PEOPLE v. LAWRENCE

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Jimmy Dale LAWRENCE, Defendant and Appellant.

No. B110417.

Decided: March 31, 1998

William D. Farber, under appointment by the Court of Appeal, San Rafael, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, James W. Bilderback, Assistant Supervising Deputy Attorney General, and Frederick Grab, Deputy Attorney General, for Plaintiff and Respondent.

SUMMARY

The Three Strikes law provision requiring consecutive sentences for multiple current felonies not committed on the “same occasion” and not involving the “same set of operative facts” (Pen.Code section 667, subd. (c)) does not incorporate the different rules grounded in Penal Code section 654 which bar multiple punishment for the same criminal “act or omission.”   The trial court erred in concluding it was compelled to sentence appellant Jimmy Dale Lawrence consecutively for multiple current crimes committed on the same occasion and arising from the same operative facts;  in fact it had discretion to sentence concurrently.

FACTS AND PROCEDURAL HISTORY

The evidence at trial is summarized as follows:

On March 19, 1996, Joaquin Criner, an employee of a Stater Brothers market in Pomona, saw appellant leaving the store through a closed checkstand clutching a large bottle of brandy.   Criner testified the theft occurred between 9:15 and 9:30 pm.   Criner shouted the codeword for shoplifting, and he and the store's manager chased appellant through the parking lot.   Appellant swerved toward Richard Williams, an elderly man on the sidewalk, nudged or grabbed Williams, and knocked him down.   Appellant got away while Criner assisted Williams.

Shortly thereafter Vincent Rojas and his wife Elizabeth LaVastida found appellant in their backyard.   Their residence was located catty-corner to Stater Brothers.   Stater Brothers was on Garey Avenue;  the Rojas-LaVastida yard afforded a short-cut, over the fence, from Garey Avenue to nearby Gibbs Avenue.   LaVastida saw appellant come over the fence into the yard between 9:00 and 9:15 p.m. Rojas testified that he discovered appellant in the yard at about 9:00 p.m.

Rojas confronted appellant, who swung at Rojas with the brandy bottle, striking his elbow.   Appellant attempted to flee.   Rojas armed himself with a shovel and commanded his dog to pursue appellant.   Appellant swung the bottle at LaVastida and again at Rojas.   Rojas tackled appellant, and appellant hit LaVastida's head with the bottle.

Next, the police arrived, arrested appellant, and brought Criner to identify appellant.   Criner said the time elapsed from the theft to Criner's arrival at the scene of appellant's detention was at most 15 to 20 minutes.

Appellant was charged by information as follows:  count 1, felony petty-theft-with-priors;  counts 2 and 3, felony assaults on Rojas and LaVastida, with a deadly weapon (the bottle) and infliction of great bodily injury;  count 4, misdemeanor battery upon Williams.

While the jury was deliberating, the court ordered that count 2 be deemed amended to allege simple assault, a misdemeanor.

The jury convicted appellant on all counts.   In a bifurcated second trial the jury found that appellant had suffered prior felony convictions for unlawful vehicle taking or driving (1980), robbery and attempted robbery (1985), robbery (1987), and robbery (1988).

The probation report and evidence introduced at trial established appellant's criminal history as follows:

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Appellant was 41 at the time of the current offenses.   The probation report showed, in addition to the foregoing convictions, that appellant had ten arrests without disposition from 1974 through 1982 for drug offenses, robbery, burglary, and resisting an officer.   He had several aliases and no residential or employment stability.

The trial court concluded that it was required under the Three Strikes law to sentence consecutively on the four counts.   It sentenced appellant to an aggregate term of 66-years-to-life, including two consecutive 25-years-to-life terms for the felony assault and petty-theft-with-prior convictions;  three 5 year enhancements, one for each of appellant's three prior serious felony convictions (Pen.Code section 667, subd. (a));  and two consecutive 6-month terms for the misdemeanor convictions.1  The trial court struck all one year enhancements for prior felony convictions (Pen.Code § 667.5,subd. (b)).

This appeal followed.   On appeal appellant challenges only his sentence, not his conviction.   He contends that the trial court erred in concluding that it was required to sentence consecutively, and in imposing Penal Code section 667, subdivision (a) enhancements for the same prior felony convictions which required application of the Three Strikes law.

DISCUSSION

1. The trial court was not required to sentence consecutively.

The Three Strikes law, in Penal Code section 667, subdivision (c), mandates consecutive sentencing where defendant is convicted in the current case of multiple felonies, as follows:

“(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).

“(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.”  (Emphasis added.)

 Subdivision (6) applies here, since only one of appellant's two current felony convictions was for a serious or violent felony.2

 The Supreme Court has interpreted subdivisions (6) and (7) to mean that if multiple current felonies were committed on the same occasion, and involved the same set of operative facts, then the trial court is not required to sentence consecutively, and may choose to sentence concurrently or consecutively according to the usual rules governing this choice.  (People v. Hendrix (1997) 16 Cal.4th 508, 513, 66 Cal.Rptr.2d 431, 941 P.2d 64.)

 Accordingly, the dispositive issue here is whether the theft at the market and the assault on LaVastida were committed on the same “occasion” and arose from the same “set of operative facts.”

The Supreme Court has not yet authoritatively construed the “same occasion, same set of operative facts” test found in section 667, subdivision (c) (in Hendrix the parties conceded the felonies there involved occurred on the same occasion and involved the same operative facts.)   In People v. Carter (1995) 41 Cal.App.4th 683, 688, 48 Cal.Rptr.2d 726 the court of appeal held that the “same occasion, same operative facts” test “appl[ies] the principles of [Penal Code] section 654 to multiple current crimes.”   In Carter defendant was convicted of three counts of attempted murder for a rapid burst of shots fired at two brothers and their father who had ordered defendant to leave an area near their apartment.   Several other appellate decisions have adopted Carter's reasoning.

Penal Code section 654 was originally enacted in 1872, and at the time the Three Strikes law was passed had been unchanged since 1977.3  In pertinent part the section then stated as follows:

“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; ․ ”

Section 654 thus recognizes that a single act or omission can constitute more than one crime, and it forbids punishing repetitively for a single criminal act or omission.

By “applying the principles of 654” to section 667, subdivision (c), Carter meant that multiple crimes not subject to section 654's ban on double punishment should be deemed not to have occurred on the “same occasion” nor arise from the “same operative facts” and thus should be subject to mandatory consecutive punishment under section 667, subdivision (c).  The court said:

“Under section 654, defendant could be consecutively sentenced for each count. Under section 667, subdivision (c), he must be consecutively sentenced.”  (Carter, supra, 41 Cal.App.4th at p. 689, 48 Cal.Rptr.2d 726, emphasis added.)

 We respectfully disagree with Carter's conclusion that conduct which may be punished repetitively under 654 must be punished consecutively under 667, subdivision (c).

The operative language of the two sections has significantly different meanings.  Section 654 speaks of a single “act or omission,” while section 667, subdivision (c) speaks of felonies not committed “on the same occasion” or arising from “the same set of operative facts.”   An “occasion” is a point in time.4  Multiple acts or omissions can occur on a single “occasion” if they take place at or near the same moment in time.   Likewise, multiple acts or omissions can comprise part of the “same set of operative facts,” if one gives that phrase its normal and usual meaning.   It is thus incorrect to conclude that separate, distinct acts necessarily occurred on distinct occasions or arose from separate sets of operative facts.

It is unreasonable to suppose that the Legislature, and the drafters of the Initiative version of 667, subdivision (c), selected different words from those in section 654, with distinctly different meanings, in order to adopt the rule contended for in Carter.   Had the drafters intended the Carter result, they could have used section 654's language in section 667, subdivision (c), for example, stating that mutiple current felonies involving separate “acts or omissions” must be consecutively punished.   Or, they could have stated in so many words that current felony convictions which could be separately punished under section 654 must be separately punished under section 667, subdivision (c).  Section 667 contains references to Penal Code sections 190, 1170, 1192.7, 1385, 2930, and 3046, and Welfare and Institutions Code sections 602, 707 and 3050.   But nowhere does it mention section 654.   The claim of legislative intent to require under section 667 multiple punishment where permitted by section 654 is implausible in light of the differing language of the sections, and the absence of any expressed intent to relate them in this way.

The Carter facts illustrate the violence done to section 667, subdivision (c) by the test adopted in Carter.  Carter concluded that section 667, subdivision (c) mandated consecutive sentences for three counts of attempted murder where defendant “rapidly fired” (the court's words) three shots at a small group of people.  Section 667 subdivision (c) mandates consecutive sentences only for felonies not committed on the same occasion, and not arising from the same operative facts.   Thus the Carter court necessarily concluded (though it did not state its conclusion this way) that each shot in the salvo was fired on a different “occasion,” and that a three-shot salvo “rapidly fired” by one defendant from one gun at a small group of people involved different “sets of operative facts.” 5

 In our view the words “same occasion” and “same set of operative facts” cannot be so construed without fatally distorting their meaning.   Instead, section 667, subdivision (c) establishes a test different from section 654, and requires consecutive sentencing only where the several current crimes occur at different times, under different circumstances.

Our conclusion is consistent with the policies reflected in the Three Strikes law.   The penalty for a single current felony conviction following two prior serious felonies is 25-years-to-life, a very serious penalty.  Section 667, subdivision (c), imposes a penalty yet more serious, consecutive 25-year-to-life sentences.   The reasonable construction is that the drafters of section 667, subdivision (c) concluded that “stacked” or consecutive life sentences should be mandated only where the new, current crimes involved separate, distinct episodes of criminal conduct, rather than merely distinct criminal acts committed at the same time in the same criminal transaction.   This is the sensible import of the words of the section, and it is wholly consistent with the anti-recidivist nature of section 667, subdivision (c).   This construction imposes the severest additional penalties on criminals who engage in distinct, new criminal transactions, and thus show themselves to be the most unrepentant recidivists.6

The majority opinion in Hendrix implicitly repudiates Carter, by holding that section 667, subdivision (c) permits, but does not mandate, consecutive sentences where section 654 clearly would have permitted consecutive sentencing, and thus Carter would have required consecutive sentencing.   As Chief Justice George stated in his concurring opinion in Hendrix, “this interpretation [by Carter ] of the language of section 667, subdivision (c)(6) would appear to compel a conclusion opposite of that reached by the majority [in Hendrix ], because the current crimes involved multiple victims, and thus Penal Code section 654 would not prohibit multiple punishment.”  (Hendrix, supra, 16 Cal.4th at p. 516, 66 Cal.Rptr.2d 431, 941 P.2d 64.)   However, as the Chief Justice pointed out, the parties in Hendrix had essentially stipulated that the crimes there occurred on the same “occasion.”   In the Chief's view and that of Justices Baxter and Chin who joined him, the question of the relationship of section 654 to 667, subdivision (c) was one for another day.

The body of authority cited by the dissenting opinion does not, upon scrutiny, support the position taken there.   Four of the cases cited (People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707, People v. Samuels (1996) 42 Cal.App.4th 1022, 50 Cal.Rptr.2d 157, and People v. Ayon (1996) 46 Cal.App.4th 385, 53 Cal.Rptr.2d 853) involved multiple current crimes committed at separate, distinct times and places.   We agree that consecutive sentencing was mandated in these cases, by the straightforward application of the explicit language of section 667, subdivisions (c)(6) and (c)(7).   These cases do not hold that consecutive 25-years-to-life-sentences are mandated where the current offenses are committed “on the same occasion” and during the “same set of operative facts.”  People v. Miles (1996) 43 Cal.App.4th 364, 51 Cal.Rptr.2d 87 involved current crimes which clearly were committed on the same occasion, but reached its conclusion without considering section 667, subdivision (c) at all.  Miles instead relied on subdivision (e), an analysis since explicitly rejected by the majority in Hendrix.  (Hendrix, supra, 16 Cal.4th at pp. 514-515, 66 Cal.Rptr.2d 431, 941 P.2d 64.)   The remaining two opinions the dissent cites have been accepted for Supreme Court review and thus are not authority.

By contrast, two recent cases where the current crimes were committed on the same occasion expressly rejected the argument that section 654 controls application of section 667, subdivision (c), and held that consecutive sentences were not mandated.  (People v. Newsome (1997) 57 Cal.App.4th 902, 911-912, 67 Cal.Rptr.2d 438;  People v. Bell (1998) 61 Cal.App.4th 282, 294 [71 Cal.Rptr.2d 415, 423].)

We conclude that the drafters of section 667, subdivision (c) intended something different from the section 654 test.   They intended to require consecutive sentences only where multiple current felonies were distinctly separated in time and circumstance (not on the same occasion or arising from the same operative facts), leaving to the trial courts discretionary power to impose either concurrent or consecutive punishment where multiple current felonies were closely related in time and factual circumstance.

Applying our conclusion in the present case, the trial court erred in concluding that consecutive sentencing was obligatory.   Appellant's offenses all were committed within a very short span of time, some five to 15 minutes, on a single occasion, and all arose from the same set of operative facts:  the theft from the market, and the escape attempt which immediately followed.   The trial court was empowered to sentence concurrently on all counts, and was not obligated by section 667, subdivision (c) to sentence consecutively.  (People v. Hendrix, supra, 16 Cal.4th at p. 513, 66 Cal.Rptr.2d 431, 941 P.2d 64.)

Finally, the trial court was not required-even were the Carter rationale correct-to sentence consecutively for the misdemeanors.  Section 667, subdivision (c) only requires consecutive sentencing on each of several felony counts.

2. Separate five year enhancements were proper for appellant's prior serious felony convictions.

 Separate enhancements are proper for discrete prior serious felony convictions.  (Pen.Code § 667, subd. (a);  People v. Dotson (1997) 16 Cal.4th 547, 559-560, 66 Cal.Rptr.2d 423, 941 P.2d 56.)

DISPOSITION

The sentence is vacated and the case is remanded for resentencing so that the trial court may exercise its discretion with regard to whether appellant should be sentenced concurrently or consecutively on his several convictions.

I concur with the majority except for their conclusion the offenses were committed “on the same occasion” and arose “from the same set of operative facts.”  (Pen.Code, § 667, subd. (c)(6);  statutory references are to the Penal Code.)

In enacting the Three Strikes Law the Legislature made its intent clear:  “It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, 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.”  (§ 667, subd. (b);  italics added.)

It implemented this intent not just by prescribing longer prison terms for “strike” defendants (§ 667, subd. (e)) but by eliminating judicial discretion.   Eliminated was a judge's discretion to grant probation or stay imposition of sentence (§ 667, subd. (c)(2)), to divert a defendant or commit him to the California Rehabilitation Center (§ 667, subd. (c)(4)), and to plea or sentence bargain (§ 667, subd. (g)).  It also restricted a judge's discretion to impose a concurrent rather than a consecutive sentence (§ 667, subds. (c)(6) and (7), (e)(2)(B)).

Subdivision (c)(6) provides:  “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively․”

Many courts, including our own, have considered the meaning of “not committed on the same occasion, and not arising from the same set of operative facts.”

In the Second District, Divisions Four (People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776 per Justice Epstein), Six (People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707 per Justice Yegan), Five (People v. Carter (1995) 41 Cal.App.4th 683, 48 Cal.Rptr.2d 726 per Justice Grignon), and One (People v. Samuels (1996) 42 Cal.App.4th 1022, 50 Cal.Rptr.2d 157 per Justice Ortega) have all construed these provisions as incorporating the principles of section 654.

The Third District has concluded otherwise (People v. Newsome (1997) 57 Cal.App.4th 902, 912-913, 67 Cal.Rptr.2d 438) as has Division One, Fourth District (People v. Bell (1998) 61 Cal.App.4th 282, 71 Cal.Rptr.2d 415;  but see People v. Ayon (1996) 46 Cal.App.4th 385, 393, 53 Cal.Rptr.2d 853).

The majority conclude section 654 and subdivision (c)(6) are unrelated because the “operative language of the two sections” is different.   They also conclude appellant's offenses were all committed “on the same occasion” and arose from “the same set of operative facts.”   I disagree with both conclusions.

Of course, as the majority note, the words of section 654 1 and subdivision (c)(6) are not the same, a fact which could scarcely have escaped the notice of our People v. Martin, People v. McKee, People v. Carter, and People v. Samuels colleagues.   As I later explain, this reason is not persuasive.

A second reason offered by the majority is the Legislature's intent to mandate consecutive sentences only for those “criminals who engage in distinct, new criminal transactions, and thus show themselves to be the most unrepentant recidivists.”   Apparently the majority believe a defendant who at one place, at one time feloniously assaults ten women is a more repentant recidivist than a defendant who does so at multiple places and times.   I perceive no such legislative intent in the Three Strikes Law.

Finally, the majority rely on what they characterize as an “implicit [ ] repudiat[ion]” of People v. Carter by our Supreme Court in their People v. Hendrix opinion.   The majority are mistaken.   In Hendrix, the lead opinion mentions neither Carter nor section 654.   It implies nothing about Carter 's view of section 654 because by accepting the parties' “same occasion” concession Hendrix entirely eliminated that issue.

The majority also misconstrue Chief Justice George's concurring opinion.   That opinion merely notes that if the lead opinion had decided the merits, instead of relying upon the parties' concession, its conclusion might conflict with Carter et al.2

In my view, subdivision (c)(6) incorporates but seeks to restrict the principles of section 654.   I explain.

In enacting the Three Strikes Law the Legislature intended “to ensure longer prison sentences and greater punishment” for “strike” defendants.   To accomplish this purpose judicial discretion was repeatedly eliminated (see infra ).   Prison, not probation, was mandated.   But section 654 posed an obstacle.   It prohibited separate punishment for “an act ․ made punishable ․ by different provisions.”   Decisional law stretched “act” into “course of conduct” (People v. Brown (1958) 49 Cal.2d 577, 320 P.2d 5) and “course of conduct” into “the intent and objective of the actor” (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839).

As People v. Latimer (1993) 5 Cal.4th 1203, 23 Cal.Rptr.2d 144, 858 P.2d 611 explained, the Neal “intent and objective” test for section 654 prohibited punishing defendants for some crimes they had committed.  (Id. at p. 1209, 23 Cal.Rptr.2d 144, 858 P.2d 611.)  Neal had been repeatedly criticized and Latimer acknowledged “These criticisms have some merit.”   (Id. at p. 1211, 23 Cal.Rptr.2d 144, 858 P.2d 611.)  Latimer stated:  “In some situations, the gloss [the ‘intent and objective’ test] defeats its own purpose.   We have often said that the purpose of section 654 ‘is to insure that a defendant's punishment will be commensurate with his culpability.’   The Neal test does not, however, so ensure.   A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.   A grand criminal enterprise is more deserving of censure than a less ambitious one, even if there is only one ultimate objective.   Specifically, as the Attorney General notes, defendant ‘having been lawfully convicted of kidnapping and rape(s), is clearly more culpable than a defendant who rapes without kidnapping.’   A rapist should not be insulated from punishment for separate crimes such as kidnapping even if part of the same criminal venture.

“A victim, as in this case, who is forcibly transported into the desert, then raped, would be astonished to learn that the rape and the kidnapping were considered to be the same ‘act or omission’ (§ 654), and would find little consolation in the explanation that the defendant had only a single ‘intent and objective.’   The kidnapping was a completely separate crime;  it should be separately punishable.”  (Id. at p. 1211, 23 Cal.Rptr.2d 144, 858 P.2d 611.)

Latimer further noted:  “Decisions since Neal have limited the rule's application in various ways.   Some have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment.  (E.g., People v. Harrison, supra, 48 Cal.3d at pp. 334-338, 256 Cal.Rptr. 401, 768 P.2d 1078 [multiple sex crimes each have the separate objective of achieving additional sexual gratification];  People v. Perez, supra, 23 Cal.3d at pp. 551-554, 153 Cal.Rptr. 40, 591 P.2d 63 [similar];  People v. Trotter (1992) 7 Cal.App.4th 363, 368, 8 Cal.Rptr.2d 648 [‘each shot [fired at the same victim] evinced a separate intent to do violence’].)

“Other cases have found separate, although sometimes simultaneous, objectives under the facts.  (E.g., People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32 [assault of robbery victim had separate intent and objective than the robbery];  People v. Nguyen (1988) 204 Cal.App.3d 181, 189-193, 196, 251 Cal.Rptr. 40 [harming of unresisting robbery victim a separate objective from the robbery itself];  People v. Booth (1988) 201 Cal.App.3d 1499, 1502, 248 Cal.Rptr. 64 [‘dual objectives of rape and theft when entering the victims' residences' supported separate punishment for burglaries and rapes];  People v. Porter (1987) 194 Cal.App.3d 34, 37-39, 239 Cal.Rptr. 269 [robbery and kidnapping the same victim for a later, additional, robbery had separate objectives].)  Additionally, even Neal itself made clear that crimes of violence against multiple victims were separately punishable.  (Neal, supra, 55 Cal.2d at pp. 20-21, 9 Cal.Rptr. 607, 357 P.2d 839.)

“These examples, which are not exhaustive, have helped mitigate the concerns regarding the Neal test in specific situations, but have not eliminated them entirely.”  (People v. Latimer, supra, 5 Cal.4th at pp. 1211-1212, 23 Cal.Rptr.2d 144, 858 P.2d 611.)

Still, Latimer declined to overrule Neal because “[t]he Legislature has enacted substantial legislation reflecting its acceptance of the Neal rule.   The rule has thus become ․ part of a complex and comprehensive sentencing scheme.”  (Id. at p. 1214, 23 Cal.Rptr.2d 144, 858 P.2d 611.)   Finally, Latimer all but invited the Legislature to modify the Neal rule:  “Our refusal to overrule Neal, however, must not be construed as an endorsement of its wisdom.   A different rule, such as that of In re Chapman, supra, 43 Cal.2d at page 390 [273 P.2d 817], quoted above, has much to commend it.   But at this late date, any changes must be made by the Legislature, which obviously has the authority to modify the rule any time it chooses.”  (Id. at p. 1216, 23 Cal.Rptr.2d 144, 858 P.2d 611.)

I believe in subdivision (c)(6), the Legislature accepted Latimer 's invitation.

As Justice Epstein noted, subdivision (c) begins with the clause, applicable to the entire subdivision, “notwithstanding any other law” and “[t]he most obvious ‘other law’ ․ is section 654.”  (People v. Martin, supra, 32 Cal.App.4th 656, 664, 38 Cal.Rptr.2d 776.)

Thus, subdivision (c) initially overrides section 654 and its thwarting decisional gloss and then seeks to enact the principle of section 654 but in a limited and restrictive way.   It avoids the language of section 654 in order to avoid the “intent and objective” gloss engendered by that language.   It adopts “not committed on the same occasion” in order to shrink the reach of “during the same course of conduct.”   It adopts “the same set of operative facts” 3 in order to eliminate the subjective, expansive “intent and objective” test and to substitute an objective, restrictive one.

In my view, subdivision (c) not only mandates consecutive sentences for offenses which section 654 would permit be separately punished but also mandates consecutive sentences for some offenses which section 654 would not permit be separately punished.

Since the two subject felonies (petty theft with a prior (§ 666) and assault with a deadly weapon (§ 245)) involved different victims and could be separately punished under section 654, consecutive sentences were mandatory under subdivision (c)(6).

The majority are mistaken for a second reason.   Quite apart from one's view of section 654's relationship to subdivision (c)(6), appellant's felony assault of Ms. LaVastida was “not committed on the same occasion” and did not arise “from the same set of operative facts” as his petty theft 15 minutes earlier and 2-3 blocks distant.

I would affirm the judgment.

FOOTNOTES

1.   The abstract of judgment does not reflect the sentences on the misdemeanors, the consecutive nature of all sentences, or the aggregate term.

2.   The assault with the bottle was a serious felony.   A bottle is a deadly weapon, People v. Cordero (1949) 92 Cal.App.2d 196, 199, 206 P.2d 665;  People v. Martinez (1977) 75 Cal.App.3d 859, 142 Cal.Rptr. 515.   Any felony in which defendant personally used a deadly weapon is classified as violent.  Penal Code 1192.7, subdivision (c)(23).   Petty theft with a prior is not classified as either serious or violent.

3.   The section was amended in 1997 in respects which do not materially change its purpose or operation.

4.   Webster's New World Dictionary defines “occasion” as “the time at which something happens;  particular time.”

5.   We have no quarrel with the conclusion that consecutive punishment was available for the three attempted murder counts as a matter of discretion.   It is only Carter's conclusion that consecutive sentencing was mandatory that we take issue with.

6.   Of course, one can construct hypotheticals where multiple crimes committed on the same occasion are more egregious in the aggregate than multiple crimes committed on different occasions.   But no complex sentencing scheme can be perfectly consistent or rational.   And, trial courts retain discretion to impose consecutive sentencing under section 667, subdivision (c) where multiple egregious current felonies are committed on the same occasion and in the course of the same operative facts.

1.   The section, at the time of the instant offenses, read:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․ ”

2.   Other errors, factual and legal, committed by the majority include:(i) the statement that “LaVastida saw appellant come over the fence into the yard.” (maj. opn. p. 138, italics added) (She did not.   She saw appellant, sometime later, go over the fence out of the yard);(ii) their statement “the court ordered that count 2 be deemed amended to allege simple assault, a misdemeanor” (maj.opn. p. 139) (That did not happen.   The majority apparently rely on an errant minute order.   The jury found appellant not guilty of the count 2 felony charge but guilty of the lesser included misdemeanor assault.);(iii) the majority err in stating “Section 667, subdivision (c) only requires consecutive sentencing on each of several felony [not misdemeanor] counts.”  (Maj. opn. p. 143, original italics.)  (See § 667, subd. (c)(7);  People v. Newsome,supra, 57 Cal.App.4th 902, 910-911, 67 Cal.Rptr.2d 438.)

3.   See People v. Martin, supra, 32 Cal.App.4th 656, 663-664, 38 Cal.Rptr.2d 776 for examples of this phrase.

NEAL, Associate Justice.

LILLIE, P.J., concurs.