PEOPLE v. NEWSOME (1997)

This case again demonstrates the severe punishment meted out to recidivist felons under the Three Strikes law.   Defendants Newsome and Redman, who both have criminal records that include two serious felony convictions, robbed at gunpoint the occupants of a house that was under police surveillance for suspected drug activity.   Newsome later threatened two of the victims.   Newsome was sentenced to an aggregate determinate term of 24 years and a life sentence with a minimum term of 125 years.   Redman was sentenced to 22 years and a life sentence with a minimum of 75 years.

In the published portion of this opinion, we address an issue the parties have not raised.   We determine that consecutive sentences are mandatory under the Three Strikes law where a defendant has two or more convictions for serious or violent felonies, regardless of whether his current felony convictions were committed on the same occasion or arose from the same set of operative facts.   In the unpublished portion, we address defendants' contentions.   They raise numerous challenges to the Three Strikes law and to established jury instructions;  each joins in the other's arguments.   Most of these arguments have been resolved against defendants' position by this and other courts, but, in light of the Supreme Court's recent decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, this case must be remanded to permit the trial court to exercise its discretion to strike defendants' prior serious felony convictions.   In addition, Newsome contends it was an abuse of discretion not to sever the charge of possession of a firearm by a felon.   Redman contends the trial court lacked jurisdiction because an information was not timely filed and his motion to suppress evidence seized in the search of his residence should have been granted.   We find no merit in these contentions.

FACTUAL AND PROCEDURAL BACKGROUND**

DISCUSSION

I.-IV.**V. Calculation of Sentence

Both defendants were sentenced under section 667, subdivision (e)(2)(A) which 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.”

The court sentenced each defendant to a consecutive life term with a minimum term of 25 years, alternative (ii), for each felony count.   Redman received an unstayed sentence of 75 years to life for the three robbery counts.   Newsome was sentenced to 125 years to life for the three robberies and two counts of threatening a witness.⁵  The court also imposed a four-year enhancement for firearm use for each of the three robbery counts, two 5-year enhancements for prior felony convictions for each defendant, and two additional one-year enhancements for prior prison terms for Newsome.

A. Consecutive Sentences

 Before we address Redman's contentions regarding the calculation of his sentence, we first consider whether the court was correct in its belief that consecutive sentences were mandatory under the Three Strikes law.   Defendants do not challenge the trial court's finding that consecutive sentences were mandated.   Nonetheless, if consecutive sentences were not required and the trial court misunderstood its sentencing discretion, then defendants are entitled to resentencing.  (See People v. Belmontes (1983) 34 Cal.3d 335, 348, and fn. 8, 193 Cal.Rptr. 882, 667 P.2d 686.) Whether consecutive sentences are mandatory in this case raises important questions of the interpretation of the Three Strikes law.   Unlike the sentencing issues Redman raises, the issue of mandatory consecutive sentences cannot be considered settled.   The California Supreme Court has granted review on this issue.  (People v. Nelson (1996) review granted May 29, 1996 (S053008) formerly at 47 Cal.App.4th 1784, 51 Cal.Rptr.2d 9.) ⁶

Resolution of this issue requires consideration of several provisions of Three Strikes law that address consecutive sentencing.   We begin with the provisions of subdivision (c) of section 667.⁷

“(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following:

“(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.

“․

“(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.

“(8) Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.” (§ 667, subds.(c)(1), (6)-(8).)

As the opening language of subdivision (c) indicates, these provisions apply to defendants with one or two strikes.   Paragraph (1) eliminates any aggregate limit on consecutive sentences and paragraph (8) applies where the defendant is currently serving another sentence.   We need be concerned only with paragraphs (6) and (7).   These paragraphs require consecutive sentences under certain circumstances.   They are not limitations on the trial court's ability to impose consecutive sentences, but require them in certain circumstances “notwithstanding any other law.”   Paragraph (6) requires consecutive sentences for each current felony conviction that is “not committed on the same occasion, and not arising from the same set of operative facts.”   Paragraph (7) applies where there are two or more current convictions for serious or violent felonies “as described in paragraph (6).”   Since subdivision (c)(6) is the only paragraph (6) in the Three Strikes law, we read paragraph (7) to be limited to current serious or violent felonies that are “not committed on the same occasion, and not arising from the same set of operative facts.”   While the provisions of paragraphs (6) and (7) overlap-both requiring consecutive sentences for current felonies, serious or not, committed on different occasions-paragraph (7) is broader.   It requires consecutive sentences for “any other conviction” for which the defendant may be consecutively sentenced.   This would include not only current felony convictions, but also misdemeanor convictions, and other convictions for which the defendant had not yet begun serving his sentence.

 Newsome's two acts of threatening a witness occurred on separate occasions, one in court and the second in the holding area.   Consecutive sentences for these offenses were mandatory under section 667, subdivision (c)(6).   The robbery convictions pose a more difficult question.

Each defendant has three current convictions for robbery.   Robbery is a serious felony. (§ 1192.7, subd. (c)(19).)   Therefore, each defendant had to receive consecutive sentences for each robbery conviction under section 667, subdivision (c)(7) if they were “not committed on the same occasion, and not arising from the same set of operative facts.”   This phrase is not defined in the Three Strikes law.   The “same set of operative facts” language has been construed to apply a section 654 analysis to multiple current convictions.   (People v. McKee (1995) 36 Cal.App.4th 540, 546, 42 Cal.Rptr.2d 707.)   The language “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 (1995) 32 Cal.App.4th 656, 664, 38 Cal.Rptr.2d 776.)

In People v. Carter (1995) 41 Cal.App.4th 683, 48 Cal.Rptr.2d 726, the defendant fired three shots at three men and was convicted of three counts of attempted murder.   He had one prior serious felony or “strike.”   The trial court sentenced him to concurrent sentences on the second and third attempted murder counts.   The appellate court found this to be an unauthorized sentence.   The court noted that a section 654 analysis was appropriate in determining whether consecutive sentences were required under subdivision (c) of section 667.  (Id. at p. 688, 48 Cal.Rptr.2d 726.)   According to Neal v. State of California (1960) 55 Cal.2d 11, 20-21, 9 Cal.Rptr. 607, 357 P.2d 839, section 654 does not limit punishment for crimes of violence against multiple victims.  (Carter, supra, at p. 689, 48 Cal.Rptr.2d 726.)   The court concluded that since defendant could be sentenced consecutively under section 654, he must be sentenced consecutively under section 667, subdivision (c).  (Ibid.)   We cannot agree.

Determining whether consecutive sentences are required under section 667, subdivision (c)(7) is a matter of statutory construction.  “In interpreting the meaning of a statute we begin, as we must, with the language used.   Under familiar rules of construction, words in a statute must be given the meaning they bear in ordinary usage;  the meaning of the enactment may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.”  (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91, 255 Cal.Rptr. 670, 767 P.2d 1148, citations omitted.)

 We do not read section 667, subdivision (c)(7) to require consecutive sentences, unless section 654 bars multiple punishment, for all current serious felony convictions regardless of when they were committed.   The language does not support this interpretation.   Section 667, subdivision (c) makes no mention of section 654.   The “same occasion[/]same set of operative facts” language is not the language of section 654, which speaks of “an act or omission.”   Nor is it even the judicial gloss of “intent and objective” (Neal, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839) or “indivisible course of conduct” (People v. Beamon (1973) 8 Cal.3d 625, 639, 105 Cal.Rptr. 681, 504 P.2d 905).  (See People v. Latimer (1993) 5 Cal.4th 1203, 1211, 23 Cal.Rptr.2d 144, 858 P.2d 611.)

Instead, the “same occasion” language is more similar to the language used in section 667.6, requiring consecutive sentences for certain sex offenses.   Under section 667.6, subdivision (c), full, separate and consecutive terms may be imposed “whether or not the crimes were committed during a single transaction.”   Under section 667.6, subdivision (d), full, separate and consecutive terms are required for certain sex offenses “if the crimes involve separate victims or involve the same victim on separate occasions.”   This latter subdivision shows the Legislature knew how to require consecutive sentences when there were separate victims when it wanted to do so.

 In contrast, section 667, subdivision (c)(7) does not mention separate victims.   Instead, it speaks only of the “same occasion” and the “same set of operative facts.”   Under the ordinary meaning of these terms, the three robberies were committed on the “same occasion” and arose from “the same set of operative facts.”   Accordingly, consecutive sentences were not required under section 667, subdivision (c)(7).

 In Neal v. State of California, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, the Supreme Court stated the application of section 654 to a course of criminal conduct is dependent on the actor's intent and objective.   “If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.”  (Id. at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.)   The question of whether a defendant could be punished twice for a single act of violence against two victims, however, presented “a different problem.”  (Id. at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.)   Greater punishment was permissible due to the defendant's greater culpability.  “Section 654 is not ‘․ applicable where ․ one act has two results each of which is an act of violence against the person of a separate individual.’ ”  (Id. at pp. 20-21, 9 Cal.Rptr. 607, 357 P.2d 839.)   The “same occasion[/]same set of operative facts” conditions address only the timing of the current crimes, not other issues of culpability.   These issues are left to the sentencing court's discretion in determining whether consecutive sentences are appropriate.   The court's discretion is guided by the criteria set forth in rule 425 of the California Rules of Court.   While consecutive sentences were not required under this subdivision, they are still permissible.  (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1141, 46 Cal.Rptr.2d 351.)   The concern with crimes committed on different occasions is consistent with the focus of the Three Strikes law-recidivism.

 Our analysis does not end here because there is another provision of section 667 that requires consecutive sentences.   When a defendant has two strikes, as do both Redman and Newsome, he receives an indeterminate term under section 667, subdivision (e)(2)(A).   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.”   The first sentence of this provision requires consecutive sentences if they may be imposed for “any other term.”   This broad language encompasses other indeterminate terms imposed under section 667, subdivision (e)(2)(A).  (People v. Miles (1996) 43 Cal.App.4th 364, 369, 51 Cal.Rptr.2d 87 [consecutive sentences for a defendant with two strikes required by subdivision (e)(2)(B) ].) Since consecutive sentences may be imposed where there are multiple victims (Neal, supra, 55 Cal.2d at pp. 20-21, 9 Cal.Rptr. 607, 357 P.2d 839), consecutive sentences are required for multiple crimes, even if committed on the same occasion, where the defendant has two strikes.   This mandatory consecutive sentencing provision again shows the legislative intent to deal harshly with recidivists.

Where a defendant has two strikes, the mandatory consecutive sentencing provision of subdivision (e)(2)(B) expands upon the “same occasion[/]same set of operative facts” requirement set forth in subdivisions (c)(6) and (7).   While subdivisions (c)(6) and (7) must be adhered to if “it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d),” (§ 667, subd. (c), italics added), the stricter mandatory consecutive sentencing requirement of subdivision (e)(2)(B) applies only “[i]f a defendant has two or more prior felony convictions as defined in subdivision (d).” (§ 667, subd. (e)(2)(A), italics added.)   Nothing in the language of subdivision (e)(2)(B) restricts its application to situations involving the “same occasion[/]same set of operative facts;” there is no mention of subdivisions (c)(6) or (7).   A sentencing judge faced with a defendant with two strikes, who committed his current felony offenses on the same occasion, or if it arose from the same set of operative facts as another offense, would skip the provisions of subdivisions (c)(6) and (7), and, in sentencing under subdivision (e)(2), would discover that consecutive sentences are mandatory under subdivision (e)(2)(B).

 Consecutive sentences are required for multiple felony crimes under the Three Strikes law where they are “not committed on the same occasion, and not arising from the same set of operative facts” or when a defendant has two or more prior convictions for serious or violent felonies and consecutive sentences are permitted.   Since Newsome and Redman fit within the second category, the trial court properly imposed mandatory consecutive sentences.

B. Remaining Sentencing Contentions

 Newsome contends the court incorrectly calculated his sentence under the Three Strikes law.   First, he claims the court erred in sentencing him to 25 years to life for each felony count.   He contends the court was required to impose a single life sentence and then to calculate the minimum term of this sentence under section 667, subdivision (e)(2)(A) as to all counts together rather imposing a life term and applying the three alternatives to determine a minimum term for each count separately.   Newsome's reading would result in a significantly shorter sentence.   This same argument was made and rejected in People v. Cartwright, supra, 39 Cal.App.4th 1123, 1141-1143, 46 Cal.Rptr.2d 351.  (Accord People v. Samuels (1996) 42 Cal.App.4th 1022, 1028-1029, 50 Cal.Rptr.2d 157.)

Second, Newsome argues that enhancements for prior serious felonies are not to be added to a defendant's sentence when he is sentenced under subdivision (e)(2)(A) of section 667.   He reasons that including such enhancements would render the inclusion of enhancements under alternative (iii) mere surplusage.   We disagree.   The prefatory language of section 667, subdivision (e) provides:  “For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:” In People v. Cartwright, supra, 39 Cal.App.4th at page 1138, 46 Cal.Rptr.2d 351, we concluded that while this language was a less than precise directive, the Legislature intended a defendant's sentence under the Three Strikes law should be enhanced for prior serious felony convictions where appropriate.   Newsome's argument raises the question of whether prior conviction or prior prison term enhancements are added to a defendant's sentence that has been calculated under alternative (iii), where the mandatory minimum term of the life sentence has been calculated by including such enhancements.  (See People v. Ingram (1995) 40 Cal.App.4th 1397, 1410, 48 Cal.Rptr.2d 256 [concluding that when the minimum term is calculated under alternative (iii) there are no “other enhancement or punishment provisions” to add to the minimum term].)  We need not answer that question because neither defendant's sentence was calculated under alternative (iii).   Where a defendant's sentence under the Three Strikes law is calculated under alternative (i) or (ii), nothing precludes the addition of enhancements for a prior conviction or prior prison term.   Indeed, section 667, subdivision (e) directs that they be applied.

 Finally, Newsome contends People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 precludes the use of a prior conviction both as a “strike” and as an enhancement.   This contention has been rejected numerous times.  (People v. Nobleton (1995) 38 Cal.App.4th 76, 81-82, 44 Cal.Rptr.2d 611;  People v. Anderson (1995) 35 Cal.App.4th 587, 594-595, 41 Cal.Rptr.2d 474;  People v. Ramirez (1995) 33 Cal.App.4th 559, 562-573, 39 Cal.Rptr.2d 374.)

VI.-VIII.***

DISPOSITION

The judgment is vacated and the matter is remanded to the trial court so that it may exercise its discretion as to striking one or more of defendants' prior serious felony convictions.   If the court decides not to strike a prior as to either defendant, it is directed to reinstate the judgment.   If the court decides to strike a prior, it shall resentence the defendant as to whom the prior was stricken.

I concur in the majority opinion and judgment except the holding in Part V, section A that the mandatory consecutive sentencing provision of section 667, subdivision (e)(2)(B), applicable to third strike cases, is not subject to the conditions imposed by subdivision (c)(6) [“not committed on the same occasion, and not arising from the same set of operative facts․”]

As to this holding I dissent because subdivision (c)(6) expressly directs the court to apply the consecutive sentencing provision of subdivision (e), to wit subdivision (e)(2)(B) and thereby conditions the application of the latter subdivision.   The majority opinion avoids this reading by neglecting to consider it.

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 on each count pursuant to subdivision (e).”

The majority opinion holds that the conditions here made precedent to the imposition of mandatory consecutive sentences [“not committed on the same occasion, and not arising from the same set of operative facts”] differ from those imposed by section 654 in that they do not contain a multiple victim exception (see Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839).   The policy reason, says the majority, is that “concern with crimes committed on different occasions is consistent with the focus of the Three Strikes law-recidivism.”   With this much I agree.

The majority opinion also reasons that subdivision (c)(7), applicable to multiple current convictions for serious or violent felonies, incorporates the conditions of subdivision (c)(6) by virtue of the language “as described in paragraph (6)”. With this I also agree.

That issue concerns subdivision (e)(2)(B).   It provides:

“(e)(2)(B) 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.” 1

The majority opinion, having concluded that the (c)(6) conditions preclude mandatory consecutive sentencing because the present offenses occurred on the same occasion, then holds that subdivision (e)(2)(B) overrides subdivision (c)(6).   It reasons that “[n]othing in the language of subdivision (e)(2)(B) restricts its application to situations involving the ‘same occasion[/]same set of operative facts;’ there is no mention of subdivision (c)(6) or (7).”  Having said that the (c)(6) conditions are consistent with the recidivist purpose of section 667, the majority opinion inexplicably says that its construction of (e)(2)(B) “shows the legislative intent to deal harshly with recidivists.”

This reading is wrong in at least two respects.   First, it ignores the fact that subdivision (c)(6) is directed to subdivision (e) in language that refers to subdivision (e)(2)(B).   As noted, (c)(6) says that “the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).”   To “sentence the defendant consecutively ․ pursuant to subdivision (e)” plainly means to employ the consecutive sentencing provisions of subdivision (e), to wit (e)(2)(B).

Second, subdivision (e)(2)(B), fairly read, does not conflict with (c)(6).   It mandates that a third strike term be made consecutive to “any other term of imprisonment for which a consecutive term may be imposed by law.”  (Emphasis added.)   The term “may” is not self defining.   It refers to the provisions of law governing permissive consecutive sentencing.   A consecutive sentence “may” be imposed when the sentencing criteria of California Rules of Court, rule 425 are met.   These criteria are consistent with the conditions set forth in subdivision (c)(6), e.g., the “crimes were committed at different times or separate places․” ²

There remains one provision of section 667 to consider.   Subdivision (c)(7) provides:

“(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.”

As noted, the majority opinion correctly reads the (c)(6) conditions into this provision under the language “described in paragraph 6.”   Since every (c)(7) case is also a(c)(6) case (every serious felony is also a felony), the question arises-what does (c)(7) do that (c)(6) does not do?

The answer is that it does the work that (e)(2)(B) does not do;  it applies to second strike cases.   This conclusion is compelled by two considerations.   First, (c)(6) is directed to (e)(2)(B) as explained above (“pursuant to”), while (c)(7) is not.   Second, if (c)(7) were directed to third strike cases it would duplicate (e)(2)(B)'s application to multiple current convictions where they are for serious or violent felonies since both subdivisions are in other respects the same.³  Thus, the principal case covered by subdivision (c)(7) is the second strike sentencing provision of subdivision (e)(1).

This creates a dilemma for the majority.   Under their analysis (c)(6) has to be limited to two strike cases.   That leaves (c)(7) with essentially no application for every (c)(7) case is also a(c)(6) case.   The remedy is to apply (c)(6), as its language directs us, to the consecutive sentencing provisions of (e)(B)(2).

In sum, (c)(6) is directed to third strike cases when there are two or more current felonies (of any kind) meeting the (c)(6) conditions, and (c)(7) is directed to second strike cases when there are two or more serious felonies meeting the (c)(6) conditions.

This analysis provides no solace for Newsome and little more for Redman.   Newsome's sentence is unchanged;  it remains at 99 years.   Redman's sentence on the other hand would be reduced to 47 years.⁴  The majority's emphasis on the harshness of the Three Strikes law is borne out notwithstanding the application of subdivision (c)(6).

The trial court concluded that consecutive sentences were required under the Three Strikes law.   I would remand the case for consideration of the Romero issue and, if necessary, for a discretionary determination whether consecutive sentences are warranted consistent with this analysis.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

5.   The court imposed a sentence of 25 years to life for the felon in possession of a firearm charge as to each defendant;  execution of these sentences was stayed pursuant to section 654.

6.   The grant of review stated:  “The issues to be argued before this court shall be limited to whether consecutive sentences are mandatory under the three strikes law when the crimes occur on the same occasion and arise out of the same set of operative facts.”  (People v. Nelson (May 29, 1996) 53 Cal.Rptr.2d 785, 917 P.2d 624.)

7.   The trial court cited section 1170.12, subdivision (a)(7) as requiring consecutive sentences.   Since the crimes were committed in the summer of 1994, before the initiative version of Three Strikes was passed, defendants were subject to the statutory version of Three Strikes, section 667, subdivisions (b) through (i).   We confine our discussion to this statute.

FOOTNOTE.   See footnote *, ante.

1.   The reference to subparagraph (A) is to the second strike sentencing provisions of subdivision (e)(2).

2.   Rule 425 provides in full:“(a) Facts relating to the crimes, including whether or not;  (1) The crimes and their objectives were predominately independent of each other.  (2) The crimes involved separate acts of violence or threats of violence.  (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (b) Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except (i) a fact used to impose the upper term, (ii) a fact used to otherwise enhance the defendant's prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose consecutive sentences.”

3.   Both (c)(7) and (e)(2)(B) otherwise apply when the defendant “may” be sentenced consecutively [ (c)(7)-“may be consecutively sentenced”;  (e)(2)(B)-“a consecutive term may be imposed by law”].  (Emphasis added.)

4.   Newsome was convicted of three felonies occurring on separate occasions (the two cases of witness intimidation and one robbery) and two prior strikes, thereby invoking the mandatory consecutive sentencing provisions of (e)(2)(B), a life term with a minimum of 75 years (three times 25).   To that is added a determinate term of 24 years for a a total of 99 years.Redman on the other hand did not commit more than one current felony on separate occasions.   Thus, subdivision (e)(2)(B) is not invoked and only one third strike sentence of 25 to life is mandatorily imposed together with the determinate term of 22 years, resulting in a total of 47 years.

MORRISON, Associate Justice.

DAVIS, J., concurs.