Following Proposition 36, a sentencing court retains its Hendrix concurrent sentencing discretion

People v. Henderson (Cal., Nov. 17, 2022, No. S265172) 2022 WL 16985422, at *1

Summary: May a court 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. 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 so that sentencing courts no longer have that discretion, abrogating the Hendrix rule. The California Supreme Court reversed the Court of Appeal’s decision and concluded 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.

Facts: Henderson was convicted of assault by means of force likely to produce great bodily injury, possession of a firearm by a felon, and two counts of assault  with a semiautomatic firearm.The information also alleged he had four prior strike and two prior serious felony convictions, and had served four prior prison terms. The court found the prior conviction allegations to be true. The  trial court struck all of the prior conviction allegations except for one prior strike and one prior serious felony conviction. It sentenced Henderson 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. With respect to consecutive sentencing for the assaults, 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, Henderson 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 v. Henderson (2020) 54 Cal.App.5th 612, 620–627 (Henderson).)

Three Strikes Law

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’ In March 1994, the Legislature codified its version of the Three Strikes law by adding subdivisions (b) through (i) to Penal Code section 667. A ballot initiative in November of the same year added a new provision, section 1170.12. Proposition 36 made amendments to various provisions of both sections 667 and 1170.12.

Generally, the Three Strikes law “increases punishment for second strike defendants by doubling any determinate terms they otherwise would have received ….” Third strike offenders were made subject to an indeterminate life sentence for the current felony.

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. 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.

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. Felonies are committed “on the same occasion” if they were committed within “close temporal and spacial proximity” of one another. 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.”  Here,  the assaults were committed “on the same occasion.”

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. Here,  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. 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, the court on remand may not impose an aggregate sentence greater than the one defendant initially received.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.