Consecutive sentencing |
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A defendant sentenced under the Three Strikes law must be sentenced
consecutively on current convictions for felonies that were not committed on
the same occasion and did not arise from the same set of operative facts. (Pen.
Code section 667, subd. (c)(6)). If two or more of the current felony offenses
were committed on the same occasion or arose from the same set of operative
facts, then the court is not obliged to impose consecutive sentences, but may
instead sentence the defendant to concurrent terms for those offenses. So said the
California Supreme Court in
People v. Deloza (1998) 18 Cal.4th 585.
In People v.
Jeffries (2000) 83 Cal.App.4th 15, the Third District remanded that
case for resentencing in light of Deloza. The trial court had assumed
that it had no discretion to impose concurrent sentences for appellant’s
sex offenses, some of which may have been committed on the same occasion. Where
the prosecution has failed to prove that the current crimes were committed on
different occasions and arose from different sets of operative facts, the court
must consider whether to sentence consecutively or concurrently.
Also in Deloza, the California Supreme Court
interpreted the phrase "committed on the same occasion" as implying a close
temporal and spatial proximity between the offenses. In People v.
Lawrence(2000) 24 Cal.4th 219, the Supreme Court interpreted the phrase
"same set of operative facts." That phrase means sharing common acts or
criminal conduct which establish the elements of the current felony offenses,
the Court explained. In Lawrence, the defendant stole a bottle of brandy
from a store and fled. He found his way into a backyard, where he was
confronted by the homeowners. He fought them off, hitting one of them with the
bottle of brandy. The Court decided that the trial court had no choice but to
impose consecutive sentences, because the attack on the homeowner was not
committed on the same occasion as the theft from the market and it did not
arise from the same set of operative facts. Although the Supreme Court treated
these as two separate tests, it looked to the same factors in applying each
test, noting that the locations were different, the victims were different, and
several minutes had passed between the two crimes.
In People v. Jenkins, 86 Cal.App.4th 699, Division 5 of the Second District of
the Court of Appeal decided on January
29, 2001, that a defendant was properly sentenced to consecutive life-term sentences
for attempted murder and assault with a deadly weapon where the defendant attacked
one victim as he was trying to enter a bedroom to reach a second victim. Rather
than enter the bedroom after he had assaulted the first victim, however, the defendant
went to the kitchen to get a knife. The court held that when he then attacked
the second victim, it was a separate occasion, requiring consecutive sentences.
In People v. Coelho (2001) 89 Cal.App.4th 861, the Sixth District
examined a case involving ten counts of lewd acts with a minor under 14, alleged
generally to have occurred between January 13 and March 2, 1996. At trial, the
prosecution introduced evidence of more than 10 acts, several of which occurred
on a single occasion on March 2, 1996. The jury returned 10 guilty verdicts, but
did not specify on which date each crime occurred. The trial court initially thought
that it had to sentence the defendant, a third-striker, consecutively on each
count, and gave him ten 25-to-life sentences. The defendant appealed, and the Sixth
District ruled that the trial court did indeed have discretion to sentence concurrently
on at least some counts. On remand, the trial court decided that it had discretion
to sentence concurrently only over two counts, and declined to exercise that discretion. The defendant again appealed, and the
Sixth District ruled that because it could not be known on which dates six of the
crimes occurred, they could have been committed on the same occasion and could give
rise to concurrent sentences. Nonetheless, the Court of Appeal affirmed the judgment,
noting that the trial court had stated that even if it had discretion to sentence
concurrently on other counts, it would not do so. It was "virtually certain" that
the trial court would again sentence the defendant to 10 consecutive 25-to-life
sentences, so remand would be pointless.
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Date last modified: 10/6/02.
