Opinion
G037052
5-29-2007
THE PEOPLE, Plaintiff and Respondent, v. VICTOR BELTRAN, Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Victor Beltran appeals from a judgment after a jury convicted him of forcible rape, genital penetration by a foreign object, and kidnapping, and found true the allegation his movement of the victim substantially increased the risk of harm to her during the commission of the sexual offenses. Beltran argues there were evidentiary and sentencing errors. The Attorney General agrees there were sentencing errors. We affirm the convictions, reverse the sentence, and remand for resentencing.
FACTS
After midnight, Jane Doe could not sleep and went for a walk in a residential neighborhood in the City of Fullerton. She wore the following: pajama pants (elastic with a tie), long sleeved button pajama top, camisole, moccasins, hat, and panties. She carried a pocket knife for protection and planned to walk to the end of the block and back.
She lived with her fiancée, and his parents and three siblings. Her fiancée was out of town on a business trip, but the parents and siblings were home and in their rooms.
All her clothes were collected at the hospital.
Doe walked to the end of her block and made a right on a well lit avenue with a couple car dealerships. As she walked, a car drove up from behind her and stopped with its front passenger side door partially open. The driver, later identified as Beltran, held a piece of paper in his right hand, leaned over the passengers seat, and asked for directions. She leaned towards the car, stepped down onto the street from the high curb, and positioned herself in the door opening. Beltran grabbed her lower left arm with his right hand and pulled her into the car. She fell into the passengers seat, the door shut, and Beltran drove away. Doe was scared, but she did not scream or fight back, and she put the knife in her moccasin in case she needed to use it later. Beltran did not mention seeing the knife.
She told an investigating officer she may have closed the door. Doe testified she did not know how the door shut.
As Beltran drove, he repeatedly told Doe she was beautiful. Beltran said he was not very attractive, and she responded, "`you are fine." She tried to open the door, but the handle did not work; there was also a screwdriver in the ignition and a hole where a radio usually rested. Beltran said, "`mi amore[,]" which "creeped [sic] out[]" Doe. Beltran drove for approximately five minutes and stopped on an alley in a dimly lit industrial area.
Beltran "climbed over his seat and into [Does] seat[]" so he was face to face with her and put her seat down. He pulled his pants down as he moved to her seat. Beltran repeatedly said he was a nice guy and was not trying to hurt her. She tried to push him off her, but was unsuccessful. Beltran grabbed her breasts through her top. Beltran said he was not going to hurt her. He reached under her top and grabbed her breasts and put his mouth on her breasts. He pulled her pants down to her ankles. She told him "no," and tried to grab her pants. Beltran said he was not going to hurt her and he was sorry.
Beltran touched her vagina and put his finder inside her vagina more than one time. She told him to stop and tried to push him off her, but was again unsuccessful. She believed Beltran had intercourse with her because "it hurt a lot." She told him to stop and it hurt, and he repeated he was not trying to hurt her. Doe was not sure whether he ejaculated. Beltran stopped.
On direct examination, Doe testified that after Beltran committed the sexual acts, he smoked a small, thin pipe and seemed relaxed. On cross-examination, she testified he smoked the pipe before the acts.
He got out of the car, walked to the passengers side, and opened the door. He grabbed her by the arm and helped her out of the car. They stood outside the car for approximately five to 10 minutes. Beltran said he was a nice guy, he did not want to hurt her, and he wanted to see her again. She thought he was crazy because she "had no interest in anything of what had just happened." Beltran gave Doe his wallet and told her he was a good guy. She looked at his identification and saw his picture and that his name was "Victor Bernard." She considered keeping his identification, but put it back in his wallet and handed him his wallet because she was scared.
Beltran told Doe he wanted to see her again the next night. She agreed because she thought he would not do anything else to her. She asked if she could leave, but Beltran told her he would take her home. She started to walk away, but Beltran grabbed her by the arm and said he would drive her home. She gave him an address near a school by her house. As Beltran drove, he repeatedly said he did not mean to hurt her and he wanted to see her the next night. When they got to the school, Beltran got out of the car, opened the passengers side door, told her he wanted to see her again, and kissed her on the forehead. Beltran got back in the car and drove away. She went home and called her fiancée in Colorado and then the police. The police arrived and took Doe to the hospital.
Nurse Katherine Bowden performed a sexual assault examination on Doe. She suffered from injuries consistent with being digitally penetrated. Bowden took four vaginal swabs. She collected pink pants and a top, and a white undershirt, but no panties.
Nearly one year later, Doe identified Beltran from a photographic line up. Officer Michael MacDonald interviewed Beltran. Beltran said he had been married for 21 years and had extra-marital sexual relations only one time with a blonde prostitute named Shelley Jacques who had no teeth. Beltran denied any involvement with Doe. He never asked to make a police report about being robbed at knife point by Doe.
The next day, MacDonald met with Beltran again to obtain his DNA and Beltran consented. Beltran asked for a paper and pen so he could write his side of the story.
He wrote: "`May 22, [20]02. I was driving on Euclid when I noticed a girl walking on Euclid. I stopped to give her a ride and she got inside the car. When she got inside the car[,] I asked her where she was going. She told me "anywhere." And I told her to tell me where she was going. She then told me she needed money. She told me to park in a parking lot. I parked and we talked. [¶] `Then she told me she needed $ 80 to pay for school. I told her I did not have that much money. She asked me how much money I had, I told her $40. She took the money and when she took the money she pulled a knife. [¶] `I got scared and I told her not to kill me. She told me I was okay and not to worry. I got scared and I gave her my wallet so she would not do anything to me. [¶] `She told me later she wanted to have something with me. I told her it was okay. She then kept my wallet. [¶] `Later, I took her to a park near a school. There she told me she wanted to see me the following day so I could give her more money. I did not see her anymore."
Beltran wrote his statement in Spanish, and the parties stipulated this was an accurate translation of his statement.
An information charged Beltran with forcible rape (Pen. Code, § 261, subd. (a)(2)) (count 1), genital penetration by a foreign object by force (Pen. Code, § 289, subd. (a)(1)) (count 2), and kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)) (count 3). The information alleged Beltran kidnapped Doe and the movement substantially increased the risk of harm during the commission of counts 1 and 2.
(Pen. Code, § 667.61, subds. (a), (d)(2).) The information also alleged he suffered three prior serious felony convictions. (Pen. Code, §§ 667, subds. (a)(1), (d), (e)(2), 1170.12, subds. (b), (c)(2), 1192.7, subd. (c).)
At trial, the district attorney offered Dianne W.s testimony. Dianne testified that in July 1990 she lived in a two-bedroom apartment with her two children. One night she went to bed in a T-shirt and panties, but took off the T-shirt because it was warm; she had a blanket or sheet pulled over her. Something woke her, and she noticed the blanket or sheet was pulled down to the end of the bed, and her panties were pulled halfway down her leg on one side. She saw someone standing in the doorway, and shirt tails. She put her T-shirt on and grabbed a broom. She turned on a light, checked on her children, closed their door, and went into the living room. She saw a head over her entertainment center and a man, later identified as Beltran, standing near the front door with his shirt untucked. Beltrans pants were undone and he was holding his penis with both hands moving them back and forth. He walked towards her and said, "`sucky-sucky, fucky-fucky." Dianne hit him with the broom, told him to get out, and asked him what he was doing. He repeated his profanity before leaving. Dianne looked around her apartment and saw the screen in her childrens room had been opened and her jewelry was missing.
The district attorney also offered Sheryl H.s testimony. Sheryl testified her husband was at work and her son was in bed when she went to bed. She awoke because she "felt there was a presence in the room." A man was beside her bed and he got on her bed and put his hands around her throat. She pushed him off her and broke free. She told him to get out of her house and pushed him down the hall. When she got him to the door, he said, "`I will give you money for sex." She told him no and to get out of her house. The man left. Sheryl looked around and noticed the window in the living room was open and the screen was missing and the VCR was gone. Sheryl could not initially identify Beltran at trial, but after the district attorney refreshed her recollection with her 1991 identification, she testified Beltran looked like the same man, but a little older.
The parties stipulated the swabs taken from Doe included semen, and Beltran was not eliminated as a source of the DNA from the sperm.
Beltran did not offer any witnesses. His defense counsel argued Doe willingly got into the car and consented to the sexual acts.
The jury convicted Beltran on counts 1 and 2, and convicted him of the lesser included offense of kidnapping on count 3. The jury found true the allegation the movement of Doe substantially increased the risk of harm to her as to counts 1 and 2.
At a bifurcated trial, the trial court found true Beltran had suffered three prior convictions. The trial court sentenced Beltran to a total term of 105 years in state prison as follows: (1) on count 1, 25 years to life tripled to 75 years to life; (2) on count 2, a consecutive term of 25 years to life; (3) on count 3, a concurrent term of 25 years to life; and (4) five years for one of his prior convictions.
DISCUSSION
I. Prior Sexual Offense Evidence
Beltran argues the trial court erroneously admitted Dianes and Sheryls testimony pursuant to Evidence Code section 1108 and Sheryls testimony pursuant to section 1101. As we explain below, we conclude the trial court properly admitted the evidence pursuant to section 1108, and therefore, we need not address his contention concerning section 1101.
All further statutory references are to the Evidence Code, unless otherwise indicated.
Section 1101, subdivision (a), prohibits the use of disposition or propensity evidence "to prove [a] defendants conduct on a specific occasion." (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, section 1101, subdivision (b), permits the use of disposition or propensity evidence to prove intent.
Additionally, section 1108, subdivision (a), states, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352." (Italics added.) Section 1108, subdivision (a), authorizes a trial court to admit "bad conduct evidence . . . to prove `predisposition to commit sex crimes." (People v. Harris (1998) 60 Cal.App.4th 727, 730 (Harris).) Section 1108, subdivision (d)(1), defines "`[s]exual offense" to include a violation of Penal Code sections 243.4, "Sexual Battery" (Dianne) and 220 "Assault With Intent to Commit . . . Rape . . ." (Sheryl).
Section 352, however, authorizes a trial court to exclude prior sexual offenses evidence. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) We are mindful that "`"[t]he prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of `prejudicing a person or cause on the basis of extraneous factors." [Citation.] Painting a person faithfully is not, of itself, unfair." (Harris, supra, 60 Cal.App.4th at p. 737.) "We review a challenge to a trial courts choice to admit or exclude evidence under section 352 for abuse of discretion. [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
A. Section 1108-Constitutionality
Acknowledging the California Supreme Court has spoken on the issue, Beltran claims section 1108 violates his federal and state constitutional right to due process. He raises the issue to preserve it for further review in the federal courts.
In Falsetta, the California Supreme Court held section 1108 does not violate due process principles. (Falsetta, supra, 21 Cal.4th at p. 922.) The court stated a "trial courts discretion to exclude propensity evidence under section 352 saves section 1108 from a due process challenge." (Id. at p. 917.) The court explained: "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Ibid.) We are bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we must reject Beltrans constitutional challenge to section 1108. However, we must now determine whether the trial court properly exercised its discretion in admitting Dianes and Sheryls testimony pursuant to section 1108.
B. Section 1108-Analysis
In Harris, the court articulated the following factors to determine whether evidence of prior sexual acts was properly admitted pursuant to section 1108: (1) the probative value of the evidence; (2) the inflammatory nature of the evidence; (3) the possibility of confusion of the issues; (4) remoteness in time of the uncharged offenses; and (5) the amount of time involved in introducing and refuting the evidence of uncharged offenses. (Harris, supra, 60 Cal.App.4th at pp. 737-741.) We discuss each of the factors below as it relates to Dianne and Sheryl.
We note the Attorney Generals brief failed to address the Harris factors. With respect to section 1108, the Attorney General, in response to Beltrans contention the trial court did not properly analyze the Harris factors, states, "such analysis is unnecessary." The Attorney General cites to the oft repeated legal rule that as long as the record as a whole demonstrates the trial court was aware of and performed the section 352 balancing, the court need not expressly weigh the factors or state it has done so. Then it states: "The record demonstrates that the trial court was well aware of and properly performed its duty under . . . section 352." Thats it! The Attorney General moves on to its lengthy discussion of section 1101, which as will soon be apparent, is not the issue on which this case turns. It is true the trial court was aware of and performed the section 352 weighing. However, our task is to review whether the trial court properly considered and weighed the relevant factors. It is the parties duty to aid us in our task.
1. Probative Value
"[E]vidence of a `prior sexual offense is indisputably relevant in a prosecution for another sexual offense. [Citation.] Indeed, the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because `"it has too much." [Citation.]" (Branch, supra, 91 Cal.App.4th at pp. 282-283.) Furthermore, "[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under . . . section 1101, otherwise . . . section 1108 would serve no purpose." (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 (Frazier).) "It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (Id. at p. 41, fn. omitted.) However, "if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses." (Branch, supra, 91 Cal.App.4th at p. 285.)
We can quickly dispose of Beltrans claim the prior sex offenses must be sufficiently similar to the present offense to be admissible. Section 1108 makes admissible evidence of a prior sexual offense when a defendant is charged with a sexual offense, subject to section 352. Section 1108, subdivision (d)(1), defines "[s]exual offense." As the cases indicate, similarity is not required, but is helpful in assessing the evidences probative value and/or to balance out remoteness. Beltran does not claim his conduct towards Dianne or Sheryl was not encompassed within section 1108.
As to the relevance of Diannes testimony, it established Beltran committed a sexual battery against her in violation of Penal Code section 243.4. Such conduct falls within the purview of section 1108, and therefore, it is "`indisputably relevant." (Branch, supra, 91 Cal.App.4th at pp. 282-283.) Additionally, the prior uncharged act is probative because it has a tendency to refute his defense Doe consented to his advances. With respect to Dianne, he partially took down her panties and was hiding in the corner masturbating. His actions were relevant to show he had a propensity to commit unlawful sexual conduct.
With respect to the relevance of Sheryls testimony, it established Beltran committed an assault with intent to commit rape in violation of Penal Code section 220. Again, this conduct falls within the purview of section 1108, and therefore, it is "`indisputably relevant." (Branch, supra, 91 Cal.App.4th at pp. 282-283.) Additionally, Beltrans conduct is probative because it has a tendency to demonstrate he was willing to use force. As to the prior uncharged offense, he got on her bed and put his hands around her neck. With respect to the charged offense, there was evidence he pulled Doe into the car, and later got on top of her, pulled down her pajama pants, and held her down before he digitally penetrated and raped her.
2. Confusion of the Issues
It is possible the risk of juror confusion may increase when uncharged offenses are introduced as evidence. "If the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues `because the jury [has] to determine whether the uncharged offenses [in fact] occurred. [Citation.]" (Branch, supra, 91 Cal.App.4th at p. 284.) "This risk, however, is counterbalanced by instructions on reasonable doubt, the necessity of proof as to each of the elements of a lewd act with a minor, and specifically that the jury `must not convict the defendant of any crime with which he is not charged." (Frazier, supra, 89 Cal.App.4th at p. 42.)
Here, there is nothing in the record to indicate the jury was confused by Diannes or Sheryls testimony. They were both single incidents with straightforward facts. Beltran broke into Diannes apartment, stole some jewelry, pulled down her panties, hid behind her entertainment center, and masturbated, and Dianne chased him away. Beltran broke into Sheryls apartment, stole some electronic equipment, got on her bed, and put his hands around her throat before Sheryl fought him off and chased him away. Any remaining risk of confusion was sufficiently countered by the trial courts instructions. The jury was instructed on the elements of the charged offenses, reasonable doubt, and the proper use of evidence of prior sexual offenses.
3. Remoteness
"Remoteness of prior offenses relates to `the question of predisposition to commit the charged sexual offenses. [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses." (Branch, supra, 91 Cal.App.4th at p. 285.) "No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. [Citation.]" (Id. at p. 284.) Courts have found previous sexual offenses up to 30 years old not to be so remote in time as to preclude admission. (Id. at pp. 284-285 [30 year gap between offenses was not remote]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [15 to 22 year time gap was not remote]; People v. Soto (1998) 64 Cal.App.4th 966, 992 [passage of 30 years did not automatically render prior incidents prejudicial].) Here, the passage of approximately 12 years between the uncharged acts and the charged offenses did not make the prior sexual offenses per se too remote.
4. Undue Consumption of Time
"Conceivably a case could arise in which the time consumed trying the uncharged offenses so dwarfed the trial on the current charge as to unfairly prejudice the defendant . . . we cannot say spending less than a third of the total trial time on these issues was prejudicial as a matter of law." (Frazier, supra, 89 Cal.App.4th at p. 42 [uncharged offense evidence that comprised 27 percent of the total trial transcript did not consume an unreasonable amount of time].) While there is no bright-line rule for what amount of time is considered reasonable, at least one court has compared the number of pages consumed by the presentation of the uncharged acts evidence to the total number of pages in the trial transcript. (See Frazier, supra, 89 Cal.App.4th at p. 42.)
Here, Diannes testimony consumed approximately 56 pages, or nine percent, of a 639-page trial court transcript. Sheryls testimony consumed approximately 32 pages, or five percent, of a 639-page trial court transcript. Together their testimony consumed approximately 88 pages, or 14 percent, of a 639-page trial court transcript. The district attorneys closing argument devoted approximately 11 pages to the prior uncharged testimony. The prior sexual offenses evidence required only nine additional jury instructions out of a total of 61. Admission of Diannes and Sheryls testimony did not consume an unreasonable amount of time.
5. Inflammatory Nature
In Harris, the court "deemed it important in evaluating prior uncharged acts pursuant to section 352, whether `[t]he testimony describing the defendants uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses." (Harris, supra, 60 Cal.App.4th at pp. 737-738.) This is not a case where the prior uncharged sexual offense was far more egregious in scope and impact than the charged offenses. (Id. at pp. 737-741 [court abused its discretion when it admitted evidence of a prior 20-year-old violent crime involving forcible sexual mutilation in sex offense case involving molestation of mental patients].)
Dianne testified Beltran pulled down her panties—a sexual battery. Sheryls testimony was more inflammatory than Diannes testimony. Beltran broke into Sheryls house, got on her bed, and put his hands around her throat—an assault with intent to commit rape. The charged offenses involved a kidnapping, digital penetration by force, and forcible rape. The prior uncharged acts concerning Dianne and Sheryl were not more inflammatory than the charged acts. Therefore, the trial court did not abuse its discretion in admitting Sheryls and Diannes testimony.
c. Section 1101-Analysis
Since the trial court properly admitted Sheryls testimony under section 1108, we need not reach the issue of its admissibility pursuant to section 1101. (People v. Britt (2002) 104 Cal.App.4th 500, 506.)
II. Does Testimony
Beltran contends the trial court abused its discretion in excluding Does testimony she thought Beltran believed she may have been a prostitute. We disagree.
In People v. Mayberry (1975) 15 Cal.3d 143, 155, the California Supreme Court opined: "If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him and to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite under Penal Code section 20 to a conviction of either kidnapping . . . or rape by means of force or threat . . . ."
The Mayberry defense has a subjective and an objective component. "The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendants mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citations.] [¶] The defendant bears the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith but mistaken belief of consent [citations], `and then only if the prosecutions proof did not of itself raise such a doubt. [Citation.]" (People v. Williams (1992) 4 Cal.4th 354, 360.)
Section 350 states: "No evidence is admissible except relevant evidence." Relevant evidence is "evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Although "`there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution[.]" (People v. Freeman (1994) 8 Cal.4th 450, 491.) A trial courts ruling on whether evidence is relevant is reviewed under the abuse of discretion standard. (People v. Brown (2003) 31 Cal.4th 518, 534-535.)
Here, Beltrans affirmative defense was Doe consented. Before trial, defense counsel sought to admit Does statement to law enforcement officers: "`I dont know why this happened; maybe he thought I was a prostitute." After hearing argument, the trial court stated it was inclined to admit the statement as lay opinion so long as defense counsel phrased the question as to Does state of mind and not Beltrans state of mind. During trial, defense counsel asked Doe the following question: "Okay. And in your mind, based on what had happened on the street, initially, you had an opinion that this might appear like to an ordinary person that this might have been picking up a prostitute; is that accurate?" The district attorney objected, and the trial court met with counsel off the record. Defense counsel said she thought the question was proper based on the courts pretrial ruling. The court explained its ruling at the section 402 hearing was based on its perception of the evidence before trial, but now its perception of the evidence was very different. The court asked defense counsel whether there was any evidence Beltran believed Doe was a prostitute. After defense counsel represented Beltran said he gave her money and she got into the car, the district attorney disagreed. He explained Beltran gave two statements to MacDonald and never once said he had sex with her or that she was a prostitute. After reviewing the translated statement, the court sustained the objection. Near the end of trial, defense counsel renewed its request to admit Does "opinion that he treated her as if she was a prostitute." The district attorney again objected on the grounds it was improper opinion and speculative. The court ruled it was irrelevant opinion testimony and inadmissible pursuant to section 352.
The trial court did not abuse its discretion in excluding Does statement to law enforcement officers she believed Beltran might have thought she was a prostitute. Does proposed testimony that it might have appeared to an ordinary person Beltran was picking up a prostitute did not have a tendency to prove or disprove any disputed fact that was of consequence to the determination of the action. There was no evidence Beltran believed Doe was a prostitute. In his first statement to MacDonald, Beltran denied any involvement with Doe and said he had been with only one woman other than his wife—a blond, toothless prostitute named Shelly. In his second statement to MacDonald, Beltran said he gave Doe a ride, she told him she needed money for school, she took the money and pulled a knife, he gave her his wallet, and he took her to the school. Beltran never told MacDonald he thought Doe was a prostitute. Does statement an ordinary person might have thought she was a prostitute did not tend to logically, naturally, and by reasonable inference establish any fact material because there was no evidence Beltran believed she was a prostitute. Therefore, the trial court properly excluded Does statement. Because we find Does statement irrelevant, we need not address his claim the trial court erroneously excluded the statement based on section 352.
III. Consecutive Sentence on Count 2
Beltran contends the trial court erroneously sentenced him to a consecutive term of 25 years to life on count 2. The Attorney General states, "This claim[] appears to have merit." We conclude the matter must be remanded for resentencing.
At the sentencing hearing, the following colloquy occurred:
"[Trial court]: [¶] . . . [¶] As to count 2, do the people believe that consecutive sentencing is mandatory on that count?
"[District attorney]: I believe the court needs to make a finding under [Penal Code section] 667.6[, subdivision](d)[,] that it involves the same victim yet a separate occasion. Whether [Beltran] had an opportunity to reflect on his assaultive behavior and nevertheless continued, that affords consecutive, full term consecutive sentencing. In addition, under the strike law that shall be consecutive.
"[Defense counsel]: May I respond? Because I respectfully disagree.
"[Trial court]: Just a second. [¶] So the answer to my question then is no?
"[District attorney]: Im sorry, if the court could restate its question, please.
"[Trial court]: Is consecutive sentencing on count 2 mandatory?
"[District attorney]: No.
"[Trial court]: Okay. Do you wish to be heard on that point?
"[Defense counsel]: Yes, I
"[Trial court]: No, on whether or not its mandatory.
"[Defense counsel]: As to [the district attorneys] analysis, I respectfully disagree.
"[Trial court]: Thats not my question. I will give you an opportunity to be heard on that. [¶] Do you believe that sentencing is mandatory as to count 2?
"[Defense counsel]: Not under the [Penal Code section] 667.61 statute, your honor.
"[Trial court]: There you go. How about under the ["]Three Strikes["] law?
"[Defense counsel]: Id submit, your honor.
"[Trial court]: Okay. The court is prepared to find under the Three Strikes law, that sentencing as to count 2 is mandatory and consecutive, and so it makes moot the discussion as to whether or not I need to make those findings under [Penal Code section] 667.61. [¶] [District attorney] are you requesting that I still go ahead and make those findings?
"[District attorney]: Im sorry, it was not [Penal Code section] 667.61, it was [Penal Code section] 667.6[, subdivision](d), but it is moot.
"[Trial court]: For the finding, and under [subdivision](d), and under [People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison)].
"[District attorney]: Correct, its a moot point.
"[Trial court]: I am prepared to make that finding and would sentence, then, [Beltran] to 25 years to life on count 2, noting . . . that is a different sentence than the life with a minimum sentence of 75 years to count 1."
Penal Code section 667, subdivision (e)(2)(B), the Three Strikes law, in relevant part, states: "The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison."
Penal Code section 667, subdivision (c)(6), provides, "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 pursuant to subdivision (e)." Penal Code section 667, subdivision (c)(7), states, "If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law."
In People v. Casper (2004) 33 Cal.4th 38, 42, footnote omitted, the California Supreme Court explained: "[B]y its terms, [Penal Code] section 667, subdivision (c)(6) and (7)[,] requires consecutive sentences whenever a defendant with one or more qualifying prior convictions is convicted . . . of multiple serious or violent felonies `not committed on the same occasion, and not arising from the same set of operative facts. [Citations.] Consecutive sentencing is discretionary under [Penal Code] section 667, subdivision (c)[,] only if the current felony convictions are `committed on the same occasion or `aris[e] from the same set of operative facts. [Citations.]"
Here, based on the trial courts statements at the sentencing hearing, the minute order, and the abstract of judgment, it is clear the court sentenced Beltran to a consecutive term under the Three Strikes law, and not Penal Code section 667.6. The court opined the Three Strikes law required a mandatory and consecutive sentence on count 2. However, the court did not expressly find the multiple serious or violent felonies were not committed on the same occasion and did not arise from the same set of operative facts. Although those findings could be implied from the courts finding the sentence on count 2 was mandatory and consecutive, Penal Code section 1170, subdivision (c), requires the trial court to "state the reasons for its sentence choice on the record at the time of sentencing." (Cal. Rules of Court, rule 4.406.) We remand the matter to the trial court to conduct a sentencing hearing in accordance with the views expressed in this opinion.
IV. Presentence Custody Credits
Beltran argues he is entitled to additional presentence custody credits. Because we have reversed his sentence and are remanding the matter for resentencing, we need not address this issue. We leave it to the trial court to revisit the issue at resentencing. (People v. Encinas (1998) 62 Cal.App.4th 489, 491-492.)
DISPOSITION
The judgment of conviction is affirmed. The sentence is reversed and the matter is remanded for resentencing.
WE CONCUR:
ARONSON, J.
IKOLA, J.