667, subdivisions (b)-(i), and the initiative version of the three strikes law, section
1170.12. “In many respects, the two statutes are ‘ “virtually identical.” ’ ” (People v.
Torres (2018) 23 Cal.App.5th 185, 197 (Torres).) “ ‘Both versions of the statute were
substantially revised by Proposition 36, enacted by the voters on November 6,
seriously. The court also specifically instructed the jury to let the court know if any
further instruction would help deliberations or if it had specific questions they wanted
answered. No further questions were submitted.
13
2012 . . . .’ ” (Id. at p. 197.) Proposition 36 amended section 1170.12, subdivision (a)(7),
which concerns consecutive sentencing for multiple current serious and/or violent crimes,
but it did not make corresponding changes to the previously identical statute, section 667,
subdivision (c)(7). (Torres, at p. 197.) The issue raised by defendant’s appeal is whether
amendments to section 1170.12, subdivision (a)(7) now require the trial court to sentence
the robbery counts consecutively, thus impliedly repealing well-settled Supreme Court
authority. The trial court concluded that it no longer had discretion after the amendment
at issue here.
1. Section 667, subdivisions (c)(6) and (c)(7) and Hendrix
Before the enactment of Proposition 36, our Supreme Court determined that under
section 667, subdivisions (c)(6) and (c)(7), a trial court has discretion to impose
concurrent sentences in cases where there are current convictions for more than one
serious and/or violent felony committed on the same occasion and arising from the same
set of operative facts. (Hendrix, supra, 16 Cal.4th at pp. 511-512.)
Section 667, subdivision (c)(6) provides: “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
pursuant to subdivision (e).” By its plain language, subdivision (c)(6) requires
consecutive sentences for any felony convictions not committed on the same occasion
and not arising from the same set of operative facts. (Hendrix, supra, 16 Cal.4th at
p. 512.) Our high court in Hendrix further concluded that “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.’ ”6 (Id. at pp. 512-513, italics added.)
6 We are bound by our Supreme Court’s interpretation of the language in the statute.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455 [“all tribunals
14
The court in Hendrix then analyzed section 667, subdivision (c)(7) which
provides: “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 observed
subdivision (c)(7) “applies when there is more than one current serious or violent felony.”
(Hendrix, supra, 16 Cal.4th at p. 513.) Since “[t]he most logical meaning of the
reference to ‘paragraph (6)’ in subdivision (c)(7) is that it refers to subdivision (c)(6),”
the court concluded, “ ‘more than one serious or violent felony as described in paragraph
(6)’ refers to multiple current convictions for serious or violent felonies ‘not committed
on the same occasion, and not arising from the same set of operative facts.’ ” (Ibid.)
“Thus, 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.’ By 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.’ ” (Ibid.)
The court explained why subdivisions (c)(6) and (c)(7) of section 667 are not
duplicative. “Subdivision (c)(6) mandates consecutive sentencing for any current felony
not committed on the same occasion, and not arising from the same set of operative facts.
Consecutive sentencing is not mandated under subdivision (c)(6) if the current felonies
exercising inferior jurisdiction are required to follow decisions of courts exercising
superior jurisdiction”].)
15
are committed on the same occasion or arise from the same set of operative facts.”
(Hendrix, supra, 16 Cal.4th at p. 513.) Under subdivision (c)(7), any two serious or
violent felonies not committed on the same occasion and not arising from the same set of
operative facts must be sentenced consecutive to each other--consistent with the
requirements of (c)(6)--and “ ‘consecutive to the sentence for any other conviction for
which the defendant may be consecutively sentenced in the manner prescribed by law.’ ”
(Hendrix, at pp. 513-514.) At the time Hendrix was decided, both subdivision (c)(7) and
section 1170.12, subdivision (a)(7) only applied when the serious and violent felonies had
occurred on separate occasions such that consecutive sentences were required by
subdivision (c)(6) and section 1170.12, subdivision (a)(6). As we will discuss below, the
passage of Proposition 36 expanded the circumstances in which section 1170.12,
subdivision (a)(7) applies.
Since our Supreme Court decided Hendrix in 1997, trial judges have retained
discretion to sentence multiple current convictions for serious and/or violent felonies
concurrently where those crimes arose out of the same set of operative facts and were
committed on the same occasion. Proposition 36 did not amend the language of
subdivisions (c)(6) or (c)(7) of section 667.
2. Section 1170.12, subdivisions (a)(6) and (a)(7) and Proposition 36
Proposition 36 did, however, make changes to the parallel, initiative version of the
statutory sentencing scheme. The amendments made the following changes to the
language of section 1170.12, subdivision (a)(7), which we set out here along with
subdivision (a)(6), for context:
“(a) Notwithstanding any other provision of law, if a defendant has been convicted of a
felony and it has been pled and proved that the defendant has one or more prior serious
and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to
each of the following:
[¶] . . . [¶]
16
(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 pursuant to this section. [¶]
(7) If there is a current conviction for more than one serious or violent felony as
described in paragraph (6) of this 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.”7
(§ 1170.12, subd. (a)(6) & (7), as amended by Prop. 36, § 4, eff. Nov. 7, 2012, boldface,
italics, and strike out added.)
Few published cases have examined how Proposition 36’s amendment to section
1170.12 affected the trial court’s discretion to impose concurrent sentences for serious
and/or violent felonies committed on the same occasion and arising from the same set of
operative facts. In Torres, supra, 23 Cal.App.5th at pages 196 through 203, Division One
of the First District Court of Appeal held that such discretion remains. A majority of a
panel of our colleagues recently agreed with the result in Torres while following a
slightly different analytical path in People v. Gangl (2019) 42 Cal.App.5th 58, petition
for review pending, petition filed December 17, 2019, S259463 (time for grant or denial
of review extended to March 16, 2020). Division Five of the First Appellate District
followed Torres in People v. Buchanan (2019) 39 Cal.App.5th 385. We, too, reach the
same conclusion as the Torres court, but with different emphases in our analysis, as we
now explain.
3. The Effect of Proposition 36 on the Language Interpreted by Hendrix
As we have described, Hendrix interpreted section 667, subdivision (c)(6) to allow
the trial courts discretion to choose consecutive or concurrent sentences under certain
7 Section 1170.12, subdivision (b) defines “serious and/or violent” felony for purposes of
the three strikes law.
17
circumstances. The parallel provision to subdivision (c)(6), containing identical language
in all relevant respects, is contained in section 1170.12, subdivision (a)(6). Proposition
36 did not amend section 1170.12, subdivision (a)(6), and therefore, as held by Hendrix
in its analysis of the parallel provision--subsection (c)(6) of section 667--subdivision
(a)(6) continues to apply to all felonies, including serious and violent felonies.8 (See
Torres, supra, 23 Cal.App.5th at p. 200.) Accordingly, subdivision (a)(6) requires
consecutive sentences for multiple felonies not committed on the same occasion or
arising out of the same set of operative facts, whether or not the felonies are serious
and/or violent. (Ibid.) And as our high court held in Hendrix when analyzing identical
language to that contained in subdivision (a)(6), that subdivision continues to authorize
trial courts to sentence multiple current felony convictions concurrently if those felonies
8 Although others have assumed the intent to amend both parallel provisions and that the
failure to do so was inadvertent (Torres, supra, 23 Cal.App.5th at p. 202; People v.
Buchanan, supra, 39 Cal.App.5th at p. 395, fn. 2 (conc. & dis. opn. of Needham, J.)), we
do not. In our view, given the fact that Proposition 36 did make other changes to section
667, which include the multiple additions of references to subdivision (b) such as the
change seen here, the failure to make changes to the parallel subdivision of section 667
signals that the amendment to section 1170.12, subdivision (a)(7) was perhaps itself
unintentional. Indeed, although the parties did not brief this issue, we suspect the change
to the initiative version of the statute at issue here may be a drafter’s error. We construe
the language of a statute or initiative by reconciling and harmonizing its parts, both
internally and by considering its interaction with the larger body of connected laws. (See
People v. Pieters (1991) 52 Cal. 3d 894, 898-899; Lungren v. Deukmejian (1988) 45
Cal. 3d 727, 735.) “We recognize the basic principle of statutory and constitutional
construction which mandates that courts, in construing a measure, not undertake to
rewrite its unambiguous language. [Citation.] That rule is not applied, however, when it
appears clear that a word has been erroneously used, and a judicial correction will best
carry out the intent of the adopting body.” (People v. Skinner (1985) 39 Cal. 3d 765,
775.) In some cases the text and purpose of a measure reveal a drafting error. (Id. at pp.
775-776.) Although we do not base our holding on this observation, this may indeed be
one of those cases.
18
were committed on the same occasion and arose out of the same set of operative facts,
whether or not the current felony convictions are serious and/or violent. (Ibid.)
Proposition 36’s amendment to subdivision (a)(7) eliminated that subdivision’s
reference to (a)(6) and replaced it with a reference to “subdivision (b),” which contains a
definition of “serious and violent felonies.” Therefore, 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.’ ” (Hendrix, supra, 16 Cal.4th at p. 513.)
Rather, subdivision (a)(7) applies in all cases where the current multiple felonies are
serious and/or violent--even when those felonies were committed at the same time and
involve the same facts.
But as we have described ante, Hendrix teaches through its analysis of the parallel
provisions of section 667 that subdivision (a)(7) is not duplicative of (a)(6). Section
1170.12, subdivision (a)(7) only adds that other crimes must be sentenced consecutively
to the serious and/or violent felonies sentenced either consecutively or concurrently under
subdivision (a)(6).9 Subdivision (a)(7) does not, by its plain language, require the
serious/violent felonies to be sentenced consecutively to one another. Instead, (a)(7)
commands only that the sentence for each serious and violent felony shall be imposed
“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),
9 The court in Torres described Proposition 36 as changing the “triggering” language of
subdivision (a)(7) because the subdivision now applies whenever there are multiple
serious and/or violent felonies, rather than only where there are multiple serious and/or
violent felonies not occurring on the same occasion and not arising from the same set of
operative facts. (Torres, supra, 23 Cal.App.5th at p. 201.) But, according to Torres,
Proposition 36 did not change the “directive” portion of subdivision (a)(7), meaning that
(a)(7) continues to only add that crimes other than the serious and/or violent crimes
sentenced either consecutively or concurrently under subdivision (a)(6) must be
sentenced consecutively under subdivision (a)(7). (Ibid.)
19
emphasis added.) Subdivision (a)(7) requires the sentences for multiple serious and
violent felonies to run consecutive to the sentences for other convictions that may be
imposed consecutively. This requirement does not, however, supplant the discretion to
sentence serious and violent felonies concurrently that is bestowed by subdivision (a)(6).
By way of example, consider a hypothetical scenario in which a defendant is
convicted of two serious and/or violent felonies committed on the same occasion and
arising under the same set of operative facts and multiple other nonserious and nonviolent
felonies. Because the serious and/or violent felonies were committed on the same
occasion and arose under the same set of operative facts, section 1170.12, subdivision
(a)(6)--which applies to any felonies--confers on the sentencing court the discretion to
sentence those serious and/or violent felonies concurrently. But following Proposition
36, subdivision (a)(7) now 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.
And because subdivision (a)(7) only adds to subdivision (a)(6) that “any other
conviction” must be sentenced consecutively, subdivision (a)(7) now requires that the
sentencing court sentence each of the nonserious/nonviolent felonies consecutively to the
serious and/or violent felonies.
Our dissenting colleague incorporates by reference his dissent in People v. Gangl,
supra, 42 Cal.App.5th at page 72, wherein he concluded that by deleting the prior
reference in section 1170.12, subdivision (a)(7) to “paragraph (6)” and inserting in its
place “subdivision (b),” the electorate sought to create two separate consecutive
sentencing provisions--one for multiple serious and/or violent felonies (subdivision
(a)(7)) and one for multiple felonies including no more than one serious and/or violent
felony (subdivision (a)(6)). (Gangl, at pp.74-75 (conc. & dis. opn. of Krause, J.).)
We do not agree that removing the reference to subdivision (a)(6) from
subdivision (a)(7) effectively removed sentencing for multiple serious and/or violent
felonies from subdivision (a)(6). Rules of statutory construction obligate us to read a
20
statute, and its various subdivisions, as a cohesive whole. (See In re Catalano (1981) 29
Cal. 3d 1, 10-11 [court should not read each subdivision in isolation; rather, it must apply
the general principle of statutory construction that statutes are to be read in order to
harmonize the statutory scheme].) Because subdivision (a)(6) continues to apply to all
felonies, as interpreted by our Supreme Court in Hendrix, current convictions for multiple
serious and violent felonies must still be sentenced pursuant to subdivision (a)(6) prior to
any consideration of subdivision (a)(7). Therefore, although subdivision (a)(7) no longer
specifically refers to subdivision (a)(6), we conclude subdivision (a)(7) as construed by
the dissent is contradictory to subdivision (a)(6).
Proposition 36 neither refers to Hendrix nor states its express intent to overrule
longstanding Supreme Court precedent. As we have explained, its amendments do not
add the language to section 1170.12, subdivision (a)(6) that would be necessary to
overrule any part of this precedent. Had the voters disagreed with Hendrix’s conclusion
and intended to reject its holding that subdivision (a)(6) applies to all felonies, the voters
could have easily amended subdivision (a)(6) to explicitly refer only to nonserious and
nonviolent felonies. This would effectively create two classes of crimes to which two
different sentencing rules would apply: (1) nonviolent/nonserious felonies covered by
subdivision (a)(6); and (2) serious/violent felonies covered exclusively by subdivision
(a)(7). The voters did not do so.
5. Conclusion
Thus we join our colleagues in this district and the First Appellate District and
conclude the trial court mistakenly opined it had lost discretion under the three strikes
law to impose concurrent sentences on the robbery counts in the wake of Proposition
36.10 We vacate the sentence and remand for a new sentencing hearing. Because there
10 At sentencing, the trial court found the robbery counts “arose at the same time.”
21
are multiple counts and discretionary decisions at play, the trial court may consider the
entire sentencing scheme and reconsider all sentencing choices. (See People v. Hill
(1986) 185 Cal. App. 3d 831, 834.)
III
Prior Serious Felony Enhancement
The Governor signed Senate Bill No. 1393 which, effective January 1, 2019,
amends sections 667, subdivision (a) and 1385, subdivision (b) to allow a trial court to
exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing
purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the pre-2019 versions of these statutes,
the court was required to impose a five-year consecutive term for “any person convicted
of a serious felony who previously has been convicted of a serious felony” (former § 667,
subd. (a)), and the court had no discretion “to strike any prior conviction of a serious
felony for purposes of enhancement of a sentence under Section 667” (former § 1385,
subd. (b)).
Defendant contends Senate Bill No. 1393 applies retroactively to his case. The
People properly concede the matter. The statutory changes of Senate Bill No. 1393 apply
retroactively to any case that is not final on January 1, 2019, under the rule of In re
Estrada (1965) 63 Cal. 2d 740. “The Estrada rule rests on an inference that, in the
absence of contrary indications, a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not.” (People v. Conley
(2016) 63 Cal. 4th 646, 657.)
The same inference of retroactivity applies when an amendment ameliorates the
possible punishment. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)
When a statutory amendment “ ‘vests in the trial court discretion to impose either the
same penalty as under the former law or a lesser penalty,’ ” there is “an inference that the
Legislature intended retroactive application ‘because the Legislature has determined that
22
the former penalty provisions may have been too severe in some cases and that the
sentencing judge should be given wider latitude in tailoring the sentence to fit the
particular circumstances.’ ” (Ibid., quoting People v. Francis (1969) 71 Cal. 2d 66, 76.)
Under the Estrada rule, as applied in Francis and Lara, we infer as a matter of
statutory construction the Legislature intended Senate Bill No. 1393 to apply to all cases
not yet final on January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
Accordingly, we remand the matter to the trial court to determine whether to exercise its
discretion to strike the five-year prior serious felony enhancement.
IV
Section 654
We note that the trial court did not identify the sentence imposed for count four
before staying the term under section 654. Although the court previously stated that it
intended, with limited exceptions not relevant here, that the sentence should be the same
as recommended by probation for count four, the probation report recommended the
court impose one-third the midterm of eight months, doubled to 16 months for the strike
prior, and then stay the sentence under section 654. This recommendation is erroneous
and to follow it would result in an unauthorized sentence. “The one-third-the-midterm
rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not to a
sentence stayed under section 654.” (People v. Cantrell (2009) 175 Cal. App. 4th 1161,
1164.) When a sentence is required to be stayed under section 654, the trial court should
impose a full-term sentence to ensure the “defendant’s punishment is commensurate with
his criminal liability” in the event that the stay is lifted. (Ibid.)
Because we are remanding in any event for exercise of discretion, we direct the
trial court to impose and stay a full term sentence on count four.
23
DISPOSITION
Defendant’s convictions are affirmed. The matter is remanded for a new
sentencing hearing consistent with this opinion. Upon resentencing, the clerk is directed
to send a certified copy of the new abstract of judgment to the Department of Corrections
and Rehabilitation.
/s/
Duarte, Acting P. J.
I concur:
/s/
Renner, J.
24
Krause, J., Concurring and Dissenting.
I concur in the majority opinion except for part II of the Discussion. To that part, I
dissent for the reasons articulated in my dissenting opinion in People v. Gangl (2019) 42
Cal.App.5th 58 (conc. & dis. opn. of Krause, J.) (petn. for review pending, petn. filed
Dec. 17, 2019, S259463).
/s/
Krause, J.
1