Opinion
C087059
02-13-2020
The PEOPLE, Plaintiff and Respondent, v. Demetrious Montrail MARCUS, Defendant and Appellant.
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.
Certified for Partial Publication.
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.
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.
Duarte, Acting P. J. In People v. Hendrix (1997) 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64 ( 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In the unpublished portion of our opinion, we analyze defendant’s remaining claims of error and conclude that prejudicial error does not appear, but the case must be remanded for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 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) 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).
Further undesignated statutory references are to the Penal Code.
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).) In bifurcated proceedings, the jury found the prior strike, prior serious felony, and prior prison term allegations true.
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.
After denying defendant’s Romero 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. DISCUSSION
People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.
See footnote *, ante .
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, 232 Cal.Rptr.3d 614 ( Torres ).) " ‘Both versions of the statute were substantially revised by Proposition 36, enacted by the voters on November 6, 2012 ....’ " ( Id . at p. 197, 232 Cal.Rptr.3d 614.) 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, 232 Cal.Rptr.3d 614.) 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, 66 Cal.Rptr.2d 431, 941 P.2d 64.)
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, 66 Cal.Rptr.2d 431, 941 P.2d 64.) 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.’ " ( Id . at pp. 512-513, 66 Cal.Rptr.2d 431, 941 P.2d 64, italics added.)
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, 20 Cal.Rptr. 321, 369 P.2d 937 ["all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].)
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, 66 Cal.Rptr.2d 431, 941 P.2d 64.) 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 are committed on the same occasion or arise from the same set of operative facts." ( Hendrix, supra , 16 Cal.4th at p. 513, 66 Cal.Rptr.2d 431, 941 P.2d 64.) 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, 66 Cal.Rptr.2d 431, 941 P.2d 64.) 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:
[¶] ... [¶]
(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." (§ 1170.12, subd. (a)(6) & (7), as amended by Prop. 36, § 4, eff. Nov. 7, 2012, boldface, italics, and strike out added.)
Section 1170.12, subdivision (b) defines "serious and/or violent" felony for purposes of the three strikes law.
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, 232 Cal.Rptr.3d 614, 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, 254 Cal.Rptr.3d 784, 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, 251 Cal.Rptr.3d 803. 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 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. (See Torres , supra , 23 Cal.App.5th at p. 200, 232 Cal.Rptr.3d 614.) 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 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 . )
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, 232 Cal.Rptr.3d 614 ; People v. Buchanan, supra, 39 Cal.App.5th at p. 395, fn. 2, 251 Cal.Rptr.3d 803 (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, 276 Cal.Rptr. 918, 802 P.2d 420 ; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) "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, 217 Cal.Rptr. 685, 704 P.2d 752.) In some cases the text and purpose of a measure reveal a drafting error. (Id . at pp. 775-776, 217 Cal.Rptr. 685, 704 P.2d 752.) Although we do not base our holding on this observation, this may indeed be one of those cases.
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, 66 Cal.Rptr.2d 431, 941 P.2d 64.) 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). 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), 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).
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, 232 Cal.Rptr.3d 614.) 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. )
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, 254 Cal.Rptr.3d 784, 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, 254 Cal.Rptr.3d 784 (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 statute, and its various subdivisions, as a cohesive whole. (See In re Catalano (1981) 29 Cal.3d 1, 10-11, 171 Cal.Rptr. 667, 623 P.2d 228 [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.
4. 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. We vacate the sentence and remand for a new sentencing hearing. Because there 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, 230 Cal.Rptr. 109.)
At sentencing, the trial court found the robbery counts "arose at the same time."
See footnote *, ante .
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.
I concur:
Renner, J.
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, 254 Cal.Rptr.3d 784 (conc. & dis. opn. of Krause, J.) (petn. for review pending, petn. filed Dec. 17, 2019, S259463).