Can a defendant be sentenced to a life term under section 667.7 of the Criminal Code for the murder of his ex-girlfriend?

In the instant case, the trial court reimposed the life term under section 667.7 for the murder count. For the assault charges of counts 2 and 3, the court imposed 13 years for each count, and stayed and struck the additional terms. In arriving at that sentence, the court chose the three-year midterm for each assault count and added five years for each of the two section 667 enhancements. It ordered the terms stayed pursuant to section 654 because "it involves the same victim with a different weapon, and essentially the same course of conduct." The court then struck the sentences on counts 2 and 3 pursuant to sections 654 and 667.7 "as being merged as the sentence imposed in count one under the authority of People v. Victor 227 Cal.App.3d 518 [278 Cal.Rptr. 7]."

People v. Victor, supra, states: "[S]ection 667.7 creates an independent, self-contained, indeterminate sentencing scheme for certain violent habitual offenders. For the adjudicated habitual offender with two prior prison terms for relevant violent crimes, section 667.7 provides a mandatory sentence in lieu of the determinate sentence the offender otherwise would have received under section 1170. [Citation.]" (227 Cal.App.3d at p. 524, 278 Cal.Rptr. 7. fn. omitted.)

However, as the Fifth Appellate District clarified in a later case, "Victor held only that the court cannot utilize any enhancements, whether necessary or unnecessary to a section 667.7 finding, if those enhancements relate to the count under which the habitual offender determination was made. Victor did not hold that once a habitual offender term is imposed no further consecutive terms may be imposed on separate counts." (People v. Burkett (1991) 1 Cal.App.4th 971, 976, 2 Cal.Rptr.2d 330.) Furthermore, more than one life term based on the same prior convictions does not bar the imposition of consecutive life sentences. (Id. at p. 977, 2 Cal.Rptr.2d 330.)

The record makes clear that the trial court believed that defendant's habitual offender status mandated that the murder count be punished pursuant to section 667.7 and that People v. Victor, supra, 227 Cal.App.3d 518, 278 Cal.Rptr. 7, [33 Cal.App.4th 1342] deprived it of discretion to impose consecutive sentences. If a court believes it has no discretion to impose a particular sentence, it clearly does not exercise its discretion with respect to that sentencing choice. (People v. Myers (1983) 148 Cal.App.3d 699, 704, 196 Cal.Rptr. 234.)

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