People v. Henderson

• Decision Date: 17 November 2022
• Docket Number: S265172
• Citation: 14 Cal.5th 34,520 P.3d 116,301 Cal.Rptr.3d 243
• Parties: The PEOPLE, Plaintiff and Respondent, v. Level Omega HENDERSON, Defendant and Appellant.
• Court: California Supreme Court

14 Cal.5th 34

520 P.3d 116

301 Cal.Rptr.3d 243

The PEOPLE, Plaintiff and Respondent,

v.Level Omega HENDERSON, Defendant and Appellant.

S265172

Supreme Court of California.

November 17, 2022

As Modified February 1, 2023

Rudolph J. Alejo, Berkeley, 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.

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, 66 Cal.Rptr.2d 431, 941 P.2d 64 ( 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, 66 Cal.Rptr.2d 431, 941 P.2d 64.) 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.

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. Tillett and his girlfriend were standing in the courtyard when defendant returned holding the weapon. He hit Tillett 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 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 v. Henderson (2020) 54 Cal.App.5th 612, 620–627, 269 Cal.Rptr.3d 135 ( 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, 203 Cal.Rptr.3d 622, 373 P.3d 435.) 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, 186 Cal.Rptr.3d 540, 347 P.3d 522.) Third strike offenders were made subject to an indeterminate life sentence for the current felony. (See Teal v. Superior Court (2014) 60 Cal.4th 595, 596, 179 Cal.Rptr.3d 365, 336 P.3d 686.)

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, 53 Cal.Rptr.2d 789, 917 P.2d 628.) 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, 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, 66 Cal.Rptr.2d 431, 941 P.2d 64.) 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, 226 Cal.Rptr.3d 582, 407 P.3d 423.) 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, 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, 53 Cal.Rptr.2d 789, 917 P.2d 628.) 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...