People v. Deloza

• Decision Date: 09 July 1998
• Docket Number: No. S061929,S061929
• Citation: 957 P.2d 945,76 Cal.Rptr.2d 255,18 Cal.4th 585
• Court: California Supreme Court
• Parties: , 957 P.2d 945, 98 Cal. Daily Op. Serv. 5393, 98 Daily Journal D.A.R. 7525 The PEOPLE, Plaintiff and Respondent, v. David DELOZA, Defendant and Appellant

Page 255

76 Cal.Rptr.2d 255

18 Cal.4th 585, 957 P.2d 945, 98 Cal. Daily Op. Serv. 5393,

98 Daily Journal D.A.R. 7525

The PEOPLE, Plaintiff and Respondent, v. David DELOZA, Defendant and Appellant.

No. S061929.

Supreme Court of California

July 9, 1998.

Richard L. Fitzer, Los Angeles, and Gary M. Mandinach, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka, Sanjay T. Kumar, Jaime L. Fuster and Alan D. Tate, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, Justice.

In this case we consider whether the same analysis used to determine if multiple punishment is permitted under PENAL CODE SECTION 654^{1 2} should be used to determine if consecutive sentencing is required by section 1170.12, subdivision (a)(6) and (a)(7) (subdivision (a)(6) and (a)(7)). ³ We conclude these

analyses are not coextensive, and therefore reverse the judgment of the Court of Appeal.

I. FACTS AND PROCEDURAL BACKGROUND

On November 26, 1995, at approximately 4 p.m., defendant David Deloza and an unidentified armed companion entered the Arroyo Furniture store in Highland Park. The gunman pointed the weapon at one of the salespersons, Rafael Gil, and defendant asked him where the money was. Gil pointed toward the assistant manager, Linda Gutierrez. Gutierrez stood up, opened the cash register, and stepped back. Defendant removed approximately $1,200 in cash. Defendant then unsuccessfully searched for additional money in several drawers. He approached another salesperson, Juan Lucataro, and demanded his wallet; defendant removed $200, and tossed the wallet to the ground. During all of this time, the gunman was pointing his weapon at Gil. Gil was then asked for and gave the gunman $10 from his wallet. A customer, Joyce Stinson, approached defendant, who she thought was a salesperson. Defendant demanded her purse. When she failed to immediately comply, he yanked the purse from her shoulder, and he and the gunman fled. The crime was captured on videotape, and defendant was positively identified by the four victims.

Defendant was convicted of four counts of second degree robbery (§ 211), and the allegation that he was armed with a firearm was found true on each count (§ 12022, subd. (a)(1)). In a bifurcated proceeding, the jury also found true the allegations that defendant had suffered two prior serious felony convictions. The trial court sentenced him to state prison for four consecutive terms of twenty-five years to life (§ 1170.12, subd. (c)(2)(A)), consecutive to a determinate term of one year for the arming enhancement (§ 12022, subd. (a)(1)), and a determinate term of ten years for the prior serious felony conviction enhancements (§ 667, subd. (a)).

The Court of Appeal affirmed, rejecting defendant's argument that the trial court did not understand the scope of its discretion to impose concurrent sentences. The court stated, "A defendant who is punished under the three strikes law must generally be given consecutive sentences for each current serious felony conviction. [Citations.] The exceptions to the rule of mandatory consecutive sentences are when the current felonies were 'committed on the same occasion' or if they arose 'from the same set of operative facts [.]' " The court concluded that because section 654's proscription against multiple punishment is not applicable to crimes of violence (such as robbery) against multiple victims, these exceptions to mandatory consecutive sentencing were inapplicable.

We granted defendant's petition for review, and deferred further action pending consideration and disposition of related issues in People v. Hendrix, review granted September 25, 1996 (S055275), and People v. Nelson, review granted May 29, 1996 (S053008). People v. Hendrix (1997) 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64 (Hendrix ) was filed on August 18, 1997. We subsequently designated this case as the lead case in which to determine whether the same analysis used to determine if multiple punishment is permissible under section 654 should be used to determine if subdivision (a)(6) and (a)(7) requires consecutive sentencing.

II. DISCUSSION

A. Background

1. People v. Hendrix

In Hendrix, supra, 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64, the defendant We first noted section 667, subdivision (c), provides that, " '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,' " including section 667, subdivision (c)(6) and (c)(7). (Hendrix, supra, 16 Cal.4th at p. 512, 66 Cal.Rptr.2d 431, 941 P.2d 64.) Subdivision (c), (c)(6) and (c)(7) is virtually identical to section 1170.12, subdivision (a), (a)(6) and (a)(7) at issue in this case.

                pointed a gun at four people seated at a shopping mall table and demanded their money.  Two complied.  The defendant was subsequently convicted of two counts of robbery, and two counts of attempted robbery, and the allegations that the defendant personally used a firearm in committing each of these crimes were found true.  (Id. at pp. 510-511, 66 Cal.Rptr.2d 431, 941 P.2d 64.)  "Defendant subsequently admitted three prior serious felony convictions."  (Id. at p. 511, 66 Cal.Rptr.2d 431, 941 P.2d 64.)   We held that consecutive sentences were not mandatory under the three strikes law.  (Id. at p. 515, 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)." We concluded that section 667, subdivision (c)(6), applies to any current felony conviction. (Hendrix, supra, 16 Cal.4th at p. 512, 66 Cal.Rptr.2d 431, 941 P.2d 64.) Moreover, subdivision c)(6) "provides that consecutive sentencing is mandatory for any current felony convictions 'not committed on the same occasion, and not arising from the same set of operative facts.' " (16 Cal.4th at p. 512, 66 Cal.Rptr.2d 431, 941 P.2d 64.) "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.)

Section 667, subdivision (c)(7), 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." We concluded that section 667, subdivision (c)(7), "applies when there is more than one current serious or violent felony," and that the reference to "paragraph (6)" in subdivision (c)(7) is to subdivision (c)(6). (Hendrix, supra, 16 Cal.4th at p. 513, 66 Cal.Rptr.2d 431, 941 P.2d 64.) "So construed, '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.; see § 667, subd. (c)(6).) "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.; see § 667, subd. (c)(7).)

In Hendrix, the parties conceded that "all of the current serious and violent felony convictions were 'committed on the same occasion.' " (Hendrix, supra, 16 Cal.4th at p. 514, 66 Cal.Rptr.2d 431, 941 P.2d 64; id. at p. 516, 66 Cal.Rptr.2d 431, 941 P.2d 64 (conc. opn. of George, C.J.); id. at p. 519, fn. 2, 66 Cal.Rptr.2d 431, 941 P.2d 64 (conc. opn. of Mosk, J.).) Therefore, subdivision (c)(7) did not mandate that the trial court impose consecutive sentences. Rather, we held the trial court retained discretion to impose either concurrent or consecutive sentences. (Hendrix,

supra, 16 Cal.4th at p. 514, 66 Cal.Rptr.2d 431, 941 P.2d 64.)

2. Section 654

Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. (§ 654; People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.) If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. (People v. Miller, supra, 18 Cal.3d at p. 886, 135 Cal.Rptr. 654, 558 P.2d 552.) Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. (In re Wright (1967) 65 Cal.2d 650, 652-655, 56 Cal.Rptr. 110, 422 P.2d 998 [trial court erred in imposing concurrent sentences for two convictions for which section 654 prohibited multiple punishment].)

Section 654 does not, however, preclude multiple punishment when the defendant's violent act injures different victims. (People v. Miller, supra, 18 Cal.3d at p. 885, 135 Cal.Rptr. 654, 558 P.2d 552 [Even if "defendant entertained...