Consecutive Sentences
Category > Consecutive Sentences
Updated 2/4/2024Following Prop 36, the trial court retained discretion to impose concurrent terms in Three Strikes cases where the offenses were committed on the same occasion.In People v. Hendrix (1997) 16 Cal.4th 508, the court found a trial court in Three Strikes or habitual offender cases has discretion to impose concurrent terms for felonies that were committed on the same occasion or arose from the same set of operative facts, even if the offenses were serious or violent. Prop 36, the Three Strikes Reform Act did not remove that discretion.id: 27593
Consecutive sentences were improper because a probation violation cannot be characterized as a current offense under the three strikes law.Defendant was convicted of robbery and it was determined he had suffered a strike prior. The Court of Appeal erred in holding the trial court was under a duty to impose consecutive sentences for the current offense and in the probation violation matter pursuant to Penal Code section 667, subdivision (c)(7). Contrary to the court's ruling the imposition of sentence following a probation violation cannot be characterized as a current offense.id: 9432
Trial court had the discretion to impose concurrent three strike terms where the jury did not specify whether the current assault convictions involved use of a deadly weapon or force likely to injure.Defendant was convicted of two counts of aggravated assault which arose out of the same set of operative facts. Under Penal Code section 667, subdivision (c)(7) consecutive sentences are mandatory if the new felonies may have been sentenced consecutively, notwithstanding that they arose out of the same facts. Under section 667, subdivision (c)(6) any new felonies qualify for consecutive treatment but only when the felonies arise out of a different set of facts and on different occasions. Defendant's convictions were for assault with a deadly weapon or by force likely to produce great bodily injury (section 245, subdivision (a)(1).) Because the latter is not a strike and the jury did not specify which theory it relied on, the trial court acted within its discretion in imposing concurrent terms of 25 years to life.id: 9439
Court had discretion under the three strikes law to impose concurrent terms for current robberies committed on the same occasion.The same analysis used to determine if multiple punishment is permitted under Penal Code section 654 is not used to determine if consecutive sentencing is required by section 1170.1, subdivisions (a)(6) and (a)(7). The robberies were committed in one location almost simultaneously against a group of people. The offenses were therefore committed on the same occasion and the trial court had discretion to impose concurrent rather than consecutive sentences.id: 15230
Consecutive terms are not required where the evidence does not show whether the current felonies occurred on the same occasion.In three strikes cases, the court reviews the facts to determine whether the current felonies occurred on the same occasion and arose from the same set of operative facts. Where the evidence does not enable a decision whether present felonies arose from the same occasion or from the same facts, the trial court has discretion to impose concurrent or consecutive terms for those crimes. It is not compelled to impose consecutive terms.id: 15228
The trial court has discretion to impose concurrent terms under the three strikes law for two current offenses committed simultaneously by two attackers.Defendant was convicted of robbery and attempted robbery based upon the simultaneous acts against two victims by defendant and his partner. The trial court erred in finding it lacked discretion to impose concurrent 25 years to life terms under the three strikes law. The current crimes were committed on "the same occasion" for purposes of the three strikes law where they were simultaneously perpetrated by two attackers acting in concert, instead of just one perpetrator acting alone.id: 15233
Trial court erred in finding the three strikes law mandated consecutive sentences for convictions that occurred on the same occasion.The trial court accepting the sentencing memorandum's assertion that the three strikes law, specifically Penal Code section 667, subd.(c)(7), mandated consecutive terms for counts nine through seventeen which occurred on the same occasion or were based on the same facts. However, the three strikes law does not require consecutive sentences for such convictions. The trial court had discretion to order concurrent terms. The matter was remanded for resentencing.id: 15236
When deciding whether court has discretion under three strikes law to impose concurrent terms, the court should assume the verdicts were based on facts that would give it the most discretion.Under the three strikes law, if two or more current offenses were committed on the same occasion or arose out of the same set of operative facts, the court has discretion to impose concurrent or consecutive sentences. To determine the scope of its discretion the court must know the factual basis of each conviction. If the jury could have based its verdicts on any number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms.id: 14817
After dismissing the strike allegation on all but one of the current offenses, the court had discretion to impose concurrent or consecutive terms on the remaining offenses.Pursuant to People v. Garcia (1999) 20 Cal.4th 490, the trial court has discretion to dismiss strike allegations in some counts but not others. Dismissal of the strike allegations on certain counts also removes the mandatory consecutive sentencing. Under Garcia, section 667, subdivisions (c)(6) and (c)(7) apply only when the court sentences the defendant under section 667, subd.(e). If the defendant is not sentenced under that provision, the court has discretion to impose concurrent or consecutive terms. In the present case, after dismissing the strike allegations on all but one current conviction, the court could have imposed some concurrent and some consecutive terms in reaching the sentence it believed was appropriate.id: 17194
The trial court erred by suggesting it lacked discretion under the three strikes law to impose a concurrent sentence on the weapon possession charge.The trial court’s reference to Penal Code section 667, subd.(c)(7) suggests the court erroneously believed it had no discretion to sentence defendant concurrently on the possession of a firearm by a felon count. The matter was remanded to allow the trial court to exercise its discretion in determining whether the sentence should be concurrent or consecutive.id: 22125
Imposition of section 667(a) enhancements when minimum time to parole calculated pursuant to option (iii) does not violate section 654.The Legislature mandated the minimum time to parole when an indeterminate three strikes life sentence is imposed must be calculated according to options (i), (ii), or (iii), whichever yields the longer minimum term. Imposition of enhancements must be served consecutively pursuant to Penal Code section 667, subdivision (a). Nothing in section 654 prohibits calculation of minimum time to parole by taking into account the defendant's recidivist history, as option (iii) does, simply because enhancements under section 667, subdivision (a) are also imposed. The prefatory language of section 667, subdivision (e) must be read to mandate the inclusion of enhancements as a separate determinate sentence after the calculation of the minimum term and in addition to the indeterminate sentence. Under section 669, the determinate term created by section 667, subdivision (a), enhancements must be served first, with the three strikes indeterminate life term to follow consecutively.id: 9435
Section 12022.53, subd.(j) did not preclude imposition of enhancements under that section to defendant's robbery counts even though he was sentenced under option (iii) of the three strikes law.Defendant argued optioned (iii) of the three strikes law provides a greater penalty than under sections 12022.53, subds. (c) and (d), thereby precluding the sentencing court from separately adding these count-specific enhancements on to the final option (iii) calculation in determining his sentence under the three strikes law. However, the "other provision of law" language in section 12022.53, subd.(j) (requiring that enhancements under this provision of law be applied unless another provision provides a greater penalty) must be construed to apply to enhancements other than Penal Code section 667, subd.(e)(2)(A) or section 1170.12, subd.(e)(2)(A). The court properly imposed the section 12022.53 enhancements to defendant's option (iii) three strikes sentence.id: 17971
The three strikes requires consecutive sentences on all counts, even those as to which the only qualifying prior was dismissed under section 1385.The trial court dismissed the strike allegation pursuant to Penal Code section 1385 on 34 of 35 counts. Thereafter, the court lacked discretion to sentence defendant concurrently on those counts for which the strike allegation had been dismissed, and which did not arise on the same occasion or under the same set of operative facts. Instead, the court was required to sentence all counts consecutively under Penal Code section 667, subd.(c).id: 17905
There were two current convictions for purposes of the consecutive sentence requirement of the three strikes law even though all of the strikes as to one of the offenses were dismissed.Defendant was convicted of two counts of vehicle theft, along with a finding that he had three strike priors. He was sentenced to 50 years-to-life. The court then recalled the sentence, struck the priors as to one offense and imposed a 25 years-to-life term for the first count and an eight month term for count two to be served consecutively to the indeterminate term. Defendant argued that Penal Code section 1170.12, subd.(a)(6) requiring consecutive terms for multiple offenses does not apply when all of the defendant's strike priors are dismissed as to one of the two counts. He claimed in that circumstance, there was only one current conviction. However, the trial court properly found the three strikes law required consecutive sentencing as there were two current convictions.id: 17159
Consecutive 25 years to life terms for three strike defendant convicted of two drug sales was not cruel and unusual punishment.Defendant was convicted of two counts of selling methamphetamine and he was found to have suffered three strike priors. He was committed to state prison on two consecutive 25 years to life terms. The amounts of methamphetamine sold were not insignificant. There was no evidence that the sales were made to support his addiction. Defendant had an otherwise substantial criminal record. The sentence did not amount to cruel and unusual punishment.id: 15226
Consecutive three strike sentences were mandatory where the drug deals committed two days apart did not arise from the same set of operative facts.Defendant pled guilty to two counts of selling methamphetamine and the trial court found that he had suffered three strike priors. He argued the record showed the trial court was unaware of its discretion to impose concurrent terms. However, consecutive sentences are mandatory where the offenses were not committed on the same occasion and did not arise out of the same set of operative facts. The two drug deals in the instance case were committed two days apart and therefore did not arise out of the same set of operative facts. The trial court had no discretion to impose concurrent terms.id: 15229
Current offenses were not committed on same occasion or from same operative facts for three strikes purposes where defendant stole brandy from a market and later assaulted someone with the bottle.Defendant stole a bottle of brandy from a market, and then while fleeing from the market, used the same bottle to assault the occupant of home nearby as he attempted to traverse the victim's yard. He was convicted of petty theft with a prior as well as assault with a deadly weapon. The Court of Appeal erred in concluding that the consecutive sentences were not mandated under the three strikes law. Contrary to the court's holding the current offenses were not committed on the same occasion and did not arise from the same set of operative facts.id: 15231
Mandatory consecutive sentences were required under the three strikes law where the two attempts and one completed residential burglary took place in immediate succession.Defendant attempted to enter a house in a condominium complex but could not gain entry. He immediately proceeded to another house in the complex but again could not gain entry. He then proceeded to a third house where he entered and ultimately removed a VCR. He was convicted of two counts of attempted residential burglary and one count of residential burglary. The instant crimes did not occur on the same occasion because each was complete before the next one began. Because the offenses occurred on different occasions consecutive three strike terms were required for each offense.id: 15232
There is no exception to the mandatory consecutive sentence provision in the three strikes law where one offense committed on a separate occasion was in furtherance of another.Defendant argued the trial court incorrectly thought it was required to sentence defendant consecutively based on his convictions for burglary, forgery of a check, and intimidating a victim. The offenses were not committed on the same occasion and did not arise on the same set of facts. Nevertheless, defendant argued concurrent sentences were authorized under the three strikes law where the burglary was the original offense and the other crimes were in furtherance of the objective of the burglary. However, there is no exception to mandatory consecutive sentences when one offense is in furtherance of another.id: 15235
Consecutive sentences were mandatory for three strike defendant who assaulted one victim, went downstairs retrieved a knife, and went back upstairs to stab the second victim.A three strike defendant assaulted one victim on the top of the stairs. He then went downstairs, found a knife, pushed the manager out of the way, went upstairs and stabbed the second victim. The two offenses were not committed on the same occasion and did not arise from the same set of operative facts. Contrary to defendant's claim, the trial court did not have discretion to impose concurrent terms for the two offenses.id: 14816
Consecutive sentences are mandatory where defendant has been convicted of multiple violent crimes against multiple victims on a single occasion and a prior strike is found true.Defendant was convicted of the premeditated attempted murders of three victims on a single occasion. He also admitted a prior serious felony conviction within the meaning of the three strikes law. The trial court erred in imposing concurrent sentences for two of the attempted murder counts. Where a defendant has been convicted of crimes of violence against multiple victims and an allegation of a prior felony conviction within the meaning of Penal Code section 667, subdivisions (b)-(i) has been found to be true, consecutive sentencing for the violent crimes is mandatory pursuant to section 667, subdivision (c).id: 9430
Consecutive sentences are not mandatory under the three strikes law where defendant commits current violent felonies against multiple victims at the same time.Defendant pointed a gun at four people seated at a shopping mall table and demanded their money. Two people complied. He was convicted of two counts of robbery and two counts of attempted robbery. Under the three strikes law, consecutive sentences for the four current offenses was discretionary, not mandatory.id: 9431
Consecutive subordinate terms in second strike case were required where the check forging did not arise out of the same set of operative facts.Defendant, who had a prior conviction amounting to a strike pled guilty to four counts of forgery. He argued the court was not required to impose consecutive terms on the four counts because Penal Code section 667, subdivision (c)(6) provides an exception where the current crimes arise out of the same set of operative facts. He claimed the forged checks were taken at the same time, cashed within a three week period and had the single intent of supporting his drug habit. However, the record supported the court's implied finding the offenses did not arise from the same set of operative facts and thus did not fall within the exception to section 667, subdivision (c)(6).id: 9433
Court properly ordered mandatory consecutive sentence where three strikes defendant had a prior sentence imposed but not yet fulfilled due to a CRC commitment, which was subsequently executed.Defendant argued the trial court erred in sentencing consecutively based on Penal Code section 667, subdivision (c)(8), because she was not already serving a sentence in the CRC case when sentence was imposed in the strike case. When sentence was executed in the CRC case, defendant was already serving a sentence in the strike case. She claimed the order of execution of sentences did not require consecutive sentences under section 667, subdivision (c)(8). However, any other sentence which the defendant is already serving includes a sentence previously imposed and not yet fulfilled, which has been suspended for a CRC commitment, and is subsequently executed. Consequently, the trial court correctly ordered mandatory consecutive sentences.id: 9434
In sentencing a defendant under the three strikes initiative the court must select as the minimum term of the indeterminate sentence the greater of three options to be applied on a count-by-count basis.Defendant was convicted of seven counts of robbery and two counts of attempted robbery. The jury also found he had three prior serious convictions within the meaning of Penal Code section 667, subdivision (a) and four strike priors within the meaning of section 1170.12, the codification of the three strikes initiative. He received a 225-year sentence and argued the minimum term under section 1170.12, subdivision (c)(2)(A)(iii) was 48 years to life. However, in determining the minimum term the court correctly chose option (ii) under subdivision (c)(2)(A) and imposed consecutive terms of 25 years to life on the nine operative current felonies. Option (ii) yields the greatest sentence of the three options and is intended to be applied on a count-by-count basis.id: 9436
Penal Code section 667, subdivision (e)(2)(B) mandated a consecutive sentence on count 2 because defendant committed violent crimes against separate victims.A consecutive term is mandatory under Penal Code section 667, subdivision (e)(2)(B) if a consecutive term may be imposed by law. Because defendant committed crimes of violence against two separate victims, the law permits the imposition of consecutive sentencing. Therefore, section 667, subdivision (e)(2)(B) mandated a consecutive term on count 2.id: 9437
The trial court should have sentenced the three strike defendant to three consecutive life terms based upon the three separate residential burglaries.The trial court violated both the express provisions and the legislative intent of the three strikes law when it sentenced defendant to a single 25 years to life term for the three current incidents. Because of his two qualifying prior convictions, defendant should have received three indeterminate life terms for the three current offenses and the three indeterminate life terms must be served consecutively.id: 9438
Under the three strikes law enhancements are subject to separate punishment and do not merge into the minimum term.Enhancements used to calculate the minimum term of the indeterminate sentence under Penal Code section 667, subdivision (e)(2)(A)(ii) do not merge into the minimum term and may be separately punished.id: 9441
Under three strikes law (section 667, subdivision (c)(6)) the court was required to sentence consecutively for the two current felonies and to double the subordinate term.Under the three strikes sentencing procedure, a defendant who has suffered a previous conviction for a serious or violent felony and who is convicted of two current felonies must be sentenced consecutively for the current felonies, and the sentence for each determinate term must be doubled. Since defendant's plea was premised on a sentence that did not double the subordinate term, he was entitled to withdraw the plea.id: 9442
When a defendant with two prior strikes commits two robberies on a single occasion the court must impose two consecutive indeterminate life sentences.When a defendant with two prior serious felony convictions commits two robberies on a single occasion, two consecutive indeterminate 25 years to life sentences must be imposed, putting aside the issue of enhancements.id: 9443
When a strike defendant is convicted of multiple counts and life sentence on each is to run consecutively the minimum term is calculated separately as to each count.Defendant argued that in calculating his sentence under Penal Code section 667, subdivision (e)(2) the court erred in sentencing him to 25 years to life on each count. He claimed the court should have compared a total minimum term of 25 years on all counts under the triple the term and traditional sentencing options and sentenced him to consecutive life terms with one minimum term based on whichever option yielded the maximum minimum. However, when a third strike defendant is convicted of multiple counts and the life sentence on each count is to run consecutively, the minimum term of the indeterminate life sentence is calculated separately as to each count.id: 9444
When a three strike defendant is sentenced to the third option the trial court must also impose a separate determinate term for enhancements under section 667, subdivision (a).Under the three strikes law, a trial court must sentence a defendant with two or more qualifying prior felony convictions to an indeterminate life term with the minimum term calculated as the greater of three options. The last of the three options is calculated, as relevant here, by adding to the term for the current offense the terms for applicable enhancements. When a defendant is sentenced under the third option, and his current conviction is for a serious felony, the trial court must also impose a separate determinate term for enhancements under Penal Code section 667, subdivision (a).id: 9445
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245