PEOPLE v. HENDRIX

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. James Duell HENDRIX, Defendant and Appellant.

No. F023420.

Decided: July 02, 1996

Willard F. Jones, Gold River, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Roger E. Venturi and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.

THE FACTS

At approximately 10:50 p.m.   on the evening of April 7, 1994, Mr. and Mrs. Ridge and Mr. and Mrs. Vick had finished cleaning up after a fundraising event at the Maywood Shopping Center and were seated having coffee when they were approached by a man wearing a straw hat;  a teal colored bandanna covered his face below his eyes.   The man pointed a pistol at the couples, cocked it and said, “this is a holdup.   Don't nobody move.   Won't get hurt.”   Both Mr. Vick and Mr. Ridge thought the man was someone they knew playing a joke and they studied his eyes carefully to figure out who the man was.   Mrs. Vick also studied the man carefully;  she was a former bank employee and had been trained in making identifications.   In response to his demand for money, the men placed their money clips on a chair;  the women said they had no money.   Still pointing the gun at the two couples, the robber took the money which totaled approximately $600 and backed out of the room.   He warned them not to move.

Mr. Vick retrieved a gun from his office and pursued a utility type vehicle leaving the shopping center.   While trying to stay with the robber's vehicle as it maneuvered to elude apprehension, Mr. Vick lost control of his car and collided with a tree when his tire blew out.   He continued his pursuit for awhile and at one point fired his gun at the vehicle when he saw muzzle flashes coming from the driver's side.

Shortly thereafter, Deputy Frank Gautier of the Madera Sheriff's Department observed an Isuzu Trooper driving without headlights which matched the description of a vehicle that had just been involved in a robbery.   He pursued the Trooper into a trailer park with the overhead lights on his patrol vehicle activated.   The Trooper slowed and the driver jumped from the vehicle into a row of hedges and disappeared.   Deputy Gautier ran to the Trooper and stopped it.   A canine unit subsequently captured defendant.   He was taken to a hospital for treatment of wounds he incurred during a struggle with a canine officer.

Approximately $600 was found in defendant's pocket.   There was a bullet hole in the side of the Trooper.   Mr. Ridge was brought to the hospital where he identified defendant as the robber.   That night the straw hat and bandanna were found in a dry canal bed where defendant had thrown them.   All four victims identified defendant as the robber.

THE CASE

Defendant was charged with two counts of robbery and two counts of attempted robbery.  (Pen.Code,1 § 211;  § 211/664.)   Each count included an allegation that he used a firearm in the course of the offense. (§ 1203.06, subd., (a)(1);  § 12022.5, subd. (a).)  He also was charged with assault and receiving stolen property.   Three prior robbery convictions were alleged pursuant to section 667, subdivisions (a), (d) and (e).   A jury convicted defendant of the robbery and attempted robbery counts and found him not guilty of the remaining counts.   The jury also found the firearm use allegations to be true.   Defendant admitted the three prior serious felony convictions.   The court sentenced him pursuant to section 667, subdivision (e)(2)(A)(ii) to four consecutive terms of 25 years to life, and imposed a consecutive determinate term of 20 years for the firearm use enhancements (§ 12022.5, subd. (a)) and a consecutive term of 15 years for the prior serious felony conviction enhancements. (§ 667, subd. (a).)

DISCUSSION

I.—II.**

III. Calculation of the Sentence

The trial court imposed consecutive 25–year life terms for each felony count.   The question is whether a defendant, who qualifies for sentencing under section 667, subdivision (e)(2)(A) and is currently convicted of multiple felonies based upon a single criminal act involving multiple victims is subject to mandatory consecutive 25–year minimum terms of life imprisonment for each current felony conviction or an aggregate 25–year minimum term of life imprisonment for the entire sentence.   The answer requires a two-step analysis.   First, we determine whether consecutive sentences are mandatory or discretionary in these circumstances, and second, we determine whether the minimum term is calculated separately for each count or collectively for the entire sentence.

A. Consecutive Sentencing

 Defendant contends the trial court mistakenly believed consecutive 25–year life terms were mandatory pursuant to section 667, subdivision (c)(7).   That subdivision provides:

“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.)

The reference to “paragraph (6)” we interpret to mean section 667, subdivision (c)(6) 3 which provides:

“If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).”  (Emphasis added.)

Section 667, subdivision (c)(6) does not require consecutive sentencing if the current felonies are committed on the same occasion or arise out of the same set of operative facts.  (People v. Martin (1995) 32 Cal.App.4th 656, 663, 38 Cal.Rptr.2d 776;  People v. Cartwright (1995) 39 Cal.App.4th 1123, 1141, 46 Cal.Rptr.2d 351.)   By its reference to subdivision (c)(6), subdivision (c)(7) incorporates the “same occasion” and “same set of operative facts” language of subdivision (c)(6).   Since it is undisputed the four robberies were committed on a single occasion and each felony count arises from the same set of operative facts, neither subdivision (c)(6) nor subdivision (c)(7) require consecutive sentences.

Respondent cites the legislative intent expressed in section 667, subdivision (b) “to ensure longer prison sentences and greater punishment” for serious and violent felons, and argues that subdivision (c)(7) must be read to mandate consecutive sentences for multiple current convictions of serious or violent felonies even if the crimes are committed on the same occasion.   Otherwise, according to respondent, subdivision (c)(7) is merely duplicative of subdivision (c)(6) and is rendered meaningless surplusage.   We disagree.

While we acknowledge the objective of the Three Strikes law is to increase punishment for recidivist offenders, we decline to engage in judicial amendment or revision of the statute in order to impose punishment beyond that which is authorized by the statutory language.  “The powers of state government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”  (Cal. Const., art.   III, § 3.) We leave it to the Legislature to devise the appropriate language which we will then interpret.   In so doing, our responsibility is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted[.]”  (Code Civ. Proc., § 1858.)  “If the Legislature believes that the law should be otherwise, it may change it by statutory amendment.   Until and unless that occurs it is the function of this court to apply the statute as written.”  (Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 107, 200 Cal.Rptr. 52.)

However, section 667, subdivision (c)(7), is not merely duplicative of subdivision (c)(6), as respondent contends.   By its terms, subdivision (c)(7) mandates that the sentence imposed for each multiple serious or violent felony conviction not committed on the same occasion and not arising from the same operative facts be imposed consecutively to the sentence “for any other conviction for which the defendant may be consecutively sentenced in the manner proscribed by law” (emphasis added), i.e., another count, case or conviction for which consecutive sentencing is otherwise discretionary rather than mandatory.   Since there is no “other conviction” besides the four robberies in this case, subdivision (c)(7) does not apply.

Several recent cases interpreting section 667, subdivisions (c)(6) and (c)(7) have construed the “same occasion” and “same set of operative facts” language as invoking the prohibition against multiple punishment for a single act found in section 654, which reads:

“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;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707, held the “traditional section 654 analysis is apposite in deciding whether multiple new felonies arise from the same set of ‘operative facts' within the meaning of the ‘three strikes' law.  [Citation.]”  (Id. at p. 546, 42 Cal.Rptr.2d 707.)

Likewise, People v. Martin, supra, 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, held subdivision (c)(6) invoked the principles of section 654.

“The ‘same set of operative facts' provision in subdivision [sic ] section 667, subdivision (c)(6) serves an important function, one that is readily apparent.   It applies the principle of section 654 to multiple current crimes.   Without it a strong argument could be made that the statute allows a person whose single act violates more than one penal law to be punished for each law the person violated.   The basis of that construction would have been the ‘notwithstanding any other law’ provision that introduces the whole of section 667, subdivision (c).   The most obvious ‘other law’ addressed in this context is section 654.   The ‘same set of operative facts' clause in section 667, subdivision (c)(6) applies this important feature of section 654, and avoids overly harsh results and possible constitutional issues that would arise without it.”  (People v. Martin, supra, 32 Cal.App.4th at p. 664, 38 Cal.Rptr.2d 776.)

 Section 654 precludes multiple punishments for a single act or indivisible course of conduct.  (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.)   However, section 654 does not preclude multiple punishments for a single act or indivisible course of conduct when the defendant's single violent act injures several persons.  (Neal v. State of California (1960) 55 Cal.2d 11, 20–21, 9 Cal.Rptr. 607, 357 P.2d 839.)   A defendant may be punished separately for multiple counts based on multiple victims arising from a single criminal act where the act is centrally an act of violence against the person, notwithstanding section 654.  (People v. McFarland (1989) 47 Cal.3d 798, 804, 254 Cal.Rptr. 331, 765 P.2d 493.)   The rationale for this principle has been articulated:

“As the purpose of section 654 ‘is to insure that defendant's punishment will be commensurate with his criminal liability,’ when he ‘commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,’ his greater culpability precludes application of section 654.”  (People v. Miller, supra, 18 Cal.3d at p. 885, 135 Cal.Rptr. 654, 558 P.2d 552.)

 Robbery is a crime of violence warranting separate punishment for each robbery victim.  (People v. Champion (1995) 9 Cal.4th 879, 934, 39 Cal.Rptr.2d 547, 891 P.2d 93.)  “The robbery of a victim at gunpoint has been held to be an act of violence such as to preclude application of section 654 in the case of multiple convictions involving multiple victims․”  (People v. Miller, supra, 18 Cal.3d at p. 886, 135 Cal.Rptr. 654, 558 P.2d 552.)

Merely concluding, however, that section 654 does not preclude consecutive sentences when a Three Strikes defendant is convicted of multiple felonies against multiple victims based upon a single act of violence, does not mean consecutive sentences are mandated by section 667, subdivisions (c)(6) or (c)(7) if a single act of violence is the basis for multiple felony convictions.   No doubt consecutive sentences were permissible here, but nothing in these subdivisions renders consecutive sentences mandatory.

This is the conclusion reached by the court in People v. Cartwright, supra, 39 Cal.App.4th at p. 1123, 46 Cal.Rptr.2d 351.   The defendant was convicted of 19 felony counts based upon the violent sexual assaults of three women.   He was sentenced pursuant to section 667, subdivision (e)(2)(A)(ii) to an indeterminate term of 375 4 years to life (fifteen 25–year terms) and a determinate term of 53 years for the enhancements.   Pursuant to rule 425(a)(2) of the California Rules of Court, the trial court found the crimes involved separate and distinct acts of violence or threats of violence and there were no mitigating factors.   The court also noted the offenses were violent sex crimes involving different victims which meant consecutive sentences “might be required” by section 667.6, subdivision (d).5  (39 Cal.App.4th at p. 1139, 46 Cal.Rptr.2d 351.)

The defendant argued section 667, subdivision (c)(6) meant consecutive sentences could only be imposed if the felony counts were committed on separate occasions or arose from separate operative facts and the court otherwise had no authority to sentence consecutively.   The court rejected this argument and held the trial court retains discretion to impose consecutive sentences even if subdivision (c)(6) does not apply.  (People v. Cartwright, supra, 39 Cal.App.4th at pp. 1140–1141, 46 Cal.Rptr.2d 351.)

A more recent case, People v. Carter (1995) 41 Cal.App.4th 683, 48 Cal.Rptr.2d 726, (pet. cert. filed 5/21/96, 95–9242), holds consecutive sentencing is mandatory under subdivision (c) of section 667 when the defendant is convicted of crimes of violence against multiple victims.  (41 Cal.App.3d at p. 685, 116 Cal.Rptr. 326.)   The analysis in Carter begins with the conclusion reached in both Martin and McKee, that the “same occasion” and “same set of operative facts” language of section 667, subdivision (c)(6) calls for a section 654 analysis.   It then proceeds to discuss, as we have here, the exception to section 654 for multiple victims of a violent crime, and concludes:

“In this case, defendant fired three shots at the three Garzons and the jury convicted him of three counts of willful, deliberate and premeditated attempted murder.   Under section 654, defendant could be consecutively sentenced for each count.   Under section 667, subdivision (c), he must be consecutively sentenced.”  (People v. Carter, supra, 41 Cal.App.4th at p. 689, 48 Cal.Rptr.2d 726, emphasis added.)

Although Carter cites section 667, subdivision (c) as the source of this requirement, we note that subdivision contains eight subsections, only four of which pertain to consecutive sentencing:  (c)(1) eliminates the aggregate term limitation for consecutive sentencing under Three Strikes;  (c)(6) mandates consecutive sentences when multiple offenses are committed on different occasions and arise from separate operative facts;  under (c)(7), multiple serious or violent felony counts committed on different occasions and arising from separate operative facts must be run consecutive with each other and run consecutive with any other conviction for which consecutive sentences are discretionary;  (c)(8) requires that the minimum determinate term be served consecutive to any other sentence the defendant is already serving.   The Carter opinion fails to identify which, if any, of the eight subsections of subdivision (c) compels consecutive sentencing when multiple felony counts arise out of a single violent criminal act involving multiple victims.

It is clear section 667, subdivision (c)(6) mandates consecutive sentences when the current felonies are not committed on the same occasion and do not arise from the same operative facts.  (People v. Ingram, supra, 40 Cal.App.4th at pp. 1407–1408, 48 Cal.Rptr.2d 256.)   It is equally clear section 654 does not preclude consecutive sentences under the Three Strikes law when multiple felony counts are based on a single violent criminal act against multiple victims.   However, it is a leap in logic and statutory construction to say that the language of subdivision (c) mandates consecutive sentences when a current conviction of more than one felony count is based upon a single violent criminal act committed against multiple victims.   We find nothing in the language of subdivision (c) that compels such a conclusion.

 Respondent claimed for the first time at oral argument that consecutive 25–year terms are mandatory pursuant to section 667, subdivision (e)(2)(B) in any case in which consecutive terms are discretionary.   Subdivision (e)(2)(B) provides:

“The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.   Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”

As we understand respondent's argument, when an indeterminate term is imposed pursuant to section 667, subdivision (e)(2)(A)(ii), if a consecutive term may be imposed, it must be imposed.   Accordingly, since in the present case consecutive sentences are permissible because of multiple robbery victims, consecutive sentences are mandatory.

We fail to understand this interpretation of the language of section 667, subdivision (e)(2)(B).   This provision clearly speaks of two different “terms”:  (1) the “indeterminate term described in subparagraph (A)” and (2) “any other term of imprisonment for which a consecutive term may be imposed by law.” 6  (Emphasis added.)   Under respondent's interpretation, both “terms” are the indeterminate terms described in subparagraph (A);  the only distinction is that they are separate counts.   This fails to account for the use of “indeterminate term” with reference to one but not the other “term.”   Moreover, it fails to recognize that the second sentence of subparagraph (B) makes a chronological distinction between the “indeterminate term described in subparagraph (A)” and “any other term imposed subsequent” thereto.

Given the clarity with which the Legislature provided for mandatory consecutive terms for multiple felony convictions in section 667, subdivision (c)(6), we find it highly unlikely the Legislature would choose such an obtuse and confusing way in which to mandate the imposition of consecutive sentences for each current felony conviction for which consecutive sentences are otherwise discretionary.

We construe section 667, subdivision (e)(2)(B) with reference to the prefatory language of subdivision (e) which provides its punishment provisions are “in addition to any other enhancement or punishment provisions which may apply.”   With the exception of subdivision (e)(2)(A)(iii), enhancements are added after the minimum determinate term is calculated under subparagraph (A).   Subparagraph (B) merely provides that any other term, such as a term of enhancement, must be imposed consecutively.

We hold that the trial court has discretion to impose consecutive sentences when the defendant qualifies for sentencing under section 667, subdivision (e)(2)(A) as the result of multiple felony convictions based upon a single criminal act of violence against multiple victims.

B. Calculation of the Term

 The next issue defendant raises is whether he was subject to four consecutive life terms with a minimum term of 25 years for each count.

Section 667, subdivision (e)(2)(A) provides:

“If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:

“(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.

“(ii) Imprisonment in the state prison for 25 years.

“(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”

Defendant claims the 25–year minimum pertains to the entire sentence and therefore it was error to impose the 25–year minimum term separately for each count.

As we understand defendant's argument, when determining which of the three sentencing options of section 667, subdivision (e)(2)(A) provides the greatest minimum term, the court first calculates under option (i) “the term otherwise provided as punishment for each current felony conviction ․” and multiplies by three.   To find the term otherwise provided, the court must refer to section 1170.1, subdivision (a) which sets forth the sentencing scheme for non-Three Strikes law cases involving multiple felony convictions.   If the aggregate of this term multiplied by three is greater than 25 years, option (i) is the minimum term for the entire indeterminate sentence.   If the aggregate term under option (i) is less than 25 years, option (ii) supplies the minimum term for the entire indeterminate sentence, not the minimum term for each current felony conviction.

Defendant claims the prefatory language of section 667, subdivision (e)(2)(A) would provide “․ the term for [each ] current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as ․” greater than 25 years if the legislative had intended a minimum term of 25 years per count.   Instead, subdivision (e)(2)(A) refers to “the term for the current felony conviction,” which, according to defendant, means the entire conviction, regardless of the number of counts.  (Italics added.)

In People v. Ingram, supra, 40 Cal.App.4th at pp. 1407–1408, 48 Cal.Rptr.2d 256, we addressed an essentially identical argument in a case involving multiple felony counts for residential burglaries committed on separate occasions and arising from separate facts.   We held consecutive sentences were mandatory and section 667, subdivision (c)(6) expressly required the court to sentence the defendant consecutively “on each count” under subdivision (e).  (Id. at pp. 1408–1409, 48 Cal.Rptr.2d 256.)   Thus, when multiple felony counts fall under subdivision (c)(6), the minimum determinate sentence under subdivision (e) must be calculated for each count and run consecutively.  (Ibid;  See also People v. Martin, supra, 32 Cal.App.4th at pp. 663–664, 38 Cal.Rptr.2d 776.)

Likewise, pursuant to the clear and unambiguous language of section 667, subdivision (c)(7), when the current conviction is for multiple serious or violent felonies not committed on the same occasion and not arising out of the same set of operative facts, the “minimum term of the indeterminate sentence” for each felony count must be calculated and run consecutively as required by subdivision (c)(6) (since they are felonies), and, in addition, they must be run “consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”

While it is clear that under both subdivision (c)(6) and subdivision (c)(7) the “minimum term of the indeterminate sentence” is calculated for each count, it is not so clear when subdivision (c)(6) and subdivision (c)(7) do not apply, i.e., when the current conviction is for multiple felonies committed on the same occasion and arising out of the same operative facts.   Is “the minimum term of the indeterminate sentence” always calculated on a count-by-count basis?

As we have observed, subdivision (e)(2)(A) of section 667 provides:

“If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:

“(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.

“(ii) Imprisonment in the state prison for 25 years.

“(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”  (Emphasis added.)

Unlike section 667, subdivision (c)(6) and subdivision (c)(7), the italicized language which directs the court to calculate the “minimum term for the indeterminate sentence” using the greater of one of three options does not state that the calculation is made for “each count.”   Instead, it refers to “the term for the current felony conviction,” and the question is whether this means each count.

Respondent contends the court must calculate each count under the three options, with 25 years being the absolute minimum for each felony count, and then decide whether to run each count consecutively.   Defendant contends 25 years is the minimum for the entire sentence and the discretion to impose concurrent or consecutive terms is exercised when the court is calculating the term under section 667, subdivision (e)(A)(2)(i).

According to defendant's interpretation of the sentencing procedures for a third strike defendant convicted of multiple felony offenses, the court first calculates “the term otherwise provided as punishment for each current felony offense” and multiplies the total by three.   If, after multiplying by three, the aggregate term is greater than 25 years, (e)(2)(A)(i) provides the minimum term of the indeterminate sentence.   The total minimum term is greater if the court exercises its discretion to impose consecutive sentences before multiplying by three.

For example in the present case (disregarding the enhancements 7 ), the maximum term for second degree robbery is five years.   If the counts are run concurrently, the total term under option (i) is 15 years.   If the counts are run consecutively, the total term is 21 years calculated as follows: 8  five years is the principal term (§ 213, § 1170.1);  one-year is one-third the midterm of three years for the subordinate robbery count;  six months for each of the attempted robbery counts is one-third of one-half the midterm imposed for the subordinate robbery count. (§ 664).   When added together, the total aggregate term is seven years, multiplied by three is twenty-one years.   Since this total is less than 25 years, defendant claims the court was required to sentence him to the 25–year minimum term of life in prison.   In other words, all current felony convictions or counts are merged into the minimum life term of 25 years.

Defendant's calculation assumes the phrase “three times the term otherwise provided as punishment for each current offense” means three times the aggregate term calculated under section 1170.1.   We rejected this construction of the language of option (i) in People v. Ingram, supra, and concluded instead the “term otherwise provided as punishment for each current offense” means the “base term” for each offense, i.e., the determinate prison term selected from among the three possible terms prescribed by statute or the determinate prison term prescribed by law if a range of three is not prescribed.  (40 Cal.App.4th at p. 1407, 48 Cal.Rptr.2d 256;  Cal. Rules of Court, rule 405(b).)

In this case, the court selected five years which is the aggravated base term for the robbery counts, one-half of which provides the base term for the attempted robbery counts (§§ 213, 664.)   Using defendant's formula, if the court imposes consecutive sentences using the base term for each count and multiples by three, the total term is 45 years—not 21 years as he suggests.9

Defendant's interpretation of Three Strikes also assumes that unless consecutive sentences are specifically mandated, a defendant who is convicted of multiple serious or violent felonies is not subject to multiple life sentences under section 667, subdivision (e)(2)(A) whether concurrent or consecutive.   This would be a significant departure from existing sentencing rules.   Section 669 is the general authorizing and procedural statute regarding sentencing for multiple convictions and it provides:

“When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.   Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another or with any other term of imprisonment for a felony conviction․ ”  (Emphasis added.)

People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 held that a recidivist offender who is convicted of a number of serious felonies, each of which separately qualifies the defendant for a life sentence under section 667.7, may be sentenced to multiple life sentences pursuant to section 669.   The court rejected the defendant's claim that section 667.7 authorized one single life sentence:

“Section 667.7, like other recidivist punishment statutes that provide for more severe sentences for repeat offenders, specifies the applicable sentence for a present conviction of a qualifying felony committed by a defendant with a recidivist criminal history.   Although the defendant's status invokes the increased sentence, it is the new criminal conduct—and in particular one or more specific felony convictions—for which the defendant presently is being punished.   Nothing in the language of section 667.7 precludes imposition of additional terms consecutive to the habitual offender life term when those additional terms arise from separate, independent counts of current substantive crimes, and section 669 explicitly provides, in relevant part, that ‘[l]ife sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another․’

“Several prior Court of Appeal decisions explicitly have held that a life term imposed under section 667.7, based upon a defendant's habitual offender status as established by the service of two prior prison terms, may be ordered to run consecutively to one or more other section 667.7 life terms, based upon the same prior prison terms, imposed for separate qualifying felony convictions.  (See People v. Burkett [1991] 1 Cal.App.4th 971, 977, 2 Cal.Rptr.2d 330 [‘the fact that more than one life term is based on the same prior convictions does not bar the imposition of consecutive life sentences'];  People v. Skeirik [1991] 229 Cal.App.3d [444] at pp. 465–466, 280 Cal.Rptr. 175.)   In Skeirik, the defendant was convicted of two counts of assault with a deadly weapon, among other offenses, and the jury found true a habitual offender allegation under section 667.7, subdivision (a), based upon two prior separate prison terms.   The defendant in that case was sentenced to two consecutive indeterminate life terms under section 667.7 for the two assault convictions.   On appeal, he asserted he should not have been sentenced to more than one life term based upon the same prior convictions.   The court disagreed, holding that each of the defendant's two new convictions for assault with a deadly weapon, which involved separate victims and separate locations, independently qualified the defendant for punishment under section 667.7.   (229 Cal.App.3d at p. 466, 280 Cal.Rptr. 175.)”  (People v. Jenkins, supra, 10 Cal.4th at pp. 254–255, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

Jenkins recognized that although the defendant was subject to separate life terms for each current qualifying felony conviction, the court was not compelled to impose consecutive life terms.  “In imposing such life terms, the trial court retains discretion under section 669 to order that these terms be served either concurrently or consecutively.”  (People v. Jenkins, supra, 10 Cal.4th at p. 256, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

In People v. Cartwright, supra, 39 Cal.App.4th at p. 1123, 46 Cal.Rptr.2d 351, the court concluded the Jenkins holding was controlling regarding the question of whether a defendant is subject to multiple life sentences for multiple felony convictions under Three Strikes.   Cartwright held the alternatives for the minimum sentence in section 667, subdivision (e)(2)(A) must be calculated separately for each count.  (39 Cal.App.4th at pp. 1142–1143, 46 Cal.Rptr.2d 351.)

There is an additional reason why we reject defendant's construction of section 667, subdivision (e)(2)(A).   The essence of his claim is that the choice of the singular in reference to “the term for the current conviction” means the court can only impose a single life term;  it has no authority to impose multiple life sentences for multiple current felony convictions.

Section 7 provides, in pertinent part:

“Words used in [the Penal Code] in the present tense include the future as well as the present;  words used in the masculine gender include the feminine and neuter;  the singular number includes the plural, and the plural the singular․”  (Emphasis added.)

Accordingly, “the term for the current conviction” must be read to include “the terms for the current convictions” when a defendant is currently convicted on multiple felony counts.  (See People v. Martin, supra, 32 Cal.App.4th at p. 668, 38 Cal.Rptr.2d 776.)

We hold the trial court had discretion to impose consecutive 25–year minimum life terms for each current felony conviction based upon a single act of robbery involving multiple victims.

Despite reference to section 667, subdivision (c)(7) in the probation report and the court's citation to subdivision (c)(7) when imposing sentence, we agree with respondent that the record reflects the court believed it had discretion in this regard and it selected consecutive terms.   The court denied defendant's request to impose concurrent 25–year terms and stated it was “inclined to select consecutive sentences” when it announced its tentative ruling regarding sentencing.   The court's statement, “[o]nly discretion the Court has is with regard to the firearm allegation of 12022.5” was made in reference to its lack of discretion with regard to the imposition of enhancements other than to choose between three, four and five years for the firearm enhancement.   When the court announced the sentence, it again stated it was “selecting consecutive sentencing on all counts and all enhancements.”   The court found all four counts “involved separate acts of violence on different victims on a single occasion constituting a divisible course of criminal conduct.”

The court did not commit sentencing error.

IV.—VII.***

DISPOSITION

In light of the People v. Superior Court (Romero), (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 decision we must remand for the trial court to exercise its discretion under section 1385.   In all other respects, the judgment is affirmed.

This modification does affect the judgment.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

3.   We can find no other “paragraph (6)” to which reference would be relevant or helpful in describing or defining a serious or violent felony in the context of consecutive sentencing.

4.   Four counts were stayed pursuant to section 654.  (39 Cal.App.4th at p. 1139, 46 Cal.Rptr.2d 351.)

5.   Section 667.6 is the sentencing scheme for recidivist violent sex offenders.

6.   As in this case, any “other term” of imprisonment for which a consecutive term may be imposed by law would include enhancements.

7.   Enhancements are not included when calculating the term under options (i) and (ii);  they are added after the minimum term of the indeterminate sentence is determined unless they are used under option (iii) to calculate the minimum term.  (People v. Ingram, supra, 40 Cal.App.4th at p. 1410, 48 Cal.Rptr.2d 256.)

8.   There is no aggregate term limitation for purposes of consecutive sentencing under Three Strikes. (§ 667, subd. (c)(1).)

9.   With the addition of the total determinate term for enhancements, the total term would be 80 years.

FOOTNOTE.   See footnote *, ante.

WM. A. STONE, Associate Justice.

MARTIN, Acting P.J. and HARRIS, J., concur.