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PEOPLE v. BUCHANAN (2019)

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Court of Appeal, First District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Whittier Buck BUCHANAN, Defendant and Appellant.

A153155

Decided: August 28, 2019

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Donna M. Provenzano and Victoria Ratnikova, Deputy Attorneys General for Plaintiff and Respondent.

A jury convicted Whittier Buck Buchanan of several crimes, including kidnapping with intent to commit a sex offense (Pen. Code, § 209, subd. (b)(1)).1 The trial court found certain enhancement allegations true and sentenced Buchanan to 60 years to life in prison, which included 10 years for two prior serious felony convictions (§ 667, subd. (a)(1)). Buchanan appeals, raising claims of instructional and sentencing error. The Attorney General contends the court made several sentencing errors.

We affirm the judgment of conviction and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged Buchanan with kidnapping to commit a sex offense (§ 209, subd. (b)(1); count 1); assault with intent to commit a sex offense (§ 220, subd. (a)(1); count 2); and failure to register as a sex offender (§§ 290, subd. (b), 290.018, subd. (b); count 3). The information alleged Buchanan had seven prior strike convictions (§§ 667, subds. (b)–(i), 1170.12), six prior serious felony convictions (§ 667, subd. (a)(1)), and that he had served seven prior prison terms (§ 667.5, subd. (b)). The information also alleged that as to count 1, Buchanan was a habitual sex offender (§ 667.71, subds. (b) & (e)).

Prosecution Evidence

A. Buchanan's Prior Convictions

In 1990, Buchanan was convicted of four counts of selling cocaine to a Drug Enforcement Administration agent. In 1995, Buchanan sexually assaulted a woman; the following year, he was convicted of forcible rape, forcible oral copulation, and sexual battery. He was sentenced to state prison, and was ordered to register as a sex offender. In 2017, Buchanan was on parole.

B. The Incident Involving Jane Doe

In 2017, Doe was a college student. She was five feet four inches tall and weighed 110 pounds. At about 9:00 p.m. on a May 2017 evening, Doe went to a birthday party, where she drank a beer, and a shot of vodka, “[m]aybe a little bit more than that.” A few hours later, Doe and her friends went to a nearby bar, where she drank a “fish bowl” with several other people.2 Doe and her friends stayed at the bar until 2:00 a.m. Over the course of the evening, Doe had approximately seven shots of alcohol.

When Doe left the bar, she was intoxicated but coherent. She and her friends went to a restaurant. After about 15 or 20 minutes at the restaurant, Doe ordered an Uber, which arrived at approximately 2:30 a.m. Doe checked the license plate, and got into the sedan. The driver—a Caucasian man—took her to her house. During the ride, Doe realized she did not have her keys, and she got upset. Doe, however, assured the driver she would be alright. She got out of the car and sat on the front steps of her house. The Uber left. The street was dark and deserted.

Doe called her father, who had a spare key to her house, and left him a voicemail asking him to bring the spare key. As she sat on the front step, an African-American man—later identified as Buchanan—walked up to her and said, “ ‘It's unsafe out here.’ ” Buchanan grabbed Doe's elbow. Doe mistakenly thought Buchanan was her Uber driver, so she stood up and followed him to his vehicle, a Chevy Astro van. Doe got into the front passenger seat, still thinking Buchanan was her Uber driver. She called her father and left him another voicemail, saying she was fine, and that she was in an Uber. Doe's father called back and told Doe to ask the driver to take her to a nearby Safeway that was open 24 hours.

Buchanan agreed, but then drove in the opposite direction, to a “woodland looking area.” At that point, Doe realized “something was wrong” and “asked to be dropped off anywhere.” Buchanan refused to let Doe out of the car and said Doe “ ‘wasn't going anywhere.’ ” Doe panicked and screamed. Buchanan covered Doe's mouth with his hand to muffle her scream. After a short struggle, Doe removed Buchanan's hand and climbed into the back seat. Shortly thereafter, Buchanan said to Doe in an ominous tone, “ ‘Now you've ․ got me. You are going to get me into trouble. You made me mad.’ ”

Doe was terrified. She said, “ ‘take all my money. Just let me off anywhere.’ ” Buchanan took the money but kept driving. He remarked that Doe “ ‘looked like a girl who gives good head,’ ” and threatened she had “ ‘better give him the best head of his life.’ ” Doe thought Buchanan was going to rape her, and feared he would “hurt, maybe kill [her]” if she did not “sexually please him.” Trying to placate Buchanan, Doe responded, “ ‘Yeah. Sure. Anything. Just please don't hurt me.’ ” Until that point, Doe and Buchanan had not discussed any sexual acts, and Doe had not flirted with Buchanan. She did not tell Buchanan she had been raped. Doe did not want to perform oral sex on Buchanan, but she agreed, to distract him while she tried to escape.

Doe could not find a door handle, so she “tinkered with the automatic window switch.” The window was partially open but it “didn't roll down.” As Doe concentrated on pulling down the window, she tried to distract Buchanan by asking him questions. Buchanan became suspicious and yelled, “ ‘Are you planning something back there?’ ” Not sober enough to think of an excuse, Doe responded: “ ‘I'm trying to get the window down.’ ” Buchanan seemed angry. He said, “ ‘Don't you dare’ ” and reached for Doe. Doe began climbing through the window, and Buchanan grabbed her torso and legs.

Doe managed to climb through the window. She landed on a curb, on her knees and elbows. The van slowed to a stop, and Doe saw Buchanan's face through the driver-side window. He had a “displeased” expression. Doe screamed for help, and Buchanan drove off. Doe was in the van for a total of 30 minutes.

A neighbor heard Doe repeatedly scream “ ‘Help me, help me’ ” in a desperate voice. The neighbor ran outside and saw Doe sitting in a driveway across the street. He approached her. Doe—terrified—asked, “ ‘Are you going to rape me?’ ” After the neighbor assured Doe he would help her, Doe said “her Uber driver had tried to rape her” and “was going to make her suck his dick.” Another neighbor—who had also heard the screams—called 911.

C. Police Investigation

When the police arrived, Doe was panicked. She seemed intoxicated and was jittery but did not appear to be under the influence of drugs. Doe told the police she was in a minivan, and that the driver refused to let her leave “unless she orally copulated him.” Doe said she escaped but that her phone was in the van. She gave the police a description matching Buchanan. Later that morning, the police apprehended Buchanan, and Doe identified him in an in-field showup.

In Buchanan's van, police found Doe's phone, suspected methamphetamine, and a pipe with burn marks and residue. There was an unused condom on the floor between the driver and passenger seats. During the incident, Buchanan was wearing a GPS monitor. The GPS locations matched Doe's description of where she entered and exited Buchanan's van.

The police interviewed Buchanan twice. In the first interview, Buchanan told the police he saw Doe crying. She said she could not find her house keys, so Buchanan offered to let her sit in his van. Doe spent a few minutes in the front passenger seat of the van. The passenger door never closed and the van did not move. Doe called someone to give her a house key. While she waited for the key, Doe explained how she lost her keys, and “she went on about her drinking problems and psychological stuff.” Eventually, Doe got out of the van and Buchanan drove away.

In a second interview, Buchanan described the incident differently. He told the police he saw a girl with “long ․ legs,” wearing short shorts, and knee-high boots. She was crying. Buchanan thought Doe was attractive and imagined having sex with her. Doe got in Buchanan's van; she said she had been raped and forcibly orally copulated. Based on Doe's appearance, Buchanan believed this had happened. Doe asked Buchanan to drive her home and offered him money. She told Buchanan she had “ ‘some kind of mental or psychological mind problem’ ” and a “drinking problem.”

At some point, Buchanan stopped the van because he was tired of driving, and he and Doe talked in the backseat. Doe offered to have sex with Buchanan and to “ ‘suck [his] dick real good.’ ” She showed Buchanan her vagina. Buchanan though it was “too good to be true” and became concerned, because Doe's “demeanor kept flipping,” from “crying to totally sober.” Eventually, he told Doe to get out of the car and she “went ․ 5150 on [him]” and began yelling for help. Buchanan drove away.

Buchanan denied kidnapping Doe or holding her in the van. He denied using methamphetamine and claimed it belonged to a homeless woman.

Defense Evidence

At trial, Buchanan conceded his description of the incident during the first police interview was different than the description he gave in the second interview. Buchanan's trial testimony was somewhat similar to his second police interview but added certain details, including that Doe smoked methamphetamine in his van. Some of Buchanan's trial testimony differed from the second police interview, i.e., Buchanan testified he was not attracted to Doe. A character witness testified for Buchanan.

Verdict and Sentence

In 2017, the jury convicted Buchanan of the charges, and the court sentenced him to 60 years to life in prison.

DISCUSSION

I.

The Instructional Error Claims Are Unavailing ** [NOT CERTIFIED FOR PUBLICATION]

II.

The Matter Must Be Remanded for Resentencing

At the 2017 sentencing, the trial court struck one prior serious felony conviction and found the remaining prior felony convictions true. It found the habitual sex offender allegation true. The court made no express findings regarding the prior prison term allegations.

The court sentenced Buchanan to an indeterminate sentence of 60 years to life in prison, comprised of the following: an indeterminate term of 50 years to life on count 1 (kidnapping with intent to commit a sex crime), plus five years, for the prior serious felony conviction enhancement attendant to count 1. To this 55 years, the court added five years “for the prior conviction as to count [2].” The court imposed a concurrent determinate term of 12 years on count 2 (assault with intent to commit a sex crime) and a concurrent term of six years on count 3 (failure to register as a sex offender). The court also issued a no-contact order requiring Buchanan to “stay away from Jane Doe directly or indirectly.” The no-contact order is not reflected in the sentencing minute order or abstract of judgment.

Both parties raise sentencing error claims. Buchanan contends: (1) the no-contact order is unauthorized; (2) the sentence on count 2 must be stayed pursuant to section 654; and (3) the prior serious felony enhancement associated with count 2 must run concurrently to the sentence imposed on count 2. The Attorney General argues consecutive sentences on counts 2 and 3 were mandatory under the Three Strikes Reform Act of 2012 (Proposition 36).

The parties agree the court erred by failing to impose or strike the prior prison term enhancement(s), but disagree on the number of prior prison terms Buchanan suffered. The parties agree the matter must be remanded for the court to exercise its discretion regarding the two prior serious felony enhancements pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess., Bill 1393).

A. Remand to Comply with Section 136.2 *** [NOT CERTIFIED FOR PUBLICATION]

B. Proposition 36 Does Not Mandate Consecutive Sentences for Counts 1 and 2, but a Consecutive Sentence Must Be Imposed on Count 3

The Attorney General argues “consecutive sentencing was mandatory under Proposition 36.” The Attorney General, however, acknowledges People v. Torres (2018) 23 Cal.App.5th 185, 232 Cal.Rptr.3d 614 (Torres) has rejected this argument. In Torres, a division of this court held Proposition 36 did not alter the rule that “trial courts have discretion to impose concurrent sentences for multiple serious or violent felonies against a single victim if they were committed on the ‘same occasion’ or arose from the ‘same set of operative facts.’ ” (Torres, supra, at p. 197, 232 Cal.Rptr.3d 614, citing People v. Hendrix (1997) 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64.) We decline the Attorney General's suggestion to conclude Torres is wrongly decided. We hold the trial court did not abuse its discretion by imposing a concurrent sentence on count 2.

We reach a different conclusion with respect to count 3, failure to register as a sex offender. Where a defendant has “been convicted of a nonserious and/or violent felony, the term imposed for that crime [must be] consecutive to the terms of the serious and/or violent felonies ․ regardless of whether those serious and/or violent felonies were committed on ‘the same occasion’ or arose from ‘the same set of operative facts.’ ” (Torres, supra, 23 Cal.App.5th at p. 203, citations omitted.) Buchanan concedes the “failure to register is a nonviolent/nonserious felony” and, as a result, the trial court should have imposed a consecutive term on that conviction.

We remand for the court to impose a consecutive sentence on count 3.

C.–E.† [NOT CERTIFIED FOR PUBLICATION]

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded for resentencing. At resentencing, the court shall: (1) determine the duration of the no-contact order and explain the reasons for that duration in accordance with the factors listed in section 136.2, subdivision (i)(1); (2) impose a consecutive sentence for count 3; (3) order the prior serious felony enhancement (§ 667, subd. (a)(1)) attendant to count 2 to run concurrently to count 1 and consecutively to count 2, unless the court exercises its discretion to strike or dismiss that enhancement pursuant to Bill 1393; and; and (4) exercise its discretion to impose or strike a single prison prior enhancement (§ 667.5, subd. (b)); and (5) exercise its discretion pursuant to Bill 1393.

Upon resentencing, the court is directed to issue a new abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

I concur in part and dissent in part.

Although I fully agree with most of the majority opinion and its conclusion that the case must be remanded for resentencing, I disagree that a concurrent sentence may be imposed for the assault with intent to commit a sexual offense in count 2 (Pen. Code, § 220),1 a serious and violent felony. (§§ 667.5, subd. (c)(15), 1192.7, subd. (c)(29).) In 2012, the “Three Strikes” law was amended by the Three Strikes Reform Act of 2012 (Proposition 36). I believe that amendment made consecutive sentencing mandatory when a defendant subject to sentencing under the Three Strikes law is, as here, currently convicted of more than one serious or violent felonies.

The Three Strikes law is contained in two parallel statutes. The legislative version, now set forth in section 667, subdivisions (b) through (j), became operative in March 1994. The initiative version of the law, section 1170.12, was enacted by the voters and became operative in November 1994. The two statues are “nearly identical” in many respects. (People v. Estrada (2017) 3 Cal.5th 661, 666, fn. 2, 220 Cal.Rptr.3d 801, 399 P.3d 27.) Both versions of the statute were amended by Proposition 36, enacted by the voters in November 2012. The amendments included changes that were made to section 1170.12, subdivision (a)(7), but not to identical language in section 667, subdivision (c)(7).

Prior to the enactment of Proposition 36, former section 1170.12, subdivision (a) provided in relevant part: “(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to each of the following: [¶] ․ [¶] (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 this section. [¶] (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, 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.” (Italics added.) Substantially identical language was contained in section 667, subdivision (c)(6) and (c)(7).

In People v. Hendrix (1997) 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64 (Hendrix), the state Supreme Court was called on to construe section 667, subdivisions (c)(6) and (c)(7). It concluded (1) subdivision (c)(6) provided that consecutive sentencing was mandatory for any felony not committed on the same occasion and not arising from the same set of operative facts; (2) by implication, the court retained the discretion under subdivision (c)(6) to impose concurrent terms for any felonies committed on the same occasion or arising from the same set of operative facts; (3) by referring to “a current conviction for more than one serious or violent felony as described in paragraph (6),” subdivision (c)(7) incorporated subdivision (c)(6)'s rule regarding consecutive sentencing with respect to more than one serious or violent felonies, so that consecutive sentencing for such crimes was mandatory when they were not committed on the same occasion and did not involve the same set of operative facts, but concurrent terms were permissible when they were committed on the same occasion or involved the same set of operative facts; and (4) section 667, subdivision (a)(6) and (7) were not redundant because subdivision (c)(7)'s requirement that a crime not committed on the same occasion and not arising from the same set of operative facts be imposed “consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law” meant that not only must sentences for such crimes be consecutive to each other, they must also be consecutive to sentences imposed for any (nonserious/nonviolent) crimes, whether felonies or misdemeanors. (See Hendrix, at pp. 512–514; see also id. at pp. 518–519 (conc. opn. of Mosk, J.); People v. Lawrence (2000) 24 Cal.4th 219, 226–234 [99 Cal. Rptr. 2d 570, 6 P.3d 228].) The same reasoning applied to section 1170.12, subdivision (a)(6) and former (7). (People v. Deloza (1998) 18 Cal.4th 585, 590–591 [76 Cal. Rptr. 2d 255, 957 P.2d 945].)

Proposition 36 amended former section 1170.12, subdivision (a)(7) to delete the reference to “paragraph 6” and replace it with a reference to subdivision (b) [defining serious and violent felonies] so that it now provides, “If there is a current conviction for more than one serious or violent felony as described in subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” The plain meaning of section 1170.12, subdivision (a)(7), as amended, is that when a defendant stands currently convicted of more than one serious or violent felonies, the sentences for those felonies must be imposed consecutive to any term for which consecutive sentences are lawful, whether or not they were committed on the same occasion or involved the same set of operative facts. This includes the sentences on the current serious or violent felonies themselves. The amendment effectively abrogates the holding of Hendrix, supra, 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64 to the extent that decision recognized that the former version of the statue (in which paragraph (7) referred to paragraph (6)) allowed the court to impose concurrent sentences for current serious or violent felonies committed on the same occasion or arising out of the same set of operative facts. (Couzens & Bigelow, Cal. Practice Guide: California Three Strikes Sentencing (The Rutter Group 2018) § 8:1, pp. 8-1 to 8-20.)

Proposition 36 did not similarly amend the parallel provision in section 667, subdivision (c)(7). There is no plausible reason the voters might have had for amending section 1170.12, subdivision (a)(7), but not section 667, subdivision (c)(7). The ballot materials do not differentiate between the two statutes. (Voter Information Guide, Gen. Elec., (Nov. 6, 2012) summary of Prop. 36, pp. 48–53.) In other material respects save one, Proposition 36 amended the comparable substantive provisions of both sections 667 and 1170.12.2 (Voter Information Guide, Gen. Elec., (Nov. 6, 2012) summary of Prop. 36, pp.105–109; compare proposed amendments to § 667, subds. (c), (c)(3), (d), (d)(2), (d)(3), (e), (e)(1), (e)(2), (e)(2)(A)(i), (e)(2)(C), (f)(1) & (f)(2), with § 1170.12, subds. (a), (a)(3), (b), (b)(2), (b)(3), (c), (c)(1), (c)(2)(A)(i), (c)(2)(C), (d)(1) & (d)(2).) The amendment to section 1170.12, subdivision (a)(7) changed the rule of consecutive sentencing for current serious and violent felonies, making such sentences mandatory in all cases, and it would be nonsensical to have two statutes that deal with the same subject matter create different and conflicting rules, one allowing concurrent sentences in three strikes cases, while one does not. It is not reasonably possible to harmonize the two statutes, and the later-enacted initiative version—section 1170.12, subdivision (a)(7)—controls. (People v. Torres (2018) 23 Cal.App.5th 185, 202 [232 Cal. Rptr. 3d 614] (Torres); Couzens & Bigelow, Cal. Practice Guide: California Three Strikes Sentencing, supra, § 8:1, pp. 8-1 to 8-6.) The failure to amend section 667, subdivision (c)(7) must be deemed an oversight or drafting error. (Torres, at p. 202; see also People v. Garcia (1999) 21 Cal.4th 1, 5–6 [87 Cal. Rptr. 2d 114, 980 P.2d 829] [court may reform a statute when “compelled by necessity and supported by firm evidence of the drafters' true intent”].)

This interpretation is consistent with the purpose of Proposition 36, which reduces the penalty for certain nonserious, nonviolent offenses and maintains “a system of lengthy prison terms for the truly dangerous and violent offenders.” (Couzens & Bigelow, Cal. Practice Guide: California Three Strikes Sentencing, supra, § 8:1, p. 8-5.) “Prop. 36 will help stop clogging overcrowded prisons with non-violent offenders, so we have room to keep violent felons off the streets.” (Voter Information Guide, Gen. Elec., (Nov. 6, 2012) argument in favor of Prop. 36, p. 52.) Giving courts the discretion to make sentences concurrent when they are for nonserious or nonviolent felonies while making consecutive sentences mandatory when defendants are currently convicted of serious or violent crimes is consistent with this purpose. Although the trend in recent years has been to expand rather than limit trial court discretion (e.g., Sen. Bill No. 620 (2017–2018 Reg. Sess.); Sen. Bill No. 1393 (2017–2018 Reg. Sess.); §§ 12022.5, subd. (c), 12022.53, subd. (h), 667, subd. (a)), such a result is not warranted when it contradicts the plain language of a statute and when the purpose of restricting discretion—here, having truly dangerous felons serve lengthy prison terms—is apparent.

Notwithstanding the plain meaning of current section 1170.12, subdivision (a)(7), Division One of this court recently held that the changes wrought to this subdivision by Proposition 36 did not abrogate Hendrix, supra 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64, and that trial courts still have discretion to impose concurrent terms for more than one serious or violent felony committed on the same occasion or arising out of the same set of operative facts. (Torres, supra, 23 Cal.App.5th at pp. 197–202.) I respectfully disagree with this conclusion.

The Torres court noted that Proposition 36 made no changes to section 1170.12, subdivision (a)(6), and that consequently, the Hendrix rule continues to apply. (Torres, supra, 23 Cal.App.5th at pp. 200–201, 232 Cal.Rptr.3d 614.) Torres noted that section 1170.12, subdivision (a)(6) applied to all current felonies, including serious and violent felonies. (Torres, supra, at pp. 200–201, 232 Cal.Rptr.3d 614.) It acknowledged that section 1170.12, subdivision (a)(7), which referred only to current convictions for one or more serious and violent felonies, replaced the reference to “paragraph 6” with a reference to “subdivision (b)” [defining serious and violent felonies]; thus, “Proposition 36 changed the triggering language of the subdivision, and subdivision (a)(7) now applies not only when serious or violent felonies were not committed on the same occasion or did not arise from the same set of operative facts, but whenever a defendant is convicted of multiple serious or violent felonies.” (Torres, supra, at p. 201, 232 Cal.Rptr.3d 614.) However, the Torres court concluded that “Proposition 36 made no change, however, to the directive portion of section 1170.12, subdivision (a)(7), which as the Supreme Court explained in Hendrix, is what makes subdivision (a)(7) not duplicative of subdivision (a)(6). [Citation.] This portion of subdivision (a)(7), additionally requires a court to impose the sentences for serious and violent felonies ‘consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.’ ” (Ibid.) The Torres court found the change to section 1170.12, subdivision (a)(7) “impacts only the additional requirement for consecutive sentencing of ‘other’ current offenses (namely, nonserious and/or violent felonies and misdemeanor offenses).․ [W]here there are multiple serious and/or violent felony convictions, the sentences for those crimes ‘must run consecutive to the sentence for any other offense, whether felony or misdemeanor, for which a consecutive sentence may be imposed.’ ” (Torres, supra, at pp. 201–202, 232 Cal.Rptr.3d 614.)

I interpret the amended version of section 1170.12, subdivision (a)(7) differently. Section 1170.12, subdivision (a)(6) requires consecutive sentences for any felony that was not committed on the same occasion and which did not arise from the same set of operative facts; the converse of that principle is that concurrent sentences are allowed for any crime that was committed on the same occasion or arose from the same set of operative facts. By referring to “a current conviction for more than one serious or violent felony as described in paragraph (6),” the former version of section 1170.12, subdivision (a)(7) incorporated the same principle in cases where the defendant was currently convicted of more than one serious or violent felonies. Hendrix quite reasonably interpreted this language to mean what it said, and extended the same rule regarding concurrent sentencing to both nonserious/nonviolent current felonies and more than one serious/violent current felonies, with the additional requirement that sentences for more than one serious or violent felonies must be consecutive to other crimes for which the defendant may be consecutively sentenced when those crimes did not occur on the same occasion and did not involve the same set of operative facts. (Hendrix, supra, 16 Cal.4th at pp. 512–514, 66 Cal.Rptr.2d 431, 941 P.2d 64.)

When the electorate passed Proposition 36, which deleted the reference to “paragraph 6” in section 1170.12, subdivision (a)(7), it signaled its intention that defendants convicted of more than one serious or violent felonies would no longer be subject to the rule of subdivision (a)(6). “An intention to change the law or the meaning of a statute will generally be inferred or presumed from a material change in the statutory language. Such an intent is inferred when the existing law is amended by deletion of an express provision of the previous statute and the substitution of an alternative provision.” (People v. Salazar (1983) 144 Cal.App.3d 799, 806–807, 193 Cal.Rptr. 1.) Subdivision (a)(7) no longer incorporates the language of “paragraph (6);” it is not potentially duplicative of that subdivision; and it should be interpreted by reference to its language standing alone rather than to subdivision (a)(6).

The amended version of section 1170.12, subdivision (a)(7) eliminates any distinction between more than one serious or violent felonies that were committed on the same occasion or which arose from the same set of operative facts and those which did not fall into those categories. It provides that in any case where the defendant stands convicted of “more than one serious or violent felony” “the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction ․” Now, under the plain language of section 1170.12, subdivision (a)(7), consecutive sentences—including sentences consecutive to each other—must be imposed on more than one serious or violent felony whenever consecutive sentences would be authorized, not merely on those “not committed on the same occasion, and not arising from the same set of operative facts.” (§ 1170.12, subd. (a)(6).)

When interpreting an initiative, our primary purpose is to ascertain and effectuate the voters' intent. (People v. Garner (2016) 2 Cal.App.5th 768, 771, 206 Cal.Rptr.3d 453.) We look first to the language of the statute itself, and if there is no ambiguity, then the plain meaning of the language governs. (Id. at p. 772, 206 Cal.Rptr.3d 453.) Here, the amended version of section 1170.12, subdivision (a)(7) is not ambiguous: when a defendant is currently convicted of more than one serious or violent felony, consecutive sentences must be imposed for those crimes. To construe section 1170.12, subdivision (a)(7) as allowing concurrent terms for more than one serious or violent felony when they meet the criteria of subdivision (a)(6) is no longer justified by the plain language of the statute.

The effect of construing section 1170.12, subdivision (a)(7) to still permit concurrent terms where it applies would be that nonserious, nonviolent felonies are treated more harshly than serious or violent felonies for purposes of imposing consecutive sentences. As Torres recognizes, under section 1170.12, subdivision (a)(7), the court must impose consecutive sentences for nonserious, nonviolent felonies whenever a defendant has been convicted of more than one serious or violent felony, and must do so regardless of whether they were committed on the same occasion or involved the same set of operative facts. (Torres, supra, 23 Cal.App.5th at p. 203, fn. 10, 232 Cal.Rptr.3d 614.) Yet it need not make the sentences for serious or violent felonies consecutive with each other, at least if they were committed on the same occasion or involved the same set of operative facts. (Ibid.) “We must also avoid a construction that would produce absurd consequences, which we presume [the electorate] did not intend.” (People v. Mendoza (2000) 23 Cal.4th 896, 908, 98 Cal.Rptr.2d 431, 4 P.3d 265.)

Appellant's current convictions for kidnapping with intent to commit a sexual offense and assault with intent to commit a sexual offense in counts 1 and 2 were serious and/or violent felonies. (§ 667.5, subd. (c)(14) & (15); § 1192.7, subd. (c)(10), (20) & (29).) Consecutive sentences are required on those counts pursuant to section 1170.12, subdivision (a)(7). Appellant's conviction for failing to register as a sex offender was not a serious or violent felony, but because the serious/violent felonies had to be consecutive “to the sentence for any other conviction for which the defendant may be consecutively sentenced,” sentence on that count must also be consecutive. (§ 1170.12, subd. (a)(7).) On remand the court should impose sentence accordingly.

A petition for a rehearing was denied September 24, 2019, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied November 26, 2019, S258214.

FOOTNOTES

1.   Statutory references are to the Penal Code.

2.   A fish bowl is a 92-ounce mixed drink served in a large bowl. It contains six ounces of alcohol. Doe took prescribed medication for anxiety and depression. The medication did not cause her to hallucinate. Doe did not take the medication on the day of the incident and she did not consume illegal drugs.

1.   Further statutory references are to the Penal Code.

2.   Proposition 36 also deleted section 1170.12, subdivision (a)(8), but not the nearly identical provision in section 667, subdivision (c)(8). Both paragraphs provid(ed) that a sentence under the strikes law must be imposed consecutive to any prison term the defendant was currently serving. As appellant was not serving another prison term when he was sentenced, this provision has no potential application to him, but we note that the failure to delete section 667, subdivision (c)(8) in addition to section 1170.12, subdivision (a)(8), appears to be an oversight.

JONES, P. J.

Burns, J., concurred. Concur by: Needham, J. (In Part)

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