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, 258 Cal.Rptr.3d 508 ( Marcus ); People v. Gangl (2019) 42 Cal.App.5th 58, 69–71, 254 Cal.Rptr.3d 784 ( Gangl ); People v. Buchanan (2019) 39 Cal.App.5th 385, 391–392, 251 Cal.Rptr.3d 803 ( 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.
Henderson cites several cases that have agreed with his position. (See People v. Marcus (2020) 45 Cal.App.5th 201, 258 Cal.Rptr.3d 508 ( Marcus ); People v. Gangl (2019) 42 Cal.App.5th 58, 254 Cal.Rptr.3d 784 ( Gangl ); People v. Buchanan (2019) 39 Cal.App.5th 385, 251 Cal.Rptr.3d 803 ( Buchanan ); People v. Torres (2018) 23 Cal.App.5th 185, 232 Cal.Rptr.3d 614 ( Torres ).) In three of these cases, however, a dissenting justice agreed with the People's position.
This is defendant Demetrious Montrail Marcus's second appeal. In our prior opinion, People v. Marcus (2020) 45 Cal.App.5th 201 (Marcus), we affirmed defendant's convictions but remanded for resentencing. On remand, the trial court resentenced defendant to 20 years in prison and, in doing so, it doubled the base sentence for defendant's convictions pursuant to the Three Strikes law.
We recognize, as did the Henderson court, that other courts have interpreted amended section 1170.12, subdivision (a)(7) differently. (Marcus, supra, 45 Cal.App.5th 201, People v. Gangl (2019) 42 Cal.App.5th 58 (Gangl); People v. Buchanan (2019) 39 Cal.App.5th 385 (Buchanan); People v. Torres (2018) 23 Cal.App.5th 185 (Torres).
"Rules of statutory construction obligate us to read a statute, and its various subdivisions, as a cohesive whole." (People v. Marcus (2020) 45 Cal.App.5th 201, 213-214.)
In other words, "[b]ecause there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices." ( People v. Marcus (2020) 45 Cal.App.5th 201, 214, 258 Cal.Rptr.3d 508 ; see Sanchez, supra , 230 Cal.App.3d at p. 774, 281 Cal.Rptr. 459 [remanding for full resentencing when trial court erroneously imposed concurrent prison term on conviction of felony defendant committed while out on bail for prior felony].)
In every published opinion in which a defendant has challenged consecutive sentences on the basis that the trial court misunderstood its discretion under the Three Strikes law, there was indication in the record that the trial court in fact believed the Three Strikes law mandated consecutive sentencing. (See Henderson, supra, 54 Cal.App.5th at p. 620 [trial court stated the" 'three strikes law requires that on serious or violent felonies, two or more, that they be sentenced consecutively' "]; People v. Marcus (2020) 45 Cal.App.5th 201, 208 [trial court "agreed" that it "lacked discretion to sentence defendant concurrently"]; People v. Gangl (2019) 42 Cal.App.5th 58, 64, fn. 6 ["trial counsel conceded that consecutive sentences were mandatory"]; People v. Torres (2018) 23 Cal.App.5th 185, 196 [Three Strikes statutes" 'mandate the full term consecutive sentences' "].) Thus, in each of these cases, the reviewing court appropriately considered whether the trial court misunderstood its discretion.
Our sister courts are split on this question, which is currently before the California Supreme Court. (See People v. Henderson (2020) 54 Cal.App.5th 612, 621, review granted, Dec. 23, 2020 [holding that "Proposition 36 eliminated the trial court's discretion to impose concurrent sentences on multiple current serious or violent felony convictions"]; but see People v. Marcus (2020) 45 Cal.App.5th 201 [holding that court retains discretion]; People v. Gangel (2019) 42 Cal.App.5th 58 [same]; People v. Buchanan (2019) 39 Cal.App.5th 385 [same]; Torres, supra, 23 Cal.App.5th 185 [same].) We need not reach this issue, as we determine that the convictions here were not committed on the same occasion and did not arise from the same set of operative facts.
After the sentencing in this case, this court issued two opinions stating agreement with Torres. (People v. Gangl (2019) 42 Cal.App.5th 58, 71 [“we agree with our colleagues in Torres that trial courts have the discretion to impose concurrent sentences on serious and violent felony convictions committed on the same occasion and arising from the same operative set of facts”]; People v. Marcus (2020) 45 Cal.App.5th 201, 211-214 [same]; but see People v. Henderson (2020) 54 Cal.App.5th 612, 621-627, review granted December 23, 2020, S265172 [Proposition 36 eliminated the trial court's discretion to impose concurrent sentences on multiple current serious or violent felony convictions].) “Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion.”
Our sister courts are split on this question, which is currently before the California Supreme Court. (See People v. Henderson (2020) 54 Cal.App.5th 612, 621, review granted, Dec. 23, 2020 [holding that "Proposition 36 eliminated the trial court's discretion to impose concurrent sentences on multiple current serious or violent felony convictions"]; but see People v. Marcus (2020) 45 Cal.App.5th 201 [holding that court retains discretion]; People v. Gangel (2019) 42 Cal.App.5th 58 [same]; People v. Buchanan (2019) 39 Cal.App.5th 385 [same]; Torres, supra, 23 Cal.App.5th 185 [same].) We need not reach this issue, as we determine that the convictions here were not committed on the same occasion and did not arise from the same set of operative facts.