THE PEOPLE v. LEVITICUS IVORY STEVE

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. LEVITICUS IVORY STEVE, Defendant and Appellant.

F060660

Decided: October 20, 2011

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

A jury convicted Leviticus Ivory Steve of the residential robberies of Jonathan Brent Gilpin (count 1) and Lawrence Martin Castro, Jr. (count 2) (Pen.Code, § 211),1 and found true an allegation attached to each count that Steve personally used a firearm in the commission of the crimes (§ 12022.53, subd. (b)).  In a bifurcated trial, the jury found true allegations that Steve had prior convictions in February 2000 for unlawful sexual intercourse (§ 261.5, subd. (c)) and lewd act upon a child (§ 288, subd. (a)), and in January 2002 for unlawful sexual intercourse (§ 261.5, subd. (c)), for which he served separate prison terms and did not remain out of prison custody for five years.

At sentencing, the trial court denied Steve's request to “strike” his prior strike conviction and sentenced him to an aggregate term of imprisonment of 31 years, eight months, computed as follows:  (1) on count 1, the middle term of eight years (four years doubled pursuant to section 667, subdivision (e)(1)), plus ten years for the firearm enhancement, five years for the prior “strike” conviction, and one year for the prior prison term enhancement;  and (2) on count 2, a consecutive 32–month term (one-third the middle term doubled pursuant to section 667, subdivision (e)(1)), plus 40 months (one-third the middle term doubled pursuant to section 667, subdivision (e)(1)) for the firearm enhancement and 20 months (one-third the term pursuant to section 1170, subdivision (a)) for the prior “strike” conviction.

On appeal, Steve contends (1) the trial court erred when it declined to instruct the jury on assault by means of force likely to produce great bodily injury because it is a lesser included offense of robbery, (2) in the alternative, he had a federal constitutional right to instruction on assault with force likely to produce great bodily injury as a lesser related offense of robbery, (3) the trial court erred when it admitted into evidence jailhouse telephone calls he placed, and (4) the matter must be remanded for resentencing because the trial court mistakenly believed it did not have discretion to impose concurrent sentences on counts 1 and 2. We agree remand is required to correct sentencing errors, but we otherwise affirm the judgment.

At about 11:30 p.m. on June 25, 2009, Brent Gilpin was giving Larry Castro a ride to his truck from the hospital where they worked.   While en route, Gilpin told Castro he wanted to stop briefly at the home of a girl, Audrey Richard, with whom he wanted to talk.   Castro agreed to stop with him.

After they arrived at an apartment complex, Gilpin made a call.   Ten to 15 minutes later, Richard and an unknown woman came out to get the two men.   They took the men to an apartment near the rear of the complex.   The four of them walked into an apartment together.   Briana Hernandez was in the kitchen washing dishes.2  After entering, Castro sat down on the couch in the living room, while Gilpin sat down at the kitchen table.3

Sometime later, Richard left the apartment.   According to Castro, when she returned three or four minutes later she locked the apartment's door.   A few minutes later there was a loud “banging on the door,” and Richard opened it.   Two men were standing at the door:  a white man with reddish hair, medium height and stocky build, with tattoos on both arms and wearing a white tank top, who Hernandez knew as “Bobby,” and behind him, Steve.   According to Castro, Bobby asked “What's going on here?”   Castro responded, “Nothing's going on.” 4

Bobby walked into the apartment and started toward Gilpin, who was still at the kitchen table.   Castro then saw that Steve was holding a black metal gun in front of his body with both hands, which he was pointing at Castro.   Steve kept saying “I'm going to blast this guy.   I'm going to blast him.”   Castro was afraid Steve was going to shoot him.   Steve told Castro to “[g]et on the ground.”   Castro slid off the couch and onto his knees.   As he was placing his hands on the floor, he was hit on the head by something metallic.   A moment later, he was hit on the head a second time;  he started to bleed profusely.5  While Castro was on his hands and knees and bleeding, Steve said either “Take everything out of your pockets,” or “get everything out of their pockets.”   Castro emptied his pockets and placed the contents, which included his work badge, truck keys, wallet, cell phone, and some loose change, on the floor.

Gilpin saw Steve pull the gun from Steve's jacket or pants.   According to Gilpin, the two men said to get on the ground, “[a]nd one of them said, take everything they got.”   After Gilpin got on the floor, Bobby started kicking him.   Immediately thereafter, Bobby and Steve took Gilpin's and Castro's wallets and Castro's cell phone and keys.

Suddenly, Castro heard someone say “Okay. Get outta here.”   Castro and Gilpin walked out to Gilpin's truck in the parking lot.   The two talked for awhile about what to do, as Castro wanted to try to get his wallet back.   Eventually, the two drove away in Gilpin's truck.   While in the driveway, they saw several police cars pulling into the apartment complex parking lot.   The two drove back in the complex, parked, and walked toward the officers.

Fresno Police Officer Jeffrey Lee spoke to Castro and Gilpin in front of the apartment early in the morning on June 26, 2009.   Lee described Castro as a “little agitated, a little fearful, but for the most part, somewhat calm, considering the situation.”   Castro was angry that his property was taken from him.   Lee said Gilpin “seemed to be a little bit more fearful, but still calm and cooperative.”   Lee went up to Hernandez's apartment and saw small droplets of blood on the couch and floor.   Police did not find any property belonging to Castro or Gilpin inside the apartment.

Hernandez testified that during the incident she saw Steve holding a black gun, which was not a revolver, but had a clip.   The gun was like one a police officer would have.   Hernandez had seen Steve with a black gun a couple times before this incident, but he did not talk about the gun.   One time he lifted up his shirt to show her the gun.

Steve was arrested and entered into custody at the jail on June 28, 2009 at 11:40 p.m. Steve made a number of recorded telephone calls from the jail, six of which were played for the jury.   The first call was made at approximately 11:49 p.m. on June 28, 2009, and the sixth call made at approximately 1:09 a.m. on June 29, 2009.

Defense

Audrey Richard testified she had been Steve's girlfriend since approximately March 2009.   In June 2009, they were living with Hernandez in Hernandez's apartment.   Richard claimed that Gilpin was her supplier of “crystal meth.”   Richard said they sometimes hung out together, although she did not consider him a friend, and she thought he was interested in her romantically.   Richard had not met Castro before the night of the incident.

According to Richard, on the night of June 25, 2009, she, Gilpin, Castro and a woman named Cassandra were smoking crystal meth that Castro provided.   After a half hour to an hour of smoking, Steve came to Hernandez's apartment with a man named Bobby.   Richard and Steve got into an argument;  Steve was upset that Richard was getting high with “two gentlemen.”   Castro then began arguing with Steve over who was going to pay for the drugs Castro supplied and because Castro said “[S]he's with this F'ing nigger.”   The arguing escalated to a fist fight, with Steve and Castro exchanging blows with their fists.   At some point, Castro and Gilpin left the apartment.   Richard, Cassandra, Steve and Hernandez went together to Cassandra's apartment, where they “continued to get high.”

Richard did not see Steve or Bobby take any property from Castro or Gilpin.   She also did not see Steve with a handgun and did not see him hit Castro with a handgun.   According to Richard, she had never seen Steve with a handgun at any time.   When police first contacted her, Richard told the investigating officer she “was high and ․ couldn't remember nothing[,]” and that she did not know who Bobby was.

The apartment complex's property manager testified that in the early morning on June 26, 2009, while he and a security guard were on “foot patrol” at the complex, a large Hispanic male approached them.   The manager noticed the man was “bleeding from his head” and asked him if he was alright.   The man said he was fine.   The manager asked him if he wanted him to call the ambulance or police.   The man responded that he was “all right” and he just needed to go.   After the man left, the manager called the police because of the man's obvious injuries.

Steve testified on his own behalf.   He said that he and Richard began dating in March or April 2009.   He was separated from his wife, Melina, and he and Richard were living with Hernandez in her apartment.   Steve had a key to the apartment and kept personal belongings there.

Sometime late on the night of June 25, 2009, Steve returned to the apartment complex after spending time with his children at Melina's house.   When he got to the complex, he met up with a man he knew only as Bobby, who he met through an associate.   The two men went up to Hernandez's apartment together and went inside.   Steve was shocked to see a lot of people in the apartment smoking meth.   He saw two men who he did not know, Castro and Gilpin, as well as Hernandez, Richard and Cassandra.

Steve lit up methamphetamine in a pipe, smoked it and passed it to Bobby.   Steve was angry and began arguing with Richard about her smoking drugs with guys he did not know.   Steve then heard Castro say something like “you with a nigger.”   Steve was shocked and confronted Castro, saying “Fuck you, punk, you don't know me.”   Gilpin joined in, saying that Steve owed him money, which Steve assumed was for the drugs.   Castro stood up and moved quickly towards Steve.   Steve hit him hard in the face with his fist and continued hitting Castro with both fists.   When Castro fell to the ground, Steve kneed him in the face.   Steve admitted he caused Castro's injuries and that he intended to hurt him because he felt Castro disrespected him.   Steve did not know what Bobby was doing during the fight, although he knew Bobby was near Gilpin.

Gilpin and Castro walked out of the apartment like nothing happened.   Steve went over to Cassandra's apartment with Richard, Hernandez and Cassandra;  Bobby met them there later.   Steve denied robbing Castro and Gilpin of their belongings, and he did not believe that Bobby had robbed them.   Steve also denied having a handgun and hitting Castro with a handgun.

DISCUSSION

I. The Trial Court's Refusal to Instruct on Assault

At trial, Steve moved to amend the information to include a charge of assault by force likely to produce great bodily injury in violation of section 245, subdivision (a)(1), and also requested that the jury be instructed on assault.   The trial court denied both the motion and request, finding that assault is not a lesser included offense of robbery and, under People v. Birks (1998) 19 Cal.4th 108 (Birks ), it could not instruct on assault over the prosecution's objection.

Steve contends the trial court prejudicially erred by failing to instruct on assault.   Specifically, he contends that assault is a lesser included offense of robbery, and therefore the trial court was required to instruct on it.   In the alternative, Steve contends that even if assault is only a lesser related offense, he still was entitled to have the jury instructed on it based on his federal constitutional rights to present a defense, a fair trial and equal protection.   We address each contention in turn.

A. Assault as a Lesser Included Offense of Robbery

“ ‘A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.  [Citations.]  This sua sponte obligation extends to lesser included offenses if the evidence “raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.” ’  [Citation.]  [¶] We employ two alternative tests to determine whether a lesser offense is necessarily included in a greater offense.   Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser.   Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime.”   (People v. Moon (2005) 37 Cal.4th 1, 25–26.)  “ ‘On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.’ ”  (People v. Avila (2009) 46 Cal.4th 680, 705.)

Assault is not a lesser included offense of robbery under the statutory elements test.   As Steve correctly notes, under the statutory definition of robbery (§ 211), a robbery may be committed by a taking from the person of another by the disjunctive “force or fear.”   Assault, however, requires an unlawful attempt to apply physical force and a present ability to apply such physical force.  (People v. Wright (1996) 52 Cal.App.4th 203, 209 (Wright );  § 240.)   Because a robbery can be committed strictly by frightening a victim into surrendering property, it would not necessarily include assault.  (Wright, supra, 52 Cal.App.4th at p. 209.)   Accordingly, there is no duty to instruct on assault as a lesser included offense of robbery as the two are defined.  (Ibid.)

Here, however, the first amended information alleged in counts 1 and 2 that Steve committed the offense of residential robbery using the conjunctive “force and fear.”   Based on this, Steve claims the robbery as alleged necessarily included the lesser offense of assault.6

The contention that assault is a lesser included offense of robbery under the accusatory pleading test, where the force or fear element of robbery in section 211 is plead in the conjunctive, was rejected in Wright, supra, 52 Cal.App.4th at pp. 208–211.7  The appellate court in Wright reasoned that “ ‘force’ is not an element of robbery independent of ‘fear’;  there is an equivalency between the two.  ‘ “[T]he coercive effect of fear induced by threats ․ is in itself a form of force, so that either factor may normally be considered as attended by the other.” ’  [Citation.]  [¶] ․ [¶] Since the element of force can be satisfied by evidence of fear, it is possible to commit a robbery by force without necessarily committing an assault.   Consequently, under the ‘accusatory pleading’ test, assault is not necessarily included when the pleading alleges a robbery by force.”  (Id., at pp. 210–211.)

Steve acknowledges Wright and its potential applicability to his case.   He, however, urges us to reject the decision as poorly reasoned and inconsistent with other authority.   We simply disagree.   We find the Wright court's analysis persuasive and will follow it here.   The trial court did not err in refusing to instruct on assault as a lesser included offense.

B. Assault as a Lesser Related Offense of Robbery

Steve contends the trial court erred in refusing his request for an instruction on assault as a lesser related offense to robbery.   The court refused the instruction because the People did not agree to it.   Steve recognizes that the California Supreme Court has held that a defendant has no unilateral right under the California or United States Constitutions to an instruction on lesser related offenses.  (Birks, supra, 19 Cal.4th at pp. 112–113, 123–124, citing Hopkins v. Reeves (1998) 524 U.S. 88, 99.)   Steve also recognizes that just last year, our Supreme Court endorsed Birks by rejecting any invitation to revisit its logic or its constitutional underpinnings.   In People v. Taylor (2010) 48 Cal.4th 574, 622 (Taylor ), the court wrote:  “We decline defendant's request that we reconsider our holding in Birks.   As we recently explained in denying a similar request, refusing to grant a defendant's unilateral request for instructions on a lesser related offense does not violate any ‘constitutional due process right to present the “theory of the defense case’․”  [Citation.]  ․ As we observed in Birks, the United States Supreme Court has ‘never suggested’ that the federal Constitution requires instruction on offenses other than lesser included offenses of the charged crime when the evidence warrants.  (Birks, supra, 19 Cal.4th at p. 124.)   Defendant cites no decision or other authority issued since we decided Birks that warrants reconsideration of that decision.”

Steve points to language in Taylor, where the court noted the case was not one that would force a jury into “ ‘an all-or-nothing choice between capital murder and innocence,’ ” (Taylor, supra, 48 Cal.4th at p. 625), and from that argues the jury here “had the equivalent of an ‘all-or-nothing’ decision.”   In making this statement, however, the Court in Taylor was not discussing the continuing validity of Birks or whether an exception to Birks exists.   Instead, the Court was discussing whether the trial court was required to instruct on second degree implied-malice murder as a lesser included offense of first degree felony murder and its conclusion that the failure to so instruct did not implicate the defendant's federal constitutional rights within the meaning of Beck v. Alabama (1980) 447 U.S. 625.   (Taylor, supra, 48 Cal.4th at pp. 624–625.)

Steve essentially argues Birks was wrongly decided.   The Birks opinion, however, is binding on us as an intermediate appellate court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II. Admission of the Jailhouse Telephone Calls

At trial, Steve filed a motion in limine to exclude the recordings of telephone calls the prosecutor intended to introduce into evidence in which he used the term “black bitch,” which the prosecutor asserted referred to a handgun.   Steve argued the calls were not admissible unless an expert in street vernacular could testify unequivocally that the phrase referred to a handgun and playing the recordings would unduly consume time without any probative value.

The trial court held an Evidence Code section 402 hearing on the admissibility of the recorded calls.   Steve turned himself in to police and was booked into jail on June 28, 2009.   The prosecutor proposed to offer into evidence six recorded calls Steve made while he was in the pre-booking area –the first call was made at 11:49 p.m. on June 28, 2009 and the remaining five were made during the early morning hours of June 29, 2009.   Fresno Police Detective Rudy Montoya testified that he interviewed Steve at 8:37 p.m. on June 28.   During that interview, Montoya advised Steve he was under arrest.   He also advised Steve of the charges against him, including the allegation that he used a weapon.   The interview lasted approximately 20 minutes.

The recorded calls show that Steve first called his father at 11:49 p.m. on June 28.   Steve asked his father if he got a hold of “him” and when he asked his father what happened, his father responded, “[he]'s on his way with the stuff.”   The following exchange occurred:

“[Steve]:  Uh huh.   Did ah ․ get a hold of old girl.

“D[ad]:  Huh?

“[Steve]:  Was she still there?

“D[ad]:  What was that?

“[Steve]:  Was she still there too?

“D[ad]:  Was she still there?

“[Steve]:  Yeah.

“D[ad]:  Who his sister?

“[Steve]:  Yeah.

“D[ad]:  I don't know.   He supposed to be bringing me the car and the stuff.”

Steve's father then explained that “he” was supposed to be coming over shortly, and he was going to bring “the stuff.”

In the third phone call, which Steve made to his father's cell phone at approximately 12:05 a.m. on June 29, Steve spoke with his friend Vincent.   The following exchange occurred:

“[Steve]:  Is old girl with you?

“V[incent]:  Who? (Inaudible)

“[Steve]:  Old girl?

“V[incent]:  My girl, yeah.

“[Steve]:  Nah, old girl.

“V[incent]:  Oh Oh no ah ․ she she went to the house ․ she went to the house ah ․ what's it called umm ․ cause she had to go to work tomorrow.   Her friend has to go tomorrow morning.   And ah ․ she basically I don't know ․ she didn't want her there.   You know what I mean?

“[Steve]:  Yeah.

“V[incent]:  With me I guess.

“[Steve]:  Yeah. But hey?

“V[incent]:  Yeah.

“[Steve]:  I need I need I need you to run back over there.

“V[incent]:  Uh huh.

“[Steve]:  Did she ․ put ah ․ go get my bitch.

“V[incent]:  What's that?

“[Steve]:  You can have it.   You can have it.

“V[incent]:  What's that?   The weapon ․

“[Steve]:  Come on man.

“V[incent]:  Oh oh I know.   I even asked her about it.

“[Steve]:  Yeah.

“V[incent]:  I asked her about it ․

“[Steve]:  Stop talking.   Yeah yeah yeah.

“V[incent]:  Then she said she doesn't know.   She doesn't know.

“[Steve]:  Yeah.

“V[incent]:  Because ah ․

“[Steve]:  (Inaudible)

“V[incent]:  I already thought about all that.

“[Steve]:  Yeah. Right now though.”

Shortly after that, in another call Steve tells Richard to talk to his father and “tell him cause they going to come talk ․ “ Richard responds, “Tell him everything?”   Steve answers, “Yeah. Cause they going to come talk to you and shit too.   The[y're] the[y're] looking for you.   The[y're] looking for everybody․  You know what I mean?   Tell him tell him man․  Tell him tell him I ․ you know what I mean?   They just ․ they got me on this doing crazy shit.   And I ․ I ․ ain't have no weapon or nothing.   No nothing like that.   Nothing ․ “ Steve also told Richard “Any how um.. Vince yeah.. yeah.. he getting he getting umm ․” Richard interjects, “Your bitch.”   Steve says, “Yeah. For real.”   Richard says, “That's good.”

In a call made at 1:09 a.m. on June 29, Steve says to Diana, Vincent's girlfriend:

“[Steve]:  Tell Vince to take care of my black bitch.

“D[iana]:  To what?

“[Steve]:  Take care of the black bitch.   And my ugly girl.   Hello?

“D[iana]:  Mmm Hmm.

“[Steve]:  You know what I'm talking about?

“D[iana]:  Mmm Mmm.

“[Steve]:  Wow. Umm ․ the the the girl ah ․ what's her name hooked him up with right now.”

Vincent then comes on the line.   Steve tells him:  “Diana hella slow.   I said take care of ah.. tell Vince take care of the black ah ․ my black girl.   My girl hooked him up with.   And she she is hella slow.   She's like, “who?”   (Laughing.)  I'm like never mind.   Huh?” Vincent responds, “Yeah. Yeah.”

The prosecutor authenticated the voices on the tapes through Briana Hernandez's testimony.   The prosecutor did not offer any opinion evidence regarding the meaning of the term “black bitch,” instead taking the position that the jurors could decide what it means.

Defense counsel argued the calls should not be admitted because they were irrelevant, a waste of the court's and the jury's time, and highly prejudicial because the prosecution would argue that Steve was referring to the handgun as the black bitch.   The prosecutor argued the calls were extremely relevant circumstantial evidence because it could be inferred from the calls that Steve was referring to the handgun, and not overly prejudicial.   The prosecutor asserted the defense could present its own evidence regarding the meaning of the calls.   The prosecutor further asserted she should be allowed to present the calls as circumstantial evidence which the jury could weigh based on the jury instructions.

The trial court found the calls relevant and admissible because they were made shortly after the police informed Steve that the charges he was being held on involved a gun and one reasonably could infer from the calls that Steve was trying to get people to hide a weapon.   The trial court also found the calls admissible under Evidence Code section 352, explaining they were not unduly prejudicial as long as victims testify that a weapon was involved, and the calls are probative because they corroborate that Steve knew he had used a weapon and was trying to hide the evidence because he realized his cover story would not hold up.   The trial court did not believe expert testimony was required as to the meaning of the tapes and it could be left to the jury to interpret them.

The calls were admitted into evidence at trial.   In explaining the calls, Steve testified that Audrey Richard was the “Old Girl” referred to in the call made on June 29 at 12:05 a.m. He explained that he and some of his friends commonly refer to “crystal meth” as “White Girl” and heroin as “Black Bitch or Black Girl.” Steve claimed that when Vince mentioned “the weapon” he was referring to a pipe or syringes used to ingest drugs, and he was telling Vince to basically get the drugs for him, which he could sell if he liked.   Steve further testified that he was selling drugs in June 2009, and he wanted Vince to get his drug stash from Richard.

Steve contends the admission of the telephone calls without requiring the prosecution to establish the meaning of the term “black bitch” was error and undermined his state and federal due process rights to a fair trial.   He asserts that nothing in the telephone calls establishes that “black bitch” refers to a weapon and because the prosecutor failed to offer any evidence that the term refers to a gun, the calls did not corroborate the claims of Hernandez, Gilpin and Castro that he was armed.   He further asserts the calls were more prejudicial than probative because there was no evidence to support the inference the prosecutor asked the jury to draw and the evidence from the prosecution's witnesses that he was armed was weak.

The trial court did not abuse its discretion in admitting the calls into evidence.  (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra ) [“The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence.”].) The victims and Hernandez all testified that Steve was armed with a gun when he committed the robberies, which Hernandez and Castro identified as being black.   The telephone calls Steve made from the jail immediately after being booked are relevant to prove that Steve had a weapon, as it reasonably could be inferred from the statements made during the calls that Steve was asking his friends to find his weapon and dispose of it.

Steve contends the calls were irrelevant unless the prosecutor established as a preliminary fact through other evidence that the term “black bitch” referred to a gun.   We disagree.  “When ․ the relevance of evidence depends on the existence of a preliminary fact, the proffered evidence is inadmissible unless the trial court finds there is sufficient evidence to sustain a finding of the existence of the preliminary fact.”  (Guerra, supra, 37 Cal.4th at p. 1120.)   Here, the preliminary fact was not the meaning of the term “black bitch;” instead, it was the victims' claim that Steve was armed with a black gun when he committed the robberies.   Once there was sufficient evidence of that fact, the calls, from which it could be inferred that Steve was asking Vince to get his weapon, became relevant and admissible.

It was for the jury to weigh the ambiguity inherent in Steve's statements made during the calls.   As the Attorney General notes, a similar situation arose in Guerra, where the courtroom bailiff testified about a conversation he had with the defendant in which the bailiff remarked he had been impressed by the cities he toured in Guatemala and the defendant responded by agreeing the cities were nice and then stating, “ ‘In my country, I do this, no problem, I go home tonight.’ ”  (Guerra, supra, 37 Cal.4th at p. 1122.)   The trial court ruled that while the defendant's statement was ambiguous, it “was nonetheless admissible because what defendant was referring to when he said ‘I do this' is for the trier of fact to determine.”  (Ibid.) Our Supreme Court rejected the defendant's claim the statement should have been excluded because the meaning of “ ‘I do this' was ambiguous.   His claim fails ․ because it ‘concerns only the weight of this evidence, not its admissibility, which does not require complete unambiguity.’ ”  (Ibid.)

We also reject Steve's claim that the trial court abused its discretion in ruling the calls were not substantially more prejudicial than probative.   “Evidence is substantially more prejudicial than probative under Evidence Code section 352 if it poses an intolerable ‘ “ ‘risk to the fairness of the proceedings or the reliability of the outcome.” ’ ”  (Guerra, supra, 37 Cal.4th at p. 1114.)   As stated, the jailhouse calls were relevant to prove that Steve had a weapon when he committed the robberies and were not unduly prejudicial given the other testimony that Steve was armed with a black gun during the robberies.

III. Sentencing Issues

A. Consecutive or Concurrent Sentences

Steve contends, and the Attorney General concedes, that remand for resentencing is required because the trial court failed to recognize that it had discretion, under the three strikes law, to impose either consecutive or concurrent sentences.   We agree.

At the sentencing hearing, defense counsel asked the trial court to impose a concurrent sentence on count 2. After the trial court stated it was not clear that it had the discretion to do so, the prosecutor initially advised the trial court that it had such discretion.   Later in the hearing, however, the prosecutor stated that she had misspoken and advised the court it was required to impose consecutive sentences under section 667, subdivision (c)(7).   Defense counsel stated she thought the trial court had authority to impose concurrent sentences based on her reading of the statute.   The trial court, however, stated it appeared that “the only discretion the court really has in this case, is to choose the middle term versus the aggravated term, and I think everything else pretty much, is required by law.”   The trial court further explained that its reading of the statute was that consecutive sentences were required “because of the prior conviction.”   The trial court continued the sentencing hearing, however, so defense counsel could bring a motion to strike the strike and to address the issue of concurrent sentences.

At the continued hearing, the trial court denied defense counsel's motion to strike the strike offense.   In imposing the sentence, the trial court ordered the sentence on count 2 to be served consecutively to count 1, stating “I believe that's by law․  I don't think I have discretion, because I asked that question last time․  And we looked it up, and I don't, because we have the two victims.”

Section 667, subdivision (c)(6) and section 1170.12, subdivision (a)(6) provide, “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․”  In People v. Deloza (1998) 18 Cal.4th 585 (Deloza ), the California Supreme Court held that the “same occasion” and “same set of operative facts” analysis under the three strikes law is not the same as the indivisible transaction analysis under section 654.  (Deloza, at pp.   594–595.)   Consequently, even if section 654 does not preclude imposition of multiple sentences, the three strikes law does not necessarily mandate imposition of consecutive sentences.  (Deloza, at pp.   594–595.)  “Same occasion” and “same set of operative facts” are given their ordinary English meanings.   (People v. Lawrence (2000) 24 Cal.4th 219, 226, 230–234 (Lawrence ).)   “Same occasion” refers “at least to a close temporal and spatial proximity between the acts underlying the current convictions.”  (Deloza, supra, at p. 595.)  “Operative facts” refers “to the facts of a case which prove the underlying act upon which a defendant had been found guilty.”  (Lawrence, supra, at p. 231.)

Here, the two offenses were committed simultaneously, and therefore on a single occasion, and arose out of the same set of operative facts.   Nevertheless, the trial court believed it was required to impose consecutive sentences.   Because the trial court did indeed have the discretion to impose concurrent sentences if it chose, we will remand the cause to allow the trial court to exercise its discretion.  (People v. Jeffries (2000) 83 Cal.App.4th 15, 27.)

B. Multiple Sentences for Section 667, subdivision (a)(1)

The Attorney General points out that the trial court erroneously imposed an additional 20–month term of imprisonment for the prior serious felony conviction (§ 667, subd. (a)(1)) on count 2. We agree.

There are two kinds of enhancements:  those which go to the nature of the offender, and those which go to the nature of the offense.  (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401.)   A defendant convicted of multiple felonies is subject to only one enhancement for a prior felony conviction;  the enhancement goes to the nature of the offender rather than to the nature of the offense and therefore does not attach to particular counts but, instead, is added just once as the final step in computing the total sentence.  (People v. Smith (1992) 10 Cal.App.4th 178, 182–183.)   Steve can be sentenced only once for the prior serious felony enhancement.

Steve, however, received both a five-year sentence on count 1 for the section 667, subdivision (a)(1) prior serious felony enhancement and a 20–month sentence on count 2 for the same enhancement.8  It was error to sentence Steve twice on the enhancement.   Because the five-year sentence applies to the offender, not to a particular offense, on remand the trial court should apply this prison term aggregately to Steve's entire sentence.

DISPOSITION

The sentence is vacated and the case is remanded for the trial court to exercise its discretion whether to impose fully consecutive sentences or whether to sentence Steve to concurrent terms, and to correct the imposition of the sentence on the section 667, subdivision (a)(1) enhancement.   Steve's convictions are affirmed.

Gomes, Acting P.J.

WE CONCUR:

Dawson, J.

Detjen, J.

FOOTNOTES

FN1. All further statutory references are to the Penal Code, unless otherwise stated..  FN1. All further statutory references are to the Penal Code, unless otherwise stated.

FN2. Hernandez was the tenant in the apartment.   She said Richard was staying with her because Hernandez sometimes passed out due to “a blood clot in [her] head.”   Steve, who Hernandez knew as “Flame” and who was in a dating relationship with Richard, also stayed in the apartment periodically.   Hernandez did not see any drug use at the apartment that night..  FN2. Hernandez was the tenant in the apartment.   She said Richard was staying with her because Hernandez sometimes passed out due to “a blood clot in [her] head.”   Steve, who Hernandez knew as “Flame” and who was in a dating relationship with Richard, also stayed in the apartment periodically.   Hernandez did not see any drug use at the apartment that night.

FN3. Castro did not see any drugs in the apartment and he did not use drugs there on the night in question..  FN3. Castro did not see any drugs in the apartment and he did not use drugs there on the night in question.

FN4. According to Gilpin, Richard came back to the apartment accompanied by the two men, and when the men came into the apartment, they asked who Gilpin and Castro were..  FN4. According to Gilpin, Richard came back to the apartment accompanied by the two men, and when the men came into the apartment, they asked who Gilpin and Castro were.

FN5. Gilpin saw Steve hit Castro twice in the head with the butt of his pistol..  FN5. Gilpin saw Steve hit Castro twice in the head with the butt of his pistol.

FN6. We note that the jury was instructed in the language of Judicial Council of California Criminal Jury Instructions (2010) CALCRIM No. 1600, that to find Steve guilty of robbery, the People were required to prove he “used force or fear to attempt to take the property or to prevent the person from resisting.”  (Italics added.).  FN6. We note that the jury was instructed in the language of Judicial Council of California Criminal Jury Instructions (2010) CALCRIM No. 1600, that to find Steve guilty of robbery, the People were required to prove he “used force or fear to attempt to take the property or to prevent the person from resisting.”  (Italics added.)

FN7. This issue was noted by our Supreme Court in People v. Parson (2008) 44 Cal.4th 332, 350, but was not addressed on the merits..  FN7. This issue was noted by our Supreme Court in People v. Parson (2008) 44 Cal.4th 332, 350, but was not addressed on the merits.

FN8. We note that the abstract of judgment erroneously states that the five year and one-year and eight month sentences on the prior serious felony enhancements were imposed pursuant to section 667.5, subdivision (a)(1), instead of pursuant to section 667, subdivision (a)(1).   The trial court's minute order also erroneously states that the five year enhancement imposed on count 1 was pursuant to section 667.5, subdivision (b), instead of section 667, subdivision (a).   The trial court, however, in pronouncing sentence stated on the record that it was imposing a status enhancement pursuant to section 667, subdivision (a) on both counts..  FN8. We note that the abstract of judgment erroneously states that the five year and one-year and eight month sentences on the prior serious felony enhancements were imposed pursuant to section 667.5, subdivision (a)(1), instead of pursuant to section 667, subdivision (a)(1).   The trial court's minute order also erroneously states that the five year enhancement imposed on count 1 was pursuant to section 667.5, subdivision (b), instead of section 667, subdivision (a).   The trial court, however, in pronouncing sentence stated on the record that it was imposing a status enhancement pursuant to section 667, subdivision (a) on both counts.