California Three Strikes Law When Offenses Not Committed on the Same Occasion

When the defendant falls under the Three Strikes law because of qualifying prior felony convictions, the trial court must impose consecutive sentences if the defendant's multiple felony offenses in the current proceedings were "not committed on the same occasion" and did not "arise from the same set of operative facts." (Penal Code 667, subds. (c)(6), (c)(7).) Penal Code Section 667, subdivision (c)(6) states: "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 . . . ." The reference to "each count" refers to each count that did not occur on the same occasion or did not arise from the same set of operative facts as any other count. (See People v. Hendrix (1997) 16 Cal.4th 508, 517-519 (conc. opn. of Mosk, J.).) If the defendant's offenses were committed on the same occasion, or if they were committed on different occasions but arose from the same set of operative facts, a trial court retains discretion to impose concurrent sentences. (People v. Lawrence (2000) 24 Cal.4th 219, 226-233.) Applying an ordinary meaning, offenses committed on the same occasion require a "close temporal and spatial proximity . . . ." (People v. Deloza, supra, 18 Cal.4th at p. 595; People v. Lawrence, supra, 24 Cal.4th at p. 226.) To make the same-occasion determination, the courts consider the extent to which the offenses are or are not separated by such factors as time, location, and intervening events. (See, e.g., People v. Deloza, supra, 18 Cal.4th at pp. 595-596 offenses occurred on same occasion when defendant committed robberies by stealing items from multiple persons in store; offenses were at one location, of short duration, essentially simultaneous, against same group of victims, and were not separated by another event; People v. Jefferson (1999) 21 Cal.4th 86, 90, 102, fn. 4 same occasion when defendant shot into group of people; People v. Danowski, supra, 74 Cal.App.4th at pp. 817, 821 same occasion when defendant attempted to rob, and then shot, resisting victim; compare People v. Lawrence, supra, 24 Cal.4th at p. 228 offenses did not occur on same occasion when defendant stole from a store and then, after running some distance to a different location, assaulted an individual who was unrelated to the theft; People v. Durant (1999) 68 Cal.App.4th 1393, 1401-1407 not same occasion when defendant burglarized and attempted to burglarize different homes in housing complex.) If the offenses did not occur on the same occasion, they still need not be sentenced consecutively if they arose from the same set of operative facts. "Operative" facts refers to the facts of the case that prove the offenses. (People v. Lawrence, supra, 24 Cal.4th at pp. 231-232.) Thus, the "'same set of operative facts'" means "sharing common acts or criminal conduct that serves to establish the elements" of the offenses. (Id. at p. 233.) Relevant considerations include "the extent to which the common acts and elements of such offenses unfold together or overlap, and the extent to which the elements of one offense have been satisfied, rendering that offense completed in the eyes of the law before the commission of further criminal acts constituting additional and separately chargeable crimes . . . ." (Ibid.; see, e.g., People v. Garcia (2008) 167 Cal.App.4th 1550, 1556-1567 same operative facts for firearm possession by felon and for robbery and other offenses committed with same firearm; People v. Briones (2008) 167 Cal.App.4th 524, 529 same operative facts for conspiracy to possess drugs for sale and possession of drugs for sale); compare People v. Lawrence, supra, 24 Cal.4th at pp. 233-234 distinct operative facts for theft committed at store followed by assault of different victim at different location; People v. Durant, supra, 68 Cal.App.4th at pp. 1401-1407 distinct operative facts for multiple burglaries at same housing complex.) Penal Code Section 1385, subdivision (a), vests the trial court with discretion to dismiss a qualifying strike conviction in furtherance of justice, but such discretion must be exercised in strict compliance with section 1385, subdivision (a). (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530; People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) "In ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, the court . . . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the three strikes scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.) These factors are commonly referred to as the "Williams factors." We review the trial court's decision not to dismiss a prior strike allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) "The three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. . . . . . . 'It is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. . . . Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' citation, the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Id. at p. 378.)