Filed 9/14/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, 

Plaintiff and Respondent,

v.

LEVEL OMEGA HENDERSON,

Defendant and Appellant.

B298366

(Los Angeles County

Super. Ct. No. BA437882)

 

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Frederick N. Wapner, Judge. Affirmed.

Rudolph J. Alejo, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Blythe J. Leszkay and Kristen J. 

Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury found Level Omega Henderson guilty on two counts

of assault with a semiautomatic firearm (one for each of two 

victims), one count of possession of a firearm by a felon, and one 

count of assault by means likely to produce great bodily injury. 

The trial court sentenced Henderson to a prison term of 27 years, 

which included consecutive terms on the two convictions for 

assault with a semiautomatic firearm.

Henderson argues his trial lawyer provided ineffective 

assistance by failing to call a percipient witness. Henderson also 

argues he is entitled to a new sentencing hearing because the 

trial court did not recognize it had discretion under the three 

strikes law to impose concurrent sentences on the two convictions

for assault with a semiautomatic firearm. We conclude 

Henderson has not shown in this appeal that his trial attorney 

provided ineffective assistance at trial because the record does 

not disclose why his lawyer chose not to call the witness or that 

his attorney’s decision was below the standard of care. We also 

conclude the trial court did not have discretion to impose 

concurrent sentences on the two convictions for assault with a 

semiautomatic firearm. Therefore, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Henderson Gets into a Fight

In March 2015 Henderson fought with Daniel Tillett in the 

courtyard of an apartment complex. At one point Henderson 

walked away from the area where they were fighting and went to 

his car. William Aguilar, who had been making some repairs at 

the apartment building, saw Henderson open the trunk of the car
3

and walk back toward the courtyard holding a semiautomatic 

handgun. Aguilar called the 911 emergency operator. 

A few minutes later Henderson returned to his car and 

drove away.1 After Henderson left, Aguilar went to the courtyard 

and saw Tillett and a woman named Tiffany. Tillett was 

bleeding from his face. Aguilar agreed to take Tillett to the 

hospital, but before they left, Henderson returned to the 

courtyard holding the same gun Aguilar had seen before. With 

his right hand Henderson hit Tillett in the face with the butt of 

the gun, and with his left hand he hit Tillett with an uppercut to 

his jaw. Tillett fell to the ground. Tiffany yelled at Henderson,

“Please do not kill my baby’s daddy.” Henderson pointed the gun 

in a “sweeping motion” at both Tiffany and Aguilar. Aguilar ran

to his truck, saw a police car, and flagged it down. 

Two police officers went to the apartment complex and saw 

Henderson standing over Tillett on the ground. Henderson hit 

Tillett several more times before fleeing to a vacant apartment

unit. The officers did not follow Henderson into the apartment.

Five minutes later, Henderson walked out of the apartment 

unarmed. The police searched the apartment and discovered a

torn window screen in the bathroom. The police also found a 

semiautomatic handgun on the ground in a small atrium “directly 

below the window.” The only access to the atrium was through 

the windows of a few apartments and the roof of the apartment 

building. 

1 It is not clear whether Henderson encountered Tillett again 

between when Aguilar first saw Henderson and when Henderson 

returned to his car.
4

B. The People Charge Henderson with Multiple Crimes

The People charged Henderson with one count of assault 

with a semiautomatic firearm on Tillett (Pen. Code, § 245, 

subd. (b), count 1),2 one count of assault with a semiautomatic 

firearm on Aguilar (count 5), one count of possession of a firearm 

by a felon (§ 29800, subd. (a)(1), count 3), and one count of assault 

by means likely to produce great bodily injury on Tillett (§ 245, 

subd. (a)(4), count 4).3 The People alleged that Henderson had 

four prior serious or violent felony convictions within the 

meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12),

that Henderson had two prior serious felony convictions within 

the meaning of section 667, subdivision (a)(1), and that 

Henderson served four prior separate prison terms within the 

meaning of section 667.5, subdivision (b).

C. A Jury Convicts Henderson on All Counts

At trial the People called several witnesses, including 

Aguilar and the two police officers who arrived at the apartment 

complex. The People did not call Tillett or Tiffany. The parties 

stipulated Henderson had been convicted of a felony. Henderson 

did not call any witnesses. The jury found Henderson guilty on 

all counts. 

2 Statutory references are to the Penal Code.

3 The People also charged Henderson with one count of 

possession of a firearm with a prior violent conviction (§ 29900, 

subd. (a)(1), count 2), but at trial the court granted the People’s 

motion to dismiss that count. 
5

D. The Trial Court Denies Henderson’s Motion for New 

Trial

Prior to sentencing, the trial court granted Henderson’s 

motion to represent himself under Faretta v. California (1975) 

422 U.S. 806 [95 S.Ct. 2525]. After several continuances, 

however, and at Henderson’s request, the court appointed new 

counsel for Henderson. Henderson filed a motion for new trial, 

attaching a handwritten declaration from Tiffany stating that,

“during the course of the physical altercation” between 

Henderson and Tillett, she did not see Henderson “with any 

weapon” and that she saw Henderson and Tillett “fighting with 

their fists only.” Henderson also attached a transcript of his 

investigator’s interview with Tiffany where Tiffany stated that 

neither the prosecutor nor Henderson’s prior attorney 

subpoenaed her to testify and that, had she been served with a

subpoena, she would have testified. Henderson argued, among 

other things, that his prior lawyer rendered ineffective assistance 

by failing to “fully investigate and secure the attendance of” 

Tiffany at trial. The trial court denied Henderson’s motion for 

new trial. 

E. The Trial Court Sentences Henderson 

In a bifurcated proceeding, the trial court found true all of 

the prior conviction allegations. On Henderson’s motion, the 

court struck three of Henderson’s four prior serious or violent 

felony convictions under the three strikes law, one of his two 

prior serious felony convictions under section 667, subdivision 

(a)(1), and all of his four prior prison terms under section 667.5, 

subdivision (b). The trial court sentenced Henderson to a prison

term of 27 years, consisting of the upper term of nine years on 
6

count 1, doubled under the three strikes law, a consecutive term 

of four years on count 5 (one-third the middle term of six years, 

doubled under the three strikes law), and five years for the 

remaining enhancement under section 667, subdivision (a)(1). 

The court also imposed and stayed under section 654 a three-year 

term on count 3 and a four-year term on count 4. Henderson 

timely appealed. 

DISCUSSION

A. Henderson Has Not Shown His Trial Counsel 

Provided Ineffective Assistance at Trial

Henderson argues his trial attorney provided ineffective 

assistance by failing to interview Tiffany and call her to testify at 

trial. Henderson contends his attorney’s performance was 

deficient because Tiffany’s statement that she did not see 

Henderson with a gun “would have directly supported” 

Henderson’s theory at trial that he “never used a gun” during his

fight with Tillett. The People argue Henderson cannot establish 

his trial counsel’s performance was deficient because the record 

does not disclose why counsel did not call Tiffany as a witness. 

“To make out a claim that counsel rendered constitutionally 

ineffective assistance, ‘the defendant must first show counsel’s 

performance was deficient, in that it fell below an objective 

standard of reasonableness under prevailing professional norms. 

Second, the defendant must show resulting prejudice, i.e., a 

reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been 

different.’” (People v. Hoyt (2020) 8 Cal.5th 892, 958 (Hoyt); 

accord, People v. Mai (2013) 57 Cal.4th 986, 1009.) “Whether 
7

counsel’s performance was deficient, and whether any deficiency 

prejudiced defendant, are mixed questions of law and fact subject 

to our independent review.” (In re Gay (2020) 8 Cal.5th 1059, 

1073.)

“Usually, ‘ineffective assistance [of counsel claims are] 

more appropriately decided in a habeas corpus proceeding.’” 

(Hoyt, supra, 8 Cal.5th at p. 958.) On direct appeal, “we may 

reverse ‘only if (1) the record affirmatively discloses counsel had 

no rational tactical purpose for the challenged act or omission, (2) 

counsel was asked for a reason and failed to provide one, or (3) 

there simply could be no satisfactory explanation.’” (People v.

Arredondo (2019) 8 Cal.5th 694, 711; see People v. Mai, supra, 

57 Cal.4th at p. 1009.) “‘All other claims of ineffective assistance 

are more appropriately resolved in a habeas corpus proceeding.’” 

(Hoyt, at p. 958.) 

Henderson does not argue (1) or (2), and nothing in the 

record affirmatively discloses his trial counsel had no rational 

tactical purposes for not interviewing Tiffany or calling her as a 

witness or indicates that anyone asked his attorney why she did 

not or that she failed to respond to such an inquiry. Henderson 

argues only (3): His trial counsel’s decision not to call Tiffany 

was “per se unreasonable”; i.e., there could be no satisfactory 

explanation for her decision.

But there were several reasons Henderson’s trial counsel

may have decided not to call Tiffany, reasons to which we defer. 

(See People v. Carrasco (2014) 59 Cal.4th 924, 989 [“The decision 

whether to call certain witnesses is a ‘matter[ ] of trial tactics and 

strategy which a reviewing court generally may not secondguess.’”]; People v. Wang (2020) 46 Cal.App.5th 1055, 1088 

[defendant failed to show “there could be no rational tactical 
8

purpose for defense counsel’s failure to call” a witness where the 

record did “not affirmatively reveal the lack of a rational tactical 

purpose for not calling the . . . witness”]; cf. People v. Bolin (1998) 

18 Cal.4th 297, 334 [“Whether to call certain witnesses is . . . a 

matter of trial tactics, unless the decision results from 

unreasonable failure to investigate.”].) First, Henderson’s trial 

counsel may not have found Tiffany’s account of the incident and 

proposed testimony credible. (See Lord v. Wood (9th Cir. 1999) 

184 F.3d 1083, 1095, fn. 8 [“A lawyer who interviews the witness 

can rely on his assessment of their articulateness and 

demeanor—factors we are not in a position to second-guess.”].) 

Even if Tiffany told trial counsel she did not see Henderson with 

a gun, counsel reasonably could have concluded, based on her

evaluation of Tiffany as a witness, that the risks of putting 

Tiffany on the stand and having her say something different or 

harmful were too great. (Cf. People v. Freeman (1994) 8 Cal.4th 

450, 522-523 [there was “no basis for finding ineffective 

assistance of counsel” where the reviewing court could not 

“determine on appeal the tactical reasons for the approach 

counsel took,” counsel may have preferred making an argument 

to the jury “to having witnesses testify and be subject to crossexamination,” and “we do not know what the witnesses might 

have said if asked”].)

Second, had trial counsel for Henderson called Tiffany to 

testify at trial, the prosecutor may have elicited additional facts 

on cross-examination that supported the People’s case or

damaged Henderson’s defenses. For example, Aguilar testified 

that he did not see the beginning of the fight between Henderson 

and Tillett and that he did not see what happened after he 

observed Henderson walk from his car to the apartment complex 
9

with the gun. And by the time Aguilar saw Tillett, Tillett was 

already bleeding from his face. Tiffany’s testimony could have 

filled in some of the gaps in Aguilar’s testimony. In addition, the 

People charged Henderson not only with assault with a 

semiautomatic firearm, but also with assault by means likely to 

produce great bodily injury. Even if Tiffany testified she did not 

see Henderson with a gun, she may have testified she saw 

Henderson hit Tillett, which would have provided further 

evidence in support of the latter charge.

Third, in closing argument Henderson’s trial counsel used 

Tiffany’s (and Tillett’s) absence from the trial to argue the People 

had not met their burden of proof beyond a reasonable doubt. In 

particular, counsel argued the People “denied” the jury the true 

story by failing to call the people “who know the real story about 

what happened” and “who know the full picture.” (See 

Harrington v. Richter (2011) 562 U.S. 86, 109 [131 S.Ct. 770] [“To 

support a defense argument that the prosecution has not proved 

its case it sometimes is better to try to cast pervasive suspicion of 

doubt than to strive to prove a certainty that exonerates.”].)

To be sure, if there were evidence Henderson’s trial counsel 

did not even try to find and interview Tiffany, Henderson might 

be able to show his attorney’s performance was deficient. (See In 

re Gay, supra, 8 Cal.5th at p. 1076 [an attorney’s duty to render 

effective assistance includes the “‘duty to make reasonable 

investigations or to make a reasonable decision that makes 

particular investigations unnecessary’”]; see, e.g., id. at p. 1078 

[where the defendant was charged with shooting a police officer, 

his attorney acted unreasonably in failing to interview two 

witnesses who may have testified the codefendant was the 

shooter]; Riley v. Payne (9th Cir. 2003) 352 F.3d 1313, 1317-1319 
10

[attorney acted unreasonably by failing to interview a witness 

who was with the defendant and the victim shortly before the 

alleged assault occurred and would have offered testimony 

favorable to the defendant’s theory of self-defense].) As 

Henderson concedes, however, the record does not indicate either 

way whether, let alone affirmatively show, trial counsel for 

Henderson attempted to locate and interview Tiffany (or, if she 

did, what she learned during her investigation). (See People v. 

Mayfield (1993) 5 Cal.4th 142, 188 [“tactical choices presented to 

us on a silent record . . . are better evaluated by way of a petition 

for writ of habeas corpus, and on direct appeal we reject them”].)

B. The Trial Court Did Not Have Discretion To Impose

Concurrent Sentences on the Two Convictions for

Assault with a Semiautomatic Firearm

The trial court imposed consecutive sentences on count 1, 

assault with a semiautomatic firearm on Tillett, and count 5, 

assault with a semiautomatic firearm on Aguilar. In imposing 

consecutive sentences for these two convictions, the court stated 

that, “as to count 5,” the “three strikes law requires that on 

serious or violent felonies, two or more, that they be sentenced 

consecutively.” 

Citing People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix), 

where the Supreme Court held “consecutive sentences are not 

mandated under [section 667,] subdivision (c)(7) if all of the 

serious or violent current felony convictions are ‘committed on 

the same occasion’” (Hendrix, at p. 512), Henderson argues the 

trial court erred in failing to recognize it had discretion to impose 
11

concurrent sentences on counts 1 and 5.4 The People argue the 

trial court did not have discretion to impose concurrent sentences 

because Proposition 36, approved by the voters in 2012, 15 years 

after the Supreme Court’s decision in Hendrix, eliminated a trial 

court’s discretion to impose concurrent sentences and requires

the court to impose consecutive sentences “where the defendant 

has multiple current strike convictions.” Henderson cites several 

cases that have agreed with his position. (See People v. Marcus 

(2020) 45 Cal.App.5th 201 (Marcus); People v. Gangl (2019) 42 

Cal.App.5th 58 (Gangl); People v. Buchanan (2019) 39 

Cal.App.5th 385 (Buchanan); People v. Torres (2018) 23 

Cal.App.5th 185 (Torres).) In three of these cases, however, a 

dissenting justice agreed with the People’s position. (See Marcus, 

at p. 215 (conc. & dis. opn. of Krause, J.); Gangl, at pp. 72-80

(conc. & dis. opn. of Krause, J.); Buchanan, at pp. 392-398 

(conc. & dis. opn. of Needham, J.).)

We agree with the People and the dissenting justices in 

Marcus, Gangl, and Buchanan that Proposition 36 eliminated the

trial court’s discretion to impose concurrent sentences on

multiple current serious or violent felony convictions. 

1. Hendrix

Section 667, subdivision (c), provides in relevant part: 

“Notwithstanding any other law, if a defendant has been 

convicted of a felony and it has been pled and proved that the 

4 Henderson does not challenge the trial court’s 

determination that his convictions on counts 1 and 5 were for 

serious or violent felonies under the three strikes law. (See 

§ 1192.7, subd. (c)(31) [defining assault with a semiautomatic 

firearm in violation of section 245 as a “serious felony”].)
12

defendant has one or more prior serious or violent felony 

convictions, as defined in subdivision (d), 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 . . . . [¶] (7) 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.”

In Hendrix, supra, 16 Cal.4th 508 the Supreme Court

considered whether a trial court has discretion to impose 

concurrent sentences under section 667, subdivision (c)(7), where 

the defendant is convicted of multiple serious or violent felonies

the defendant committed at the same time. (Hendrix, at 

pp. 511-513.) The Supreme Court first considered the language 

of section 667, subdivision (c)(6), and explained that, because 

subdivision (c)(6) “clearly provides that consecutive sentencing is 

mandatory for any current felony convictions ‘not committed on 

the same occasion, and not arising from the same set of operative 

facts,’” by implication “consecutive sentences are not mandatory 

under subdivision (c)(6) if the multiple current felony convictions 

are ‘committed on the same occasion’ or ‘aris[e] from the same set 

of operative facts.’” (Hendrix, at pp. 512-513.) 

Turning to section 667, subdivision (c)(7), the Supreme 

Court held that the phrase “‘more than one serious or violent 

felony as described in paragraph (6)’ refer[ed] to multiple current 

convictions for serious or violent felonies ‘not committed on the 
13

same occasion, and not arising from the same set of operative 

facts.’” (Hendrix, supra, 16 Cal.4th at p. 513.) Therefore, the 

Supreme Court held, “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.’” (Hendrix, at 

p. 513.) Again, the Supreme Court explained that, “[b]y 

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 

Supreme Court affirmed these holdings in People v. Deloza (1998) 

18 Cal.4th 585 and People v. Lawrence (2000) 24 Cal.4th 219.

2. Proposition 36

Before voters adopted Proposition 36 in 2012, subdivisions 

(c)(6) and (c)(7) of section 667 were substantially similar to 

subdivisions (a)(6) and (a)(7) of section 1170.12—the initiative 

version of the three strikes law. (See former § 1170.12, 

subds. (a)(6)-(a)(7), added by Prop. 184, § 1, as approved by voters 

Gen. Elec. (Nov. 8, 1994) and amended by Prop. 36, § 4, as 

approved by voters Gen. Elec. (Nov. 6, 2012); People v. Lawrence, 

supra, 24 Cal.4th at p. 222, fn. 1 [“‘[t]he relevant portions of the 

initiative version of the three strikes law adopted by the voters in 

November 1994 (§ 1170.12), and the March 1994 legislative 

version (§ 667, subds. (b)-(i)), are virtually identical’”].) 
14

Proposition 36 amended section 1170.12, subdivision (a)(7), as 

follows:5 “If there is a current conviction for more than one 

serious or violent felony as described in subdivision (a)(6)

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, as approved by voters Gen. Elec. (Nov. 6, 2012).)

Section 1170.12, subdivision (b), lists the felonies that 

qualify as serious or violent under the three strikes law. 

Therefore, because subdivision (a)(7) now refers to serious or 

violent felony convictions “described in subdivision (b),” rather 

than serious or violent felony convictions “described in 

subdivision (a)(6),” section 1170.12, subdivision (a)(7), “now 

applies not only when [current] serious or violent felonies were 

not committed on the same occasion or did not arise from the 

same set of operative facts, but whenever a defendant is 

convicted of multiple serious or violent felonies.” (Torres, supra, 

23 Cal.App.5th at p. 201; accord Gangl, supra, 42 Cal.App.5th at 

p. 69; see Marcus, supra, 45 Cal.App.5th at p. 212 [section 

1170.12, “subdivision (a)(7) no longer applies only to ‘serious or 

violent felonies “not committed on the same occasion, and not 

arising from the same set of operative facts,”’” but to “all cases 

where the current multiple felonies are serious and/or violent—

5 Strikethrough indicates deleted language; bold indicates 

added language.
15

even when those felonies were committed at the same time and 

involve the same facts”].)6

3. Proposition 36 Eliminated a Trial Court’s 

Discretion To Impose Concurrent Sentences on 

Convictions for Multiple Serious or Violent 

Felonies

“We interpret statutes added or amended by voter initiative

. . . in the same manner we interpret those enacted by the 

Legislature.” (People v. Jessup (2020) 50 Cal.App.5th 83, 87; see 

People v. Valenzuela (2019) 7 Cal.5th 415, 423 [“In construing

[an] initiative, ‘we apply the same principles that govern 

statutory construction.’”].) “Where a law is adopted [or amended]

by the voters, ‘their intent governs.’ [Citation.] In determining 

that intent, ‘we turn first to the language of the statute, giving 

the words their ordinary meaning.’” (People v. Buycks (2018) 5 

Cal.5th 857, 879-880; accord, People v. Herrera (2020) 52 

Cal.App.5th 982, 990.) “‘[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 voters (in the case of a 

provision adopted by the voters).’” (People v. Valencia (2017) 

3 Cal.5th 347, 357; accord, People v. Kelly (2018) 28 Cal.App.5th 

886, 897.) “[W]e presume the voters intended the meaning 

apparent from that language, and we may not add to the statute 

6 Proposition 36 did not amend the nearly identical language 

of section 667, subdivision (c)(7). As the court in Torres

explained, this appears to have been an oversight. (Torres, 

supra, 23 Cal.App.5th at p. 202.) Because “we cannot read the 

electorate’s change of its language as having no meaning,” “the 

later-enacted initiative version of the law controls . . . .” (Ibid.)
16

or rewrite it to conform to some assumed intent not apparent 

from that language.” (People v. Superior Court (Pearson) (2010)

48 Cal.4th 564, 571; accord, Herrera, at p. 991.) 

The plain language of section 1170.12, subdivision (a)(7), as 

amended, requires a court to impose consecutive sentences on 

convictions for multiple serious or violent felonies. Subdivision 

(a)(7) now refers to serious or violent felonies described in 

subdivision (b)—the provision that defines serious or violent 

felonies—rather than serious or violent felonies described in 

subdivision (a)(6). Therefore, it applies “whether or not those 

serious and/or violent felonies were committed on the same 

occasion and arose under the same set of operative facts.” 

(Marcus, supra, 45 Cal.App.5th at p. 213; see Gangl, supra, 

42 Cal.App.5th at p. 69; Torres, supra, 23 Cal.App.5th at p. 201.) 

Subdivision (a)(7) requires the court to “impose the sentence for 

each [serious or violent felony] conviction consecutive to the 

sentence for any other conviction for which the defendant may be 

consecutively sentenced . . . .” Any other conviction for which the 

defendant may be consecutively sentenced includes the current 

conviction(s) for the other serious or violent felony or felonies.

Therefore, “under the plain language of section 1170.12, 

subdivision (a)(7), consecutive sentences—including sentences 

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

serious or violent felony” conviction. (Buchanan, supra, 

39 Cal.App.5th at p. 397 (conc. & dis . opn. of Needham, J.); see 

Gangl, at p. 79 (conc. & dis. opn. of Krause, J.) [“when a 

defendant is convicted of more than one current serious or violent 

felony,” subdivision (a)(7) “mandates that each serious or violent 

felony conviction be sentenced ‘consecutive to the sentence for 

any other conviction for which the defendant may be 
17

consecutively sentenced . . . ,’ including any other serious or 

violent felony”].) As a leading treatise on California sentencing 

law explained: “The amendment to section 1170.12(a)(7) appears 

to abrogate Hendrix as to serious and violent crimes. . . . The 

change now requires the court to sentence multiple current 

serious or violent felonies consecutively, whether or not they 

occurred on the same occasion or out of the same set of operative 

facts.” (Couzens et al., California Three Strikes Sentencing (The 

Rutter Group 2018) § 8:1.)7

The court in Torres and the majority opinions in Buchanan, 

Gangl, and Marcus interpreted amended subdivision (a)(7) of 

section 1170.12 differently. According to these courts, 

subdivision (a)(7) requires only that “other crimes must be 

sentenced consecutively to the serious and/or violent felonies 

sentenced either consecutively or concurrently” under subdivision 

(a)(6). (Marcus, supra, 45 Cal.App.5th at pp. 212-213; see Gangl, 

supra, 42 Cal.App.5th at p. 71; Torres, supra, 23 Cal.App.5th at 

p. 201.) But, according to these opinions, Proposition 36 did not 

implicitly overrule Hendrix, and trial courts still have “discretion 

to sentence serious and/or violent felon[y convictions] 

concurrently” under subdivision (a)(6). (Marcus, at p. 213; see 

Gangl, at p. 71; Torres, at p. 201.) 

The problem with this interpretation is that it is not what 

section 1170.12 says. Before the voters adopted Proposition 36, 

section 1170.12, subdivision (a)(7), applied to multiple serious or 

7 The current version of the treatise acknowledges the 

holding of Torres “[n]otwithstanding the amendment” to section 

1170.12, subdivision (a)(7).) (Couzens et al., California Three 

Strikes Sentencing (2019 supp.) § 8:1.)
18

violent felony convictions “as described by subdivision (a)(6)”—

i.e., multiple serious or violent felony convictions not committed 

on the same occasion and not arising from the same set of facts. 

Therefore, the Supreme Court’s holding in Hendrix that courts 

had discretion to impose concurrent sentences when the 

defendant committed the felonies on the same occasion or the 

felonies arose from the same set of facts was consistent with

subdivisions (c)(6) and (c)(7) of section 667 and subdivisions (a)(6) 

and (a)(7) of section 1170.12. But because the voters amended 

subdivision (a)(7) to refer to felonies described in subdivision 

(b)—i.e., serious and violent felonies—rather than felonies 

described in subdivision (a)(6), subdivision (a)(7) now requires the 

court to impose consecutive sentences on convictions for any and 

all serious or violent felonies. (See People v. Santa Ana (2016) 

247 Cal.App.4th 1123, 1142 [“‘[a]s a general rule, in construing 

statutes, “[w]e presume the Legislature [or, here, the electorate] 

intends to change the meaning of a law when it alters the 

statutory language [citation], as for example when it deletes 

express provisions of the prior version”’”]; see also People v. 

Mendoza (2000) 23 Cal.4th 896, 916.) When the voters amended 

section 1170.12, subdivision (a)(7), they did not include an 

exception that would allow the court to impose concurrent 

sentences on felony convictions that fall outside the scope of

section 1170.12, subdivision (a)(6). The voters could have 

approved such an exception, but they did not, and we cannot add 

it. (See Johnson v. County of Mendocino (2018) 25 Cal.App.5th 

1017, 1031 [“[w]e cannot add to the initiative a [new provision], 

in the guise of legal interpretation”]; People v. Roach (2016) 247 

Cal.App.4th 178, 184 [“to construe [Proposition 47] in the manner 

appellant requests would require this court to insert new 
19

language into the statute,” and “[e]ven assuming the result 

appellant urges would better further the intent of the voters, this 

court cannot add to the statute on that basis”].)8

In Hendrix the Supreme court held that section 667, 

subdivision (c)(6), “applies to any current felony conviction,” 

whether or not the felony is serious or violent. (See Hendrix, 

supra, 16 Cal.4th at p. 512.) The court in Torres reasoned that,

because “no change was made to the language of section 1170.12,

subdivision (a)(6),” the voters must have intended that courts 

“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 operative facts.” (See 

Torres, supra, 23 Cal.App.5th at pp. 200-201.) The majorities in 

Gangl and Marcus adopted similar reasoning. (See Marcus, 

supra, 45 Cal.App.5th at p. 211 [“Proposition 36 did not amend 

section 1170.12, subdivision (a)(6), and therefore, as held 

by Hendrix in its analysis of the parallel provision–subdivision

(c)(6) of section 667–subdivision (a)(6) continues to apply 

to all felonies”]; Gangl, supra, 42 Cal.App.5th at p. 69 [“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).”].) 

8 As the dissenting justice in Gangl observed, the voters 

could have amended section 1170.12, subdivision (a)(7), to read, 

for example: 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 for any other conviction

consecutively. (See Gangl, supra, 42 Cal.App.5th at p. 78

(conc. & dis. opn. of Krause, J.).)
20

It is true that section 1170.12, subdivision (a)(6), previously 

applied and continues to apply to all felonies. But the court in

Torres assumed, incorrectly in our view, that because the voters

did not amend subdivision (a)(6), they intended courts to retain 

discretion to impose concurrent sentences on multiple serious or 

violent felony convictions. This assumption ignores the actual 

language of subdivisions (a)(6) and (a)(7) and the relationship 

between the two provisions. (See People v. Murphy (2001) 25 

Cal.4th 136, 142 [“[w]e do not . . . consider the statutory language

‘in isolation,’” but instead “look to ‘the entire substance of the

statute . . . in order to determine the scope and purpose of the 

provision’”]; People v. Santa Ana, supra, 247 Cal.App.4th at 

p. 1141 [same]; see also Gangl, supra, 42 Cal.App.5th at p. 68 

[“we cannot read section 1170.12, subdivision (a)(7) in isolation of 

the entire section in which it exists,” but “must read it in the 

context of the preceding subdivision”].)

As Justice Mosk explained in his concurring opinion in 

Hendrix, section 667, subdivision (c)(6), provides a “general” rule

that applies to “all felonies” (as does section 1170.12, subdivision 

(a)(6)). (Hendrix, supra, 16 Cal.4th at p. 518 (conc. opn. of 

Mosk, J.).) Subdivisions (c)(6) of section 667 and (a)(6) of section 

1170.12 require a court to impose consecutive sentences on 

convictions for felonies that the defendant did not commit on the 

same occasion and that do not arise from the same set of facts. 

The rule applies regardless of whether the felonies are serious or 

violent. Section 1170.12, subdivision (a)(7), adds an additional 

requirement for one subset of felonies: serious and violent ones. 

(See Hendrix, at p. 518 (conc. opn. of Mosk, J.) [describing section 

667, subdivision (c)(7), as a “special” rule “for only ‘serious or 

violent felon[ies]’”].) For convictions for serious or violent felonies 
21

only, amended section 1170.12, subdivision (a)(7), separately 

requires that the court impose the sentences consecutive to the 

sentences on other crimes (including each other), regardless of 

whether the court otherwise would have discretion to impose 

concurrent sentences. As the dissenting justice in Gangl stated: 

“Concluding that consecutive sentences are (or are 

not) mandatory under paragraph (6) says nothing about whether 

they are mandatory under amended paragraph (7). The two 

subdivisions exist in harmony as separate consecutive sentencing 

provisions.” (Gangl, supra, 42 Cal.App.5th at pp. 77-78 (conc. & 

dis. opn. of Krause, J.), fn. omitted.) The voters did not need to 

amend the general rule of subdivision (a)(6), which continues to 

apply to all felonies, to create the specific rule of subdivision 

(a)(7), which applies only to certain felonies. 

The majority in Gangl also reasoned that its interpretation 

of section 1170.12, subdivision (a)(7), was consistent with the 

Official Voter Information Guide of Proposition 36. So is ours. 

Although where, as here, the statutory language “‘is clear and 

unambiguous,’” there is no need “‘to resort to indicia of the

intent . . . of the voters’” (People v. Valencia, supra, 3 Cal.5th at 

p. 357), the extrinsic evidence of voter intent in approving 

Proposition 36 supports our interpretation. Nothing in the 

Official Voter Information Guide suggests the voters intended 

courts to retain discretion to impose concurrent sentences on 

convictions for serious or violent felonies. Nor is there any 

mention of the Supreme Court’s holding in Hendrix or any 

discussion (other than the proposed amendments to the Penal 

Code) of concurrent or consecutive sentences. Moreover, the 

Legislative Analyst described the purposes of Proposition 36 as 

“reduc[ing] prison sentences served under the three strikes law 
22

by certain third strikers whose current offenses are nonserious, 

non-violent felonies.” (Ballot Pamp., Gen. Elec. (Nov. 6, 2012) 

analysis of Prop. 36 by the Legislative Analyst, p. 49.) The 

proponents of Proposition 36 argued that “[c]riminal justice 

experts and law enforcement leaders carefully crafted Prop. 36 so 

that truly dangerous criminals will receive no benefits 

whatsoever from the reform” and that “[t]he Three Strikes law 

will continue to punish dangerous career criminals who commit 

serious violent crimes—keeping them off the streets . . . .” (Ballot 

Pamp., Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36, 

p. 52; see People v. Johnson (2015) 61 Cal.4th 674, 686 

[Proposition 36 “reflect[s] an intent to ‘make the punishment fit 

the crime’ and ‘make room in prison for dangerous felons’”].) 

Requiring a court to impose consecutive sentences where the 

defendant is convicted of multiple serious or violent felonies, 

rather than leaving sentencing to the trial court’s discretion, is

consistent with these stated purposes of Proposition 36.
23

DISPOSITION

The judgment is affirmed. 

 SEGAL, J.

We concur:

PERLUSS, P. J.

DILLON, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.