1

Filed 2/1/23

IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LEVEL OMEGA HENDERSON,

Defendant and Appellant.

S265172

Second Appellate District, Division Seven

B298366

Los Angeles County Superior Court

BA437882

ORDER MODIFYING OPINION

THE COURT:

The petition for rehearing is ordered refiled as a request 

for modification of the opinion. The opinion in this matter, 

filed on November 17, 2022, and appearing at 14 Cal.5th 34, is 

modified as follows: 

1. On page 56, the seventh sentence of the first full 

paragraph stating, “The term for robbing the patron would be 

one-third of the midterm, doubled,” is deleted. 
2

2. On page 56, in the first full paragraph, before the final 

sentence that begins, “As in the prior example,” insert the 

following:

If imposed consecutively, the term for robbing the patron 

would be one-third of the midterm, doubled. If the court 

runs the term concurrently, it would impose a full base 

term, doubled. (See §§ 669, subd. (a); 1170, subd. (a)(3).) 

This modification does not affect the judgment. 
IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LEVEL OMEGA HENDERSON,

Defendant and Appellant.

S265172

Second Appellate District, Division Seven

B298366

Los Angeles County Superior Court

BA437882

November 17, 2022

Justice Corrigan authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Liu, Kruger, 

Groban, Jenkins, and Guerrero concurred. 
1

PEOPLE v. HENDERSON

S265172

Opinion of the Court by Corrigan, J.

This case considers if and when a court may impose 

concurrent sentences in cases falling under the habitual 

criminal, or “Three Strikes,” sentencing scheme. People v. 

Hendrix (1997) 16 Cal.4th 508, 512 (Hendrix) observed that 

scheme required imposition of consecutive sentences for 

multiple current felonies that were not “committed on the same 

occasion” or did not “aris[e] from the same set of operative facts.” 

(Pen. Code, §§ 667, subd. (c)(6); 1170.12, subd. (a)(6).) It 

clarified, however, that a trial court retained discretion to 

impose concurrent terms for those felonies that were committed 

on the same occasion or arose from the same set of operative 

facts, even if the felonies qualified as serious or violent. (See 

Hendrix, at pp. 513–514.) The question here is whether 

Proposition 36, the Three Strikes Reform Act of 2012 

(Proposition 36, the Reform Act, or the Act), changed the law 

and stripped sentencing courts of that discretion, thus 

abrogating the Hendrix rule. We conclude the Reform Act did 

not have that effect. Following Proposition 36, the court retains 

its Hendrix concurrent sentencing discretion, and the total 

sentence imposed for multiple current counts of serious or 

violent felonies must be ordered to run consecutively to the term 

imposed for offenses that do not qualify as serious or violent 

felonies. We reverse the Court of Appeal’s contrary judgment 

and remand with directions to order a new sentencing hearing.
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

2

I. BACKGROUND

While working at an apartment complex in Los Angeles, 

William Aguilar saw defendant Level Omega Henderson and 

the manager, Daniel Tillett, trading blows in the courtyard. 

Aguilar called police when he saw defendant walk to his car and 

retrieve a gun. Tillet and his girlfriend were standing in the 

courtyard when defendant returned holding the weapon. He hit 

Tillet in the head with the gun butt and punched him with his 

other hand. When the girlfriend began yelling, defendant 

pointed the gun at her and Aguilar. Aguilar ran and flagged 

down a police car. Officers saw defendant strike Tillett several 

times, run into a vacant apartment, then emerge a few minutes 

later, unarmed. A handgun was recovered from an atrium 

directly below the apartment window. 

Defendant was charged with assault by means of force 

likely to produce great bodily injury, possession of a firearm by 

a felon, and two counts of assaulting Tillett and Aguilar with a 

semiautomatic firearm.1 The information also alleged 

defendant had suffered four prior strike and two prior serious 

felony convictions, and had served four prior prison terms.2 The 

1 See Penal Code sections 245, subdivisions (a)(4), (b); 

29800, subdivision (a)(1). The information also alleged that 

defendant had possessed a firearm after being convicted of a 

violent felony (Pen. Code, § 29900, subd. (a)(1)), but the court 

dismissed this count on the People’s motion. Defendant was not 

charged with assaulting Tillet’s girlfriend. 

2 See Penal Code sections 667, subdivisions (a)(1), (b)–(i); 

1170.12; 667.5, subdivision (b). Both the Three Strikes law and 

the prior serious felony enhancement statute share the same 

definition of what constitutes a prior serious felony conviction. 

(Pen. Code, § 1192.7, subd. (c); see Pen. Code, §§ 667, subds. 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

3

jury convicted defendant as charged, and, in a bifurcated 

proceeding, the court found the prior conviction allegations to be 

true. On defendant’s motion, the trial court struck all of the 

prior conviction allegations except for one prior strike and one 

prior serious felony conviction. It sentenced defendant as a 

second striker (see Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. 

(c)(1)), imposing the upper term of nine years for one 

semiautomatic firearm assault, doubled to 18 years; a 

consecutive four-year term for the second assault (one third the 

midterm doubled); and five years for the prior serious felony 

conviction. The total term imposed was 27 years.3 With respect 

to consecutive sentencing for the assaults on Aguilar and Tillett, 

the court said, “[T]he Three Strikes law requires that on serious 

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

consecutively.” 

On appeal, defendant argued the trial court erroneously 

believed it had no discretion to impose concurrent terms for the 

assaults on Aguilar and Tillett, even though they occurred on 

the same occasion. (See Pen. Code, §§ 667, subd. (c)(6), 1170.12, 

subd. (a)(6).) The Court of Appeal affirmed, concluding the court 

lacked discretion to impose concurrent terms on multiple serious 

or violent felonies after passage of the Reform Act. (See People 

(a)(4), (d)(1); 1170.12, subd. (b)(1).) “[T]he trial court may use 

the prior convictions both under the Three Strikes law and as 

serious felony enhancements.” (People v. Acosta (2002) 29 

Cal.4th 105, 139, fn. 4; see People v. Dotson (1997) 16 Cal.4th 

547, 554–560.) 

3 The court stayed imposition of sentence on the other two 

counts as required under Penal Code section 654, subdivision 

(a). 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

4

v. Henderson (2020) 54 Cal.App.5th 612, 620–627 (Henderson).) 

We reverse. 

II. DISCUSSION

A. Structure and Evolution of the Three Strikes 

Law and Clarification of Terms

The Three Strikes law was “[e]nacted ‘to ensure longer 

prison sentences and greater punishment for those who commit 

a felony and have been previously convicted of serious and/or 

violent felony offenses’ (Pen. Code, former § 667, subd. (b), as 

amended by Stats. 1994, ch. 12, § 1, pp. 71, 72), [and] ‘consists 

of two, nearly identical statutory schemes.’ ” (People v. Conley

(2016) 63 Cal.4th 646, 652.) In March 1994, the Legislature 

codified its version of the Three Strikes law by adding 

subdivisions (b) through (i) to Penal Code4section 667. A ballot 

initiative in November of the same year added a new provision, 

section 1170.12. These two parallel enactments have reposed, 

somewhat cumbersomely, in the code since that time.5 

Proposition 36 made amendments to various provisions of both 

sections 667 and 1170.12. However, the amendments did not 

treat the language regarding consecutive sentences in the same 

way. This disparate amendatory treatment lies at the heart of 

the dispute here. 

Generally, the Three Strikes law “increases punishment 

for second strike defendants by doubling any determinate terms 

they otherwise would have received . . . .” (People v. Sasser

(2015) 61 Cal.4th 1, 11.) Third strike offenders were made 

4 Subsequent statutory references will be to the Penal Code. 

5 For a more extended discussion of the history of the Three 

Strikes law, see People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 504–506 (Romero). 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

5

subject to an indeterminate life sentence for the current felony. 

(See Teal v. Superior Court (2014) 60 Cal.4th 595, 596.) 

The parsing of legislative and initiative language requires 

application of a variety of terms. We pause at the outset to 

provide some context. The Three Strikes law is a separate 

sentencing scheme. As the court explained in Romero: “The 

Three Strikes law, when applicable, takes the place of whatever 

law would otherwise determine a defendant’s sentence for the 

current offense.” (Romero, supra, 13 Cal.4th at p. 524.) The 

totality of the Three Strikes law is not found in a single freestanding section of the Penal Code. Instead, it has been 

implemented by the addition or amendment of various, often 

cross-referenced, provisions. 

The Three Strikes scheme comes into play when a 

defendant is charged with new felony offenses but has 

previously been convicted of designated serious or violent 

felonies. Although these prior convictions are sometimes 

referred to as “strikes,” the Three Strikes law itself does not use 

that term, instead defining “serious” or “violent” felonies with 

specificity.6 Serious felonies are defined in section 1192.7, 

6 Some of the legislative and initiative history, as well as 

cases interpreting the law, refer to “strikes,” but that term 

seldom appears in the Penal Code. In the ballot materials 

regarding Proposition 36, the Legislative Analyst explained the 

distinctions between serious and violent felonies in the Three 

Strikes law: “Existing law classifies some felonies as ‘violent’ or 

‘serious,’ or both. Examples of felonies currently defined as 

violent include murder, robbery, and rape. While almost all 

violent felonies are also considered serious, other felonies are 

defined only as serious, such as assault with intent to commit 

robbery. Felonies that are not classified as violent or serious 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

6

subdivision (c), while the violent felony definition appears in 

section 667.5, subdivision (c).7 There is substantial overlap 

between the two defining lists. (See Hendrix, supra, 16 Cal.4th 

at p. 514.) The previously suffered convictions that subject a 

defendant to the Three Strikes scheme are often referred to as 

prior convictions, and are distinguished from newly filed 

charges, referred to as current felonies. 

In order to constitute a “strike,” a prior conviction must 

qualify under the statutory definitions of a serious or violent 

felony. Under the original Three Strikes provisions, a person 

who had been convicted of two prior strike offenses was subject 

to an indeterminate life sentence if later convicted of any new 

felony. (See People v. Frierson (2017) 4 Cal.5th 225, 230.) After 

passage of Proposition 36, however, the requirement of 

indeterminate life sentences for a defendant with two prior 

strikes does not apply to all current felonies. Instead, a life term 

is only authorized when the new offense is also a serious or 

violent felony or when the defendant’s past or current offenses 

fall under provisions of amended sections 667 or 1170.12.8 In 

order to effect these changes, Proposition 36 added virtually 

identical language to sections 667 and 1170.12. (See §§ 667, 

include grand theft (not involving a firearm) and possession of a 

controlled substance.” (Voter Information Guide, Gen. Elec. 

(Nov. 6, 2012) analysis of Prop. 36 by Legis. Analyst, p. 48.)

7 Offenses are described in terms of the kind of crime and, 

in some cases, degree, circumstances of commission, 

characteristics of the victim, and other factors. 

8 Those provisions include: some current drug offenses and 

sex crimes; current crimes involving the arming with or use of a 

firearm, or the intent to inflict great bodily injury; or prior 

strikes for a subset of enumerated serious or violent felonies. 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

7

subd. (e)(2)(C); 1170.12, subd. (c)(2)(C).) A new indictment or 

information may include allegations charging both serious 

and/or violent felonies, as well as other felonies that do not 

qualify under those definitions. Here, we will sometimes refer 

to prior convictions for serious or violent felonies as “strike 

priors” or “prior strike convictions.” We sometimes refer to new 

felony charges that qualify as serious or violent felonies as 

“qualifying offenses.” 

The trial court here found, in a bifurcated phase of trial, 

that defendant had suffered four prior strike convictions. If 

those true findings were allowed to stand, the Three Strikes 

scheme would have required indeterminate life sentences for 

each of the automatic weapon assaults on Aguilar and Tillett. 

(See §§ 667, subds. (d)(1), (e)(2)(A); 1170.12, subds. (b)(1), 

(c)(2)(A); 1192.7, subd. (c)(31).) However, Romero clarified that 

a sentencing court has discretion to dismiss findings as to prior 

convictions, in furtherance of justice, under the authority of 

section 1385, subdivision (a). (See Romero, supra, 13 Cal.4th at 

pp. 507–532.) The result of such a dismissal is that a defendant 

with two or more strike priors and a conviction for a new 

qualifying offense may be removed from the strictures of the 

Three Strikes scheme altogether if all of his strike priors are 

dismissed, or he may be sentenced as a “second striker” if only 

one strike prior remains in connection with a newly charged 

qualifying offense. The sentencing court here adopted the latter 

approach. 

Under both the determinate sentencing law (see § 1170) 

and the Three Strikes scheme, when a defendant stands newly 

convicted of multiple offenses, the court must generally decide 

whether sentences on each count will be ordered to run 

consecutively or concurrently to some or all of the others. (See 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

8

§§ 1170, subd. (a); 1170.1, subd. (a); 1170.3; Cal. Rules of Court, 

rule 4.425; People v. Sandoval (2007) 41 Cal.4th 825, 850–851.) 

Here again, the Three Strikes scheme imposes restrictions on 

that sentencing choice. (See §§ 667, subd. (c)(6), (7); 1170.12, 

subd. (a)(6), (7).) It is the scope of that consecutive/concurrent 

restriction that is at issue here. As the Romero court noted, both 

versions of the Three Strikes law were intended to “restrict 

courts’ discretion in sentencing repeat offenders. . . . But to say 

the intent of a law was to restrict judicial discretion begs the 

question of how judicial discretion was to be restricted. The 

answer to that question can be found only by examining the 

language of the act” (Romero, supra, 13 Cal.4th at p. 528) or, 

here, the language of the Reform Act. 

B. Hendrix, Consecutive Sentencing, and the 

Extent of Discretion

When the Three Strikes scheme applies, sentences for 

current qualifying offenses must be ordered to run consecutively 

to each other if the current offenses occur on separate occasions 

and do not arise from the same set of operative facts. (See 

§§ 667, subd. (c)(6); 1170.12, subd. (a)(6).) People v. Lawrence

(2000) 24 Cal.4th 219 explained that, for section 667, 

subdivision (c)(6) purposes, felonies are committed “on the same 

occasion” if they were committed within “close temporal and 

spacial proximity” of one another. (Lawrence, at p. 233.) 

Offenses arise “from the same set of operative facts” when they 

“shar[e] common acts or criminal conduct that serves to 

establish the elements of the current felony offenses of which 

defendant stands convicted.” (Ibid.) Here, it is undisputed that 

the assaults on Tillis and Aguilar were committed “on the same 

occasion.” To avoid unnecessary repetition, we will not always 

repeat the “same set of operative facts” formulation. But the 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

9

“same occasion” analysis we employ here would apply equally 

when multiple felonies are committed under the “same set of 

operative facts.” 

To make these applications less abstract, consider a 

hypothetical defendant who has two prior strikes and is then 

convicted of robbing two stores, on two different days, as well as 

two separate and unrelated counts of auto theft. The 

defendant’s current robberies are qualifying offenses and the 

prior strikes bring him under the Three Strikes scheme. Using 

its authority under section 1385, subdivision (a), the court 

dismisses one strike. (See Romero, supra, 13 Cal.4th at pp. 529–

532.) As a result, the defendant will be sentenced as a “second 

striker” rather than be subject to an indeterminate life term. As 

we explain below, the two robbery sentences must be ordered to 

run consecutively to each other because they occurred on 

separate occasions. A second question is whether the total 

consecutive robbery sentences must be ordered to run 

consecutively to the auto theft terms. 

Contrast that scenario with an alternative one. The 

defendant has two prior strikes. His charged offenses result in 

convictions for two separate felony auto thefts and two counts of 

robbery. The robberies occurred when he went into a store, 

robbed the clerk and, on his way out, also robbed a patron. The 

court dismisses one strike, so an indeterminate life term is not 

called for. If the Hendrix rule continues to apply, the court 

would have discretion to order the robbery sentences to be 

served concurrently because they were committed on the same 

occasion. Again, the question remains whether the total robbery 

sentences must run consecutively to the nonqualifying auto 

theft sentences. 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

10

In evaluating the extent of consecutive sentencing 

discretion, Hendrix focused its attention on subdivision (c)(6) 

and (c)(7) of section 667, the legislative version of the Three 

Strikes law. At the time, the initiative version, section 1170.12, 

subdivision (a)(6) and (a)(7), contained identical language on 

this topic, so a separate consideration was not needed. As we 

explain in greater detail below, the Reform Act amended the 

relevant provisions of section 1170.12 dealing with consecutive 

sentencing but did not modify the corresponding provisions of 

section 667. It is the significance of Proposition 36’s treatment 

of the separate legislative and initiative versions of the Three 

Strikes scheme that is in dispute. We first discuss Hendrix, then 

consider whether the new language of the Reform Act abrogates 

the Hendrix rule. 

The question in Hendrix was whether, in sentencing a 

Three Strikes defendant, the court must always impose 

consecutive sentences for every current qualifying felony or 

whether it retained discretion to order some terms to run 

concurrently. Hendrix looked to the language of section 667, 

subdivision (c)(6) and (c)(7) to resolve the question. These 

provisions stated, as they do now, “(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 subdivision (e) [describing enhanced 

sentences called for under the Three Strikes scheme]. [¶] (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 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

11

sentenced in the manner prescribed by law.” (§ 667, subd. (c)(6)–

(7), italics added.)

Hendrix explained that, by its terms, subdivision (c)(6) 

required the imposition of consecutive sentences for each 

current felony not committed on the same occasion and not 

arising from the same set of operative facts. (See Hendrix, 

supra, 16 Cal.4th at p. 512.) Conversely, “[b]y 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.’ ” (Id. at pp. 512–513.) In those circumstances, the court 

has discretion to impose concurrent terms. 

Section 667, subdivision (c)(7), on the other hand, does not 

refer simply to a conviction for multiple felonies. Instead, it 

specifically addresses multiple serious or violent felonies, i.e.,

qualifying felonies. Under that provision, when a current 

sentence is imposed for qualifying felonies “as described in 

paragraph (6),” they must be ordered to run consecutively to the 

sentence for “any other conviction.” (§ 667, subd. (c)(7).) Some 

parsing is required here. Under subdivision (c)(7), the 

qualifying felony “described in paragraph (6)” is one that 

occurred on a separate occasion and did not arise from the same 

set of operative facts. A sentence for those qualifying felonies 

was required to run consecutively to “ ‘any other conviction.’ ” 

(Hendrix, supra, 16 Cal.4th at p. 514.) 

The Hendrix holding itself provides only part of the 

resolution for this case. Hendrix had approached four people 

sitting together at a shopping center, pointing a gun at them and

demanding money. Two victims complied and two said they had 

no money. Hendrix was convicted of two counts of robbery and 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

12

two of attempted robbery, all with the use of a firearm. All four 

substantive offenses were qualifying felonies. Hendrix admitted 

three serious felony convictions, bringing him under the Three 

Strikes scheme, and was sentenced to four consecutive life 

terms, with additional determinate terms for enhancements. 

(See Hendrix, supra, 16 Cal.4th at pp. 510–511.) 

Because all the offenses at issue in Hendrix were 

committed against separate victims but on the same occasion, 

the question was whether the court had the discretion to order 

those sentences to run concurrently to each other. The Hendrix

court held that it did have that discretion based on the language 

of section 667, subdivision (c)(6) and (c)(7). Hendrix explained 

that subdivision (c)(6) encompassed sentences imposed for all

felonies, qualifying or not, but required consecutive sentencing 

only for felonies committed on separate occasions and not 

arising from the same set of operative facts. Subdivision (c)(7) 

also imposed a consecutive sentencing mandate but only as to 

qualifying felonies. Additionally, the reference in subdivision 

(c)(7) to serious or violent felonies “as described in 

paragraph (6)” incorporated the same occasion/operative facts 

limitation to the consecutive sentencing proviso for qualifying 

felonies. (Hendrix, supra, 16 Cal.4th at p. 513.) 

Thus, under Hendrix, if a Three Strikes defendant is 

convicted of current qualifying felonies that were not committed 

on the same occasion or under the same set of operative facts, 

the court is required to impose the serious or violent felony 

terms consecutive to each other and those terms must also be 

ordered to run consecutively to any other terms imposed for 

nonqualifying offenses as well. (Hendrix, supra, 16 Cal.4th at 

pp. 513–514.) But in Hendrix, the serious or violent felonies 

were all committed on the same occasion. As a result, the 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

13

consecutive sentencing mandate of subdivision (c)(7) did not 

apply and the court had discretion to impose sentences on those 

qualifying offenses either consecutively or concurrently to each 

other under subdivision (c)(6). In Hendrix, there were no 

convictions for nonqualifying offenses. However, its discussion 

of the import of subdivision (c)(7) clarified that a sentence for 

serious or violent felonies not committed on the same occasion 

must be ordered to run consecutively to any sentence imposed 

for nonqualifying convictions. As we discuss, we apply the 

Hendrix analysis to our explication of the rule. 

C. The Reform Act, Subsequent Cases, and 

Resolution Here

The Reform Act was passed in 2012 as Proposition 36. 

Under its terms, and as relevant here, a defendant who has 

suffered prior strike convictions still falls under the Three 

Strikes scheme. But if the current conviction is not for a serious 

or violent felony, the previously required indeterminate life 

term was replaced by a double-the-base-term sentence for the 

current felony, unless an exception applied. (See discussion 

ante.) This modification has a limitation, however. Even if the 

current offense was not a serious or violent felony, an 

indeterminate life term is still required if either the current 

offense or one of the prior strike convictions is for an offense 

enumerated in the statutes. (See §§ 667, subd. (e)(2)(C)(i)–(iv); 

1170.12, subd. (c)(2)(C)(i)–(iv).) In addition, the Reform Act 

made changes to the Three Strikes law consistent with its stated 

intent to “[p]revent the early release of dangerous criminals who 

are currently being released early because jails and prisons are 

overcrowded with low-risk, non-violent inmates serving life 

sentences for petty crimes.” (Voter Information Guide, Gen. 

Elec., supra, text of Prop. 36, § 1, par. 5, p. 105.) 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

14

The Act made amendments to both sections 667 and 

1170.12 to achieve these purposes. However, a court’s 

concurrent or consecutive sentencing authority was addressed 

differently for section 667, the legislative version, and 1170.12, 

the initiative version. Section 667, subdivision (c)(6) and (c)(7) 

were not changed. Thus, the analytical basis for the Hendrix

rule was not affected. Yet, the language of section 1170.12, 

subdivision (a)(6) and (a)(7), which previously had been identical 

to section 667, subdivision (c)(6) and (c)(7), was partially 

modified. Section 1170.12, subdivision (a)(6), pertaining to all

current felonies, regardless of type, remained the same as its 

counterpart in the legislative version. It continued to require 

consecutive sentencing for each new felony unless the current 

offenses were committed on the same occasion or arose from the 

same operative facts. 

However, as to the consecutive term requirement when 

the current offense is a serious or violent felony, section 1170.12, 

subdivision (a)(7) was amended. It no longer refers to the 

preceding paragraph, subdivision (a)(6), which contains the 

same occasion/operative facts language. Instead it now reads: 

“If there is a current conviction for more than one serious or 

violent felony as described in subdivision (b) [which defines 

those felonies], 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 proscribed by law.” (§ 1170.12, subd. (a)(7), italics 

added.) As is apparent, the reference to the same 

occasion/operative fact exception “as described in paragraph (6)” 

was removed from section 1170.12, subdivision (a)(7). The 

Attorney General argues that this omission reflects an intent to 

remove the Hendrix concurrent sentencing discretion. The 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

15

Attorney General asserts that, after Proposition 36, when a 

defendant is sentenced under the Three Strikes scheme, all 

sentences for each qualifying felony must run consecutively to 

each other, regardless of whether those offenses were committed 

on the same occasion or arose from the same set of operative 

facts. 

Courts of Appeal have disagreed about the effect wrought 

by that amendment as it relates to a trial court’s concurrent 

sentencing discretion. The Court of Appeal below held the 

change in language now forecloses that discretion and requires 

that all sentences for qualifying offenses must run consecutively 

regardless of whether they were committed on the same 

occasion or arose from the same operative facts. It is this 

question we granted review to resolve. 

The first case to address the issue, People v. Torres (2018) 

23 Cal.App.5th 185 (Torres), concluded the discretion recognized 

in Hendrix survived the Reform Act’s amendments. Three 

subsequent published Court of Appeal cases agreed with the 

Torres analysis, although with divided panels. (See People v. 

Marcus (2020) 45 Cal.App.5th 201, 211–214 (Marcus); People v. 

Gangl (2019) 42 Cal.App.5th 58, 69–71 (Gangl); People v. 

Buchanan (2019) 39 Cal.App.5th 385, 391–392 (Buchanan).) 

Dissenting opinions in these subsequent cases maintained that 

the change to section 1170.12, subdivision (a)(7) did signal an 

intent to remove that discretion, as the Attorney General argues 

here. (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. 393–398 (conc. & dis. opn. of Needham, J.).) 

“ ‘In interpreting a voter initiative . . . , we apply the same 

principles that govern statutory construction.’ [Citation.] 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

16

Where a law is adopted 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.’ [Citation.] But the statutory language must also be 

construed in the context of the statute as a whole and the overall 

statutory scheme. [Citation.] We apply a presumption, as we 

similarly do with regard to the Legislature, that the voters, in 

adopting an initiative, did so being ‘aware of existing laws at the 

time the initiative was enacted.’ ” (People v. Buycks (2018) 5 

Cal.5th 857, 879–880 (Buycks); see People v. Raybon (2021) 11 

Cal.5th 1056, 1065.) 

The Reform Act amended section 1170.12, subdivision 

(a)(7), replacing its prior reference to subdivision (a)(6), which 

set out the same occasion/operative facts proviso. Instead, 

subdivision (a)(7) now refers, not to subdivision (a)(6), but to 

subdivision (b), which simply defines a serious or violent felony. 

The question is whether, by making that change, voters 

intended to abrogate the Hendrix rule as to the court’s 

concurrent sentencing discretion. Nothing in the ballot 

materials speaks directly to voters’ intent on this topic. In 

trying to discern the electorate’s intent, the various majority 

and dissenting opinions pointed to a variety of linguistic clues 

from which that intent might be gleaned. The majority opinions 

observed that subdivision (a)(6) remained unchanged and 

encompassed all current felony convictions, whether qualifying 

or not. As such, the amendment of subdivision (a)(7) made by 

the Reform Act only requires that the sentence imposed for 

qualifying felonies be ordered to run consecutively to the 

sentence imposed for nonqualifying felonies. (See Marcus, 

supra, 45 Cal.App.5th at pp. 212–214; Gangl, supra, 42 

Cal.App.5th at pp. 69–70; Torres, supra, 23 Cal.App.5th at 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

17

p. 201.) Conversely, the dissenting opinions concluded the 

amendment of subdivision (a)(7) swept more broadly. It deleted 

the reference to subdivision (a)(6), which contained the same 

occasion/operative facts provisions. As a result, they concluded 

the amendment reflected an intent that all qualifying current 

felonies be sentenced consecutively to each other, whether or not 

they were committed on the same occasion or arose from the 

same set of operative facts. (See Gangl, supra, 42 Cal.App.5th 

at pp. 78–79 (conc. & dis. opn. of Krause, J.); Buchanan, supra, 

39 Cal.App.5th at pp. 394–395 (conc. & dis. opn. of Needham, 

J.).) 

The Attorney General argues that because the amended 

subdivision (a)(7) no longer refers to subdivision (a)(6), the 

foundation for the Hendrix rule no longer exists and its holding 

has been abrogated. At the end of the day, the language of the 

initiative is simply unclear. “When the language of a statute is 

ambiguous — that is, when the words of the statute are 

susceptible to more than one reasonable meaning, given their 

usual and ordinary meaning and considered in the context of the 

statute as a whole — we consult other indicia of the 

Legislature’s [or electorate’s] intent, including such extrinsic 

aids as legislative history and public policy. [Citations.] If there 

is no ambiguity, ‘ “ ‘ “we presume the Legislature meant what it 

said and the plain meaning of the statute governs.” ’ ” ’ ” (Union 

of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 

7 Cal.5th 1171, 1184.) 

We conclude section 1170.12, subdivision (a)(7) is 

ambiguous with respect to whether it requires that multiple 

qualifying felonies must be sentenced consecutively to each 

other. The ambiguity resides in the provision’s use of the term 

“conviction.” “If there is a current conviction for more than one 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

18

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.) In suggesting the “plain 

language” of the provision now “ ‘require[d] 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’ ” (Henderson, supra, 54 Cal.App.5th 

at pp. 623, 624), the Court of Appeal below equated a 

“conviction” with an individual count or offense. As such, “each 

conviction” for a qualifying felony must be imposed “consecutive 

to the sentence for any other conviction,” i.e., other qualifying 

felonies. (§ 1170.12, subd. (a)(7); see also Gangl, supra, 42 

Cal.App.5th at p. 79 (conc. & dis. opn. of Krause, J.); Buchanan, 

supra, 39 Cal.App.5th at p. 397 (conc. & dis. opn. of Needham, 

J.).) 

This interpretation would seem a plausible one consistent 

with the colloquial understanding that a “conviction” refers to a 

finding of guilt on a single count. (Cf. § 15.)9 However, even 

before the Reform Act, section 1170.12, subdivision (a)(6) and 

(a)(7) used the term “conviction” as a collective term describing 

multiple, relevant counts for which the defendant has been 

convicted. Subdivision (a)(6) refers to “a current conviction for 

more than one felony count.” (§ 1170.12, subd. (a)(6), italics 

added.) Likewise, by stating its mandate applies to “a current 

9 Section 15 defines a crime or public offense as “an act 

committed or omitted in violation of a law forbidding or 

commanding it, and to which is annexed, upon conviction, either 

of the following [enumerated] punishments . . . .” (Italics 

added.) 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

19

conviction for more than one serious or violent felony as 

described in subdivision (b)” (italics added), subdivision (a)(7) as 

amended continues to use “conviction” to refer collectively to a 

grouping of multiple offenses. If “conviction” is so understood, 

section 1170.12, subdivision (a)(7)’s rule reads much differently: 

the court must impose sentence on “each conviction,” i.e., the 

group of current qualifying felonies, consecutively to “any other 

conviction,” that is to say the group of any nonqualifying 

offenses. Such an interpretation would also seem plausible, 

especially in conjunction with the fact that subdivision (a)(6) 

employs the phrase “each count” in stating its consecutive 

sentencing rule, a phrase absent in subdivision (a)(7). 

In light of the statutory ambiguity, we look to the overall 

context of the initiative, take into account that it was adopted to

reform an existing scheme, and look to the ballot materials as a 

tool to deduce voter intent. (See People v. Arroyo (2016) 62 

Cal.4th 589, 593.) The overarching stated intent of the Reform 

Act appears threefold: 1. To “[r]estore the Three Strikes law to 

the public’s original understanding by requiring life sentences 

only when a defendant’s current conviction is for a violent or 

serious crime” (Voter Information Guide, Gen. Elec., supra, text 

of Prop. 36, § 1, p. 105); 2. to punish a current felony more 

harshly, but in cases where the current offense is not a serious 

or violent felony, to moderate that harsher penalty by requiring 

a multiplied base term, as opposed to an indeterminate life term, 

unless an exception applies; and 3. to ensure, by virtue of those 

exceptions, that particularly designated repeat offenders receive 

a life sentence, even if the current offense is not serious or 

dangerous felony. 

The debate over Proposition 36 did not feature a focus on 

the consecutive/concurrent discretion question. As a result, it is 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

20

difficult to discern just what the electorate intended on this topic 

or whether they considered it at all. One thing, however, is 

clear: By passing the Reform Act, the electorate intended to 

mitigate some of the more stringent applications of the Three 

Strikes scheme while retaining rigorous penalties for those 

offenders whose criminal history reveals they remain a 

significant threat to public safety. A new requirement of 

mandatory consecutive sentences in cases where it did not exist 

before would not be completely inconsistent with that goal but, 

as Romero pointed out, “to say the intent of a law was to restrict 

judicial discretion begs the question of how judicial discretion 

was to be restricted.” (Romero, supra, 13 Cal.4th at p. 528.) 

We cannot say that the voters spoke with a clear voice on 

that topic, particularly when they took pains to make their 

intent much more manifest on other aspects of the reforms they 

adopted. However, it is significant that the Reform Act did not 

alter the specific language granting a court’s discretion to 

impose consecutive sentences if, in its judgment, such a penalty 

was appropriate, even when current convictions were committed 

on the same occasion. (See §§ 667, subd. (c)(6); 1170.12, subd. 

(a)(6).) It is also notable that Proposition 36 specifically sets out 

when consecutive life sentences are still required for current 

felonies, even if those offenses do not qualify as serious or violent 

felonies. (See §§ 667, subd. (e)(2)(B); 1170.12, subd. (c)(2)(B)–

(C).) These changes enacted in Proposition 36 reflected a 

recalibration of some of the more stringent Three Strikes 

requirements. The voters intended to reduce penalties in many 

instances when the new felony was not serious or violent. 

However, they retained the harsher penalties when either the 

new, or previous, offenses were deemed particularly 

blameworthy. 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

21

Had the drafters intended to change sentencing discretion 

in the same occasion/operative facts context, the drafters were 

clearly aware of how to make that intent clear. We also presume 

that the voters were aware of the longstanding Hendrix rule 

when they passed Proposition 36. “Proposition 36 neither refers 

to Hendrix nor states its express intent to overrule longstanding Supreme Court precedent.” (Marcus, supra, 45 

Cal.App.5th at p. 214.) We “ ‘cannot presume that . . . the voters 

intended the initiative to effect a change in law that was not 

expressed or strongly implied in either the text of the initiative 

or the analyses and arguments in the official ballot pamphlet.’ ” 

(People v. Valencia (2017) 3 Cal.5th 347, 364.) In light of all 

these factors, we cannot discern a clear intent to withdraw 

discretion that has been recognized for a quarter century. 

D. Arguments by the Attorney General and 

Dissenting Opinions

The People’s arguments for a contrary resolution fail. The 

Attorney General’s analysis would create an apparent conflict 

between section 1170.12, subdivision (a)(6) and (a)(7) as 

amended. Subdivision (a)(6), by implication, grants a court 

discretion to impose concurrent terms for any current felony 

committed on the same occasion. But the Attorney General now 

argues that consecutive terms are mandatory under subdivision 

(a)(7) for any current qualifying felony whether or not they were 

committed on the same occasion. Under the People’s 

interpretation, subdivision (a)(6) seemingly grants a court 

discretion that subdivision (a)(7) forbids. (See Marcus, supra,

45 Cal.App.5th at pp. 213–214; Torres, supra, 23 Cal.App.5th at 

p. 201.) 

The Court of Appeal below suggested that section 1170.12, 

subdivision (a)(6) and (a)(7) could be harmonized by recognizing 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

22

that subdivision (a)(6) sets out a general rule for all felonies,

with subdivision (a)(7) providing an exception that abrogates 

that general discretionary authority. (See Henderson, supra, 54 

Cal.App.5th at p. 626.) The difficulty is that nothing in the 

language of these provisions supports an interpretation that 

section 1170.12, subdivision (a)(6) specifies a “general” rule and 

subdivision (a)(7) an exception. That interpretation would seem 

at odds with the structure of subdivision (a) generally. As 

Marcus observed, under standard rules of statutory 

construction, we “read a statute, and its various subdivisions, as 

a cohesive whole.” (Marcus, supra, 45 Cal.App.5th at pp. 213–

214.) Subdivision (a) provides that “[n]otwithstanding 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 serious 

or violent felony convictions, as defined in subdivision b, the 

court shall adhere to each of the following.” (§ 1170.12, subd. 

(a), italics added.) The statute then lists various provisions to 

which the court must adhere. These provisions forbid a grant of 

probation or diversion, require imposition of a prison sentence, 

limit prison conduct credits, ban consideration of the lapse of 

time between the strike and current offenses, and eliminate 

limits for consecutive sentences on subsequent convictions. (See 

§ 1170.12, subd. (a)(1)–(a)(5).) None of these individual 

subdivisions refer to any other or suggest that any states a 

“general” rule while some other provision states an exception. 

Indeed, by providing that the rules enumerated in subdivision 

(a) apply “[n]otwithstanding any other law,” the statutory 

scheme clearly requires that the Three Strikes framework takes 

precedence over any conflicting provision. By contrast, when 

the Reform Act amended subdivision (a)(7), it did not use the 

formulation “notwithstanding subdivision (a)(6),” or any other 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

23

provision. This omission strongly suggests that the drafters did 

not consider the two subdivisions to be in conflict or intended 

that they be so understood. 

As Marcus reasoned, “subdivision (a)(6) continues to apply 

to all felonies” (Marcus, supra, 45 Cal.App.5th at p. 214), and 

makes no reference to an exception. Similarly, subdivision (a)(7) 

contains no language suggesting it would apply notwithstanding 

that subdivision (a)(6) would appear to support a contrary rule. 

“Had the voters disagreed with Hendrix’s conclusion and 

intended to reject its holding that subdivision (a)(6) applies to 

all felonies, the voters could have easily amended subdivision 

(a)(6) to explicitly refer only to nonserious and nonviolent 

felonies. This [change] would effectively create two classes of 

crimes to which two different sentencing rules would apply: 

(1) nonviolent/nonserious felonies covered by subdivision (a)(6); 

and (2) serious/violent felonies covered exclusively by 

subdivision (a)(7). The voters did not do so.” (Marcus, at p. 214.) 

Following the Reform Act, the rules as to consecutive 

sentencing apply as follows. When a strike defendant is 

convicted of any group of new felony offenses, the sentence 

imposed for each felony count must run consecutively to all the 

others not committed on the same occasion. The court retains 

discretion to impose concurrent sentences for new offenses, 

whether qualifying felonies or not, that were committed on the 

same occasion.

One further variation occurs when a defendant stands 

convicted of a group of new qualifying offenses along with 

nonqualifying offenses. In that circumstance, new terms for all

felonies committed on separate occasions must run 

consecutively to each other under section 1170.12, subdivision 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

24

(a)(6). Additionally, under subdivision (a)(7), the total term for 

all qualifying offenses must run consecutively to the total term 

imposed for nonqualifying offenses.10 

We return, then, to the contrasting examples set out 

above. (See ante, at p. 9.) In the first example, a defendant with 

two prior strikes is newly convicted of robbing two stores on two 

different days, as well as two separate and unrelated counts of 

auto theft. His current second degree robberies are qualifying 

offenses and the prior strikes bring him under the Three Strikes 

scheme. Using its authority under section 1385, subdivision (a), 

the court dismisses one strike. (See Romero, supra, 13 Cal.4th 

at pp. 529–532.) Under the interpretation we adopt here, the 

court would sentence him on the first robbery to a base term 

chosen from the available determinate sentencing triad of two, 

three, or five years (§ 213, subd. (a)(2)), doubled because of the 

remaining strike prior. The term for the second robbery would 

be one-third of the midterm, doubled, resulting in a two-year 

term. (§ 1170.1, subd. (a).) The two-year term must be ordered 

to run consecutively to the first because both offenses were 

committed on separate occasions and did not arise from the 

10 The Attorney General argues, and the Court of Appeal 

here reasoned, that removing the court’s Hendrix concurrent 

sentencing authority is consistent with the Reform Act’s stated 

intent to punish more harshly those convicted of current serious 

or violent felonies. (Henderson, supra, 54 Cal.App.5th at p. 627; 

see Buchanan, supra, 39 Cal.App.5th at pp. 395–396 (conc. & 

dis. opn. of Needham, J.).) However, as explained, under the 

interpretation we adopt here, those defendants with multiple 

qualifying felonies will be treated more harshly by virtue of the 

consecutive sentences that will still be required for both 

qualifying and nonqualifying felonies. Proposition 36’s general 

statement of intent is thus given effect. 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

25

same set of operative facts. (§§ 667, subd. (c)(6); 1170.12, subd. 

(a)(6).) The felony auto thefts are not qualifying offenses, but 

the court must also order the robbery sentences to be served 

consecutively to “any other conviction,” which would include 

terms imposed for the auto thefts. (§ 1170.12, subd. (a)(7).) The 

auto theft sentences called for by the standard determinate 

sentencing statutes can be ordered to run consecutively or 

concurrently to each other. If the court chooses the upper term 

for the first robbery, it would order the defendant to serve a total 

of 12 years (10 years plus two years) for the two qualifying 

robberies consecutive to the combined sentence imposed for the 

auto thefts. 

In the second example, the defendant has two prior 

strikes. His charged offenses result in convictions for two 

separate felony auto thefts and two counts of second degree 

robbery. The robberies occurred when he went into a store, 

robbed the clerk and, on his way out, also robbed a patron. The 

court dismisses one strike, and none of the exceptions in section 

1170.12 subdivision (c) apply, so an indeterminate life term is 

not called for. Sentencing would progress as follows. The term 

for the robbery of the clerk would be the base term chosen from 

the triad, then doubled. The term for robbing the patron would 

be one-third of the midterm, doubled. The two robberies are 

qualifying offenses, but they were committed on the same 

occasion. As a result, under subdivision (a)(6), the court would 

have the discretion to order the sentence for each robbery to run 

either consecutively or concurrently to each other. (Hendrix, 

supra, 16 Cal.4th at pp. 513–514.) As in the prior example, the 

auto thefts would not be qualifying offenses, but whatever 

sentence is imposed for the qualifying robberies must be ordered 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

26

to run consecutively to the total term imposed for the auto 

thefts. 

In sum, we conclude that, after the Reform Act, a trial 

court retains the Hendrix concurrent sentencing discretion 

when sentencing on qualifying offenses committed on the same 

occasion or arising from the same set of operative facts. Because 

the trial court’s comments at sentencing suggested it did not 

believe it had that discretion, we remand the matter for a new 

sentencing hearing. (See Buycks, supra, 5 Cal.5th at pp. 893–

895.) At that hearing, the full resentencing rule, which “allows 

a court to revisit all prior sentencing decisions when 

resentencing a defendant” (People v. Valenzuela (2019) 7 Cal.5th 

415, 424–425), applies. Further, because “ ‘a defendant should 

not be required to risk being given greater punishment . . . for 

the privilege of exercising his right to appeal’ ” (People v. Hanson

(2000) 23 Cal.4th 355, 359, quoting People v. Ali (1967) 66 Cal.2d 

277, 281), the court on remand may not impose an aggregate 

sentence greater than the one defendant initially received. 
PEOPLE v. HENDERSON

Opinion of the Court by Corrigan, J.

27

III. DISPOSITION

The judgment of the Court of Appeal is reversed with 

directions to remand the matter to the superior court for a new 

sentencing hearing. 

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

GUERRERO, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Henderson

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 54 Cal.App.5th 612

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S265172

Date Filed: November 17, 2022

__________________________________________________________ 

Court: Superior

County: Los Angeles

Judge: Fred N. Wapner

__________________________________________________________ 

Counsel:

Rudolph J. Alejo, under appointment by the Supreme Court, for 

Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle, Blythe J. Leszkay, Kristen J. Inberg 

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

and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Rudolph J. Alejo

Attorney at Law

520 South Grand Avenue, Unit 400

Los Angeles, CA 90071

(510) 842-5356

Kimberley A. Donohue

Deputy Attorney General

1300 I Street

Sacramento, CA 95814

(916) 210-6135