P. v. Ervin





Filed 9/20/11 P. v. Ervin CA2/4








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. OTIS FITZGERALD ERVIN, Defendant and Appellant.

B227021 (Los Angeles County Super. Ct. Nos. MA047039 & MA048340)

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles A. Chung, Judge. Affirmed as modified.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.


Otis Fitzgerald Ervin (appellant) was convicted by a jury of second degree robbery (Pen. Code, § 211)[1] on June 9, 2010 (the robbery case). In a separate trial, the court found that he had been previously convicted of robbery in 1991 and grand theft in 2001 and had served a separate prison term for each conviction. While the robbery case was pending, appellant was charged with attempting to dissuade a witness while released on bail (§§ 136.1, subd. (a)(2); 12022.1) (the witness intimidation case). A separate jury trial was held, and on June 14, 2010, appellant was convicted of the dissuading charge. In a separate proceeding, the court found that appellant had been previously convicted of robbery in 1991 and grand theft in 2001. On August 20, 2010, the court pronounced sentence in both cases. Appellant was sentenced to 15 years in the robbery case and a consecutive term of 12 years in the witness intimidation case. He appealed separately from the judgment in both cases. We consolidated the cases on appeal.
With respect to the robbery case, appellant contends: (1) there is insufficient evidence to corroborate the accomplice testimony; (2) the court erred in allowing evidence of his prior robbery conviction; (3) the court improperly refused to give the jury clarifying instructions; and (4) the prosecutor committed misconduct during closing argument. As to the witness intimidation case, he urges: (1) the court erred in admitting evidence that the victim was a witness in the robbery case; (2) the court erred in excluding evidence; and (3) the court committed sentencing error.
We conclude the judgment must be modified to strike one of the five-year terms imposed for appellant’s prior serious felony conviction and the sentence for an alleged prison prior. As modified, we affirm the judgment.

STATEMENT OF FACTS—THE ROBBERY CASE

On September 4, 2008, Juan Marquez was driving a Brink’s armored truck in Lancaster with his partner Deborah Turriaga. At approximately 10 a.m., they stopped at a check-cashing business in a small shopping mall to pick up checks. They saw two men in the parking lot who appeared to be collecting signatures for a petition. After parking the truck and watching the men for a few minutes, Turriaga decided it was safe to exit and got out of the truck carrying an empty bag labeled “Brink’s Lancaster.” One of the men, later identified as Armand Bruce, approached her, and she told him to stay back. Bruce reached toward his pocket with a gloved hand. Turriaga unhooked her gun holster and told him to stay back. Bruce pulled out pepper spray and sprayed Turriaga in the face. Turriaga pulled out her gun and fired. She threw her bag down and Bruce picked it up. Turriaga could not see the other man but fired again. Marquez drove the truck to where Turriaga was standing and she got inside.
Los Angeles Police Detective Jeffrey Knittel responded to a radio call regarding the robbery. En route, he heard a broadcast giving a license plate number for a vehicle that was at the robbery scene. Knittel ran the number on the department computer and obtained the address of the registered owner, Armand Bruce. He proceeded to the address and saw the vehicle described parked in front. Other officers arrived at the scene. The front door of the house was ajar and the police entered. Inside, they found and detained several people. Three of the people in the house were Lajene-E Simpson (17 years old), Bryan Gillespie (19 years old, hereinafter referred to as Bryan), and Jasmine Williams (19 years old). The officers also found mail addressed to Bruce.
Jordan Gillespie (16 years old, Bryan’s brother, hereinafter referred to as Jordan) and Bruce were later discovered in a parked car and transported to the police station. Jordan told the police that Bruce had been shot at a park. (Bruce eventually died.) Two cell phones were taken from them, one belonging to Jordan and the other to Bruce. Appellant’s cell phone number was stored in Bruce’s phone under “Otis.” Someone named “Smoke Two” called Bruce’s phone several times after the robbery took place.[2]
Jordan, Williams, and Simpson testified at trial that they had been convicted of the robbery involving the Brink’s truck. Each testified that appellant was the mastermind of the robbery. They stated that appellant told them how to commit the robbery of the Brink’s truck and instructed them to meet at appellant’s house to divide the money. Appellant was to receive the largest share. They drove two cars to a convenience store located in the mall where the robbery eventually occurred. Simpson, who was riding with Bruce, heard him conversing on a walkie-talkie with appellant. Bruce told Simpson that he saw appellant driving by and Simpson looked up to see a man driving a white van. One armored truck was in front of the van and one armored truck drove by the van. Pursuant to appellant’s instructions, Bruce and Bryan passed out flyers in front of the convenience store and Bruce pepper sprayed the armored car messenger as she approached the store. After Bruce was shot, Jordan saw him run across the street and drove the car to pick him up. Simpson was waiting in another car with Williams. Bruce called Simpson and told her to pick up Bryan.
Police searched appellant’s home and confiscated a computer and a cell phone. They also found a white van. Appellant’s cell phone had a walkie-talkie feature. The computer was registered to someone named Cynthia. The computer records showed searches for “armored car robberies,” “buy pepper spray,” and “Otis Ervin” had been performed during the period between August 2007 and September 2008.
Police interviewed appellant. He admitted knowing Bruce but denied having anything to do with the robbery. He acknowledged that he had been previously convicted of a robbery of a Brink’s truck. However, he said he would never do anything like that again because he had served time in prison for the offense and his brother had been killed as a result of a dispute related to the division of the proceeds.
Cell phone records for appellant’s and Bruce’s phones showed calls between them on the day before the robbery and eight calls on the day of the robbery. The first call was at 7:49 a.m. and the last was at 9:51 a.m. The robbery occurred at approximately 10:00 a.m.
Appellant’s girlfriend, Cynthia, testified that she, appellant, and appellant’s brother lived together and all had access to her computer. She also said that several others had occasional access to the computer as well. She denied conducting the computer searches concerning the subjects of armored cars, pepper spray, and appellant’s name. Neither she nor appellant had financial difficulties.
A director of Brink’s Incorporated Armored Car Company testified that appellant was hired as a driver in November 1988. As an employee, he would have received training regarding the routines and policies of the company. It was company policy that the driver of the armored car was not allowed to leave the vehicle even if the messenger was involved in a life-threatening incident outside.

DISCUSSION

I. Sufficiency of the Evidence
Appellant notes the prosecution relied heavily on the testimony of Jordan, Williams, and Simpson, appellant’s alleged accomplices. He contends there is insufficient evidence to corroborate their testimony. For the reasons that follow, we disagree.
Section 1111 provides in pertinent part, “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
For evidence to meet the standard of section 1111, it must tend to connect the defendant to the crime charged without aid or assistance from the testimony of an accomplice. (People v. Avila (2006) 38 Cal.4th 491, 562-563.) It need not corroborate every fact to which the accomplice testified. The evidence may be circumstantial or slight and entitled to little consideration on its own, as long as it tends to implicate the defendant by relating to an act that is an element of the crime. (People v. Williams (2008) 43 Cal.4th 584, 636-638; People v. Vu (2006) 143 Cal.App.4th 1009, 1021-1022.)
Here, there were several pieces of independent evidence that tended to implicate appellant. First, there were cell phone records showing that Bruce and appellant were in contact the day prior to the robbery and immediately before the robbery, including five calls within 90 minutes of its commission. This evidence corroborated the accomplice testimony that appellant was providing instructions and directions to the group prior to the robbery. Second, the cell phone belonging to appellant had a walkie-talkie feature, which corroborated Simpson’s testimony that appellant and Bruce were communicating by walkie-talkie. Third, appellant was a former employee of Brink’s and had previously been convicted of a robbery of a Brink’s armored truck. This evidence tended to show appellant’s motive for selecting this type of robbery, viz., he was familiar with Brink’s procedures. Fourth, appellant had access to a computer in his residence that had been used to search various websites relevant to the robbery, including “armored car robberies,” and “buy pepper spray.” Appellant’s girlfriend, who owned the computer, denied conducting the searches at issue, making it likely that appellant did so. Finally, as a former employee of Brink’s, appellant received training that included confidential information about Brink’s policies, routines, and responsibilities. Most telling is that appellant knew that drivers were trained to remain in the armored car even if the messenger was involved in a life-threatening situation.
All of this evidence, while not independently sufficient to convict appellant, provided the necessary corroboration of the accomplice testimony to support the conviction.

II. The Admission of Appellant’s Prior Robbery Conviction
Appellant suffered a 1991 conviction for robbery. During trial, the prosecutor informed the court that he wanted to introduce appellant’s admission to police that the 1991 robbery was of a Brink’s armored truck. He suggested the evidence was admissible to show that appellant had the knowledge and sophistication to plan the robbery being attempted. Moreover, because appellant’s brother had been killed as a result of the prior robbery, appellant had a motive not to be an active participant in the current robbery. Defense counsel argued the prior was remote and that the evidence about it was more prejudicial than probative. He also noted that appellant’s brother did not die during the commission of the prior robbery, but was killed in a later dispute over the proceeds of the crime.
The trial court ruled the evidence was admissible. It determined the evidence was relevant as it demonstrated that appellant had specialized knowledge necessary to plan the robbery and to coordinate its execution. The death of his brother in the prior robbery gave appellant a motive to take a role removed from the scene of the current crime. The court concluded the prior was not too remote. Although the offense was committed in 1991, appellant was in prison until 2000. Finally, the court found the prejudicial effect of the evidence was limited because few details of the crime were going to be elicited and it was clear appellant had already served his sentence for the prior crime, thus eliminating the possibility the jury would punish him for prior conduct.
Appellant argues the evidence “had no probative value apart from the inference that [he] was predisposed to commit crimes of [the nature of the current robbery].” He is incorrect.
Evidence of other crimes may be used to prove motive, opportunity, intent, preparation, planning, or knowledge, but not to show a defendant’s disposition to commit the charged crime. (Evid. Code, § 1101, subd. (b).) The trial court has the discretion to admit the evidence, weighing its probative value against its prejudicial effect. (People v. Davis (2009) 46 Cal.4th 539, 602.) On appeal, we review for an abuse of that discretion. (Ibid.)
“In general, ‘the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.’ [Citation.]” (People v. Daniels (2009) 176 Cal.App.4th 304, 316.)
The evidence of the prior robbery was highly probative as it demonstrated why appellant chose an armored car as a target of the current crime. The combination of the experience gained in the earlier robbery and appellant’s employment at Brink’s established that he had unique knowledge of Brink’s procedures, providing expertise with respect to his ability to engineer a successful heist. The death of his brother following the earlier robbery explained why appellant played the role of planner rather than direct participant.
On the other side of the scale, the evidence was not unduly inflammatory. The jury heard no details of the 1991 robbery other than that the target was a Brink’s armored truck. For the same reason, there was no basis for jury confusion. Although the robbery occurred 17 years before the events of the 2008 offense, it was not too remote since appellant had been incarcerated for almost 10 of those years. (See People v. Daniels, supra, 176 Cal.App.4th at p. 317.) Finally, as appellant admitted his participation in the prior robbery, no time was spent presenting evidence of that crime.
There was no abuse of discretion in admitting evidence of the 1991 robbery. Because the court’s ruling involved the application of the ordinary rules of evidence, appellant’s constitutional rights were not violated. (People v. Kraft (2000) 23 Cal.4th 978, 1035-1036.)

III. The Trial Court’s Refusal to Provide Additional Clarifying Instructions
The jury deliberated for three days and sent a note to the court indicating that it was deadlocked. At the end of the third day, two jurors were excused and were replaced by alternates. The newly constituted jury began deliberations and during the next two days requested readbacks of testimony. On the third day, the jury sent a written question to the court stating, “We’d like further explanation on the phrase ‘tends to connect the defendant with the commission of the crime charged’ per the jury instructions.” The court sent back the following written note which reiterated the question and stated, “There is no further explanation or definition as to that phrase. The plain meaning of the words and phrase applies.”[3] Later that day, the jury again declared it was deadlocked. The court reinstructed the jury about deadlock and deliberations generally. The jury resumed deliberations and reached a verdict.
Appellant asserts the trial court failed to perform its duty to help the jury understand the legal principles that applied to the case. We disagree.
Section 1138 provides in pertinent part: “After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
The trial court has a duty to help the jury understand the legal principles it was asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Under section 1138, when the original instructions are themselves full and complete, the court has the discretion to determine whether additional explanation is necessary to satisfy the jury’s request. In exercising that discretion, the trial court “must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Beardslee, supra, at p. 97.) We review the trial court’s decision for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 746-747.)
There are no undefined legal terms or words not commonly used in the instruction at issue. The phrase “tends to connect” is straightforward and not capable of dual meanings. The court properly declined to further instruct the jury and avoided the possibility of altering the instruction and further confusing the jury. We find no abuse of discretion.

IV. Prosecutorial Misconduct
During his closing argument, defense counsel stated that Williams and Simpson had made false statements during their initial interviews with the police, and argued that the jury should question their credibility. During his rebuttal, the prosecutor argued, “Of course, [Williams and Simpson] are going to lie at that point. Of course, they are. That’s what they do. [Bruce] and Jordan are still trying to get away. They are driving on the 14 freeway, [Bruce] with a bullet in his back. And, of course, they are going to lie at that point. And then when confronted with the overwhelming evidence against them, they start to tell the truth, and they told you the truth on the stand. Just as in those second interviews that were testified to, they told the truth.” Defense counsel did not object to these statements.
Appellant argues that the prosecutor committed misconduct by improperly vouching for the credibility of Williams and Simpson. He contends the misconduct was prejudicial because accomplice testimony was crucial to the prosecutor’s case.
A prosecutor’s actions constitute misconduct under the federal Constitution when there is a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. Prosecutorial misconduct under state law involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. “‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’”’” (People v. Hill (1998) 17 Cal.4th 800, 819.) A prosecutor may not refer to matters outside the record in vouching for the credibility of witnesses. Nor may a prosecutor use the prestige of his or her office by offering the impression that he or she has taken steps to assure the witness’s truthfulness. However, the prosecutor may assure the jury that the witness is honest or reliable based on the facts in the record; such comments cannot be characterized as improper vouching. (People v. Stewart (2004) 33 Cal.4th 425, 499; People v. Frye (1998) 18 Cal.4th 894, 971, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
If opposing counsel fails to object to any alleged misconduct, the claim is forfeited, particularly if an admonition would have cured the harm. (People v. Cole (2004) 33 Cal.4th 1158, 1202; People v. Price (1991) 1 Cal.4th 324, 460-461.) Defense counsel’s failure to object forfeits this claim on appeal. A simple admonition to the jury at this point would have avoided any possible prejudice.
In any event, the prosecutor was not guilty of misconduct. He used only the facts from the record to explain the inconsistencies in the versions Williams and Simpson told the police by pointing out that when they gave their initial story they were still hopeful of escaping their predicament. Later, when it was clear the police knew of their involvement, they told the truth. The prosecutor merely stated that the witnesses told the truth on the witness stand. This does not amount to egregious conduct or deceptive or reprehensible tactics constituting prosecutorial misconduct. Accordingly, there was no federal or state Constitutional error.[4]

STATEMENT OF FACTS—THE WITNESS INTIMIDATION CASE

While attending the robbery trial, Deborah Turriaga, the robbery victim, observed appellant glaring at her. One day, as she was preparing to leave the courthouse, she thought that appellant, who was out on bail, was following her. She went to the district attorney’s office in the courthouse to seek out the prosecutor, but was told that he was not available. As she left the courthouse, she informed the security guard of her fears and he watched her get into her car. From the courthouse, Turriaga drove to a physical therapy appointment in Lancaster. She saw appellant drive up in a black Honda or Toyota that appeared to have primer paint patches or oxidation on the hood. He stopped his car, blocked her path, and gave her an intimidating look. He followed Turriaga and watched her as she parked her car and ran into the building. She knew it was defendant because she had seen him before at a casino. Terrified, she ran into the doctor’s office. Turriaga spoke to the police after her appointment was over.
In addition to the white van discovered at appellant’s home, police discovered a black Honda with paint damage on the hood. The Honda appeared operable and was registered to appellant’s girlfriend Cynthia.
Cynthia testified that the car was hers but was not operable. She said she had paid a registration fee for a nonoperable car.
A defense investigator testified that he saw Cynthia’s car and it did not have any rust spots.

DISCUSSION

I. Admission of Evidence That Turriaga Was a Witness in the Robbery Case
Prior to jury selection in the witness intimidation case, the prosecutor indicated that he wanted to introduce evidence about the subject of the previous trial. Defense counsel objected, asking the court to limit the evidence to the fact that Ervin was a defendant in a case and that Turriaga was a victim or an alleged victim. The court ruled that it would allow the jury to be told that appellant was a codefendant in a robbery case. Referring to Turriaga, the court stated, “Whether or not she was intimidated or not was irrelevant, so the fact that she was a victim on a robbery charge is sufficient for the jury to assess the facts in this case. So the fact that the defendant was charged in a multi-defendant criminal case that was a robbery case — I don’t want to go into whether it was a felony or a misdemeanor, and that is what will be allowed.”
Later, while Turriaga was testifying, the prosecutor asked about “the robbery in this case.” Defense counsel objected and the court sustained the objection. The prosecutor rephrased the question, again referring to “the robbery case,” and defense counsel’s objection was sustained again. The court then told the jury, “Folks, what the charge is on the other case is wholly irrelevant at this time so you are to disregard that.”
Initially, the Attorney General argues that appellant forfeited the contention by failing to object below. She suggests appellant merely objected to evidence of the underlying robbery being admitted and asserts he did not object to the jury learning that the prior trial involved the charge of robbery. We disagree.
When the prosecutor informed the court that he wished to elicit evidence that the victim of the dissuading charge was the victim of a robbery appellant was alleged to have committed, the court asked defense counsel for his views. Counsel said, “I think the only issue would be that Mr. Ervin was part of a case, Ms. Turriaga . . . saw my client drive by with further menacing looks, and that forms the basis of the dissuading the witness charge.” Although counsel went on to discuss the perils of getting into the specific evidence surrounding the robbery charge, he specifically asked that the jury be told only that appellant “was part of a case.” This is sufficient to preserve his contention that the court erred in allowing the jury to hear about the charge involved in the prior case.
Moving to the merits of appellant’s claim, even if we assume the nature of the case in which Turriaga was a witness is not relevant to the charge of dissuading a witness, appellant cannot demonstrate prejudice. He urges the mention of the robbery charge, a violent felony, necessarily confused the jury and increased “the likelihood of instilling improper motives to convict [on the dissuading charge.]” We are not persuaded.
The jury was not made privy to any of the evidence with respect to the robbery. Unlike other crimes like murder or child molestation, we cannot conclude that the charge of robbery would inflame a jury’s passions and cause it to base a verdict on matters outside the evidence. More importantly, appellant ignores the fact that while the victim was testifying, the court told the jury, “Folks, what the charge is on the other case is wholly irrelevant at this time so you are to disregard that.” “[W]e are required to presume that the jury understands and follows the instructions it is given.” (People v. Cline (1998) 60 Cal.App.4th 1327, 1336.)
As appellant correctly concedes, the erroneous admission of evidence requires reversal only if it is reasonably probable that he would have received a more favorable outcome but for the error. (People v. Partida (2005) 37 Cal.4th 428, 439.) Notwithstanding appellant’s contrary characterization, the case against him was strong. The victim had prior contact with him, thus rendering identification quite certain. In addition, appellant’s conduct, which included following her in a vehicle to a location away from the courthouse, blocking her path with his vehicle, and glaring at her in an intimidating manner that “scared the hell” out of her, demonstrated a clear intent to keep her from testifying at the robbery trial. Any error was harmless.

II. Exclusion of Evidence of Victim’s Post-traumatic Stress Disorder
After the court had ruled the prosecution could introduce evidence that Turriaga was a victim of a robbery, defense counsel stated he wanted to introduce evidence that Turriaga suffered from post-traumatic stress syndrome. Counsel argued that Turriaga had erroneously identified appellant because she was in a very fragile emotional condition after shooting Bruce during the robbery. The court indicated the evidence could be introduced but that the prosecutor would then be allowed to bring in additional facts about the robbery. The court explained, “I’m ruling that post-traumatic stress syndrome is relevant. I’m not precluding you from going into that, and I see why you would want to go into that and why you would not want to go into that. I can see arguments for both. But if you do, I think that opens up the door on rebuttal for them to bring in these witnesses, because really, if it goes to I.D., which it sounds like it is, then circumstantial evidence of I.D., that he was one of the perpetrators and therefore had a motive, would be very, very relevant.”
As a result of the court’s ruling, defense counsel elected not to present evidence of Turriaga’s condition. Appellant complains the court abused its discretion and prevented the admission of evidence that bore directly on the victim’s credibility. We conclude the court did not err.
Appellant correctly notes that testimony of the victim’s condition was relevant. That is not the issue. He skirts the question whether the court improperly determined that the prosecution had the right to present evidence rebutting the defense inference that Turriaga’s condition affected her ability to correctly identify the perpetrator. Appellant contends, “[t]he simple fact that appellant was a defendant in a judicial proceeding in which Turriaga was to testify against him was more than sufficient to supply the necessary evidentiary foundation [to establish his motive].” Assuming this is true, once appellant presented evidence raising doubt about Turriaga’s identification, the prosecutor properly would have wanted to strengthen his victim’s testimony. Certainly, presenting compelling evidence of appellant’s involvement in the robbery would have established with little doubt his strong motive to dissuade Turriaga from testifying and strengthened her identification of appellant as the perpetrator. The trial court had broad discretion to determine the relevance of the prosecutor’s evidence. (People v. Harris (2005) 37 Cal.4th 310, 337.) We discern no abuse.

III. Alleged Sentencing Errors
A. The Sentences Imposed
In the robbery case, the court sentenced appellant to 15 years as follows: (1) the court selected the high term of five years for the robbery; (2) due to appellant’s prior robbery conviction, the five-year term was doubled pursuant to sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the “Three Strikes” law); and (3) an additional five-year term was added pursuant to section 667, subdivision (a).
In the witness intimidation case, the court imposed a separate 12-year sentence comprised of: (1) the middle term of two years for the violation of section 136.1, subdivision (a)(2),[5] doubled pursuant to the Three Strikes law; (2) a five-year term pursuant to section 667, subdivision (a); (3) a two-year term pursuant to section 12022.1; and (4) an additional year pursuant to section 667.5, subdivision (b).
Appellant contends the court erred by imposing sentence for the on-bail enhancement (§ 12022.1), the prison prior with respect to the witness intimidation case, and a second five-year term pursuant to section 667, subdivision (a). We address his contentions in order.

B. The Section 12022.1 Allegation
The information alleged that appellant committed the violation of section 136.1, subdivision (a)(2) while he was on bail in the robbery case within the meaning of section 12022.1. Appellant waived jury on the allegation and the matter was heard by the court in conjunction with the priors allegations. The parties agree that the court did not make a specific finding on the section 12022.1 allegation. This failure, appellant urges, renders the imposition of the sentence for the allegation unlawful. The Attorney General argues that by sentencing appellant to the two-year term pursuant to section 12022.1, the trial court impliedly found the allegation true. We agree with the Attorney General.
In People v. Clair (1992) 2 Cal.4th 629, the Supreme Court addressed the question whether a sentence on the serious-felony enhancement had to be set aside due to the trial court’s failure to make an express finding after evidence was presented. The court determined the sentence was properly imposed. It reasoned: “At sentencing, the court impliedly—but sufficiently—rendered a finding of true as to the allegation when it imposed an enhancement expressly for the underlying prior conviction.” (Id. at p. 691, fn. 17.) The same occurred here. The trial court imposed a two-year term expressly for the on-bail allegation. This is sufficient to conclude the court made an implied finding that the allegation was true. (See also People v. Chambers (2002) 104 Cal.App.4th 1047, 1050-1051 [trial court impliedly rendered finding of true as to the use of a firearm allegation when it imposed the 10-year term for that allegation].)

C. The Prior Prison Term
In sentencing on the witness intimidation case, the court added an additional year, believing appellant had served a prison term for his prior grand theft conviction. The parties agree the sentence must be stricken. They are correct. The information did not contain an allegation pursuant to section 667.5, subdivision (b). The one-year sentence will be stricken.

D. The Imposition of Two Terms for the Prior Serious Felony Conviction
As noted, appellant had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a). The trial court sentenced appellant separately on the two cases before it and enhanced each sentence with a five-year term. Appellant contends the court was allowed to impose the additional term only once. Citing People v. Williams (2004) 34 Cal.4th 397 (Williams) and People v. Misa (2006) 140 Cal.App.4th 837 (Misa), the Attorney General asserts the sentence was appropriate because appellant was sentenced pursuant to the Three Strikes law.
In the original briefing, neither party addressed whether the trial court was authorized to sentence appellant separately on each case. We sent a letter requesting that they evaluate whether appellant’s sentence was governed by section 1170.1, subdivision (a). That subdivision applies “when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170.”
The Attorney General asserts that because “the terms imposed in this case were imposed under the Three Strikes Law, [they] were not subject to the limitations of section 1170.1.” Because appellant was sentenced as a second striker, she argues, section 1170.1 does not apply even though he received two determinate terms. The case law she cites does not support her contention.
In Williams, the Supreme Court made it clear that section 1170.1 applied only to determinate sentences. As the court had stated in an earlier decision, “‘[t]he consecutive sentencing scheme of section 1170.1 does not apply to indeterminate life terms, and therefore it has no application to sentencing calculations for three strikes defendants.’ [Citations.]” (Williams, supra, 34 Cal.4th at p. 402.) The court went on to calculate the appropriate sentence under the Three Strikes law. It observed that “the Three Strikes law provides that the indeterminate life sentence ‘shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law’ (§§ 667, subd. (e)(2)(B), 1170.12, subd. (c)(2)(B)) and shall be ‘in addition to any other enhancement or punishment provisions which may apply’ (§§ 667, subd. (e), 1170.12, subd. (c)).” (Williams, supra, at p. 404.) Thus, the court concluded that under the sentencing scheme of the Three Strikes law, the five-year enhancement for a prior serious felony conviction was to be applied to each count of a life sentence. (Id. at p. 405.)
In Misa, the defendant was convicted of torture and assault. He had suffered a prior serious felony conviction, thus bringing him within the sentencing scheme of the Three Strikes law. The trial court sentenced the defendant to a life term for the torture count and a determinate term for the assault count. In addition, it added a five-year term pursuant to section 667, subdivision (a) to each count. The Misa court affirmed the sentence, observing that although the defendant was not subjected to an indeterminate sentence under the Three Strikes law as in Williams, he did receive an indeterminate life sentence on the torture count. The panel noted the language in Williams that section 1170.1 did not apply to indeterminate sentences and concluded that “a logical application of the Williams analysis in this context would require the imposition of the prior conviction enhancement of Misa’s second strike offense (the torture count) notwithstanding that the enhancement was also imposed as a status enhancement relating to the determinate term on the assault count.” (Misa, supra, 140 Cal.App.4th at p. 846.)
Contrary to the Attorney General’s claim, the Williams and Misa courts did not find section 1170.1 inapplicable because the defendants in those cases were subject to sentencing pursuant to the Three Strikes law. The courts held that the section did not apply because the defendants received indeterminate sentences.
Here, although appellant was sentenced as a second striker, he received a determinate term. Thus, his sentence is determined pursuant to section 1170.1 and is governed by the rule enunciated in People v. Tassell (1984) 36 Cal.3d 77, disapproved on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387. The Tassell court “held that when imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense.” (Williams, supra, 34 Cal.4th at p. 400.) Thus, the trial court in the present case was authorized to impose a five-year term for appellant’s prior robbery only once.
In addition, the trial court erred by imposing two separate terms, one for the robbery case and the other for the witness intimidation case. “Section 1170.1 provides the general formula for determining consecutive terms of imprisonment for persons convicted of two or more felonies. A principal term is selected and subordinate terms and enhancements are added to it to produce an aggregate term of imprisonment.” (People v. Pelayo (1999) 69 Cal.App.4th 115, 123.)
Although we could remand the matter to the trial court for resentencing, to do so here would result in an unnecessary waste of judicial resources. (See People v. Smith (2001) 24 Cal.4th 849, 854.) We can easily correct the error by utilizing the sentencing choices made by the trial court, striking the terms that should not have been imposed and properly fashioning one determinate sentence. Thus, as corrected, appellant’s sentence is as follows: (1) the high term of five years for the robbery conviction, doubled pursuant to the Three Strikes law (the principal term); (2) a consecutive sentence of two years for the dissuading a witness conviction, doubled pursuant to the Three Strikes law (the subordinate term); (3) a five-year term pursuant to section 667, subdivision (a); and (4) a two-year term pursuant to section 12022.1. This results in a determinate term of 21 years.

DISPOSITION

Appellant’s sentence is corrected as set forth in the opinion. The clerk of the superior court is directed to prepare an amended abstract of judgment and to send a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


SUZUKAWA, J.
We concur:


EPSTEIN, P. J. MANELLA, J.



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