People v. Lawrence, No. S070271.

CourtUnited States State Supreme Court (California)
Writing for the CourtBAXTER, J.
Citation24 Cal.4th 219,6 P.3d 228,99 Cal.Rptr.2d 570
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jimmy Dale LAWRENCE, Defendant and Appellant.
Decision Date28 August 2000
Docket NumberNo. S070271.

99 Cal.Rptr.2d 570
24 Cal.4th 219
6 P.3d 228

The PEOPLE, Plaintiff and Respondent,
v.
Jimmy Dale LAWRENCE, Defendant and Appellant

No. S070271.

Supreme Court of California.

August 28, 2000.

As Modified on Denial of Rehearing October 3, 2000.


99 Cal.Rptr.2d 571
William D. Farber, under appointment by the Supreme Court, for Defendant and Appellant

99 Cal.Rptr.2d 572
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Carol Wendelin Pollack, Assistant Attorney General, James W. Bilderback II, Frederick Grab, Robert F. Katz, Sanjay T. Kumar, Michael C. Keller and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent

BAXTER, J.

When a defendant is sentenced under the three strikes law (Pen.Code, § 667, subds. (b)-(i))1 because he has previously been convicted of one or more serious and/or violent felony offenses (§ 667, subds.(b), (c)), the three strikes provisions mandate that "[i]f 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]." (§ 667, subd. (c)(6); hereafter sometimes subdivision (c)(6).)2 By implication, consecutive sentences are not mandated under subdivision (c)(6) (or subdivision (c)(7)) (see fn. 2, ante) if all of the current felony convictions are either "committed on the same occasion" or "aris[e] from the same set of operative facts." (Deloza, supra, 18 Cal.4th at p. 591, 76 Cal.Rptr.2d 255, 957 P.2d 945; Hendrix, supra, 16 Cal.4th at p. 513, 66 Cal.Rptr.2d 431, 941 P.2d 64.)

In Deloza we construed the term "committed on the same occasion" in section 1170.12, subdivision (a)(6) (identical to the legislative version found in section 667, subdivision (c)(6)) (see fn. 1, ante) as "refer[ring] at least to a close temporal and spatial proximity between the acts underlying the current convictions." (Deloza, supra, 18 Cal.4th at pp. 595, 599, 76 Cal. Rptr.2d 255, 957 P.2d 945.) Because the defendant's crimes in Deloza were clearly "committed on the same occasion" (id. at p. 596, 76 Cal.Rptr.2d 255, 957 P.2d 945), consecutive sentencing was not mandated and hence we had no occasion to further construe the phrase "arising from the same set of operative facts" also found in section 1170.12, subdivision (a)(6).

In this case the Court of Appeal found that defendant's current felony offenses

99 Cal.Rptr.2d 573
were committed on the same occasion and arose from the same set of operative facts, thus permitting concurrent sentencing. We granted review to determine whether on these facts defendant's offenses were committed on the same occasion, and if not, whether they also did not "aris[e] from the same set of operative facts" (subd. (c)(6)) such that the Court of Appeal erred in concluding consecutive sentences were not mandated

I. Facts and Procedural Background

On March 19, 1996, at approximately 9:00 to 9:30 p.m., Joaquin Criner, a clerk at the Stater Brothers market at 1555 South Garey Avenue in Pomona, saw defendant leaving the store through a closed checkstand with a large bottle of E & J brandy partially secreted under his jacket. Criner shouted the code word for shoplifting and he and the store's manager chased defendant through the parking lot. Defendant swerved towards Richard Williams, an elderly man walking past the market, and either "pushed" or "grabbed" him, knocking Williams to the sidewalk and scattering his personal effects. Defendant then ran across South Garey Avenue, through a gas station, and got away while Criner was assisting Williams to his feet.

Sometime after 9:00 p.m. on the evening in question, Vincent Rojas and his wife (then fiancee) Elizabeth LaVastida were finishing dinner when one of their children indicated a man was in their backyard. Their dog, which was kept unleashed within the enclosed yard, began barking and their security light came on. Their home is at 1455 South Gibbs in Pomona, one block east and approximately one block north of the Stater Brothers market. At that time there was a large empty lot, as well as commercial buildings and residences, between the two locations. Children and others were known to take a shortcut through the vacant lot and over the wall behind the Rojas/LaVastida house to get from the area of the market to the gated community in which they lived. LaVastida testified that to walk from their house to the market via the shortcut over the wall behind their house, and through the lot, took two or three minutes. The alternative route, following the streets the two- to three-block walk between the two locations, took five minutes. The Rojas's backyard was itself completely fenced in with a cinder block wall, wooden fence and gate.

Rojas entered his backyard and confronted defendant, who swung at Rojas with the brandy bottle, striking his elbow. Defendant attempted to flee, jumping over the backyard fence and breaking off the upper slats in the process. Rojas grabbed a shovel and, together with his dog, pursued defendant over the fence, chasing him down a long community driveway and finally tackling him to the ground on South Gibbs street. Meanwhile, LaVastida had called the police. She approached the two struggling men, holding a youth's Little League baseball bat, and attempted to assist Rojas, trying to protect him from defendant who was swinging the brandy bottle while being held from behind by Rojas. Defendant swung the bottle at LaVastida, hitting her in the head and causing her to become dazed, start to lose consciousness, and fall to the ground. The police arrived, arrested defendant, and brought Criner to the scene to see if he could identify the suspect. Criner testified approximately 15 or 20 minutes had elapsed from the time of the theft to the time he was brought to the scene of defendant's detention and made his positive identification.

Based on the foregoing evidence, defendant was convicted by a jury of felony petty theft with a prior conviction (§ 666), assault upon Rojas (§ 240 reduced to a misdemeanor on the trial court's own motion), felony assault with a deadly weapon (the bottle) or with force likely to produce great bodily injury upon LaVastida (§ 245, subd. (a)(1)), and misdemeanor battery upon Williams (§ 242). In a bifurcated proceeding, the jury found defendant had suffered prior felony convictions for the

99 Cal.Rptr.2d 574
unlawful taking or driving of a vehicle (1980), attempted robbery (1985), and three separate convictions of robbery (1985, 1987, 1988).

The trial court concluded that under the applicable three strikes law (§ 667, subds.(b)-(i)), it was required to sentence defendant consecutively on the two current felony counts. It sentenced defendant to an aggregate term of 66 years to life, including two consecutive 25-year-to-life terms for the felony petty theft with a prior and the aggravated assault convictions; three 5-year enhancements, one for each of his three prior serious felony convictions (§ 667, subd. (a)); and two consecutive six-month terms for the misdemeanor assault and battery convictions. The court struck all one-year enhancements for the prior prison terms. (§ 667.5, subd. (b).)

On appeal, defendant challenged only his sentence, contending among other things that the sentencing court erred in concluding consecutive sentences were mandatory under subdivision (c)(6) because his current offenses were assertedly "committed on the same occasion" and "[arose] from the same set of operative facts." The Court of Appeal agreed, vacating the sentence imposed by the trial court and remanding the case for resentencing. The People filed a petition for review, which was granted, and this court thereafter ordered the Court of Appeal to vacate its decision and reconsider the matter in light of Deloza, supra, 18 Cal.4th 585, 76 Cal. Rptr.2d 255, 957 P.2d 945. The Court of Appeal thereafter issued a new opinion in which defendant's sentence was again vacated and the matter remanded for resentencing. We granted the People's second petition for review to determine the proper application of the relevant statutory language of subdivision (c)(6) to the facts of this case.

II. Discussion

A. Same Occasion

In Deloza, supra, 18 Cal.4th 585, 76 Cal.Rptr.2d 255, 957 P.2d 945, the defendant entered a furniture store with an armed companion, who pointed a gun at a salesperson while the defendant took $1,200 from the cash register, $200 from the wallet of another salesperson, and the purse of a female customer who approached him, before the two fled. (Id. at p. 589, 76 Cal.Rptr.2d 255, 957 P.2d 945.) The defendant was convicted of four counts of second degree robbery. On those facts we held the offenses were committed on the same occasion within the meaning of section 1170.12, subdivision (a)(6) and (7) (see also § 667, subd. (c)(6) and (7); fn. 1, ante). (Deloza, supra, 18 Cal.4th at p. 594, 76 Cal.Rptr.2d 255, 957 P.2d 945.)

In reaching that conclusion, we rejected an argument that the analysis for determining whether section 1170.12, subdivision (a)(6) and (7) (see also § 667, subd. (c)(6) and (7)) requires consecutive sentencing is coextensive with the test for determining whether section 654 permits multiple punishment. (Deloza, supra, 18 Cal.4th at pp. 591-595, 76 Cal.Rptr.2d 255, 957 P.2d 945.) We explained that section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively under the three strikes law, because section 654 does not allow any multiple punishment, whether concurrent or consecutive, and the analyses performed under the two statutes are entirely separate. (18 Cal.4th at p. 594, 76 Cal.Rptr.2d 255, 957 P.2d 945.)3 We also rejected an argument that "same occasion,"

99 Cal.Rptr.2d 575
as used in the three strikes...

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