Stanford Law School - Robert Crown Law Library

Filed 6/3/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S114285
v.
) Ct.App.
4/1
D038550
DAVID JAMES CASPER,
San
Diego
County
Defendant and Appellant.
Super. Ct. No. SCD151173

In this case involving the three strikes law, the trial court dismissed the strike
allegation as to 34 of 35 counts. (Pen. Code,1 §§ 667, subds. (b)-(i), 1170.12;
People v. Garcia (1999) 20 Cal.4th 490, 499, 503-504 (Garcia).) The issue here
is whether the trial court had discretion to sentence defendant concurrently on
those counts for which the strike allegation had been dismissed, and which did not
arise on the same occasion or under the same set of operative facts, or whether it
was required to sentence all such counts consecutively under section 667,
subdivision (c).2 We conclude the trial court must impose consecutive sentences

1
All further statutory references are to this code unless otherwise indicated.
2
The 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. For convenience,
we refer to section 667, subdivisions (b)-(i).
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under these circumstances pursuant to the clear language of the three strikes law.
We therefore reverse the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are not important to the issue in this case. Suffice it to
say that beginning in October 1999 with the burglary of his parents’ home,
defendant David James Casper embarked on a month-long crime spree. He was
ultimately apprehended and charged with 35 felony counts, including carjacking,
residential burglary, 25 robbery counts, four attempted robbery counts, numerous
personal use of a firearm enhancements, two prior prison term allegations, and one
prior serious or violent felony strike allegation.
Defendant pled guilty and admitted all allegations. The trial court dismissed
the strike allegation as to all counts except the carjacking count. (§ 1385.) It
sentenced defendant to 104 years eight months in state prison. In particular, the
trial court selected the carjacking as the principal term, imposing the low term of
three years to be doubled (§ 667, subd. (e)(1)), consecutive to a 10-year term for
use of a firearm and a five-year term for the prior serious felony conviction (§ 667,
subd. (a)), for a total of 21 years. For the remaining 34 counts, the trial court
grouped the counts essentially by the separately occurring crimes and sentenced
without reference to section 667, subdivision (e).
As for those crimes arising on different occasions, the trial court stated that a
“consecutive sentence is required . . . . I am not able to allow concurrent
sentences. I do want the record to reflect that if I had the ability to exercise my
discretion it would be my attempt to fashion a sentence that would give
Mr. Casper the chance of maybe some day getting out of prison, not to say he
definitely would but would give him the chance and that would be talking about an
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age . . . somewhere between the age of 68 or 70, now being 29. . . . However, I
cannot give him that opportunity under the law because Garcia says I cannot.”3
The Court of Appeal reversed and remanded for resentencing. Relying on
our opinion in Garcia, supra, 20 Cal.4th 490, it held the consecutive sentencing
requirements of the three strikes law did not apply to those counts on which the
strike allegation had been dismissed, and hence consecutive sentencing was not
required under that law even if the counts were not committed on the same
occasion and did not arise under the same set of operative facts.
We granted the Attorney General’s petition for review.
II. DISCUSSION
The three strikes law is a comprehensive, integrated sentencing scheme
which applies to all cases coming within its terms. (See § 667, subd. (f)(1)
[“Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied
in every case in which a defendant has a prior felony conviction as defined in
subdivision (d)”]; People v. Williams (1998) 17 Cal.4th 148, 161 [in determining
whether to strike a prior serious or violent felony conviction pursuant to section
1385, courts “must consider whether, in light of the nature and circumstances of
his present felonies and prior [strike] convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the
[three strikes] scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted”; “bare antipathy to the
consequences for any given defendant” should play no part in the determination];
see also People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 980.)

3
Defendant’s sentence was later recalled. After further briefing and
argument regarding the issue of consecutive sentencing, the trial court declined to
alter the earlier imposed sentence.
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As we delineated at length in People v. Hendrix (1997) 16 Cal.4th 508
(Hendrix), by its terms, section 667, subdivision (c)(6) and (7) requires
consecutive sentences whenever a defendant with one or more qualifying prior
convictions is convicted, as here, of multiple serious or violent felonies “not
committed on the same occasion, and not arising from the same set of operative
facts.”4 (§ 667, subd. (c)(6); Hendrix, at pp. 512-513; People v. Deloza (1998) 18
Cal.4th 585, 594 [“Making mandatory consecutive sentences for those current
crimes committed on different occasions is consistent with the focus of the three
strikes law, which is recidivism”].) Consecutive sentencing is discretionary under
section 667, subdivision (c) only if the current felony convictions are “committed
on the same occasion” or “aris[e] from the same set of operative facts.” (§ 667,
subd. (c)(6) & (7); Hendrix, at pp. 512-513; see People v. Woodhead (1987) 43
Cal.3d 1002, 1007-1008 [When the statutory “language is clear and unambiguous,
there is no need for construction”].)
In addition, section 667, subdivision (c)(6) and (7) applies to “a current
conviction” for more than one “felony.” As the Attorney General notes, the “term

4
Section 667, subdivision (c) provides in relevant part:
“(c) Notwithstanding any other 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
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 pursuant
to subdivision (e).

“(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.”
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‘felony’ is not modified, explicitly or implicitly, by any requirement that these
multiple felonies be ones to which strike allegations attach.” Here, while the
strike allegation was dismissed as to 34 of the 35 counts, defendant nevertheless
remained subject to the consecutive sentencing requirements of section 667,
subdivision (c) by virtue of the one count that retained the strike allegation.
Defendant asserts that a contrary conclusion is compelled by our decision in
Garcia, supra, 20 Cal.4th 490. In Garcia, this court held that the trial court was
not bound by the length of sentence provisions of section 667, subdivision (e) for
those current convictions as to which the strike allegations had been dismissed.
(Garcia, at pp. 495, 499-500.) In that case the trial court had imposed consecutive
sentences for the two burglary counts that arose on different occasions, and thus
we did not directly address whether such consecutive sentencing was required
under the three strikes law. (Id. at pp. 495, 500.) It is axiomatic that cases are not
authority for propositions not considered. (People v. Barragan (2004) 32 Cal.4th
236, 243.)
Moreover, in Garcia, in response to an argument by the Attorney General,
we stated, “The Attorney General . . . points to the requirement in the Three
Strikes law that sentencing on distinct current offenses be consecutive (§§ 667,
subd. (c)(6)-(8), 1170.12, subd. (a)(6)-(8)) and without any aggregate term
limitation (§§ 667, subd. (c)(1), 1170.12, subd. (a)(1)). The Attorney General
argues that striking prior conviction allegations with respect to one count, but not
with respect to another, undermines this principle of consecutive Three Strikes
sentences. Again, we disagree. A requirement that a defendant serve the
individual sentences for different current felonies consecutively does not indicate
how the trial court should determine the lengths of those individual sentences.
Here, for example, the trial court conformed to the consecutive sentencing
requirement by ordering that the 16-month sentence for the Gantt burglary be
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served consecutively to the 30-year-to-life sentence for the Kobel burglary.
Therefore, we see nothing in the trial court’s action that is inconsistent with the
consecutive sentencing requirement in the Three Strikes law. Rather, the court
expressly applied that requirement.” (Garcia, supra, 20 Cal.4th at p. 500.) Thus,
Garcia did not anticipate that its holding regarding section 667, subdivision (e)
would have any effect on the consecutive sentencing requirements of section 667,
subdivision (c).
In sum, there can be no doubt after examining the language of section 667,
subdivision (c) but that consecutive sentences are required for all current felony
convictions, regardless of whether a strike allegation attaches to them, if the
crimes did not arise on the same occasion or under the same set of operative facts.
Reaching a different conclusion here as to this requirement would distort the
statutory language, eviscerate the three strikes law, and return to trial judges a
discretion in sentencing both the Legislature and the electorate sought to severely
curtail.5

5
Given our resolution of this issue, we need not address the Attorney
General’s further argument that it would be an abuse of discretion to impose
concurrent sentences in this case for those crimes that were not committed on the
same occasion and did not arise from the same set of operative facts.
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DISPOSITION
The judgment of the Court of Appeal is reversed, and the case remanded to
that court for further proceedings consistent with this opinion.
BROWN, J.
WE CONCUR:

GEORGE,
C.J.
BAXTER,
J.
CHIN,
J.
MORENO,
J.

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DISSENTING OPINION BY KENNARD, J.

This case presents a sentencing issue under the highly complex “Three
Strikes and You’re Out Law” (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, hereafter
the Three Strikes law).1 The issue is this: When a court at sentencing exercises its
discretion under section 1385 to dismiss a prior felony conviction alleged as a
strike, and it dismisses that conviction as to some but not all counts of which the
defendant was convicted, does the Three Strikes law nonetheless require the court
to impose consecutive sentences on all counts? Otherwise stated, does the
dismissal of the prior conviction as to a particular count free that count from all or
only some of the restrictions that the Three Strikes law imposes?
The majority holds that the Three Strikes law requires consecutive
sentences on all counts, even those as to which the only qualifying prior
conviction has been dismissed under section 1385. I disagree. When a prior
conviction alleged as a strike has been dismissed as to a particular count, the effect
of the dismissal is to release that count entirely from the restrictions imposed by
the Three Strikes law, including the consecutive sentencing requirement.

1
All further statutory references are to the Penal Code.
1

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I
During a one-month period in late 1999, defendant David James Casper
committed 19 separate robberies and one residential burglary. For these crimes,
he pled guilty to 35 felony counts and admitted, among other things, one prior
felony conviction alleged under the Three Strikes law. At sentencing, the court
exercised its authority under section 1385 to dismiss the prior conviction as to all
but one of the counts. Believing it was nonetheless required by the Three Strikes
law to impose consecutive sentences on all offenses committed during separate
incidents, the court sentenced defendant to an aggregate term of 104 years and
eight months in state prison—effectively imprisonment for life without possibility
of parole. The court noted for the record that it would have sentenced more of the
terms concurrently had it possessed the discretion to do so.
The Court of Appeal vacated the sentence and remanded for resentencing.
It concluded that the Three Strikes law does not require consecutive sentencing of
counts as to which the only qualifying prior conviction has been dismissed under
section 1385.
II
Section 1385, enacted in 1872, authorizes a judge “in furtherance of
justice” to “order an action to be dismissed.” Because “[t]he authority to dismiss
the whole includes, of course, the power to dismiss or ‘strike out’ a part” (People
v. Burke (1956) 47 Cal.2d 45, 51), the trial court’s power under section 1385 to
dismiss the entire action necessarily includes the power to dismiss a part of the
action, including a prior conviction alleged for purposes of increasing the
sentence. Accordingly, this court has held that section 1385’s dismissal power
extends to a prior conviction alleged for purposes of sentencing, and that the trial
court may exercise this power either before or after the prior conviction has been
2

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admitted or established by the evidence. (People v. Burk, supra, at p. 51; accord,
People v. Thomas (1992) 4 Cal.4th 206, 209.)
The Three Strikes law requires the prosecution to allege certain prior
convictions for sentencing purposes. (§§ 667, subd. (f)(1) [“[t]he prosecuting
attorney shall plead and prove each prior felony conviction . . . .”], 1170.12, subd.
(d)(1) [same].) A defendant with one qualifying prior conviction (see §§ 667,
subd. (d) [specifying which prior felony convictions qualify], 1170.12, subd. (b)
[same]), commonly known as a second strike defendant, is subject to various
sentencing consequences, two of which are relevant here. First, the punishment
for a new offense is doubled. (§§ 667, subd. (e)(1) [“the determinate term or
minimum term for an indeterminate term shall be twice the term otherwise
provided as punishment for the current felony conviction.”], 1170.12, subd. (c)(1)
[same].) Second, consecutive sentences are mandatory if there is more than one
new offense, unless the offenses are interrelated. (§§ 667, subd. (c)(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 . . . .”], 1170.12, subd. (a)(6)
[same].)
Prior convictions alleged under the Three Strikes law are subject to the trial
court’s dismissal power under section 1385. (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 529-530.) Noting that “the statutory power to dismiss in
furtherance of justice has always coexisted with statutes defining punishment,”
this court explained that a statute defining punishment will not be construed as
eliminating a court’s dismissal power “ ‘absent a clear legislative direction to the
contrary.’ ” (Id. at p. 518.) This court found no such direction in the Three
Strikes law. (Id. at pp. 519-529.) Indeed, the wording of subdivision (f)(2) of
section 667, which expressly recognizes the court’s dismissal power under section
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1385, and the legislative history of the Three Strikes law, which included the
rejection of an amendment that would have permitted the court to exercise the
power only on the prosecutor’s motion, persuaded this court that the Legislature
deliberately chose not to eliminate or restrict the trial court’s power to dismiss
prior felony convictions. (People v. Superior Court (Romero), supra, at p. 520.)
Under the Three Strikes law, a qualifying prior conviction need not be
alleged separately as to each count, but may be alleged once as to all counts.
(People v. Garcia (1999) 20 Cal.4th 490, 502.) Nevertheless, a qualifying prior
conviction alleged once as to all counts may be stricken selectively as to
individual counts. (Ibid.) In reaching this conclusion, this court again relied on
the principle that the power to dismiss the whole includes the power to dismiss a
part. “[T]hough a defendant’s prior conviction status does not change from one
count to another, and though it is appropriate to allege that status only once as to
all current counts, the effect under the Three Strikes law of a defendant’s prior
conviction may change from one count to another.” (Ibid.)
What is the purpose of the trial court’s dismissal power under section 1385
as applied to prior conviction allegations? This court has explained that the
“purpose of striking a sentencing allegation under section 1385 is to effectuate the
decision that ‘ “in the interest of justice” defendant should not be required to
undergo a statutorily increased penalty which would follow from judicial
determination of that fact.’ ” (People v. Superior Court (Romero), supra, 13
Cal.4th at p. 524, fn. 11, quoting People v. Burke, supra, 47 Cal.2d at p. 50.)
Thus, the purpose of the power is to allow the sentencing court some discretion to
reduce the sentence that would otherwise be imposed to a level that is consistent
with defendant’s individual culpability and society’s interests in punishing and
deterring criminal behavior. (See People v. Williams (1998) 17 Cal.4th 148, 160-
161 [discussing factors a trial court may consider when exercising its section 1385
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discretion in a Three Strikes case].) In short, “the underlying purpose of striking
prior conviction allegations is the avoidance of unjust sentences.” (People v.
Garcia, supra, 20 Cal.4th at p. 500.)
The majority concludes that when a trial court exercises its section 1385
power to dismiss a prior conviction alleged under the Three Strikes law, and it
dismisses the prior conviction as to some but not all of the new offenses, the effect
of the dismissal is to free the affected counts from the term-doubling requirement
but not from the consecutive-sentencing requirement. Yet nothing in the language
of the Three Strikes law or section 1385 requires or justifies this conclusion. On
the contrary, the effect of dismissing the prior conviction as to a particular count is
to place that count beyond the reach of the Three Strikes law, and to permit the
trial court to impose sentence on that count as if defendant had no prior
conviction.
The majority notes that consecutive sentences are mandatory under the
Three Strikes law unless the current convictions are “committed on the same
occasion” or “arise[e] from the same set of operative facts” and that this provision
requiring consecutive sentences is not qualified by any requirement that prior
conviction allegations attach to the particular counts. (Maj. opn., ante, at pp. 4-5.)
But these observations are beside the point. The Three Strikes law nowhere refers
to prior conviction allegations attaching to particular counts because, as this court
has explained, the Three Strikes law permits the prior conviction to be alleged
“once as to all counts” (People v. Garcia, supra, 20 Cal.4th at p. 502) and does not
expressly provide for the selective application of the Three Strikes sentencing
scheme to some counts but not others. The lack of such an express provision,
however, did not prevent this court from rejecting the argument that “prior
conviction allegations describe a status that a defendant either does or does not
have, but cannot have with respect to one count and not another.” (Ibid.) This
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court concluded, to the contrary, that a prior conviction allegation may be
dismissed selectively, on a count-by-count basis. (Ibid.)
The majority does not deny that a trial court may dismiss a prior conviction
selectively, on a count-by-count basis, but it imposes an additional and irrational
form of selectivity, over which the trial court has no control. According to the
majority, the dismissal of a prior conviction on a count-by-count basis operates
selectively in the sense that, as to the affected counts, the prior conviction
allegation ceases to exist for one purpose (term doubling) but not for another
purpose (consecutive sentencing). This interpretation is not only confusing and
conceptually awkward, it is also inconsistent with the underlying purpose of the
section 1385 dismissal power in the Three Strikes context, which is to avoid unjust
sentences by allowing some or all of the current offenses to be punished outside
the Three Strikes sentencing scheme. Under the majority’s holding, the trial court
must dismiss the prior conviction as to all counts to avoid mandatory consecutive
sentencing on any of the counts.
The majority’s holding substantially and unnecessarily impairs trial court
discretion to impose just punishment under the Three Strikes law by dismissing
prior conviction allegations or findings selectively, on a count-by-count basis.
Under the majority’s holding, the affected counts are at once inside and outside the
purview of the Three Strikes law. Agreeing with the Court of Appeal here, I
would hold that the affected counts are not subject to either the term-doubling or
the mandatory-consecutive-sentencing requirements of the Three Strikes law.
KENNARD,
J.
I CONCUR:
WERDEGAR, J.
6

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Casper
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 105 Cal.App.4th 1373
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S114285
Date Filed: June 3, 2004
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Frederic L. Link

__________________________________________________________________________________

Attorneys for Appellant:

Michael B. McPartland, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Pamela A. Ratner Sobeck, Steven T. Oetting, Anthony Da Silva, Arlene
Aquintey Sevidal and Kevin R. Vienna, Deputy Attorneys General, for Plaintiff and Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael McPartland
P.O. Box 4509
Palm Desert, CA 92261-4509
(760) 776-4243

Kevin R. Vienna
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2204

2

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Opinion Information

Date:	Docket Number:
Thu, 06/03/2004	S114285

Disposition
Jun 3 2004	Opinion: Reversed

Dockets
Mar 14 2003	Record requested
Mar 14 2003	Petition for review filed   by (Atty Gen.) counsel for respondent (People)
Mar 17 2003	Received Court of Appeal record   1 doghouse
Mar 17 2003	Received:   Respondent's Certificate of Word Count.
Apr 23 2003	Petition for Review Granted (criminal case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
May 14 2003	Request for extension of time filed   By Respondent asking until June 23, 2003, to file Respondent's Opening Brief on the Merits.
May 15 2003	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Michael B. McPartland is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty days from the date respondent's opening brief on the merits is filed.
May 22 2003	Extension of time granted   To June 23, 2003 to file Respondent's Opening Brief on the Merits. No further extensions will be granted.
Jun 17 2003	Request for extension of time filed   In San Diego by Respondent asking until July 22, 2003 to file Respondent's Openeing Brief on the Merits.
Jun 27 2003	Extension of time granted   To July 8, 2003 to file Respondent's Opening Brief on the Merits. No further extensions of time will be granted.
Jul 8 2003	Opening brief on the merits filed   In San Diego by Respondent {The People}.
Jul 18 2003	Received:   Respondent's Certificate of Word Count.
Jul 30 2003	Request for extension of time filed   Appellant asking until September 5, 2003 to file Appellant's Answer Brief on the Merits.
Aug 1 2003	Extension of time granted   To September 8, 2003 to file appellant's answer brief on the merits. No further extensions will br granted.
Sep 4 2003	Answer brief on the merits filed   By Appellant {David James Casper}.
Sep 24 2003	Reply brief filed (case fully briefed)   In San Diego by counsel for Respondent {The People}.
Oct 2 2003	Compensation awarded counsel   Atty McPartland
Feb 10 2004	Case ordered on calendar   3-9-04, 1:30pm, S.F.
Mar 9 2004	Cause argued and submitted
Jun 3 2004	Opinion filed: Judgment reversed   and the case remanded to that court for further proceedings consistent with this opinion. Majority Opinion by Brown, J. ----- Joined by George, CJ., Baxter, Chin and Moreno, JJ. Dissenting Opinion by Kennard, J. ----- Joined by Werdegar, J.
Jun 17 2004	Rehearing petition filed   By counsel for appellant {David James Casper}.
Jun 23 2004	Time extended to consider modification or rehearing   To September 1, 2004.
Jul 14 2004	Rehearing denied   Kennard, J,. and Werdegar, J., are of the opinion the petition should be granted.
Jul 14 2004	Remittitur issued (criminal case)
Jul 28 2004	Received:   Rceipt for remittitur from DCA Div 1.
Jul 28 2004	Returned record   To 4 DCA Div. One (two doghouses)
Aug 18 2004	Compensation awarded counsel   Atty McPartland

Briefs
Jul 8 2003	Opening brief on the merits filed
Sep 4 2003	Answer brief on the merits filed
Sep 24 2003	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website