People v. Hendrix

GEORGE, C. J.

I concur in the majority opinion insofar as it holds that Penal Code section 667, subdivision (e)(2)(B), does not mandate consecutive sentences in this case.

*516In light of the parties’ concession that the present offenses were “committed on the same occasion,” and in the absence of a contention that principles of Penal Code section 654 apply, I also agree with the majority opinion that consecutive sentences are not mandated by subdivision (c)(6) and (c)(7) of Penal Code section 667 (hereafter subdivision (c)(6) and (c)(7)). I write separately because the majority does not acknowledge that this conclusion may be inconsistent with the conclusion suggested by several decisions of the Court of Appeal that have applied the principles of Penal Code section 654, including People v. Ayon (1996) 46 Cal.App.4th 385, 393 [53 Cal.Rptr.2d 853], People v. Samuels (1996) 42 Cal.App.4th 1022, 1026 [50 Cal.Rptr.2d 157], and People v. Carter (1995) 41 Cal.App.4th 683, 688-689 [48 Cal.Rptr.2d 726].

As the majority explains, consecutive sentences are mandated under subdivision (c)(6) “[i]f 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 phrase “not committed on the same occasion, and not arising from the same set of operative facts” is incorporated by reference into subdivision (c)(7). “The ‘same occasion or set of operative facts’ language of section 667, subdivision (c)(6) has been interpreted as applying the principles of section 654 to multiple current crimes.” (People v. Carter, supra, 41 Cal.App.4th 683, 688.) In the present case, this interpretation of the language of subdivision (c)(6) would appear to compel a conclusion opposite to that reached by the majority, because the current crimes involved multiple victims, and thus Penal Code section 654 would not prohibit multiple punishment. (Neal v. State of California (1960) 55 Cal.2d 11, 20-21 [9 Cal.Rptr. 607, 357 P.2d 839].)

The parties in the present case have not briefed or argued this issue and, instead, have conceded that the present offenses were committed on the same occasion within the meaning of subdivision (c)(6). I accept this concession but, in doing so, I express no opinion regarding the proper interpretation of the phrase “not committed on the same occasion, and not arising from the same set of operative facts.” That issue is presented in another case pending before us, People v. Nelson (1996) 47 Cal.App.4th 1784 [51 Cal.Rptr.2d 9] (review granted May 29, 1996 (S053008)).

Baxter, J., and Chin, J., concurred.