1

Filed 11/14/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT MICHAEL GANGL,

Defendant and Appellant.

C086719

(Super. Ct. No. 16FE006058)

APPEAL from a judgment of the Superior Court of Sacramento County, James P. 

Arguelles, Judge. Affirmed as modified.

The Law Office of John L. Staley and John L. Staley, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and 

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

Proposition 36 amended the three strikes law in a variety of ways, the most 

notable of which was to require a third strike defendant’s current felony conviction be a 

serious or violent felony before he or she could be sentenced to 25 years to life for that 

conviction. (People v. Conley (2016) 63 Cal.4th 646, 652-653.) This amendment was 

generally seen as an ameliorative change meant to bring proportionality in sentencing and 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts II through IV. 
2

have a positive fiscal impact by reducing the prison population of prisoners who do not 

pose a threat to public safety. (Id. at p. 653; People v. Johnson (2015) 61 Cal.4th 674,

686; People v. Spiller (2016) 2 Cal.App.5th 1014, 1024.) A lesser known amendment, 

indeed one that was never discussed in the Official Voter Information Guide, (Official 

Voter Information Guide, Gen. Elec. (Nov. 6, 2012)) (Official Voter Information Guide), 

was a change to the sentencing provisions contained in the voter initiative version of the 

law, but not the legislative version, wherein the voters removed four words and inserted 

one word.1 (Pen. Code,2 §§ 667, subd. (c)(7); 1170.12, subd. (a)(7).)

In the published portion of this opinion, we must decide what this amendment 

means and whether it changed the long-standing rule that trial courts can use discretion to

sentence a prior serious or violent felony offender concurrently to multiple current 

convictions or whether the trial court is now mandated to sentence that offender 

consecutively to all of his current convictions. We conclude the trial court has the 

discretion to sentence a serious or violent felony offender concurrently to his or her 

current serious or violent felony convictions when those felonies were committed on the 

same occasion and arise out of the same set of operative facts. Those serious or violent 

felonies must then be sentenced consecutively to the sentences for nonserious and 

nonviolent convictions. In doing so, we agree with our colleagues from Division One of 

1 There are two versions of the three strikes law -- the legislative version (Pen. 

Code, § 667, subds. (b)-(i)) enacted in March 1994 and the voter initiative version (Pen. 

Code, § 1170.12) enacted in November of the same year. (People v. Conley, supra, 63 

Cal.4th at p. 652.) “In many respects, the two statutes are ‘ “virtually identical.” ’ ” 

(People v. Torres (2018) 23 Cal.App.5th 185, 197.) While the voters did not amend 

identical language in the legislative version, we refuse to read the amendment the voters 

made to the initiative version as having no meaning and thus reject defendant’s argument 

that we ignore the amendment in favor of applying the unamended legislative version of 

the three strikes law. Thus, we focus our analysis on the amended initiative version of 

the three strikes law. (Id. at p. 202.) 

2 Further section references are to the Penal Code unless otherwise indicated.
3

the First District Court of Appeal in Torres. (People v. Torres, supra, 23 Cal.App.5th at 

p. 201.) 

Here, defendant Robert Michael Gangl was convicted of multiple offenses after he 

stole a car and then stole the arresting officer’s patrol vehicle, led officers on a highspeed chase, and eventually robbed a man in his own home as he tried to elude capture. 

The trial court sentenced defendant to an aggregate term of 18 years in state prison. 

Defendant raises several alleged sentencing errors on appeal. In addition to the 

one we outlined above, he contends the trial court should have stayed the terms on his 

convictions for unlawful possession of ammunition and evading a peace officer under 

section 654. The People dispute defendant’s contentions and further argue that the 

abstract of judgment must be corrected to reflect the custody credits awarded by the 

court. 

Regarding these additional claims, we agree that his conviction for evasion must 

be stayed under section 654, but disagree as to his conviction for unlawful possession of 

ammunition. We also conclude the court failed to impose a sentence on count twelve, 

which resulted in an unauthorized absence of sentence, and that the abstract of judgment 

must be corrected to reflect the court’s oral award of credits. 

We shall affirm defendant’s convictions and remand for resentencing and 

correction of the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 22, 2016, California Highway Patrol Officer Scott Kliebe saw 

defendant driving a stolen car in Sacramento. When Officer Kliebe detained defendant, 

defendant gave him a false name. 

Defendant had a key ring with two shaved keys in his possession. One of the 

shaved keys started the stolen car. A search of the car revealed a loaded .12-gauge 

shotgun and a backpack containing burglary tools and ten .12-gauge shotgun shells. 
4

Defendant was handcuffed with his hands behind his back and placed in the 

backseat of Officer Kliebe’s patrol car. While officers waited for fingerprint results to 

confirm defendant’s identity, defendant maneuvered his hands to the front of his body. 

Officer Kliebe saw what defendant had done and handcuffed him again behind his back, 

securing his handcuffs to a strap in the rear of the patrol car. 

At defendant’s request, Officer Kliebe called defendant’s father. As Officer 

Kliebe leaned against the trunk of the patrol car speaking to defendant’s father on the 

phone, he felt the vehicle lurch backwards against him. He turned and saw the patrol 

car’s reverse lights were illuminated; defendant was in the driver’s seat with his 

handcuffed hands in front of him on the steering wheel. 

Officer Kliebe told defendant to stop. Defendant ignored the command and 

continued to back up, turning toward the road. Defendant hit Officer Kliebe with the 

front bumper or mirror of the patrol car. He then backed the car out of the driveway and 

fled the scene. 

Officer Kliebe and another officer pursued defendant until they lost sight of him. 

Several deputies also followed defendant as he crossed multiple lanes into oncoming 

traffic. During the pursuit, defendant drove at an excessive rate of speed, hit two cars, 

and ran a red light. 

Defendant eventually jumped out of the patrol car and hopped the fence of a 

nearby home. He attempted to enter several homes, and smashed through the back 

sliding glass door of T. I. and P. I.’s home. Inside, as P. I. ran to the master bedroom, 

defendant demanded that T. I. give him his car keys. T. I. gave defendant the keys to his 

wife’s car and then later the keys to his own car. P. I. triggered a panic alarm, and 

defendant fled the home, dropping both sets of car keys in the backyard. 

Defendant continued fleeing through the neighborhood, banging on doors and 

shattering windows along the way. He eventually was detained and arrested. 
5

Defendant was convicted of unlawfully driving or taking a vehicle (Veh. Code, 

§ 10851, subd. (a), count one); being a felon in possession of a firearm (§ 29800, 

subd. (a)(1), count two); being a felon in possession of ammunition (§ 30305, 

subd. (a)(1), count three); unlawfully driving or taking a police vehicle (Veh. Code, 

§ 10851, subd. (b), count four); assault with a deadly weapon on a peace officer with 

force likely to produce great bodily injury (§ 245, subd. (c), count five); unlawful evasion 

of a pursuing peace officer with wanton disregard for safety (Veh. Code, § 2800.2, 

subd. (a), count six); first degree residential robbery (§ 211, count seven); vandalism 

(§ 594, subd. (a), count twelve); providing false identification to a peace officer (§ 148.9, 

subd. (a), count thirteen); and possession of burglary tools (§ 466, count fourteen).3 In a 

subsequent proceeding, the trial court found that defendant had a prior strike conviction.4 

(§§ 667, subds. (b)-(i), 1192.7.) 

The court sentenced defendant to an aggregate term of 18 years in state prison: 

four years on count seven, doubled to eight years for the strike prior, plus consecutive 

terms of 16 months each on counts one, two, three, and six; two years on count four; and 

two years eight months on count five. The trial court imposed no time on count twelve

and concurrent terms of six months each on misdemeanor counts thirteen and fourteen.

5

 

The court awarded defendant 718 actual days and 107 conduct days for a total of 825 

days of credit. 

3 The jury acquitted defendant of four attempted burglary counts. (§§ 664, 459, 

counts eight to eleven). 

4 The court denied defendant’s request to dismiss the strike pursuant to People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497. 

5 The trial court also imposed a concurrent four-year term on a prior offense in 

another case, which had previously been stayed. 
6

DISCUSSION

I

Sentencing Under Section 1170.12

Defendant was charged under both the legislative version and the initiative version 

of the three strikes law; thus, for our purposes he was sentenced under the voter approved 

amendment found in section 1170.12, subdivision (a). That provision provides: 

“Notwithstanding any other provision of 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 serious 

and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to 

each of the following: [¶] . . . [¶] (6) 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 this section. [¶] (7) If there is a current conviction for more than one serious 

or violent felony as described in subdivision (b), 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.” (§ 1170.12, 

subd. (a)(6) & (7), as amended by Prop. 36, § 4, eff. Nov. 6, 2012.) The amendment can 

be found in subdivision (a)(7) of section 1170.12, where the voters inserted “subdivision 

(b)” where the words “paragraph (6) of this subdivision” used to be. (See Official Voter 

Information Guide.)

The People contend that upon a plain reading of the statute as amended, the trial 

court is required to consecutively sentence a defendant with multiple current serious or 

violent felony convictions to all of his or her current convictions. Defendant argues we 

are required to follow preamendment case law to interpret the statute as allowing for 

concurrent sentencing for all felonies occurring on the same occasion and arising out of 
7

the same set of operative facts.6 We disagree with both of the parties, and reach the same 

conclusion our colleagues did in Torres, although in a slightly different way.

Accordingly, the trial court has discretion to sentence a serious or violent felony offender 

concurrently to his or her current serious or violent felonies when those offenses were 

committed on the same occasion and arise out of the same set of operative facts, it then 

must sentence those serious or violent felonies consecutively to any other conviction, 

meaning nonserious and nonviolent felony and misdemeanor convictions. (People v. 

Torres, supra, 23 Cal.App.5th at p. 201.)

A

Principles Of Statutory Interpretation

“In construing statutes adopted by the voters, we apply the same principles of 

interpretation we apply to statutes enacted by the Legislature. [Citation.] ‘ “The 

fundamental purpose of statutory construction is to ascertain the intent of the lawmakers 

so as to effectuate the purpose of the law ” ’ [Citation.] We begin with the language of 

the statute, to which we give its ordinary meaning and construe in the context of the 

statutory scheme.” (People v. Johnson, supra, 61 Cal.4th at p. 682.) “But ‘[t]he words of 

the statute must be construed in context, keeping in mind the statutory purpose, and 

statutes or statutory sections relating to the same subject must be harmonized, both 

internally and with each other, to the extent possible.’ [Citation.] ‘Where uncertainty 

exists[,] consideration should be given to the consequences that will flow from a 

particular interpretation.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 357-358.)

6 Although trial counsel conceded that consecutive sentences were mandatory, we 

nevertheless address defendant’s contentions on the merits. (See People v. Welch (1993) 

5 Cal.4th 228, 235 [unauthorized sentences may be corrected on appeal where they 

present “pure questions of law that can be resolved without reference to the particular 

sentencing record developed in the trial court”].) 
8

“The voters are presumed to have been aware of existing laws at the time the 

initiative was enacted.” (Professional Engineers in California Government v. Kempton

(2007) 40 Cal.4th 1016, 1048.) Additionally, “ ‘ “[w]hen legislation has been judicially 

construed and a subsequent statute on a similar subject uses identical or substantially 

similar language, the usual presumption is that the Legislature [or the voters] intended the 

same construction, unless a contrary intent clearly appears.” ’ ” (People v. Fusting

(2016) 1 Cal.App.5th 404, 409; accord, People v. Burton (1989) 48 Cal.3d 843, 861-862.)

Questions regarding the proper interpretation of a voter initiative, like those of 

statutory interpretation, are reviewed on appeal de novo. (Evangelatos v. Superior Court

(1988) 44 Cal.3d 1188, 1212 [rules of statutory construction apply to voter initiatives]; 

Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.) 

B

The Three Strikes Law And Proposition 36

“Prior to its amendment by the Act, the Three Strikes law required that a 

defendant who had two or more prior convictions of violent or serious felonies receive a 

third strike sentence of a minimum of 25 years to life for any current felony conviction, 

even if the current offense was neither serious nor violent.” (People v. Johnson, supra, 

61 Cal.4th at pp. 680-681.) A primary purpose of the three strikes law was to “restrict the 

discretion of ‘soft-on-crime judges’ ” and “ ‘to ensure longer prison sentences.’ ” 

(People v. Garcia (1999) 20 Cal.4th 490, 500-501.) 

In Hendrix, our Supreme Court interpreted the sentencing provisions of the 

legislative version of the three strikes law. (People v. Hendrix (1997) 16 Cal.4th 508.) It 

did so by first determining the meaning of section 667, subdivision (c), which provided 

similar language to its current version and to the initiative version, both in effect 

currently and at the time of the decision. The provision read: “ ‘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 . . . , the court shall adhere to 
9

each of the following,’ . . . [¶] . . . [¶] ‘[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 subdivision (e).’ ” Our Supreme Court determined that this provision “[b]y 

its terms, . . . applies to any current felony conviction,” whether that current felony 

conviction be serious or violent. (Hendrix, at p. 512.) 

The court then analyzed subdivision (c)(7) of section 667, which provided: “ ‘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.’ ” Since “[t]he most logical meaning of the 

reference to ‘paragraph (6)’ in subdivision (c)(7) is that it refers to subdivision (c)(6),” 

the court concluded, “ ‘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.’ ” (People v. 

Hendrix, supra, 16 Cal.4th at p. 513.) “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.’ ” (Hendrix, at p. 513) The Hendrix court’s 

interpretation of the three strike sentencing scheme was the law when Proposition 36 was 

presented to the voters. 
10

As discussed, Proposition 36 made the following changes to the language of 

section 1170.12, subdivision (a)(7): “If there is a current conviction for more than one 

serious or violent felony as described in paragraph (6) of this subdivision (b), 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.” (§ 1170.12, subd. (a)(6) & (7), as amended by Prop. 36, § 4, eff. 

Nov. 6, 2012, boldface and strike out added; Official Voter Information Guide, p. 107.) 

While no comments to this amendment were made in the Official Voter 

Information Guide, several comments to other changes in the Official Voter Information 

Guide regarding the three strikes law were. (See Official Voter Information Guide.) “As 

evidenced by the Voter Information Guide, six arguments were advanced in favor of the 

Act: ‘(1) “make the punishment fit the crime”; (2) “save California over $100 million 

every year”; (3) “make room in prison for dangerous felons”; (4) “law enforcement 

support”; (5) “taxpayer support”; and (6) “tough and smart on crime.” [Citations.] The 

ballot materials also provide that ‘Prop. 36 will help stop clogging overcrowded prisons 

with non-violent offenders, so we have room to keep violent felons off the streets’ and 

‘Prop. 36 will keep dangerous criminals off the streets.’ ” (People v. Spiller, supra, 2 

Cal.App.5th at p. 1024.) Our Supreme Court has noted the overarching purposes of 

Proposition 36 were to “ ‘make the punishment fit the crime’ ” and “ ‘make room in 

prison for dangerous felons.’ ” (People v. Johnson, supra, 61 Cal.4th at p. 686.) 

C

Section 1170.12, Subdivision (a)(7) Is Ambiguous

We cannot conclude Proposition 36’s amendment to section 1170.12, 

subdivision (a)(7) unambiguously mandates consecutive sentencing for all convictions as 

the People contend. Starting with the introductory language of section 1170.12, 

subdivision (a), it purports to apply to all defendants who have been convicted of a felony 

and the district attorney has pled and proved the defendant has one or more prior serious 
11

or violent felony convictions. The trial court “shall adhere to each of the following” 

paragraphs of the section when sentencing defendants falling under the definition. 

(§ 1170.12, subd. (a).) 

The term “felony” as used in the introductory language of section 1170.12 when 

describing a current conviction unambiguously refers to all felony convictions, whether 

those convictions be serious, violent, nonserious or nonviolent. This is evidenced by the 

section’s use of the term “felony” in other paragraphs when describing current 

convictions, which can be understood to also include convictions for both serious or 

violent and nonserious or nonviolent felonies. (§ 1170.12, subd. (a)(1) & (3).) Thus, 

section 1170.12, subdivision (a)(6)’s reference to “felony” when describing current 

convictions also appears to describe all classifications of felonies when requiring a 

defendant with “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” be sentenced 

consecutively on each count. This impliedly allows for concurrent sentencing if the 

current felony convictions occurred on the same occasion and arose from the same set of 

operative facts. By a plain reading, the “felony” in section 1170.12, subdivision (a)(6) in 

the context of current convictions, has the same meaning as “felony” in the introductory 

language and section 1170.12, subdivision (a)(1) and (a)(3) -- that is all felonies, both 

serious and violent and nonserious and nonviolent. 

This conclusion finds support in Hendrix, which interpreted nearly identical 

language of the legislative version of the three strikes law and concluded section 667, 

subdivision (c)(6) unambiguously applied to all felony convictions, including serious and 

violent felony convictions. (People v. Hendrix, supra, 16 Cal.4th at p. 513.) The People 

argue Hendrix is no longer relevant to this analysis because with the amendment to

section 1170.12, subdivision (a)(7), the meaning of section 1170.12, subdivision (a)(6) 

changed despite the fact that not a single word of section 1170.12, subdivision (a)(6) was 

altered by Proposition 36. Specifically, it argues that upon a plain reading of section 
12

1170.12, subdivision (a)(7), any defendant convicted of more than one serious or violent 

current felony shall be sentenced consecutively to those convictions and consecutively to 

all other convictions. But we cannot read section 1170.12, subdivision (a)(7) in isolation 

of the entire section in which it exists. (People v. Johnson, supra, 61 Cal.4th at p. 682.) 

We must read it in the context of the preceding subdivision which appears to allow for 

concurrent sentencing on all felony convictions regardless of whether they are serious or 

violent, and the introductory language mandating the trial court “adhere to each of the 

following” paragraphs when sentencing a defendant who has been convicted of any 

felony. 

Hendrix also does not appear irrelevant to this analysis because the Official Voter 

Information Guide never mentioned long-standing sentencing rules would change with 

Proposition 36’s passage or that the judicial construction of these subdivisions would be 

altered in any fashion. Voters are presumed to know the law and adopt judicial 

constructions of laws similarly stated, unless it clearly appears otherwise. (Professional 

Engineers in California Government v. Kempton, supra, 40 Cal.4th at p. 1048; People v. 

Fusting, supra, 1 Cal.App.5th at p. 409.) It is unclear whether the electorate intended to 

reject the reasoning of Hendrix and require consecutive sentencing for all convictions 

when a defendant has more than one current serious or violent felony conviction with its 

amendment to section 1170.12, subdivision (a)(7). The voters could have made this 

intent clear, as required, by also amending the language of section 1170.12, 

subdivision (a)(6) or clearly state the intent to consecutively sentence defendants with 

multiple current serious or violent felony convictions instead of adopting nearly identical 

language to how the subdivisions read and were interpreted before the amendment.

To the extent the stated intent of Proposition 36 is relevant to this inquiry, it also 

leaves us wondering at the meaning of the amendment to section 1170.12, 

subdivision (a)(7). The Official Voter Information Guide advocated for proportionality 

in sentencing, fiscal savings by reducing the prison population of nondangerous felons, 
13

and a tough and smart approach to criminal sentencing. (People v. Spiller, supra, 2 

Cal.App.5th at pp. 1023-1024.) It purported to do this by requiring a defendant commit 

serious and violent felonies before a third strike sentence of 25 years to life could be 

imposed. As far as the amendment at issue in this case was concerned, the Official Voter 

Information Guide was silent. 

Given the plain wording of the statute, case law interpreting its sentencing 

provisions, and the purpose of Proposition 36, it is unclear what the amendment to 

section 1170.12, subdivision (a)(7) meant to accomplish. As a result, we must dig deeper 

into the purpose of the initiative to determine the voters’ intent before determining the 

meaning of the amendment to section 1170.12, subdivision (a)(7). 

D

Section 1170.12, Subdivision (a)(7) Allows For Concurrent

Sentencing Of Serious And Violent Felony Convictions

We begin our analysis with Hendrix, which interpreted the parallel sentencing 

provision in the legislative enacted version of the three strikes law, to determine whether 

the reasoning of that case holds true in light of the amendment enacted by Proposition 36. 

The People argue that by “deleting the reference to paragraph (6) -- thereby deleting the 

references to crimes not committed on the same occasion or arising from the same set of 

operative facts -- the electorate withdrew courts’ discretion to impose concurrent 

sentences . . . .” 

In Torres, Division One of the First District Court of Appeal examined Hendrix

and the sentencing rule it announced, ultimately disagreeing with the People’s position. 

(People v. Torres, supra, 23 Cal.App.5th at pp. 197-199.) It concluded that because 

section 1170.12, subdivision (a)(6) was not amended by the voters, it continues to apply 

to any current felony convictions. (Torres, at pp. 200-201.) As a result, “The courts also 

retain discretion to impose concurrent sentences for felonies (including serious and/or 

violent felonies) committed on the same occasion or arising from the same set of 
14

operative facts.” (Torres, at p. 201, citing People v. Hendrix, supra, 16 Cal.4th at 

pp. 513-514.) Regarding section 1170.12, subdivision (a)(7), the Torres court explained 

that by replacing the subdivision’s reference to section 1170.12, subdivision (a)(6)’s 

same occasion/same operative facts clause with a reference to section 1170.12, 

subdivision (b), Proposition 36 changed the triggering language of the subdivision, as 

referenced in Hendrix, such that section 1170.12, subdivision (a)(7) now applies any time 

a defendant is convicted of multiple serious or violent felonies. (People v. Torres, at p. 

201, citing Hendrix, at pp. 513-514.) But Proposition 36 made no change to the directive 

portion of section 1170.12, subdivision (a)(7), which “requires a court to impose the 

sentences for serious and violent felonies ‘consecutive to the sentence for any other 

conviction for which the defendant may be consecutively sentenced in the manner 

prescribed by law.’ ” (Torres, at p. 201.) 

We read Hendrix similarly. Notably, the Hendrix court first determined that all 

felonies must be sentenced under section 667, subdivision (c)(6) before it ever considered 

the meaning of section 667, subdivision (c)(7). (People v. Hendrix, supra, 16 Cal.4th at 

p. 512.) It then determined the “paragraph (6)” reference in section 667, subdivision 

(c)(7) was to section 667, subdivision (c)(6) but stopped short of declaring that 

“paragraph (6)” convictions must be served consecutively to each other. Instead, it 

determined “the sentences for these serious or violent offenses” must be served 

consecutively to each other. (Hendrix, at p. 513.) In doing so, the court failed to define 

the “each conviction” language in section 667, subdivision (c)(7). Indeed, Justice Mosk 

recognized this oversight and sought to remedy it in his concurring opinion by linking 

“each conviction” to the “paragraph 6” language also included in that subdivision. 

(Hendrix, at pp. 517-518 (conc. opn. of Mosk, J.).) The majority did not adopt this view. 

Instead, the Hendrix court announced a rule wherein all felonies are first sentenced under 

section 667, subdivision (c)(6) and then “the sentences for these serious or violent 
15

offenses” are sentenced under section 667, subdivision (c)(7) -- the triggering/directive 

rule clarified by Torres. (Hendrix, at p. 513.)

This result finds further support in the purposes articulated by the Official Voter 

Information Guide. Requiring all convictions to be sentenced consecutively would result 

in longer prison terms and overcrowded prisons. Retaining trial courts’ discretion, where 

consecutive sentencing would still be an option, would allow for proportionality in 

sentencing (“make the punishment fit the crime”) and the “tough and smart on crime” 

approach advocated by the proponents of the proposition. (Official Voter Information 

Guide, supra, argument in favor, p. 52.) It would further deliver the promised fiscal 

benefits by ensuring that prisoners are eligible for parole, while keeping dangerous felons 

in prison if the Board of Parole Hearings did not believe them suitable for release. (Ibid.; 

see People v. Johnson, supra, 61 Cal.4th at p. 690-691 [“Because a person convicted of a 

serious or violent felony will receive a minimum sentence of 25 years to life for that 

offense [citations], and will not be granted parole if the Board of Parole Hearings 

determines that ‘consideration of the public safety requires a more lengthy period of 

incarceration’ [citations], ‘truly dangerous criminals will receive no benefits whatsoever 

from the reform’ . . . the amendments allow an inmate who is also serving an 

indeterminate life term to be released on parole earlier if the Board of Parole Hearings 

concludes he or she is not a threat to the public safety, thereby ‘mak[ing] room in prison 

for dangerous felons’ and saving money that would otherwise be spent on incarcerating 

inmates who are no longer dangerous”].) 

Our Supreme Court has also noted that “the parallel structure of [Proposition 36’s] 

amendments to the sentencing provisions and [Proposition 36’s] resentencing provisions 

reflects an intent that sentences imposed on individuals with the same criminal history be 

the same, regardless of whether they are being sentenced or resentenced.” (People v. 

Johnson, supra, 61 Cal.4th at p. 686.) Indeed, given the differences that do exist, 

Proposition 36 “is more cautious with respect to resentencing.” (Johnson, at p. 686.) 
16

While Johnson considered whether a defendant serving a third strike sentence for a 

serious and violent felony is eligible for resentencing as to a nonserious and nonviolent

current conviction, its policy determination rings true for the purposes of our analysis. 

(Id. at p. 687.)

Mandating consecutive sentencing for all felonies for defendants being sentenced 

under section 1170.12, and not those being resentenced, frustrates the intended parallel 

sentencing structure of Proposition 36 and results in different sentencing possibilities 

among defendants with similar criminal histories and current convictions. It takes away a 

trial court’s discretion to ensure the punishment fits the crime and instead results in 

prolonged prison terms with no hope of release by the Board of Parole Hearings and the 

incarceration of defendants who no longer pose a risk to the public. This is not what 

Proposition 36 intended. For these reasons, 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 set of 

operative facts.

7

 We further agree that those serious and violent felonies must then be 

consecutively sentenced to the sentences for nonserious and nonviolent crimes. We 

remand to the trial court for it to make this determination as it related to defendant in the 

first instance.8 

7 For the same reasons we disagree with our dissenting colleague. To mandate 

consecutive sentencing for serious and violent felonies would similarly increase prison 

sentences and thus frustrate the intent of Proposition 36 and run contrary to the 

established law that was not rejected by the voters in effect at the time of Proposition 36’s 

passage.

8 As the People point out, the trial court made inconsistent statements regarding the 

relatedness of defendant’s serious and violent felony convictions. Because we also 

remand the case for it to impose a sentence on count twelve, we believe it appropriate for 

the court to consider defendant’s sentence under section 1170.12 as well.
17

II

Section 654

Defendant contends the court violated section 654 by imposing punishment on 

both count two, felon in possession of a firearm, and count three, unlawful possession of 

ammunition. He makes a similar argument regarding count four, unlawful driving or 

taking of a police vehicle, and count six, unlawfully evading a peace officer with wanton 

disregard for safety. We conclude defendant was properly punished for the unlawful 

possession of ammunition offense but that the sentence on his evasion conviction must be 

stayed under section 654. 

A

Applicable Law

Section 654, subdivision (a) provides: “An act or omission that is punishable in 

different ways by different provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision. . . .” The statute does not prohibit 

multiple convictions for the same conduct, only multiple punishments. (People v. 

Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a case, the proper procedure is to 

stay execution of sentence on one of the offenses.” (Ibid.) 

“Whether a defendant may be subjected to multiple punishment under section 654 

requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may 

include not only a discrete physical act but also a course of conduct encompassing several 

acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311.) 

We first consider whether the different crimes were completed by a “ ‘single physical 

act.’ ” (Ibid.) “If so, the defendant may not be punished more than once for that act. 

Only if we conclude that the case involves more than a single act -- i.e., a course of 

conduct -- do we then consider whether that course of conduct reflects a single ‘ “intent 

and objective” ’ or multiple intents and objectives.” (Ibid.)
18

“The divisibility of a course of conduct depends upon the intent and objective of 

the defendant.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) If each criminal act 

is incidental to, or accomplished a single objective, the defendant may be found to harbor 

a single intent. If the defendant harbored multiple criminal objectives independent of one 

another, he may be punished for each statutory violation even if they were part of an 

indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) We turn 

now to the merits of defendant’s contentions.9

B

Possession Of Firearm And Ammunition

Citing People v. Lopez (2004) 119 Cal.App.4th 132, defendant argues he may not 

be punished for both possession of the firearm and possession of the ammunition. In 

Lopez, the court held section 654 barred multiple punishment for the defendant’s 

convictions for unlawful possession of a firearm and unlawful possession of ammunition 

based on his possession of a single loaded firearm. (Lopez, at pp. 137-138.) The court in 

Lopez explained that where “all of the ammunition was loaded into the firearm, an 

‘indivisible course of conduct’ is present and section 654 precludes multiple 

punishment.” (Lopez, at p. 138.) 

The People argue Lopez is distinguishable. We agree. As the People point out, 

defendant did not merely possess ammunition inside a loaded firearm; he possessed 

additional ammunition outside of the firearm that served as the basis for count three. 

Thus, unlike in Lopez, the possession offenses do not constitute an indivisible course of 

conduct. Instead, separate acts constituted the basis of each conviction. 

9 Defendant’s failure to object below based on section 654 does not forfeit his 

appellate challenge. (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3 [forfeiture does 

not apply to questions involving the applicability of section 654; errors in applying 

section 654 are corrected on appeal regardless of whether the defendant objected in the 

trial court].)
19

Possession of the additional ammunition, moreover, was not essential to 

possession of the gun. “ ‘[S]imultaneous possession of different items of contraband’ are 

separate acts for [purposes of section 654].” (People v. Jones (2012) 54 Cal.4th 350, 358 

[“ ‘the possession of one item is not essential to the possession of another separate item. 

One does not possess in the abstract; possession is meaningless unless something is 

possessed. The possession of each separate item is therefore a separate act of 

possession”].) Defendant was thus properly sentenced for both possession of the loaded 

firearm and possession of the ammunition in the backpack.

C

Unlawful Driving Of A Police Vehicle And Unlawfully Evading A Peace Officer

Defendant argues that he committed a single physical act -- driving Officer 

Kliebe’s patrol vehicle -- which violated multiple criminal statutes, including unlawful 

driving or taking of a police vehicle (Veh. Code, § 10851, subd. (b), count four) and 

unlawful evasion of a pursing peace officer with wanton disregard for public safety (Veh. 

Code, § 2800.2, subd. (a), count six). Under section 654, he contends, he may only be 

punished once for that single act. We agree.

Defendant’s conduct of driving Officer Kliebe’s patrol car to evade police 

constitutes a single act that may not be punished more than once. (See, e.g., People v. 

Jones, supra, 54 Cal.4th at p. 359 [in overruling In re Hayes (1969) 70 Cal.2d 604, which 

held a defendant could be punished twice for the act of driving without a valid license 

and driving while intoxicated, the court characterized Hayes as improperly finding 

multiple acts in what was actually a single-act case].) But even if defendant’s actions of 

taking the police car to flee from officers can be characterized as a course of conduct, he 

had the same intent and objective when he committed both crimes. Section 654 applies 

not only to the same criminal act, but also to an indivisible course of conduct committed 

pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 

1203, 1207-1209.) Here, defendant was trying to escape arrest. Under these 
20

circumstances, he may not be punished for both offenses. Section 654 requires that the 

sentence for count six be stayed. 

III

Unauthorized Absence Of Sentence On Count Twelve

The trial court stayed imposition of sentence on count twelve, vandalism (§ 594, 

subd. (a)), after impliedly finding that section 654 applied because count twelve involved 

a continuous course of conduct already punished under count seven, the robbery offense. 

The court, however, failed to impose a sentence for count twelve and then stay the 

sentence pursuant to section 654, as required. (People v. Alford (2010) 180 Cal.App.4th 

1463, 1472 [“A trial court must impose sentence on every count but stay execution as 

necessary to implement section 654”].)

Failure to impose a sentence on a count for which a defendant was validly 

convicted “results in an unauthorized absence of sentence.” (People v. Alford, supra,

180 Cal.App.4th at p. 1472.) Upon remand for resentencing, the court shall impose a 

sentence on count twelve, which may be stayed under section 654.

IV

Correction Of Abstract Of Judgment

The court orally awarded defendant 825 days during the sentencing hearing, 

consisting of 717 actual days of custody plus 108 days of conduct credit. The abstract of 

judgment, however, shows an award of a total of 1,190 days -- an additional 365 days of 

credit -- as well as incorrect awards of 718 actual days and 107 conduct days. If the 

minute order or abstract of judgment differs from the oral pronouncement of judgment, 

the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; 

see also People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14 [“When an abstract of 

judgment does not accurately reflect the trial judge’s oral pronouncement of sentence, 

[the appellate] court has the inherent power to correct such an error, either on [its] own 

[motion] or at the parties’ behest”].) Because the court’s oral pronouncement awarded 
21

defendant 825 days, the abstract must be corrected to reflect the oral award of 717 actual 

days plus 108 conduct days. 

DISPOSITION

Defendant’s convictions are affirmed, and the sentence on count six is stayed 

under section 654. The matter is remanded for resentencing consistent with the views 

expressed in this opinion. Following resentencing, the clerk of the court is directed to 

prepare an amended abstract of judgment, which also properly reflects the court’s oral 

award of credits, and to forward a certified copy of the amended abstract of judgment to 

the Department of Corrections and Rehabilitation. 

/s/ 

Robie, Acting P. J.

I concur:

/s/ 

Hoch, J.
1

Krause, J., Concurring and Dissenting. 

I concur in part and dissent in part.

Although I agree with most of the majority opinion, I respectfully disagree with 

the conclusions reached in part I, where my colleagues decide that convictions for 

multiple current serious or violent felonies may be sentenced concurrent to one another, 

but must be sentenced consecutive to all other convictions in the case. As explained 

more fully below, I read the consecutive sentencing provisions of the three strikes law, as 

amended by voters in the Three Strikes Reform Act of 2012 (Proposition 36), to mandate 

consecutive sentencing for multiple serious or violent felonies, while providing discretion 

to impose concurrent sentences for certain other crimes sentenced at the same time.

A. Consecutive Sentences Under the Original Three Strikes Law

When first enacted, Penal Code section 667,1subdivision (c)(6) provided, and still 

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).” And 

subdivision (c)(7) read, and still reads: “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.” 

(§ 667, subd. (c)(6) & (7), italics added; Stats. 1994, ch. 12, § 1, p. 73, eff. Mar. 7, 1994, 

italics added.)

1 Further undesignated section references are to the Penal Code.
2

As discussed in the majority opinion, our Supreme Court interpreted section 667,

subdivision (c)(6) and (7) in People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix).2 There, 

a man pointed a gun at four victims, all seated at a table, and announced a “ ‘holdup.’ ”

(Id. at p. 510.) Two of the victims surrendered their money; the others said they had 

none. A jury convicted Hendrix of two counts of robbery and two counts of attempted 

robbery. (Id. at pp. 510-511.) The issue taken up by the Supreme Court was “whether 

consecutive sentences are mandatory under subdivision (c)(6) [or] (c)(7) . . . when the 

defendant has two or more prior felony convictions . . . , and commits serious or violent 

felonies against multiple victims at the same time.” (Id. at p. 511.) 

Hendrix first observed that paragraph (6), by its terms, “applies to any current 

felony conviction” and that consecutive sentencing is mandatory under this provision for 

any current felony convictions “ ‘not committed on the same occasion, and not arising 

from the same set of operative facts.’ ” (Hendrix, 16 Cal.4th at p. 512, italics omitted.) 

By implication, the court held, consecutive sentences are discretionary where “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.)

Turning to paragraph (7), the court noted that it applied whenever there was “more 

than one serious or violent felony as described in paragraph (6).” The court concluded 

that the “most logical meaning of the reference to ‘paragraph (6)’ ” is that it refers to 

subdivision (c)(6) of section 667. “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 

2 Although Hendrix analyzed the case under the legislative version of the three 

strikes law (subd. (c)(6) & (7) of § 667), subdivision (a)(6) and (7) of section 1170.12 

were substantially identical. (Hendrix, supra, 16 Cal.4th at p. 511, fn. 2.) For ease of 

reference, subdivisions (c)(6) and (a)(6) are sometimes cited using the shorthand 

“paragraph (6),” and subdivisions (c)(7) and (a)(7) as “paragraph (7).” 
3

operative facts.’ ” (Hendrix, supra, 16 Cal.4th at p. 513.) In other words, the Supreme 

Court read former paragraph (7) as incorporating the “same occasion/same operative 

facts” test by reference from paragraph (6). Thus, the court concluded that the 

consecutive sentencing mandate of paragraph (7)—like the one in paragraph (6)—only 

was triggered when the underlying serious or violent felonies were “not committed on the 

same occasion, and [did] not aris[e] from the same set of operative facts.” (Ibid.)

Based on this interpretation, Hendrix held that when a defendant is convicted of 

two or more current serious or violent “different occasion/different operative facts” 

felonies, “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.’ ” (Hendrix, 16 Cal.4th at p. 513.) “Under 

this approach,” the court said, “subdivision (c)(6) and (c)(7) are not duplicative.” (Ibid.) 

And because “all of the current serious and violent felony convictions were ‘committed 

on the same occasion,’ ” it further held that paragraph (7) did not mandate the imposition 

of consecutive sentences on the robbery counts in that case. (Id. at p. 514.) 

B. Proposition 36 – The Three Strikes Reform Act of 2012

The chief purpose of Proposition 36 was to change “ ‘the requirements for 

sentencing a third strike offender to an indeterminate term of 25 years to life 

imprisonment.’ ” (People v. Torres (2018) 23 Cal.App.5th 185, 192 (Torres).) Its 

proponents argued that the sweep of the three strikes law was, in some respects, too broad 

and that the measure would “help stop clogging overcrowded prisons with non-violent 

offenders,” ensure proportionality in sentencing, and allow resentencing of certain third 

strike offenders serving life sentences for specified nonserious, nonviolent felonies. (See 

Official Voter Information Guide, Gen. Elec. (Nov. 6, 2012), argument in favor of Prop. 
4

36, p. 52.)3 They assured voters, however, that “truly dangerous criminals [would] 

receive no benefits whatsoever from the reform” and that “violent repeat offenders 

[would be] punished and not released early.” (Ibid.) As relevant here, Proposition 36 

amended section 1170.12, subdivision (a)(7)’s consecutive sentencing provision.

4

The amended text, with additions bolded and underlined and deletions in strikethrough, reads: “If there is a current conviction for more than one serious or violent 

felony as described in paragraph (6) of this subdivision (b), 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.” 

(§ 1170.12, subd. (a)(7), as amended by Prop. 36, § 4, eff. Nov. 7, 2012.) 

By deleting the reference to “paragraph (6)” and replacing it with “subdivision 

(b),” which defines serious and violent felonies, the amendment changed the text upon 

3 The pertinent portions of the Official Voter Information Guide for the November 

6, 2012 General Election are subject to judicial notice. (Evid. Code, §§ 452, subd. (c), 

459; <https://vig.cdn.sos.ca.gov/2012/general/pdf/complete-vig-v2.pdf> [as of Nov. 13, 

2019], archived at <https://perma.cc/7PQW-AWYT>.) 

4 My colleagues note that “no comments to this amendment were made in the 

Official Voter Information Guide.” (Maj. opn., ante, at p. 10.) But the voter guide, apart 

from the “Text of Proposed Laws” contained therein, is not intended to list every change 

being made by an initiative. The Attorney General’s title and summary, for instance, is 

only a “summary of the chief purposes and points” and is limited to 100 words. (Elec. 

Code, § 9004.) “[I]t need not be a catalogue or index to all of the provisions of the 

measure.” (Epperson v. Jordan (1938) 12 Cal.2d 61, 66; see also People ex rel. Lungren 

v. Superior Court (1996) 14 Cal.4th 294, 308 [“The Legislative Analyst did not suggest 

that all the effects and ramifications of the Act were being set forth in his brief 

summation”].) Further, the rule has long been that voters are “assumed to have voted 

intelligently upon an amendment to their organic law, the whole text of which was 

supplied each of them prior to the election and which they must be assumed to have duly 

considered, regardless of any insufficient recitals in the instructions to voters or the 

arguments pro and con of its advocates or opponents accompanying the text of the 

proposed measure.” (Wright v. Jordan (1923) 192 Cal. 704, 713.)
5

which Hendrix rested its holding that where all current “serious and violent felony 

convictions were ‘committed on the same occasion,’ . . . subdivision (c)(7) does not 

mandate that the trial court impose consecutive sentences.” (Hendrix, supra, 16 Cal.4th 

at p. 514.) Paragraph (7) now applies whenever a defendant with a prior strike is 

convicted of “more than one serious or violent felony,” without regard to whether the 

crimes are committed on the same or different occasions. (§ 1170.12, subd. (a)(7).) 

For several years after the passage of Proposition 36, there were no published 

opinions construing amended paragraph (7). During this period, prominent sentencing 

experts concluded that Proposition 36 had abrogated Hendrix and that consecutive 

sentences were now mandatory when a defendant with prior strikes was convicted of 

multiple current serious or violent felonies. (See Torres, supra, 23 Cal.App.5th at p. 197, 

fn. 5.)5

In May 2018, more than five years after Proposition 36 was enacted, the First 

Appellate District, Division One, published Torres, supra, 23 Cal.App.5th 185. Torres

concluded that, notwithstanding the elimination of the cross-reference to the same 

occasion/same operative facts test, Proposition 36 “did not alter the Supreme Court’s 

holding in Hendrix, supra, 16 Cal.4th 508, that . . . trial courts have discretion to impose 

concurrent sentences for multiple serious or violent felonies against a single victim if 

they were committed on the ‘same occasion’ or arose from the ‘same set of operative 

facts.’ ” (Torres, supra, 23 Cal.App.5th at p. 197.) It reached this conclusion first by 

finding that paragraph (6) “continues to apply to any current felony convictions 

(including serious and/or violent felonies) and requires consecutive sentencing where the 

5 These same experts, Presiding Justice Tricia A. Bigelow and Judge J. Richard 

Couzens (ret.), offered judicial training on their interpretation of Proposition 36’s 

amendment to paragraph (7). (California’s Three Strikes Sentencing Law (May 2017) 

<https://www.courts.ca.gov/20142.htm> [as of Nov. 13, 2019], archived at 

<https://perma.cc/W44B-C7XY>.) 
6

felonies (including serious and/or violent felonies) were not committed on ‘ “the same 

occasion” ’ or did not arise from ‘ “the same set of operative facts.” ’ ” (Id. at pp. 200-

201.) It then reasoned that Proposition 36’s revision to paragraph (7) merely changed the 

subdivision’s “triggering language,” not the “directive” portion of the statute, which, it 

found, “impacts only the additional requirement for consecutive sentencing of . . . 

nonserious and/or [non]violent felonies and misdemeanor offenses.” (Torres, supra,

23 Cal.App.5th at p. 201.)

Citing Justice Mosk’s concurring opinion in Hendrix, the court in Torres went on 

to hold that “sentences for . . . serious and/or violent felonies (imposed either 

consecutively or concurrently as required or allowed under [paragraph (6)]), must ‘run 

consecutive to [the] sentence for any other offense, whether felony or misdemeanor, for 

which a consecutive sentence may be imposed.’ ” (Torres, 23 Cal.App.5th at p. 201, 

citing Hendrix, supra, 16 Cal.4th at p. 518 (conc. opn. of Mosk, J.), italics omitted.) 

Because all the felonies for which Torres was convicted were violent, there were no 

“other offenses” subject to what the court called the “additional consecutive sentencing 

mandate” of paragraph (7). (Torres, at p. 203.) The court observed in dictum, however, 

that if Torres had been convicted of a nonserious or nonviolent felony, the term imposed

for that crime “would have had to have been consecutive to the terms of the serious 

and/or violent felonies, . . . regardless of whether [they] were committed on ‘the same 

occasion’ or arose from ‘the same set of operative facts.’ ” (Ibid.) 

My colleagues here follow a slightly different path to the same conclusion.

6

6 The majority adopts Torres’s holding after finding ambiguity in Proposition 36 

and concluding that, without some discussion of the change to paragraph (7) in the 

Official Voter Information Guide, it is “unclear whether the electorate intended to reject 

the reasoning of Hendrix and require consecutive sentencing for all convictions.” (Maj. 

opn., ante, at pp. 12, 13, 16.) However, the clearest indication of voter intent is the text 

of the amended statute. The voters are assumed to have voted intelligently upon that 
7

C. Analysis

The Attorney General urges this court not to follow Torres, arguing that

“absurdity results from interpreting [section 1170.12,] subdivision (a)(7) as piecemealing 

the consecutive sentencing mandate such that nonserious and nonviolent offenses are 

subject to mandatory consecutive sentencing while serious and violent felonies are not.” 

The “most logical” way to read the amended language, in the Attorney General’s view, is 

to interpret the statute as requiring consecutive sentences for all current convictions

where a defendant with a prior strike has more than one current serious or violent felony 

conviction.7 

amendment after considering the amended text of the law printed in the voter guide. 

(Wright v. Jordan, supra, 192 Cal. at p. 713.) I am loath to ignore clear statutory 

language merely because voters’ attention was not specifically drawn to it in the ballot 

materials, as that would establish a perilously broad rule of judicial construction that 

could erode the constitutional initiative power. (Cal. Const., art. IV, § 1; People v. 

Valencia (2017) 3 Cal.5th 347, 357 [“language used in a statute or constitutional 

provision should be given its ordinary meaning, and ‘[i]f the language is clear and 

unambiguous there is no need for construction, nor is it necessary to resort to indicia of 

the intent of the Legislature (in the case of a statute) or of the voters (in the case of a 

provision adopted by the voters)’ ”]; Times Mirror Co. v. Superior Court (1991) 53 

Cal.3d 1325, 1337 [“ ‘Where changes have been introduced to a statute by amendment it 

must be assumed the changes have a purpose’ ”].)

7 The Attorney General’s interpretation is consistent with the guidance offered in 

the sentencing treatises. (See fn. 5, ante, and accompanying text.) It also was adopted by 

a dissenting justice in People v. Buchanan (2019) 39 Cal.App.5th 385, in which a divided 

panel of the First Appellate District, Division Five, followed Torres. Justice Needham 

found that under the “plain language” of paragraph (7), “consecutive sentences—

including sentences consecutive to each other—must be imposed on more than one 

serious or violent felon[y] whenever consecutive sentences would be authorized, not 

merely on those ‘not committed on the same occasion, and not arising from the same set 

of operative facts.’ ” (Id. at p. 397 [conc. & dis. opn. of Needham, J.].) Like the 

Attorney General, Justice Needham highlighted the potentially “ ‘absurd consequence’ ” 

that flows from allowing concurrent sentences for serious or violent felony convictions, 

while requiring consecutive sentences for nonserious/nonviolent felony and misdemeanor 

convictions. (Id. at p. 398 [conc. & dis. opn. of Needham, J.].)
8

Although I agree with the Attorney General that Torres was incorrectly decided to 

the extent it interpreted paragraphs (6) and (7) to confer continuing discretion on courts to 

sentence multiple “same occasion/same operative facts” serious or violent felony 

convictions concurrently to one another, I disagree that the amended statute mandates

that all current convictions must be sentenced consecutively to one another. 

1. Allowing concurrent sentencing of multiple serious or violent

felonies is contrary to the text of the statute

As in Torres, the majority here rests its decision on Hendrix’s holding that 

concurrent sentencing is permissible under paragraph (6) for “ ‘ “any current felony 

conviction” ’ ” committed on the same occasion or arising from the same set of operative 

facts. (Torres, supra, 23 Cal.App.5th at p. 198.) I agree that paragraph (6) applies to 

“any current felony conviction,” including a single serious or violent felony conviction, 

but Hendrix’s statement, like paragraph (6) itself, does not exist in isolation; it must be 

read in context. 

The issue under review in Hendrix was whether paragraph (6) or (7) mandated 

consecutive sentences where an individual committed four serious or violent felonies on a 

single occasion. (Hendrix, supra, 16 Cal.4th at p. 511.) Hendrix made a general 

observation about paragraph (6) on its way to concluding that, because “all of the current 

serious and violent felony convictions were ‘committed on the same occasion,’ ” former 

paragraph (7) did not mandate the imposition of consecutive sentences. (Id. at p. 514.) 

As Justice Needham aptly observed in his dissent in Buchanan, after Proposition 36, 

paragraph (7) “no longer incorporates the language of ‘paragraph (6)’; it is not potentially 

duplicative of that subdivision; and it should be interpreted by reference to its language 

standing alone rather than to subdivision (a)(6).” (People v. Buchanan, supra, 39 

Cal.App.5th at p. 397 [conc. & dis. opn. of Needham, J.].) I agree. Concluding that 

consecutive sentences are (or are not) mandatory under paragraph (6) says nothing about 
9

whether they are mandatory under amended paragraph (7). The two subdivisions exist in 

harmony as separate consecutive sentencing provisions.8 

Returning to the statutory text, paragraph (7) now reads: “If there is a current 

conviction for more than one serious or violent felony as described in subdivision (b), 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.” (§ 1170.12, subd. (a)(7), italics added.) The reference to “each 

conviction” is pivotal because, while Torres did not explicate the statutory text, it 

implicitly concluded that the phrase refers back to multiple serious or violent felony 

convictions sentenced concurrently or consecutively under paragraph (6).9 But this 

reading effectively rewrites the law to say: “If there is a current conviction for more than 

one serious or violent felony as described in subdivision (b), the court shall impose the 

sentence for each [such serious or violent felony] conviction [concurrently or 

consecutively under subdivision (a)(6), and then impose the sentence] consecutive to the 

8 Given the material change to the text of the statute, I further conclude that Hendrix

no longer governs the interpretation of paragraph (7). (See Goodman v. Lozano (2010) 

47 Cal.4th 1327, 1337 [“the meaning of ‘net monetary recovery’ ([Code. Civ. Proc.,] 

§ 1032(a)(4)) is not controlled by those cases construing the prior version of [Code of 

Civil Procedure] section 1032”]; Becerra v. Superior Court (2017) 19 Cal.App.5th 967, 

976 [real party in interest’s “reliance on cases construing a former version of the law are 

inapposite on this point”]; Grossmont Hospital v. Workers’ Comp. Appeals Bd. (1997) 59 

Cal.App.4th 1348, 1360 [“To conclude the second sentence of [the subdivision in 

question] requires interpretation of preexisting case law to remain unchanged in the face 

of legislative change is nonsensical, i.e., case law interpreting a former version of the 

statute would control over the language of the current version”].)

9 My colleagues acknowledge that the majority in Hendrix did not define the phrase

“each conviction,” and declined to adopt concurring Justice Mosk’s linkage of that text 

back to paragraph (6). (Maj. opn., ante, at p. 14.) My colleagues instead read Hendrix to 

articulate a rule under which all felonies are first sentenced under paragraph (6) before 

paragraph (7) is applied. (Ibid.) 
10

sentence for any other conviction for which the defendant may be consecutively

sentenced in the manner prescribed by law.” I cannot join in this construction of the 

statute. (See Professional Engineers in California Government v. Kempton (2007) 40 

Cal.4th 1016, 1037 [“ ‘the court may not add to [a] statute or rewrite it to conform to an 

assumed intent that is not apparent in its language’ ”].) 

In my view, “each conviction” in paragraph (7) refers not to serious or violent 

felony convictions sentenced under paragraph (6), but to the convictions described in the 

conditional antecedent clause, i.e., each “current conviction for . . . [a] serious or violent 

felony.” So construed, paragraph (7) provides: “If there is a current conviction for more 

than one serious or violent felony as described in subdivision (b), the court shall impose 

the sentence for each [such serious or violent felony] conviction consecutive to the 

sentence for any other conviction for which the defendant may be consecutively 

sentenced in the manner prescribed by law.” (§ 1170.12, subd. (a)(7).) 

Thus, when a defendant is convicted of more than one felony, but not more than 

one serious or violent felony, paragraph (6) affords discretion to sentence the defendant 

concurrently for any current felony conviction (including a single serious or violent 

felony) that was committed on the same occasion or arose from the same set of operative 

facts. (§ 1170.12, subd. (a)(6).) But, when a defendant is convicted of more than one 

current serious or violent felony, paragraph (7) also applies and mandates that each 

serious or violent felony conviction be sentenced “consecutive to the sentence for any 

other conviction for which the defendant may be consecutively sentenced in the manner 

prescribed by law,” including any other serious or violent felony. Because paragraph (7) 

now mandates consecutive sentencing for each individual serious or violent felony 

conviction, I interpret the statute to mean that those convictions must be sentenced 

consecutive to one another. The only question is to which other convictions must the 

serious and violent felony convictions be consecutively sentenced?
11

2. Trial courts retain discretion to impose concurrent sentences for 

misdemeanors and certain nonserious and nonviolent felonies

Paragraph (7) requires that each serious or violent felony conviction be sentenced 

consecutive to “any other conviction for which the defendant may be consecutively 

sentenced in the manner prescribed by law” (italics added), but the statute is silent on 

whether the “other convictions” may (or must) be sentenced concurrently to one another. 

Unlike the Attorney General (and my colleagues), I do not read paragraph (7) to mandate 

consecutive sentencing for every “other conviction.” Had this been the intent, the 

drafters presumably would have said so explicitly using language like that in paragraph 

(6), e.g., “If there is a current conviction for more than one serious or violent felony as 

described in subdivision (b), the court shall sentence the defendant consecutively on each 

count pursuant to this section.” They did not. In my view, the italicized text in paragraph 

(7) signals the application of ordinary sentencing rules to those other convictions, not that 

the phrase should be read to mean that “if any other current felony or misdemeanor 

convictions may be sentenced consecutively, they must be sentenced consecutively to the 

current serious or violent felony convictions.”10

When consecutive sentencing is not mandatory under paragraph (6) or (7), the 

implication is that courts retain discretion to impose concurrent sentences on other 

10 Although Justice Mosk opined in his concurrence in Hendrix that when former 

paragraph (7) applied, “the sentence for each [] serious or violent ‘different 

occasions/different facts’ felony must run consecutive to the sentence for any other 

offense, whether felony or misdemeanor, for which a consecutive sentence may be 

imposed” (Hendrix, supra, 16 Cal.4th at p. 518 [conc. opn. of Mosk, J.]), that was not the 

majority’s holding; indeed, application of former paragraph (7) to misdemeanors (or 

nonserious and nonviolent felonies) was not even before the court. (See Rosato v. 

Superior Court (1975) 51 Cal.App.3d 190, 211 [“dicta by a concurring justice . . . is not 

binding and does not constitute the holding of the court”]; Turney v. Collins (1941) 48 

Cal.App.2d 381, 388 [a “concurring opinion is not the decision of the court, but a mere 

concurrence with that decision by the writer of the concurring opinion”].)
12

convictions sentenced at the same time. (§ 669, subd. (a).) Thus, here I would hold that 

the trial court retained authority under paragraph (6) to impose concurrent sentences for 

any of the five nonserious or nonviolent felony convictions committed by defendant on 

the same occasion or that arose from the same set of operative facts. It likewise had 

authority to sentence the misdemeanors concurrently under section 669, subdivision (a). 

I would remand the case to allow the trial court to determine whether any nonserious or 

nonviolent felonies were committed on the same occasion or arose from the same set of 

operative facts. (§ 1170.12, subd. (a)(6).) If so, the court could exercise its discretion to 

impose concurrent sentences on those nonserious and/or nonviolent felony convictions, 

as well as the misdemeanor convictions. Then, under paragraph (7), the aggregate 

sentence imposed for the misdemeanor and nonserious/nonviolent felony convictions 

would run consecutive to the sentences for each of the two serious or violent felonies. 

This construction of the statute gives effect to Proposition 36’s amendment to

paragraph (7), while also harmonizing that language with paragraph (6), which was left 

unchanged. (People v. Valencia, supra, 3 Cal.5th at p. 357 [“ ‘statutory sections relating 

to the same subject must be harmonized, both internally and with each other, to the extent 

possible’ ”].) And because paragraph (7) by its terms governs sentencing of multiple 

current serious or violent felony convictions by defendants with at least one prior serious 

or violent felony conviction, consecutive sentencing of those crimes also furthers

Proposition 36’s articulated purpose of ensuring that the three strikes law will “continue 

to punish dangerous career criminals who commit serious [or] violent crimes” (Official 

Voter Information Guide, Gen. Elect. (Nov. 6, 2012), argument in favor of Prop. 36, p. 52

<https://vig.cdn.sos.ca.gov/2012/general/pdf/complete-vig-v2.pdf> [as of Nov. 13, 2019], 

archived at <https://perma.cc/7PQW-AWYT>), while preserving courts’ flexibility to 

impose concurrent sentences on certain other convictions in appropriate cases. 

/s/ , J.