Filed 2/1/23
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LEVEL OMEGA HENDERSON,
Defendant and Appellant.
S265172
Second Appellate District, Division Seven
B298366
Los Angeles County Superior Court
BA437882
ORDER MODIFYING OPINION
THE COURT:
The petition for rehearing is ordered refiled as a request
for modification of the opinion. The opinion in this matter,
filed on November 17, 2022, and appearing at 14 Cal.5th 34, is
modified as follows:
1. On page 56, the seventh sentence of the first full
paragraph stating, “The term for robbing the patron would be
one-third of the midterm, doubled,” is deleted.
1
2. On page 56, in the first full paragraph, before the final
sentence that begins, “As in the prior example,” insert the
following:
If imposed consecutively, the term for robbing the patron
would be one-third of the midterm, doubled. If the court
runs the term concurrently, it would impose a full base
term, doubled. (See §§ 669, subd. (a); 1170, subd. (a)(3).
This modification does not affect the judgment.
2
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LEVEL OMEGA HENDERSON,
Defendant and Appellant.
S265172
Second Appellate District, Division Seven
B298366
Los Angeles County Superior Court
BA437882
November 17, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger,
Groban, Jenkins, and Guerrero concurred.
PEOPLE v. HENDERSON
S265172
Opinion of the Court by Corrigan, J.
This case considers if and when a court may impose
concurrent sentences in cases falling under the habitual
criminal, or “Three Strikes,” sentencing scheme. People v.
Hendrix (1997) 16 Cal.4th 508, 512 (Hendrix) observed that
scheme required imposition of consecutive sentences for
multiple current felonies that were not “committed on the same
occasion” or did not “aris[e] from the same set of operative facts.”
(Pen. Code, §§ 667, subd. (c)(6); 1170.12, subd. (a)(6).) It
clarified, however, that a trial court retained discretion to
impose concurrent terms for those felonies that were committed
on the same occasion or arose from the same set of operative
facts, even if the felonies qualified as serious or violent. (See
Hendrix, at pp. 513–514.) The question here is whether
Proposition 36, the Three Strikes Reform Act of 2012
(Proposition 36, the Reform Act, or the Act), changed the law
and stripped sentencing courts of that discretion, thus
abrogating the Hendrix rule. We conclude the Reform Act did
not have that effect. Following Proposition 36, the court retains
its Hendrix concurrent sentencing discretion, and the total
sentence imposed for multiple current counts of serious or
violent felonies must be ordered to run consecutively to the term
imposed for offenses that do not qualify as serious or violent
felonies. We reverse the Court of Appeal’s contrary judgment
and remand with directions to order a new sentencing hearing.
1
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
I. BACKGROUND
While working at an apartment complex in Los Angeles,
William Aguilar saw defendant Level Omega Henderson and
the manager, Daniel Tillett, trading blows in the courtyard.
Aguilar called police when he saw defendant walk to his car and
retrieve a gun. Tillet and his girlfriend were standing in the
courtyard when defendant returned holding the weapon. He hit
Tillet in the head with the gun butt and punched him with his
other hand. When the girlfriend began yelling, defendant
pointed the gun at her and Aguilar. Aguilar ran and flagged
down a police car. Officers saw defendant strike Tillett several
times, run into a vacant apartment, then emerge a few minutes
later, unarmed. A handgun was recovered from an atrium
directly below the apartment window.
Defendant was charged with assault by means of force
likely to produce great bodily injury, possession of a firearm by
a felon, and two counts of assaulting Tillett and Aguilar with a
semiautomatic firearm.1 The information also alleged
defendant had suffered four prior strike and two prior serious
felony convictions, and had served four prior prison terms.2 The
1
See Penal Code sections 245, subdivisions (a)(4), (b);
29800, subdivision (a)(1). The information also alleged that
defendant had possessed a firearm after being convicted of a
violent felony (Pen. Code, § 29900, subd. (a)(1)), but the court
dismissed this count on the People’s motion. Defendant was not
charged with assaulting Tillet’s girlfriend.
2
See Penal Code sections 667, subdivisions (a)(1), (b)–(i);
1170.12; 667.5, subdivision (b). Both the Three Strikes law and
the prior serious felony enhancement statute share the same
definition of what constitutes a prior serious felony conviction.
(Pen. Code, § 1192.7, subd. (c); see Pen. Code, §§ 667, subds.
2
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
jury convicted defendant as charged, and, in a bifurcated
proceeding, the court found the prior conviction allegations to be
true. On defendant’s motion, the trial court struck all of the
prior conviction allegations except for one prior strike and one
prior serious felony conviction. It sentenced defendant as a
second striker (see Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd.
(c)(1)), imposing the upper term of nine years for one
semiautomatic firearm assault, doubled to 18 years; a
consecutive four-year term for the second assault (one third the
midterm doubled); and five years for the prior serious felony
conviction. The total term imposed was 27 years.3 With respect
to consecutive sentencing for the assaults on Aguilar and Tillett,
the court said, “[T]he Three Strikes law requires that on serious
or violent felonies, two or more, that they be sentenced
consecutively.”
On appeal, defendant argued the trial court erroneously
believed it had no discretion to impose concurrent terms for the
assaults on Aguilar and Tillett, even though they occurred on
the same occasion. (See Pen. Code, §§ 667, subd. (c)(6), 1170.12,
subd. (a)(6).) The Court of Appeal affirmed, concluding the court
lacked discretion to impose concurrent terms on multiple serious
or violent felonies after passage of the Reform Act. (See People
(a)(4), (d)(1); 1170.12, subd. (b)(1).) “[T]he trial court may use
the prior convictions both under the Three Strikes law and as
serious felony enhancements.” (People v. Acosta (2002) 29
Cal.4th 105, 139, fn. 4; see People v. Dotson (1997) 16 Cal.4th
547, 554–560.
3
The court stayed imposition of sentence on the other two
counts as required under Penal Code section 654, subdivision
(a).
3
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
v. Henderson (2020) 54 Cal.App.5th 612, 620–627 (Henderson).
We reverse.
II. DISCUSSION
A. Structure and Evolution of the Three Strikes
Law and Clarification of Terms
The Three Strikes law was “[e]nacted ‘to ensure longer
prison sentences and greater punishment for those who commit
a felony and have been previously convicted of serious and/or
violent felony offenses’ (Pen. Code, former § 667, subd. (b), as
amended by Stats. 1994, ch. 12, § 1, pp. 71, 72), [and] ‘consists
of two, nearly identical statutory schemes.’ ” (People v. Conley
(2016) 63 Cal.4th 646, 652.) In March 1994, the Legislature
codified its version of the Three Strikes law by adding
subdivisions (b) through (i) to Penal Code4 section 667. A ballot
initiative in November of the same year added a new provision,
section 1170.12. These two parallel enactments have reposed,
somewhat cumbersomely, in the code since that time.5
Proposition 36 made amendments to various provisions of both
sections 667 and 1170.12. However, the amendments did not
treat the language regarding consecutive sentences in the same
way. This disparate amendatory treatment lies at the heart of
the dispute here.
Generally, the Three Strikes law “increases punishment
for second strike defendants by doubling any determinate terms
they otherwise would have received . . . .” (People v. Sasser
(2015) 61 Cal.4th 1, 11.) Third strike offenders were made
4
Subsequent statutory references will be to the Penal Code.
5
For a more extended discussion of the history of the Three
Strikes law, see People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 504–506 (Romero).
4
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
subject to an indeterminate life sentence for the current felony.
(See Teal v. Superior Court (2014) 60 Cal.4th 595, 596.
The parsing of legislative and initiative language requires
application of a variety of terms. We pause at the outset to
provide some context. The Three Strikes law is a separate
sentencing scheme. As the court explained in Romero: “The
Three Strikes law, when applicable, takes the place of whatever
law would otherwise determine a defendant’s sentence for the
current offense.” (Romero, supra, 13 Cal.4th at p. 524.) The
totality of the Three Strikes law is not found in a single free-
standing section of the Penal Code. Instead, it has been
implemented by the addition or amendment of various, often
cross-referenced, provisions.
The Three Strikes scheme comes into play when a
defendant is charged with new felony offenses but has
previously been convicted of designated serious or violent
felonies. Although these prior convictions are sometimes
referred to as “strikes,” the Three Strikes law itself does not use
that term, instead defining “serious” or “violent” felonies with
specificity.6 Serious felonies are defined in section 1192.7,
6
Some of the legislative and initiative history, as well as
cases interpreting the law, refer to “strikes,” but that term
seldom appears in the Penal Code. In the ballot materials
regarding Proposition 36, the Legislative Analyst explained the
distinctions between serious and violent felonies in the Three
Strikes law: “Existing law classifies some felonies as ‘violent’ or
‘serious,’ or both. Examples of felonies currently defined as
violent include murder, robbery, and rape. While almost all
violent felonies are also considered serious, other felonies are
defined only as serious, such as assault with intent to commit
robbery. Felonies that are not classified as violent or serious
5
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
subdivision (c), while the violent felony definition appears in
section 667.5, subdivision (c).7 There is substantial overlap
between the two defining lists. (See Hendrix, supra, 16 Cal.4th
at p. 514.) The previously suffered convictions that subject a
defendant to the Three Strikes scheme are often referred to as
prior convictions, and are distinguished from newly filed
charges, referred to as current felonies.
In order to constitute a “strike,” a prior conviction must
qualify under the statutory definitions of a serious or violent
felony. Under the original Three Strikes provisions, a person
who had been convicted of two prior strike offenses was subject
to an indeterminate life sentence if later convicted of any new
felony. (See People v. Frierson (2017) 4 Cal.5th 225, 230.) After
passage of Proposition 36, however, the requirement of
indeterminate life sentences for a defendant with two prior
strikes does not apply to all current felonies. Instead, a life term
is only authorized when the new offense is also a serious or
violent felony or when the defendant’s past or current offenses
fall under provisions of amended sections 667 or 1170.12.8 In
order to effect these changes, Proposition 36 added virtually
identical language to sections 667 and 1170.12. (See §§ 667,
include grand theft (not involving a firearm) and possession of a
controlled substance.” (Voter Information Guide, Gen. Elec.
(Nov. 6, 2012) analysis of Prop. 36 by Legis. Analyst, p. 48.
7
Offenses are described in terms of the kind of crime and,
in some cases, degree, circumstances of commission,
characteristics of the victim, and other factors.
8
Those provisions include: some current drug offenses and
sex crimes; current crimes involving the arming with or use of a
firearm, or the intent to inflict great bodily injury; or prior
strikes for a subset of enumerated serious or violent felonies.
6
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
subd. (e)(2)(C); 1170.12, subd. (c)(2)(C).) A new indictment or
information may include allegations charging both serious
and/or violent felonies, as well as other felonies that do not
qualify under those definitions. Here, we will sometimes refer
to prior convictions for serious or violent felonies as “strike
priors” or “prior strike convictions.” We sometimes refer to new
felony charges that qualify as serious or violent felonies as
“qualifying offenses.”
The trial court here found, in a bifurcated phase of trial,
that defendant had suffered four prior strike convictions. If
those true findings were allowed to stand, the Three Strikes
scheme would have required indeterminate life sentences for
each of the automatic weapon assaults on Aguilar and Tillett.
(See §§ 667, subds. (d)(1), (e)(2)(A); 1170.12, subds. (b)(1),
(c)(2)(A); 1192.7, subd. (c)(31).) However, Romero clarified that
a sentencing court has discretion to dismiss findings as to prior
convictions, in furtherance of justice, under the authority of
section 1385, subdivision (a). (See Romero, supra, 13 Cal.4th at
pp. 507–532.) The result of such a dismissal is that a defendant
with two or more strike priors and a conviction for a new
qualifying offense may be removed from the strictures of the
Three Strikes scheme altogether if all of his strike priors are
dismissed, or he may be sentenced as a “second striker” if only
one strike prior remains in connection with a newly charged
qualifying offense. The sentencing court here adopted the latter
approach.
Under both the determinate sentencing law (see § 1170
and the Three Strikes scheme, when a defendant stands newly
convicted of multiple offenses, the court must generally decide
whether sentences on each count will be ordered to run
consecutively or concurrently to some or all of the others. (See
7
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
§§ 1170, subd. (a); 1170.1, subd. (a); 1170.3; Cal. Rules of Court,
rule 4.425; People v. Sandoval (2007) 41 Cal.4th 825, 850–851.
Here again, the Three Strikes scheme imposes restrictions on
that sentencing choice. (See §§ 667, subd. (c)(6), (7); 1170.12,
subd. (a)(6), (7).) It is the scope of that consecutive/concurrent
restriction that is at issue here. As the Romero court noted, both
versions of the Three Strikes law were intended to “restrict
courts’ discretion in sentencing repeat offenders. . . . But to say
the intent of a law was to restrict judicial discretion begs the
question of how judicial discretion was to be restricted. The
answer to that question can be found only by examining the
language of the act” (Romero, supra, 13 Cal.4th at p. 528) or,
here, the language of the Reform Act.
B. Hendrix, Consecutive Sentencing, and the
Extent of Discretion
When the Three Strikes scheme applies, sentences for
current qualifying offenses must be ordered to run consecutively
to each other if the current offenses occur on separate occasions
and do not arise from the same set of operative facts. (See
§§ 667, subd. (c)(6); 1170.12, subd. (a)(6).) People v. Lawrence
(2000) 24 Cal.4th 219 explained that, for section 667,
subdivision (c)(6) purposes, felonies are committed “on the same
occasion” if they were committed within “close temporal and
spacial proximity” of one another. (Lawrence, at p. 233.
Offenses arise “from the same set of operative facts” when they
“shar[e] common acts or criminal conduct that serves to
establish the elements of the current felony offenses of which
defendant stands convicted.” (Ibid.) Here, it is undisputed that
the assaults on Tillis and Aguilar were committed “on the same
occasion.” To avoid unnecessary repetition, we will not always
repeat the “same set of operative facts” formulation. But the
8
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
“same occasion” analysis we employ here would apply equally
when multiple felonies are committed under the “same set of
operative facts.”
To make these applications less abstract, consider a
hypothetical defendant who has two prior strikes and is then
convicted of robbing two stores, on two different days, as well as
two separate and unrelated counts of auto theft. The
defendant’s current robberies are qualifying offenses and the
prior strikes bring him under the Three Strikes scheme. Using
its authority under section 1385, subdivision (a), the court
dismisses one strike. (See Romero, supra, 13 Cal.4th at pp. 529–
532.) As a result, the defendant will be sentenced as a “second
striker” rather than be subject to an indeterminate life term. As
we explain below, the two robbery sentences must be ordered to
run consecutively to each other because they occurred on
separate occasions. A second question is whether the total
consecutive robbery sentences must be ordered to run
consecutively to the auto theft terms.
Contrast that scenario with an alternative one. The
defendant has two prior strikes. His charged offenses result in
convictions for two separate felony auto thefts and two counts of
robbery. The robberies occurred when he went into a store,
robbed the clerk and, on his way out, also robbed a patron. The
court dismisses one strike, so an indeterminate life term is not
called for. If the Hendrix rule continues to apply, the court
would have discretion to order the robbery sentences to be
served concurrently because they were committed on the same
occasion. Again, the question remains whether the total robbery
sentences must run consecutively to the nonqualifying auto
theft sentences.
9
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
In evaluating the extent of consecutive sentencing
discretion, Hendrix focused its attention on subdivision (c)(6
and (c)(7) of section 667, the legislative version of the Three
Strikes law. At the time, the initiative version, section 1170.12,
subdivision (a)(6) and (a)(7), contained identical language on
this topic, so a separate consideration was not needed. As we
explain in greater detail below, the Reform Act amended the
relevant provisions of section 1170.12 dealing with consecutive
sentencing but did not modify the corresponding provisions of
section 667. It is the significance of Proposition 36’s treatment
of the separate legislative and initiative versions of the Three
Strikes scheme that is in dispute. We first discuss Hendrix, then
consider whether the new language of the Reform Act abrogates
the Hendrix rule.
The question in Hendrix was whether, in sentencing a
Three Strikes defendant, the court must always impose
consecutive sentences for every current qualifying felony or
whether it retained discretion to order some terms to run
concurrently. Hendrix looked to the language of section 667,
subdivision (c)(6) and (c)(7) to resolve the question. These
provisions stated, as they do now, “(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) [describing enhanced
sentences called for under the Three Strikes scheme]. [¶] (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
10
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
sentenced in the manner prescribed by law.” (§ 667, subd. (c)(6)–
(7), italics added.
Hendrix explained that, by its terms, subdivision (c)(6
required the imposition of consecutive sentences for each
current felony not committed on the same occasion and not
arising from the same set of operative facts. (See Hendrix,
supra, 16 Cal.4th at p. 512.) Conversely, “[b]y implication,
consecutive sentences are not mandatory under subdivision
(c)(6) if the multiple current felony convictions are ‘committed
on the same occasion’ or ‘aris[e] from the same set of operative
facts.’ ” (Id. at pp. 512–513.) In those circumstances, the court
has discretion to impose concurrent terms.
Section 667, subdivision (c)(7), on the other hand, does not
refer simply to a conviction for multiple felonies. Instead, it
specifically addresses multiple serious or violent felonies, i.e.,
qualifying felonies. Under that provision, when a current
sentence is imposed for qualifying felonies “as described in
paragraph (6),” they must be ordered to run consecutively to the
sentence for “any other conviction.” (§ 667, subd. (c)(7).) Some
parsing is required here. Under subdivision (c)(7), the
qualifying felony “described in paragraph (6)” is one that
occurred on a separate occasion and did not arise from the same
set of operative facts. A sentence for those qualifying felonies
was required to run consecutively to “ ‘any other conviction.’ ”
(Hendrix, supra, 16 Cal.4th at p. 514.
The Hendrix holding itself provides only part of the
resolution for this case. Hendrix had approached four people
sitting together at a shopping center, pointing a gun at them and
demanding money. Two victims complied and two said they had
no money. Hendrix was convicted of two counts of robbery and
11
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
two of attempted robbery, all with the use of a firearm. All four
substantive offenses were qualifying felonies. Hendrix admitted
three serious felony convictions, bringing him under the Three
Strikes scheme, and was sentenced to four consecutive life
terms, with additional determinate terms for enhancements.
(See Hendrix, supra, 16 Cal.4th at pp. 510–511.
Because all the offenses at issue in Hendrix were
committed against separate victims but on the same occasion,
the question was whether the court had the discretion to order
those sentences to run concurrently to each other. The Hendrix
court held that it did have that discretion based on the language
of section 667, subdivision (c)(6) and (c)(7). Hendrix explained
that subdivision (c)(6) encompassed sentences imposed for all
felonies, qualifying or not, but required consecutive sentencing
only for felonies committed on separate occasions and not
arising from the same set of operative facts. Subdivision (c)(7
also imposed a consecutive sentencing mandate but only as to
qualifying felonies. Additionally, the reference in subdivision
(c)(7) to serious or violent felonies “as described in
paragraph (6)” incorporated the same occasion/operative facts
limitation to the consecutive sentencing proviso for qualifying
felonies. (Hendrix, supra, 16 Cal.4th at p. 513.
Thus, under Hendrix, if a Three Strikes defendant is
convicted of current qualifying felonies that were not committed
on the same occasion or under the same set of operative facts,
the court is required to impose the serious or violent felony
terms consecutive to each other and those terms must also be
ordered to run consecutively to any other terms imposed for
nonqualifying offenses as well. (Hendrix, supra, 16 Cal.4th at
pp. 513–514.) But in Hendrix, the serious or violent felonies
were all committed on the same occasion. As a result, the
12
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
consecutive sentencing mandate of subdivision (c)(7) did not
apply and the court had discretion to impose sentences on those
qualifying offenses either consecutively or concurrently to each
other under subdivision (c)(6). In Hendrix, there were no
convictions for nonqualifying offenses. However, its discussion
of the import of subdivision (c)(7) clarified that a sentence for
serious or violent felonies not committed on the same occasion
must be ordered to run consecutively to any sentence imposed
for nonqualifying convictions. As we discuss, we apply the
Hendrix analysis to our explication of the rule.
C. The Reform Act, Subsequent Cases, and
Resolution Here
The Reform Act was passed in 2012 as Proposition 36.
Under its terms, and as relevant here, a defendant who has
suffered prior strike convictions still falls under the Three
Strikes scheme. But if the current conviction is not for a serious
or violent felony, the previously required indeterminate life
term was replaced by a double-the-base-term sentence for the
current felony, unless an exception applied. (See discussion
ante.) This modification has a limitation, however. Even if the
current offense was not a serious or violent felony, an
indeterminate life term is still required if either the current
offense or one of the prior strike convictions is for an offense
enumerated in the statutes. (See §§ 667, subd. (e)(2)(C)(i)–(iv);
1170.12, subd. (c)(2)(C)(i)–(iv).) In addition, the Reform Act
made changes to the Three Strikes law consistent with its stated
intent to “[p]revent the early release of dangerous criminals who
are currently being released early because jails and prisons are
overcrowded with low-risk, non-violent inmates serving life
sentences for petty crimes.” (Voter Information Guide, Gen.
Elec., supra, text of Prop. 36, § 1, par. 5, p. 105.
13
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
The Act made amendments to both sections 667 and
1170.12 to achieve these purposes. However, a court’s
concurrent or consecutive sentencing authority was addressed
differently for section 667, the legislative version, and 1170.12,
the initiative version. Section 667, subdivision (c)(6) and (c)(7
were not changed. Thus, the analytical basis for the Hendrix
rule was not affected. Yet, the language of section 1170.12,
subdivision (a)(6) and (a)(7), which previously had been identical
to section 667, subdivision (c)(6) and (c)(7), was partially
modified. Section 1170.12, subdivision (a)(6), pertaining to all
current felonies, regardless of type, remained the same as its
counterpart in the legislative version. It continued to require
consecutive sentencing for each new felony unless the current
offenses were committed on the same occasion or arose from the
same operative facts.
However, as to the consecutive term requirement when
the current offense is a serious or violent felony, section 1170.12,
subdivision (a)(7) was amended. It no longer refers to the
preceding paragraph, subdivision (a)(6), which contains the
same occasion/operative facts language. Instead it now reads:
“If there is a current conviction for more than one serious or
violent felony as described in subdivision (b) [which defines
those felonies], 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 proscribed by law.” (§ 1170.12, subd. (a)(7), italics
added.) As is apparent, the reference to the same
occasion/operative fact exception “as described in paragraph (6)”
was removed from section 1170.12, subdivision (a)(7). The
Attorney General argues that this omission reflects an intent to
remove the Hendrix concurrent sentencing discretion. The
14
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
Attorney General asserts that, after Proposition 36, when a
defendant is sentenced under the Three Strikes scheme, all
sentences for each qualifying felony must run consecutively to
each other, regardless of whether those offenses were committed
on the same occasion or arose from the same set of operative
facts.
Courts of Appeal have disagreed about the effect wrought
by that amendment as it relates to a trial court’s concurrent
sentencing discretion. The Court of Appeal below held the
change in language now forecloses that discretion and requires
that all sentences for qualifying offenses must run consecutively
regardless of whether they were committed on the same
occasion or arose from the same operative facts. It is this
question we granted review to resolve.
The first case to address the issue, People v. Torres (2018
23 Cal.App.5th 185 (Torres), concluded the discretion recognized
in Hendrix survived the Reform Act’s amendments. Three
subsequent published Court of Appeal cases agreed with the
Torres analysis, although with divided panels. (See People v.
Marcus (2020) 45 Cal.App.5th 201, 211–214 (Marcus); People v.
Gangl (2019) 42 Cal.App.5th 58, 69–71 (Gangl); People v.
Buchanan (2019) 39 Cal.App.5th 385, 391–392 (Buchanan).
Dissenting opinions in these subsequent cases maintained that
the change to section 1170.12, subdivision (a)(7) did signal an
intent to remove that discretion, as the Attorney General argues
here. (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. 393–398 (conc. & dis. opn. of Needham, J.).
“ ‘In interpreting a voter initiative . . . , we apply the same
principles that govern statutory construction.’ [Citation.]
15
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
Where a law is adopted 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.’ [Citation.] But the statutory language must also be
construed in the context of the statute as a whole and the overall
statutory scheme. [Citation.] We apply a presumption, as we
similarly do with regard to the Legislature, that the voters, in
adopting an initiative, did so being ‘aware of existing laws at the
time the initiative was enacted.’ ” (People v. Buycks (2018) 5
Cal.5th 857, 879–880 (Buycks); see People v. Raybon (2021) 11
Cal.5th 1056, 1065.
The Reform Act amended section 1170.12, subdivision
(a)(7), replacing its prior reference to subdivision (a)(6), which
set out the same occasion/operative facts proviso. Instead,
subdivision (a)(7) now refers, not to subdivision (a)(6), but to
subdivision (b), which simply defines a serious or violent felony.
The question is whether, by making that change, voters
intended to abrogate the Hendrix rule as to the court’s
concurrent sentencing discretion. Nothing in the ballot
materials speaks directly to voters’ intent on this topic. In
trying to discern the electorate’s intent, the various majority
and dissenting opinions pointed to a variety of linguistic clues
from which that intent might be gleaned. The majority opinions
observed that subdivision (a)(6) remained unchanged and
encompassed all current felony convictions, whether qualifying
or not. As such, the amendment of subdivision (a)(7) made by
the Reform Act only requires that the sentence imposed for
qualifying felonies be ordered to run consecutively to the
sentence imposed for nonqualifying felonies. (See Marcus,
supra, 45 Cal.App.5th at pp. 212–214; Gangl, supra, 42
Cal.App.5th at pp. 69–70; Torres, supra, 23 Cal.App.5th at
16
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
p. 201.) Conversely, the dissenting opinions concluded the
amendment of subdivision (a)(7) swept more broadly. It deleted
the reference to subdivision (a)(6), which contained the same
occasion/operative facts provisions. As a result, they concluded
the amendment reflected an intent that all qualifying current
felonies be sentenced consecutively to each other, whether or not
they were committed on the same occasion or arose from the
same set of operative facts. (See Gangl, supra, 42 Cal.App.5th
at pp. 78–79 (conc. & dis. opn. of Krause, J.); Buchanan, supra,
39 Cal.App.5th at pp. 394–395 (conc. & dis. opn. of Needham,
J.).
The Attorney General argues that because the amended
subdivision (a)(7) no longer refers to subdivision (a)(6), the
foundation for the Hendrix rule no longer exists and its holding
has been abrogated. At the end of the day, the language of the
initiative is simply unclear. “When the language of a statute is
ambiguous — that is, when the words of the statute are
susceptible to more than one reasonable meaning, given their
usual and ordinary meaning and considered in the context of the
statute as a whole — we consult other indicia of the
Legislature’s [or electorate’s] intent, including such extrinsic
aids as legislative history and public policy. [Citations.] If there
is no ambiguity, ‘ “ ‘ “we presume the Legislature meant what it
said and the plain meaning of the statute governs.” ’ ” ’ ” (Union
of Medical Marijuana Patients, Inc. v. City of San Diego (2019
7 Cal.5th 1171, 1184.
We conclude section 1170.12, subdivision (a)(7) is
ambiguous with respect to whether it requires that multiple
qualifying felonies must be sentenced consecutively to each
other. The ambiguity resides in the provision’s use of the term
“conviction.” “If there is a current conviction for more than one
17
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
serious or violent felony as described in 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), italics added.) In suggesting the “plain
language” of the provision now “ ‘require[d] 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’ ” (Henderson, supra, 54 Cal.App.5th
at pp. 623, 624), the Court of Appeal below equated a
“conviction” with an individual count or offense. As such, “each
conviction” for a qualifying felony must be imposed “consecutive
to the sentence for any other conviction,” i.e., other qualifying
felonies. (§ 1170.12, subd. (a)(7); see also Gangl, supra, 42
Cal.App.5th at p. 79 (conc. & dis. opn. of Krause, J.); Buchanan,
supra, 39 Cal.App.5th at p. 397 (conc. & dis. opn. of Needham,
J.).
This interpretation would seem a plausible one consistent
with the colloquial understanding that a “conviction” refers to a
finding of guilt on a single count. (Cf. § 15.)9 However, even
before the Reform Act, section 1170.12, subdivision (a)(6) and
(a)(7) used the term “conviction” as a collective term describing
multiple, relevant counts for which the defendant has been
convicted. Subdivision (a)(6) refers to “a current conviction for
more than one felony count.” (§ 1170.12, subd. (a)(6), italics
added.) Likewise, by stating its mandate applies to “a current
9
Section 15 defines a crime or public offense as “an act
committed or omitted in violation of a law forbidding or
commanding it, and to which is annexed, upon conviction, either
of the following [enumerated] punishments . . . .” (Italics
added.
18
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
conviction for more than one serious or violent felony as
described in subdivision (b)” (italics added), subdivision (a)(7) as
amended continues to use “conviction” to refer collectively to a
grouping of multiple offenses. If “conviction” is so understood,
section 1170.12, subdivision (a)(7)’s rule reads much differently:
the court must impose sentence on “each conviction,” i.e., the
group of current qualifying felonies, consecutively to “any other
conviction,” that is to say the group of any nonqualifying
offenses. Such an interpretation would also seem plausible,
especially in conjunction with the fact that subdivision (a)(6
employs the phrase “each count” in stating its consecutive
sentencing rule, a phrase absent in subdivision (a)(7).
In light of the statutory ambiguity, we look to the overall
context of the initiative, take into account that it was adopted to
reform an existing scheme, and look to the ballot materials as a
tool to deduce voter intent. (See People v. Arroyo (2016) 62
Cal.4th 589, 593.) The overarching stated intent of the Reform
Act appears threefold: 1. To “[r]estore the Three Strikes law to
the public’s original understanding by requiring life sentences
only when a defendant’s current conviction is for a violent or
serious crime” (Voter Information Guide, Gen. Elec., supra, text
of Prop. 36, § 1, p. 105); 2. to punish a current felony more
harshly, but in cases where the current offense is not a serious
or violent felony, to moderate that harsher penalty by requiring
a multiplied base term, as opposed to an indeterminate life term,
unless an exception applies; and 3. to ensure, by virtue of those
exceptions, that particularly designated repeat offenders receive
a life sentence, even if the current offense is not serious or
dangerous felony.
The debate over Proposition 36 did not feature a focus on
the consecutive/concurrent discretion question. As a result, it is
19
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
difficult to discern just what the electorate intended on this topic
or whether they considered it at all. One thing, however, is
clear: By passing the Reform Act, the electorate intended to
mitigate some of the more stringent applications of the Three
Strikes scheme while retaining rigorous penalties for those
offenders whose criminal history reveals they remain a
significant threat to public safety. A new requirement of
mandatory consecutive sentences in cases where it did not exist
before would not be completely inconsistent with that goal but,
as Romero pointed out, “to say the intent of a law was to restrict
judicial discretion begs the question of how judicial discretion
was to be restricted.” (Romero, supra, 13 Cal.4th at p. 528.
We cannot say that the voters spoke with a clear voice on
that topic, particularly when they took pains to make their
intent much more manifest on other aspects of the reforms they
adopted. However, it is significant that the Reform Act did not
alter the specific language granting a court’s discretion to
impose consecutive sentences if, in its judgment, such a penalty
was appropriate, even when current convictions were committed
on the same occasion. (See §§ 667, subd. (c)(6); 1170.12, subd.
(a)(6).) It is also notable that Proposition 36 specifically sets out
when consecutive life sentences are still required for current
felonies, even if those offenses do not qualify as serious or violent
felonies. (See §§ 667, subd. (e)(2)(B); 1170.12, subd. (c)(2)(B)–
(C).) These changes enacted in Proposition 36 reflected a
recalibration of some of the more stringent Three Strikes
requirements. The voters intended to reduce penalties in many
instances when the new felony was not serious or violent.
However, they retained the harsher penalties when either the
new, or previous, offenses were deemed particularly
blameworthy.
20
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
Had the drafters intended to change sentencing discretion
in the same occasion/operative facts context, the drafters were
clearly aware of how to make that intent clear. We also presume
that the voters were aware of the longstanding Hendrix rule
when they passed Proposition 36. “Proposition 36 neither refers
to Hendrix nor states its express intent to overrule long-
standing Supreme Court precedent.” (Marcus, supra, 45
Cal.App.5th at p. 214.) We “ ‘cannot presume that . . . the voters
intended the initiative to effect a change in law that was not
expressed or strongly implied in either the text of the initiative
or the analyses and arguments in the official ballot pamphlet.’ ”
(People v. Valencia (2017) 3 Cal.5th 347, 364.) In light of all
these factors, we cannot discern a clear intent to withdraw
discretion that has been recognized for a quarter century.
D. Arguments by the Attorney General and
Dissenting Opinions
The People’s arguments for a contrary resolution fail. The
Attorney General’s analysis would create an apparent conflict
between section 1170.12, subdivision (a)(6) and (a)(7) as
amended. Subdivision (a)(6), by implication, grants a court
discretion to impose concurrent terms for any current felony
committed on the same occasion. But the Attorney General now
argues that consecutive terms are mandatory under subdivision
(a)(7) for any current qualifying felony whether or not they were
committed on the same occasion. Under the People’s
interpretation, subdivision (a)(6) seemingly grants a court
discretion that subdivision (a)(7) forbids. (See Marcus, supra,
45 Cal.App.5th at pp. 213–214; Torres, supra, 23 Cal.App.5th at
p. 201.
The Court of Appeal below suggested that section 1170.12,
subdivision (a)(6) and (a)(7) could be harmonized by recognizing
21
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
that subdivision (a)(6) sets out a general rule for all felonies,
with subdivision (a)(7) providing an exception that abrogates
that general discretionary authority. (See Henderson, supra, 54
Cal.App.5th at p. 626.) The difficulty is that nothing in the
language of these provisions supports an interpretation that
section 1170.12, subdivision (a)(6) specifies a “general” rule and
subdivision (a)(7) an exception. That interpretation would seem
at odds with the structure of subdivision (a) generally. As
Marcus observed, under standard rules of statutory
construction, we “read a statute, and its various subdivisions, as
a cohesive whole.” (Marcus, supra, 45 Cal.App.5th at pp. 213–
214.) Subdivision (a) provides that “[n]otwithstanding 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 serious
or violent felony convictions, as defined in subdivision b, the
court shall adhere to each of the following.” (§ 1170.12, subd.
(a), italics added.) The statute then lists various provisions to
which the court must adhere. These provisions forbid a grant of
probation or diversion, require imposition of a prison sentence,
limit prison conduct credits, ban consideration of the lapse of
time between the strike and current offenses, and eliminate
limits for consecutive sentences on subsequent convictions. (See
§ 1170.12, subd. (a)(1)–(a)(5).) None of these individual
subdivisions refer to any other or suggest that any states a
“general” rule while some other provision states an exception.
Indeed, by providing that the rules enumerated in subdivision
(a) apply “[n]otwithstanding any other law,” the statutory
scheme clearly requires that the Three Strikes framework takes
precedence over any conflicting provision. By contrast, when
the Reform Act amended subdivision (a)(7), it did not use the
formulation “notwithstanding subdivision (a)(6),” or any other
22
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
provision. This omission strongly suggests that the drafters did
not consider the two subdivisions to be in conflict or intended
that they be so understood.
As Marcus reasoned, “subdivision (a)(6) continues to apply
to all felonies” (Marcus, supra, 45 Cal.App.5th at p. 214), and
makes no reference to an exception. Similarly, subdivision (a)(7
contains no language suggesting it would apply notwithstanding
that subdivision (a)(6) would appear to support a contrary rule.
“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 [change] 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.” (Marcus, at p. 214.
Following the Reform Act, the rules as to consecutive
sentencing apply as follows. When a strike defendant is
convicted of any group of new felony offenses, the sentence
imposed for each felony count must run consecutively to all the
others not committed on the same occasion. The court retains
discretion to impose concurrent sentences for new offenses,
whether qualifying felonies or not, that were committed on the
same occasion.
One further variation occurs when a defendant stands
convicted of a group of new qualifying offenses along with
nonqualifying offenses. In that circumstance, new terms for all
felonies committed on separate occasions must run
consecutively to each other under section 1170.12, subdivision
23
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
(a)(6). Additionally, under subdivision (a)(7), the total term for
all qualifying offenses must run consecutively to the total term
imposed for nonqualifying offenses.10
We return, then, to the contrasting examples set out
above. (See ante, at p. 9.) In the first example, a defendant with
two prior strikes is newly convicted of robbing two stores on two
different days, as well as two separate and unrelated counts of
auto theft. His current second degree robberies are qualifying
offenses and the prior strikes bring him under the Three Strikes
scheme. Using its authority under section 1385, subdivision (a),
the court dismisses one strike. (See Romero, supra, 13 Cal.4th
at pp. 529–532.) Under the interpretation we adopt here, the
court would sentence him on the first robbery to a base term
chosen from the available determinate sentencing triad of two,
three, or five years (§ 213, subd. (a)(2)), doubled because of the
remaining strike prior. The term for the second robbery would
be one-third of the midterm, doubled, resulting in a two-year
term. (§ 1170.1, subd. (a).) The two-year term must be ordered
to run consecutively to the first because both offenses were
committed on separate occasions and did not arise from the
10
The Attorney General argues, and the Court of Appeal
here reasoned, that removing the court’s Hendrix concurrent
sentencing authority is consistent with the Reform Act’s stated
intent to punish more harshly those convicted of current serious
or violent felonies. (Henderson, supra, 54 Cal.App.5th at p. 627;
see Buchanan, supra, 39 Cal.App.5th at pp. 395–396 (conc. &
dis. opn. of Needham, J.).) However, as explained, under the
interpretation we adopt here, those defendants with multiple
qualifying felonies will be treated more harshly by virtue of the
consecutive sentences that will still be required for both
qualifying and nonqualifying felonies. Proposition 36’s general
statement of intent is thus given effect.
24
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
same set of operative facts. (§§ 667, subd. (c)(6); 1170.12, subd.
(a)(6).) The felony auto thefts are not qualifying offenses, but
the court must also order the robbery sentences to be served
consecutively to “any other conviction,” which would include
terms imposed for the auto thefts. (§ 1170.12, subd. (a)(7).) The
auto theft sentences called for by the standard determinate
sentencing statutes can be ordered to run consecutively or
concurrently to each other. If the court chooses the upper term
for the first robbery, it would order the defendant to serve a total
of 12 years (10 years plus two years) for the two qualifying
robberies consecutive to the combined sentence imposed for the
auto thefts.
In the second example, the defendant has two prior
strikes. His charged offenses result in convictions for two
separate felony auto thefts and two counts of second degree
robbery. The robberies occurred when he went into a store,
robbed the clerk and, on his way out, also robbed a patron. The
court dismisses one strike, and none of the exceptions in section
1170.12 subdivision (c) apply, so an indeterminate life term is
not called for. Sentencing would progress as follows. The term
for the robbery of the clerk would be the base term chosen from
the triad, then doubled. The term for robbing the patron would
be one-third of the midterm, doubled. The two robberies are
qualifying offenses, but they were committed on the same
occasion. As a result, under subdivision (a)(6), the court would
have the discretion to order the sentence for each robbery to run
either consecutively or concurrently to each other. (Hendrix,
supra, 16 Cal.4th at pp. 513–514.) As in the prior example, the
auto thefts would not be qualifying offenses, but whatever
sentence is imposed for the qualifying robberies must be ordered
25
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
to run consecutively to the total term imposed for the auto
thefts.
In sum, we conclude that, after the Reform Act, a trial
court retains the Hendrix concurrent sentencing discretion
when sentencing on qualifying offenses committed on the same
occasion or arising from the same set of operative facts. Because
the trial court’s comments at sentencing suggested it did not
believe it had that discretion, we remand the matter for a new
sentencing hearing. (See Buycks, supra, 5 Cal.5th at pp. 893–
895.) At that hearing, the full resentencing rule, which “allows
a court to revisit all prior sentencing decisions when
resentencing a defendant” (People v. Valenzuela (2019) 7 Cal.5th
415, 424–425), applies. Further, because “ ‘a defendant should
not be required to risk being given greater punishment . . . for
the privilege of exercising his right to appeal’ ” (People v. Hanson
(2000) 23 Cal.4th 355, 359, quoting People v. Ali (1967) 66 Cal.2d
277, 281), the court on remand may not impose an aggregate
sentence greater than the one defendant initially received.
26
PEOPLE v. HENDERSON
Opinion of the Court by Corrigan, J.
III. DISPOSITION
The judgment of the Court of Appeal is reversed with
directions to remand the matter to the superior court for a new
sentencing hearing.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
27
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Henderson
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 54 Cal.App.5th 612
Review Granted (unpublished)
Rehearing Granted
Opinion No. S265172
Date Filed: November 17, 2022
Court: Superior
County: Los Angeles
Judge: Fred N. Wapner
Counsel:
Rudolph J. Alejo, under appointment by the Supreme Court, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle, Blythe J. Leszkay, Kristen J. Inberg
and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Rudolph J. Alejo
Attorney at Law
520 South Grand Avenue, Unit 400
Los Angeles, CA 90071
(510) 842-5356
Kimberley A. Donohue
Deputy Attorney General
1300 I Street
Sacramento, CA 95814
(916) 210-6135
Opinion Information
| Date: | Docket Number: |
| Thu, 02/02/2023 | S265172M |
