¶1concurring:
¶2I concur in the judgment of the court. I write separately because I believe that the statute is ambiguous and that the rule of lenity must be applied to resolve this ambiguity in favor of the defendants. Therefore, I agree that section 16-ll-309(l)(a), 8A C.R.S. (1986), requires the court to sentence Benito and Victor Robles to only two consecutive terms.
¶3The version of section 16-ll-309(l)(a) under which the Robleses were sentenced provides “[a] person convicted of two separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently.” § 16-ll-309(l)(a), 8A C.R.S. (1986). When a defendant is convicted of more than two crimes of violence arising out of the same incident, the statute requires that at least two sentences be served consecutively. The statutory language, however, does not specifically address whether the sentences for the additional crimes of violence must be served consecutively or may be served concurrently. The majority interprets that section to read that only two of the sentences must be served consecutively. In contrast, I believe that the absence of specific legislative direction concerning consecutive sentencing for more than two convictions for crimes of violence makes the proper application of section 16 — 11—309(l)(a) ambiguous in this context. See, e.g., People v. Newton, 764 P.2d 1182, 1189 (Colo. 1988) (application of speedy trial statute to crimes commenced before but completed after statute’s effective date).
¶4*808When an ambiguity in a criminal statute renders it capable of alternative and conflicting constructions, this court employs the rule of lenity to interpret the statute. Id.; People v. Russo, 713 P.2d 356, 364 (Colo.1986) (rule of lenity applies when violent crime statute silent on the burden of proof). This rule of statutory construction requires that penal statutes, including those pertaining to sentencing, be strictly construed in favor of the accused. People v. District Court, 713 P.2d 918, 922 (Colo. 1986); People v. Luciano, 662 P.2d 480, 482 (Colo.1983); People v. Lowe, 660 P.2d 1261, 1267-68 (Colo.1983). Under the People’s construction, the five sentences must be served consecutively. The Robleses’ construction requires that only two of the five sentences be served consecutively. The rule of lenity mandates adoption of the latter construction.