Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F4479
CANTIL-SAKAUYE, J.
Defendant David Arthur Elliott entered a motel room where a family he knew was staying. He fled when discovered at the bedside of their young son.
The district attorney charged defendant with committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a) -- count 1), first degree residential burglary (§ 459 -- count 2), and misdemeanor indecent exposure (§ 314, subd. (1) -- count 3). The information included several enhancement allegations: as to count 1, defendant committed the offense during the commission of a burglary (§ 667.61, subd. (a)); as to counts 1 and 2, defendant had three prior serious felony convictions within the meaning of sections 1170.12 and 667, subd. (a); and as to counts 1 and 2, defendant served a prior prison term within the meaning of section 667.5, subdivision (b).
Hereafter, undesignated statutory references are to the Penal Code.
The court severed count 3 for separate trial and dismissed it at sentencing.
A jury convicted defendant of burglary in count 2 and the lesser included offense of misdemeanor assault (§ 240) as to count 1. In a bifurcated trial, the jury found true the enhancement allegations relating to count 2. The court sentenced defendant to an aggregate term of 25 years to life plus 10 years, and dismissed count 3.
On appeal, defendant cites evidentiary, instructional and sentencing errors as grounds for reversal and remand, and challenges the sufficiency of the evidence to support the burglary conviction. We reject all of defendant’s claims of error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2004, R.C. and Z.C. traveled to Redding with their children, 12-year-old S.C. and 9-year-old J.C. and a nephew, to attend S.C.’s dance recital. After the recital, the C.’s stayed overnight at an Inn. The motel room had two double beds. J.C. and his cousin shared the bed closest to the front door and R.C. and Z.C. slept in the bed closest to the sliding glass door. S.C. slept in a separate room with her grandparents. Z.C. did not plan on anyone else staying in the motel room with them.
The family went to bed around midnight. During the night, J.C. awakened and saw something dark walking in front of his bed. The figure, later identified as defendant, pulled down the blankets. J.C. pulled the blankets back up, but defendant pulled them down again. At that point, defendant pulled down J.C.’s pajama bottoms and underwear, and touched and moved his hand on J.C.’s “private spot” that he used for “peeing.” J.C. told defendant to stop. His mother, R.C., woke up.
R.C. testified that she was awakened at 4:38 a.m. by her son saying, “No.” At first, she saw nothing unusual in the room. Then she noticed that her nephew was covered by blankets but J.C. was not. As R.C. sat up in bed, she saw the silhouette of a person standing up at the end of the boys’ bed. That person headed toward the front door.
R.C. followed the man out the door and found him hiding in the bushes near the motel swimming pool. She immediately recognized him as the defendant, a long-time acquaintance, whom she had known since high school. Defendant had, in fact, made an unannounced visit to R.C. and Z.C.’s home two weeks before. When R.C. asked defendant what he was doing, he called her by name. He then denied being in R.C.’s motel room. R.C. observed that defendant was out of breath, his “eyes were as large as dinner plates,” and he appeared to be nervous. He told R.C. that he was in the area waiting for a friend. R.C. told defendant that he was a “fricking liar” because she had chased him out of her room.
Meanwhile back in the motel room, Z.C. woke up and found his son crying on the bed. J.C. told his father that he did not want to tell what had happened “because it was nasty.” Z.C. left the room and found his wife arguing with defendant. Z.C. demanded to know why defendant was in their room and defendant continued to deny being there. He told defendant that J.C. was in the room naked, crying and laying in the fetal position.
When R.C. said that she was going to call the police, defendant begged her not to do it. R.C. headed toward the motel office and defendant told Z.C. that if she was calling the police, he was “getting out of [there].” Z.C. chased defendant to a maroon minivan where he continued to argue with defendant. R.C. ran to the front of the minivan and tried to memorize the license number before defendant pulled away.
R.C. and Z.C. returned to the motel room and waited with J.C. for the police to arrive. They did not question J.C. about what defendant had done. Redding Police Officer Jason Rhoads, arrived on the scene 15 or 20 minutes later, and interviewed J.C. and R.C. J.C. told Rhoads that he was awakened by someone pulling the covers off of him. The person had already removed J.C.’s pants and underwear. He touched J.C.’s genital area, and J.C. yelled “No,” and “Don’t.”
Police investigators Linda Gisske and Bart Langley interviewed J.C. two days later. The prosecution played a videotape of the interview for the jury.
Gisske also interviewed defendant. He told her that he had knocked on the door of the motel room and said, “[Z.], it’s Dave.” Defendant heard someone respond, “Come in,” from inside the room. Defendant tried to open the door of the room, but it was locked. He then entered the room through the window.
Z.C. testified that he did not invite defendant to stay in the motel room that night. Later on the night of the incident, defendant called Z.C., admitted that he had been in the room, and apologized.
At trial, the prosecution introduced evidence of a 1995 incident in which defendant without permission, entered the home of K.H., a woman he knew, while she was sleeping. K.H. testified that she awakened on the couch to find defendant naked standing next to her. K.H. jumped up and told defendant to leave. Instead, defendant sat down on the couch, took K.H.’s hand and told her he wanted to talk. Defendant finally left the house at K.H.’s insistence. The next day, K.H. found a note signed by “David” in her mailbox apologizing for the incident. K.H. reported the matter to the police.
The defense highlighted inconsistent statements by Z.C. and R.C. regarding what occurred inside the motel room and introduced other evidence intending to show defendant’s reasons for entering. Defendant’s sister testified that she had witnessed R.C. and Z.C. smoking marijuana approximately nine times over the past 10 years.
DISCUSSION
I.
Evidentiary Rulings
A. The 1995 K.H. Incident:
Defendant argues that the court erred in admitting evidence of the 1995 incident in which K.H. awakened to find him naked standing next to the couch where she was sleeping. First, he contends that the court should have excluded the evidence as untimely under section 1054.1, subdivision (f) and Evidence Code section 1108. Second, he maintains the evidence of the 1995 incident was not similar to the charged offense and therefore inadmissible under Evidence Code section 1101, subdivision (b) to prove intent. Third, defendant argues that the court should have excluded evidence of the uncharged offense under Evidence Code section 352 because it had no probative value. We conclude that the evidence of the 1995 incident was properly before the jury.
1. Procedural Background:
Initially, on September 20, 2005, the prosecution informed defense counsel that it had decided the evidence of defendant’s prior sex-related offenses was irrelevant. On September 27, 2005, less than 30 days before trial, however, the prosecution sent defense counsel a revised notice under Evidence Code section 1108 that it intended to call K.H. as a witness at trial, in addition to a woman who was raped by defendant in 1987. On October 18, 2005, the day before trial, the prosecution filed a written motion to admit evidence of both incidents under Evidence Code section 1108 to show defendant’s propensity to commit sexual crimes and under Evidence Code section 1101, subdivision (b) to prove a common plan or scheme, intent, identity and absence of mistake.
Defendant requested dismissal and sanctions based on the prosecution’s failure to provide discovery in a timely manner. The court found that the prosecution had failed to comply with the requirements of section 1054.7 and Evidence Code section 1108, subdivision (b), or demonstrate good cause for its delay in providing discovery. The court sanctioned the prosecution ruling, “to the extent [it] consider[ed] admissibility of other act evidence, that the basis would be solely under 1101(b) and not 1108.”
During trial, the prosecution filed a supplemental motion to admit evidence of two uncharged offenses under Evidence Code section 1101, subdivision (b), including the 1995 incident involving K.H. After hearing testimony from K.H. and the 1987 rape victim in an Evidence Code section 402 hearing, the court granted the prosecution’s motion to admit both uncharged offenses into evidence. The court found the evidence concerning the two incidents “highly probative of intent, and the absence of mistake or accident.” It continued: “[A]lthough this is certainly going to be damaging to the defendant, I don’t think it’s unduly prejudicial, as the law defines that term, in comparison to the high probative value of this evidence. And, in my judgment, . . . to exclude this evidence would be to give a truly false picture . . . when it comes to the issue of mistake, accident, and intent upon entry.” At trial, however, the prosecution introduced only one of the uncharged offenses that being the prior incident involving K.H.
2. Discovery Sanctions:
Defendant contends that the court erred in limiting its discovery sanction to barring the prosecution’s evidence of the K.H. incident under Evidence Code section 1108. Defendant’s claim of error does not include the 1987 rape since the prosecutor decided not to present testimony relating to that incident. Defendant asserts that the court should have barred the prosecution’s introduction of the K.H. incident under Evidence Code section 1101, subdivision (b) as well. He maintains that “[w]hether the evidence was introduced as propensity evidence or as evidence of intent, delaying discovery of a ten-year[-]old prior was prejudicial in terms of [defendant’s] trial preparation, especially when the prosecutor initially told defense counsel that it believed the two priors were irrelevant, and would not be using them at trial.” The gist of defendant’s argument on appeal is that the sanctions were not harsh enough.
Section 1054.1, subdivision (f) requires the prosecution to disclose “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” Section 1054.7 states that disclosures under the chapter governing criminal discovery “shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. . . .” (Italics added.) The court “may make any order necessary to enforce the [criminal discovery statutes], including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” (§ 1054.5, subd. (b).) “In particular, ‘a trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecution’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 299 (Ayala); People v. Lamb (2006) 136 Cal.App.4th 575, 581 (Lamb).) However, the court may prohibit witness testimony “only if all other sanctions have been exhausted.” (§ 1054.5, subd. (c); Lamb, supra, at pp. 581-582.) We review rulings on discovery matters for abuse of discretion. (Ayala, supra, at p. 299; Lamb, supra, at p. 581.)
We conclude that there was no abuse of discretion. The court barred admission of the K.H. incident under Evidence Code section 1108, which authorizes admission of evidence of prior sexual offenses for propensity purposes, but left open the possibility of admitting that evidence if the prosecution could satisfy the more stringent requirements of Evidence Code section 1101, subdivision (b). Thus, the court imposed a meaningful sanction without prohibiting K.H.’s testimony altogether.
We also conclude that there was no prejudice. The rationale behind California’s criminal discovery statutes is to prevent trial by ambush. (People v. Cabral (2004) 121 Cal.App.4th 748, 752.) There was no “ambush” in this case because defendant received notice well before trial that the prosecution was prepared to prove the 1995 incident involving K.H. Indeed, the prosecution alleged the 1995 burglary conviction as a strike in the information.
3. Evidence Code Section 1101, Subdivision (b):
Defendant contends that the court erred in admitting evidence of the uncharged offense involving K.H. under Evidence Code section 1101, subdivision (b) because it was not sufficiently similar to the charged crime. There is no merit in this contention.
Evidence Code section 1101, subdivision (b) provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent, preparation, plan, . . ., identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
To be relevant, the uncharged offense “must tend logically, naturally and by reasonable inference” to prove the fact for which it is offered. (People v. Robbins (1988) 45 Cal.3d 867, 879.) Depending on the fact to be proved, relevance is established by different degrees of similarity between the charged and uncharged offenses. “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), superseded by statute as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) Greater similarity is required to prove common design or plan with the greatest degree of similarity required to prove identity. (Ewoldt, supra, at pp. 402-403.)
Because the trial court’s decision to admit evidence of uncharged offenses under Evidence Code section 1101, subdivision (b) is “essentially a determination of relevance,” we review that decision for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.) We conclude there was no abuse of discretion here.
Because the prosecution offered the K.H. incident to prove intent, to establish relevance it had to show some similarity between the charged offense and the uncharged offense -- but not as much as required to prove common plan or identity. (Ewoldt, supra, 7 Cal.4th at p. 402.) Ewoldt requires only that “the uncharged misconduct . . . be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ibid.)
On the question of intent, the significant similarity between the K.H. offense and the charged offense in the instant case, is that both involved defendant entering dwellings where acquaintances were sleeping, without their permission, and engaging in misconduct that was arguably of a sexual nature. As to absence of mistake, in both instances, defendant later acknowledged the unlawful entry and apologized. He delivered a handwritten note of apology to K.H. the day after the 1995 incident. In the instant case, defendant telephoned Z.C. and apologized. It was within the court’s discretion to reject defendant’s argument that the victims’ gender -- one an adult female and J.C. a juvenile male -- was a significant difference between the two incidents.
Defendant also contends that the court abused its discretion in ruling that the 1995 offense was admissible under Evidence Code section 352. He argues that, “the evidence had little probative value because [his] intent in the 1995 incident was ambiguous, and at worst suggested an intent to expose himself to an adult woman his age. The requisite intent in the instant case was to enter with the intent to violate section 288 against a nine-year[-]old boy, of whom there [was] no indication in the record that [defendant] knew was present. [¶] Inasmuch as the two intents from these separate incidents [were] so distinct, the only possible use of this evidence [was] to suggest that [defendant] has the propensity to commit a sex crime of any type against any category of victim.” We disagree and conclude that the court did not abuse its discretion in admitting evidence of the incident involving K.H. under Evidence Code section 352.
Evidence Code section 352 reads: “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.”
“Prejudice” in the context of Evidence Code section 352 is the emotional bias kindled in response to evidence of little probative value, “not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638.) “‘[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (Ibid.)
After finding that the evidence of the 1995 offense was highly probative, the court balanced the Evidence Code section 352 factors and found that the evidence was not “unduly prejudicial, as the law defines that term . . . .” Indeed, the court stated that excluding the evidence would give the jury a “truly false picture” on the questions of mistake and intent upon entry. We agree with the court’s assessment. Moreover, the nine-year gap between the 1995 incident and the current offense did not lessen the probative value of the evidence. (See People v. Steele (2002) 27 Cal.4th 1230, 1244-1245 [17 years between earlier killing and current offense did not compel exclusion of the evidence where the crimes were similar].)
B. The Letter Signed by Defendant:
At trial, the prosecution stated that it planned to introduce a letter signed by defendant and left in K.H.’s mailbox as evidence of a pattern of conduct -- specifically, that “the very next day defendant contacts the victim to apologize, and makes up this story about what happened, the reason for being there . . . .” During the examination of K.H., the court admitted the letter as People’s exhibit 3 over defense objection that it constituted hearsay and lacked foundation. The court ruled that exhibit 3 was not “admitted for the truth, but for the fact of whatever circumstantial evidence value it has, and under the exception as for the truth, admission of a party.”
Defendant contends it was error to admit exhibit 3 because of “the lack of a foundation showing its authenticity . . . .” He argues that the letter “had no relevance as evidence of anything but for the truth of the matter that was stated therein, that [defendant] apologized for appearing naked at [K.H.’s] home.” “[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question.” (People v. Waidla (2000) 22 Cal.4th 690, 725 (Waidla).) We conclude the court did not abuse its discretion in admitting the letter from defendant to K.H.
A writing must be authenticated before it is received into evidence. (Evid. Code, § 1401, subd. (a).) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . .” (Evid. Code, § 1400, subd. (a).) Although defendant is correct that handwriting analysis is one means of authenticating a writing (see Evid. Code, §§ 1416-1418), nothing in the article on the ways to authenticate writings “shall be construed to limit the means by which a writing may be authenticated or proved.” (Evid. Code, § 1410.) “Circumstantial evidence, content and location are all valid means of authentication.” (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
Here, the testimony of K.H. and Christopher Darker, the investigating police officer, supports the court’s implied finding that exhibit 3 was “the writing that the proponent of the evidence claim[ed] it [was].” (Evid. Code, § 1400, subd. (a).) K.H. testified that defendant left a signed note of apology in her mailbox the day after he broke into her home. She gave the note to Officer Darker. When the prosecutor first gave K.H. exhibit 3 to identify, K.H. stated that she did not recall the contents of the letter and did not recognize the paper on which it was printed. On further questioning, K.H. testified that the exhibit was a copy of the letter she received from defendant. She also explained that she believed it was the letter from defendant because it looked “very similar, the writing, or just the kind of messy way it is. It just looks very similar. I would have to see the original.” Officer Darker later testified that exhibit 3 was an accurate copy of the letter K.H. gave him during the investigation.
Moreover, the court did not abuse its discretion in admitting exhibit 3 for a non-hearsay purpose. (Waidla, supra, 22 Cal.4th at p. 725.) The letter was defendant’s apology for what he did. It was received as circumstantial evidence that defendant had entered K.H.’s home and done something that upset her. And to the extent that the letter constituted a party admission, it was properly admitted for the truth of the matter under Evidence Code section 1220.
C. Defendant’s Statement To Police:
1. Procedural Background:
During trial, the prosecution sought an advance ruling on its request to admit defendant’s statement to police investigator Gisske that he entered the C.’s motel room the morning of June 20, 2004, by climbing through a window. In response, defendant moved to include additional excerpts from the interview transcript pursuant to Evidence Code section 356. The court allowed the prosecution to introduce defendant’s statement as a party admission. (Evid. Code, § 1220.) It denied defendant’s motion because there was no hearsay exception to cover the statements defendant sought to admit under the Evidence Code section 356 “rule of completeness.” However, the court agreed to allow defense counsel to raise the issue again after Gisske’s testimony.
Evidence Code section 356 provides: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
On redirect examination, Gisske testified that defendant told her he entered the motel room through a window. The next day, after conducting its own research on the Evidence Code section 356 issue, the court ruled that the prosecutor could introduce an additional portion of the interview before resting her case. The prosecution recalled Gisske and the following exchange took place:
“Q. [W]hen [defendant] was discussing going through the window, did he make any statements to you about why he went through the window?
“A. He said that he had knocked on the door, and said, ‘[Z.], it’s Dave.’ And heard a, ‘Come in,’ from inside the room, who he said was [Z.]. And he tried the door, and the door was not unlocked. It was locked. So he went in the window.”
2. Discussion:
On appeal, defendant contends the court erred in excluding defendant’s explanation of “why he went to the motel in the first place, that he was drunk, and that he did not want to get caught driving around.” Specifically, the statements defendant sought to introduce through Gisske’s testimony indicated that: (1) he and Z.C. had been friends for 25 years; (2) Z.C. told defendant a couple of weeks before the incident that he was going to the Tesla concert; (3) Z.C. said he was getting a room at an Inn and defendant could stop by and see him there; and (4) defendant was mistaken about the date of the Tesla concert.
The purpose of Evidence Code section 356 “is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission . . . in evidence.’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 156.) As we explained, we review the exclusion of evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) There was none here.
The statements defendant sought to introduce had virtually no bearing on: why defendant broke into the motel room, touched J.C., and ran from R.C. when she awakened and found defendant in the room. The court was justified in excluding the statement as self-serving hearsay.
II.
Instructional Issues
A. Instructions on Burglary:
1. Specific Intent:
Defendant argues that he is entitled to reversal of the burglary conviction because the court, when instructing the jury on burglary, referred to the specified felony as “child molestation” rather than “lewd and lascivious conduct.” He contends that, “[m]erely referring to a Penal Code section did nothing to advise the jury that the lay term ‘child molestation’ meant in the context of this case, a lewd and lascivious act upon a child under 14, as defined in that section.” Defendant maintains that “[t]his omission is the equivalent of failing to instruct on the underlying target crime, . . . ” and left the jury “without guidance regarding the specific intent that was necessary at the time of entry.” We conclude that there was no error, let alone constitutional error.
“[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘“whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.”’ [Citations.] ‘“[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’ [Citations.] If the charge as a whole is ambiguous, the question is whether there is a ‘“reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437 [158 L.Ed.2d 701, 707]; see People v. Welch (1999) 20 Cal.4th 701, 766.) We determine the correctness of jury instructions “‘“‘from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” [Citations.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) Here, the instructions read as a whole made clear that the defendant was charged with entering an inhabited dwelling with the intent to violate section 288, subdivision (a), committing a lewd or lascivious act with a child under 14 years of age.
Count 2 of the information, a residential burglary, alleged that defendant entered the inhabited dwelling “with the intent to commit larceny and any felony.” (Italics added.) During a pretrial conference, defense counsel noted that the prosecution had failed to specify the felony it intended to prove in the burglary count. The court directed the prosecutor to make an election before trial began. The prosecutor elected to prove “the 288 against [J.C.].”
Later, the court instructed the jury:
“You are instructed that the defendant, . . . has been charged by Information dated and filed December 21, 2004, in the Superior Court of the State of California, County of Shasta, as follows:
“Count 1. Lewd or lascivious acts with a child under 14 years of age, in violation of Penal Code Section 288, Subdivision (a), a felony.
“Defendant, . . . on or about the 20th day of June, 2004, did willfully, unlawfully, and lewdly, commit a lewd and lascivious act upon and with the body and certain parts and members thereof, of [J.C.], . . . a child under the age of 14 years, with the intent of arousing, appealing to, and gratifying the lusts, passions, and sexual desires of the said defendant or the said child.
“Count 2. First degree residential burglary, in violation of Penal Code section 459, a felony.
“The defendant, . . . on or about the 20th day of June, 2004, unlawfully entered an inhabited dwelling house, and inhabited portion of a building occupied by [Z.C. and R.C.], with the intent to commit child molestation, in violation of Penal Code Section 288, Subdivision (a).”
One page later in the reporter’s transcript, the court instructed on the elements of counts 1 and 2:
“The defendant is accused in Count 1 of having committed the crime of lewd or lascivious act with a child, in violation of Section 288, Subdivision (a), of the Penal Code, a felony.
“Every person who willfully commits any lewd or lascivious act upon or with the body or any member or part thereof of a child under the age of 14 years, with the specific intent of arousing, appealing to, or gratifying the lusts, passions, or sexual desires of the person or of the child, is guilty of the crime of committing a lewd or lascivious act upon the body of a child, in violation of Penal Code Section 288, Subdivision (a).
“A lewd or lascivious act is defined as any touching of the body of a child under the age of 14 years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party. To constitute a lewd or lascivious act, it is not necessary that the bare skin be touched. The touching may be through the clothing of the child. The law does not require as an essential element of this crime that the lusts, passions, or sexual desires of either of such persons be actually aroused, appealed to, or gratified.
“In order to prove this crime, each of the following elements must be proved:
“One, a person touched the body of a child.
“Two, the child was under . . . 14 years of age.
“And, three, the touching was done with the specific intent to arouse, appeal to, or gratify the lusts, passions, or sexual desires of that person, or the child.”
Immediately thereafter, the court defined burglary as alleged in count 2:
“The defendant is accused in Count 2 of having committed the crime of burglary, a violation of Penal Code section 459.
“Every person who enters any building with the specific intent to commit child molestation, Penal Code Section 288(a), a felony, is guilty of the crime of burglary, in violation of Penal Code section 459.
“A building is a structure.
“It does not matter whether the intent with which the entry was made was thereafter carried out.
“In order to prove this crime, each of the following elements must be proved:
“One, a person entered a building; and two, at the time of entry, that person had the specific intent to commit the crime of child molestation under Penal Code Section 288(a).”
Notwithstanding the trial court’s insertion of the term, child molestation, the court instructed the jury on all the necessary elements of burglary. The jury could not have understood that “child molestation” was different from committing a “lewd or lascivious act upon a child,” in light of the specific reference to section 288, subdivision (a), and the proximity of the instructions on count 1 and count 2. There was no error.
2. The Definition of “Inhabited Dwelling”:
The court instructed the jury as follows on first and second degree burglary: “If you should find the defendant guilty of burglary, you must determine the degree thereof, and state that degree in your verdict. There are two degrees of burglary. Every burglary of an inhabited portion of any building is burglary of the first degree. All other kinds of burglary are of the second degree.”
Defendant contends that the court erred in failing to instruct the jury with CALJIC No. 14.52, the definition of an inhabited dwelling. He maintains that he is entitled to reversal because “merely informing the jury to determine whether the burglary was first degree or second degree, based on whether or not it was inhabited, without more, left the jury to speculate as to what the meaning of an inhabited structure might be.” Defendant also argues that the instructions should have been modified to allow the jury to determine “whether occupying a motel room for one night under the circumstances of this case, rendered the room an inhabited dwelling place within the meaning of section 459 and 460.”
CALJIC No. 14.52 (Oct. 2005 ed.) provides: “An inhabited [dwelling house] is a structure which is currently used as a dwelling whether occupied or not. It is inhabited although the occupants are temporarily absent.
Defendant waived the issues relating to CALJIC No. 14.52. Defense counsel acquiesced without objection when the prosecutor agreed with the court that the instruction was not needed and withdrew it. “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]” (People v. Lang (1989) 49 Cal.3d 991, 1024.)
In any event, the court was not required to instruct the jury on the definition of inhabited dwelling. The jury could not have been misled by the phrase “inhabited portion of any building.” (CALJIC No. 14.51.) The term “inhabited” is a commonly understood word -- not a legal term of art. Moreover, a motel room, even one which is rented on a transient or temporary basis, is an “inhabited” dwelling for purposes of the burglary statute. (People v. Villalobos (2006) 145 Cal.App.4th 310, 313 (Villalobos).) We conclude there was no error.
B. Flight After Crime:
Over defendant’s objection, the court instructed the jury with CALJIC No. 2.52 which states: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient, in itself, to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether the defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
On appeal, defendant argues that there was “insufficient evidence that [defendant] leaving after speaking with [R.C. and Z.C.], and being assaulted by [Z.C.] constituted flight from a crime.” He contends that instructing the jury with CALJIC No. 2.52 when there was no evidence of flight lessened the prosecution’s burden of proof because “the prosecution got the benefit of an instruction which reframed [defendant’s] post-crime actions as a ‘flight’ which the jury could consider as evidence of his guilt.” Defendant also maintains that the instruction created an impermissible inference of guilt in violation of his state and federal constitutional rights. Again, we conclude that there was no error and therefore no constitutional violation.
Section 1127c requires the court to give CALJIC No. 2.52 “[i]n any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt . . . .” The Legislature enacted section 1127c “to abolish the common law rule that the jury could not be instructed on flight unless there was evidence defendant knew he had been accused. [Citations.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1243.) “‘The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt.’” (People v. Mason (1991) 52 Cal.3d 909, 943, citing § 1127c.)
“An instruction on flight is properly given if the jury could reasonably infer that the defendant’s flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” (People v. Crandell (1988) 46 Cal.3d 833, 869.) The fact that more than one inference can be drawn from the evidence does not mean the court erred in giving CALJIC No. 2.52. (See People v. Cannady (1972) 8 Cal.3d 379, 391-392.) The instruction leaves it to the jury to decide whether there has been flight. It “‘assumes neither the guilt of the accused nor that flight occurred.’ [Citations.]” (People v. Escobar (1996) 48 Cal.App.4th 999, 1029.)
On appeal, we must determine if there is substantial evidence in the record to support the instruction. (People v. Escobar, supra, 48 Cal.App.4th 999.) We conclude that the instruction was justified in this case.
The record shows that defendant ran from the motel room immediately after J.C. yelled “No.” R.C. confronted defendant when she found him hiding in the bushes near the swimming pool. Defendant was out of breath and he appeared to be nervous. When R.C. told defendant she was going to call the police and headed toward the motel office, defendant told Z.C. that he was “getting out of [there].” Z.C. chased defendant toward a waiting van. There is no evidence that Z.C. assaulted defendant. This evidence demonstrates consciousness of guilt.
III.
Sufficiency of the Evidence of Burglary
Defendant challenges the sufficiency of the evidence to support his burglary conviction on two grounds: (1) insufficient evidence of the intent to commit a felony at the time of entry; and (2) insufficient evidence that the C.’s “inhabited” the motel room within the meaning of section 460.
On appeal we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) Substantial evidence includes circumstantial evidence and the reasonable inferences that flow from that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813.) We conclude that the evidence supports the jury’s burglary verdict in count 2.
A. Whether Defendant Had The Requisite Intent:
Burglary consists of the unlawful entry into an inhabited dwelling with the specific intent to commit larceny or any felony. (§ 459.) As we explained, the prosecution in this case sought to prove that defendant entered the motel room where the C.’s were staying “with the intent to commit child molestation in violation of . . . section 288, subdivision (a).”
Defendant argues that he is entitled to reversal of the burglary conviction because “the evidence is insufficient to establish intent upon entry, in light of the jury’s rejection of evidence that [defendant] molested the alleged victim. It cannot be inferred that the jury found that his intent was to molest [J.C.] when he entered, when in fact [defendant] was acquitted of committing that crime.” Defendant maintains that the only evidence of sexual intent was the 1995 incident of indecent exposure. He also argues that there was no evidence he was acquainted with J.C. or knew that J.C. would be in the motel room with R.C. and Z.C. We reject defendant’s arguments.
“The People must establish that a burglary defendant entered the premises with the intent to commit a felony or theft. Commonly, that intent must be inferred from the circumstances of the charged offense or offenses. [Citation.]” (People v. Holt (1997)15 Cal.4th 619, 669.) “‘The intention with which an accused enters the house of another is a question of fact and where the circumstances of a particular case and the conduct of the accused reasonably indicate his purpose in doing so is to commit a larceny or any felony a verdict of guilty of the crime of burglary will not be disturbed on appeal.’” (People v. Bard (1968) 70 Cal.2d 3, 5.) “‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Holt, supra, at p. 668.)
We conclude there is sufficient evidence to support the burglary conviction in this case. Defendant admitted that he entered the motel room through a window. And the evidence indicated that once defendant entered the room, he went to the bed where the children were sleeping. He did not call out to Z.C. or turn on a light or otherwise make his presence known. Nor did defendant have any difficulty quickly finding the door out of the room after R.C. sat up in bed. Although defendant argues that he did not know that J.C. was in the room, R.C. testified that once her eyes adjusted to the darkness, she could see J.C.’s head and his cousin’s head at the top of the bed, the covers pulled down on J.C.’s side, and a figure stand up and leave the room. J.C. testified that the person pulled back the covers, pulled down his pajama bottoms and touched his penis. A jury could reasonably conclude that defendant was able to distinguish between a child and an adult in the light that was available in the motel room and that defendant intentionally went to the children’s bed. The jury having heard all the evidence, including R.C.’s testimony that defendant at first denied his presence in the room and later admitted to law enforcement that he entered through a window, could reasonably conclude that he entered the motel room with the intent to commit a violation of section 288, subdivision (a).
The fact that the jury found defendant guilty of the lesser included offense of misdemeanor assault in count 1 does not negate the reasonable inference that defendant had the requisite intent to commit a lewd or lascivious act upon J.C. at the time he entered the room. The misdemeanor verdict in count 1 is explained by sparse and conflicting evidence about the nature of the touching. However, the record supports the inference that having pulled down J.C.’s covers and pajama bottoms, defendant intended to sexually molest the child. The jury could reasonably infer that defendant’s plan was interrupted by J.C.’s calling “No” and K.C. awakening to find defendant standing by J.C.’s bed.
B. Whether The C.’s “Inhabited” The Motel Room:
Defendant argues that there is insufficient evidence to support his conviction of first degree burglary, given the failure of proof that the motel room at the Inn was an inhabited dwelling within the meaning of section 460. Specifically, he contends that the “trial facts did not suffice to establish that [the C.’s] lived, dwelled, or resided in or at, or inhabited the motel room in Redding; or (to put it differently) that the motel room was their residence, dwelling, (actual place of) abode, house, home, or habitation.” Defendant contends that there was undisputed evidence that the C.’s lived in Burney.
We already explained that a motel room, even one that is rented on a transient or temporary basis, is an inhabited dwelling for purposes of the burglary statute. (Villalobos, supra, 145 Cal.App.4th at p. 313.) The only remaining question is whether the C.’s were temporarily staying in the motel room at the Inn the night of the incident. The evidence, viewed in the light most favorable to the judgment (Johnson, supra, 26 Cal.3d at p. 578) supports the fact that they were.
R.C. and Z.C. testified that the family made reservations to stay at the Inn after their daughter’s dance recital. They went to bed in the motel room around midnight. R.C. and Z.C. slept in the bed closest to the sliding glass door, and J.C. and his cousin slept in the bed nearest the door. Z.C. did not plan for defendant or anyone else to stay in the room with them.
IV.
Jury Trial on the Priors
Defendant elected to have the jury determine the truth of the priors alleged in the information in a separate trial after the jury returned its verdict on counts 1 and 2. Defendant raises three claims of error in connection with his trial on the priors: (1) the court violated defendant’s constitutional rights to due process and confrontation by admitting the statements to police about his prior convictions and excluding his explanation regarding the circumstances of those arrests and convictions; (2) the court violated his constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435] (Apprendi), by instructing the jury that defendant was the person named in the prior convictions; and (3) there is insufficient evident to support the jury’s true finding on the 1988 burglary prior. We conclude that there was no error.
A. Defendant’s Statements Concerning His Prior Convictions:
1. Procedural Background:
Before the introduction of evidence, the prosecutor stated that she intended to prove the priors through the use of the section 969, subdivision (b) packet and a redacted videotape of the interview with Gisske in which defendant admitted his prior convictions. Defense counsel indicated that he intended to present evidence to show that defendant was threatened and coerced into entering pleas in the cases alleged as priors. The court explained that the validity of the prior convictions was a question for the court, not the jury. It limited the videotape presentation and cross-examination of Gisske to defendant’s admissions and excluded defendant’s statements about his prior attorney’s performance in negotiating a plea. After the jury viewed the videotape and the prosecution rested its case, defense counsel elaborated on an issue he raised at a sidebar conference during Gisske’s testimony. He argued that defendant should be allowed to present his complete statement. The court noted that defense counsel had not raised the issue of the completeness of defendant’s statement in the bench conference and reiterated its ruling that “additional information [was] not necessary to put in context, to give meaning to, or to explain the statement of [defendant] because it relate[d] to a nonissue in front of [the] jury. . . .” Defense counsel made an offer of proof that defendant would testify that, “he was threatened and coerced into entering pleas” to both of the alleged convictions. The court ruled that the proffered evidence was irrelevant to the jury portion of the proceeding.
Specifically, defendant told Gisske that he had served a year in county jail for “intent to commit sexual assault in 1988,” had been arrested for residential burglary, and that he served “about five years” in prison for the burglary.
2. Discussion:
Defendant argues that, “the court’s refusal to permit complete examination of the prosecution’s witness, Gisske, about his so-called confession violated [defendant’s] right to present a defense and to fully and effectively cross-examine witnesses against him.” He also contends that the error requires reversal because the ruling, which placed the evidence before the jury “out of context as a confession, diluted [his] already minimal ability to challenge the validity of his priors . . . .”
Defendant also complains in the body of his brief that the court instructed the jury with CALJIC No. 2.72, regarding the use of admissions and confessions, over defense counsel’s objection. We do not address this issue because it does not appear under a separate heading (see Heavenly Valley Ski Resort v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1346) and is not briefed (People v. Ramirez (2006) 39 Cal.4th 398, 441, fn. 8).
“The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings . . . . Confrontation means more than being allowed to confront the witness physically. ‘Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ [Citation.]” (Davis v. Alaska (1974) 415 U.S. 308, 315 [39 L.Ed.2d 347, 353].) Cross-examination is important because it exposes to the jury “facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” (Id. at p. 318 [39 L.Ed.2d at p. 355].) However, “[w]ithin the confines of the confrontation clause,” the court has wide latitude to restrict cross-examination that is repetitive, prejudicial, confusing or only marginally relevant. (People v. Frye (1998) 18 Cal.4th 894, 946.) “[U]nless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (Ibid.)
In this case, the evidence defendant sought to introduce through cross-examination did not challenge Gisske’s reliability or credibility. He simply wanted to place more of his own statement to Gisske before the jury. Thus, the issue was one of relevance not confrontation. There was no abuse of discretion under either theory because the court was justified in limiting cross-examination to evidence that was relevant to the question that the jury was required to decide. Evidence about the shortcomings of former defense counsel was irrelevant on the question whether defendant had prior convictions for assault to commit rape and burglary.
Nor did the court’s ruling that the evidence was irrelevant unlawfully deprive defendant of due process. “‛As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]’ [Citation.]” (People v. Babbitt (1988) 45 Cal.3d 660, 682-683.)
B. Jury Instruction on Identity:
Citing Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], defendant argued at trial on the priors that he was entitled to have the jury decide all issues regarding the validity of his prior convictions, including the question whether he was the person who suffered the priors. The court disagreed. After both sides rested their case, the court instructed the jury pursuant to CALJIC No. 17.26 that, “the defendant is the person whose name appears on the documents admitted to establish the convictions.”
Defendant argues on appeal that the court violated his constitutional rights by deciding a factual issue that should have gone to the jury. He also suggests that the United States Supreme Court is prepared to “move away from the blanket rule” of Apprendi and its progeny that the fact of a prior conviction is not a jury question. Defendant asks that we strike his life term and remand the case for resentencing. We are bound by current legal precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and reject defendant’s argument.
“The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution.” (People v. Epps (2001) 25 Cal.4th 19, 23 (Epps), citing Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) Defendant acknowledges that section 1025 expressly denies a right of jury trial on the identity of the person who suffered the prior conviction. (See Epps, supra, at pp. 26-27.)
Section 1025, subdivision (b) provides: “Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived.”
“Where the trial court finds that the defendant is the person who is named in the conviction records, it may so instruct the jury. (People v. Kelii (1999) 21 Cal.4th 452, 458 [Kelii].) The jury then ‘“determine[s] whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.”’ (People v. Epps, supra, 25 Cal.4th at p. 27, quoting People v. Kelii, supra, 21 Cal.4th at pp. 458-459.)” (People v. Garcia (2003) 107 Cal.App.4th 1159, 1165, italics omitted.)
Defendant offers a lengthy analysis in support of his suggestion that the United States Supreme Court is prepared to reconsider its decisions in Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311] and Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] (Almendarez-Torres), two cases that provided the basis for Apprendi. Based on his analysis, defendant maintains that “[t]here currently appear to be at least five members of the United States Supreme Court who would vote to overrule Almendarez-Torres if presented with a case, such as this, in which the defendant has contested the truth of the prior conviction allegations.” He argues that such action by the United States Supreme Court would invalidate California practice under section 1025, Kelii and Epps.
Central to defendant’s argument is the much-cited language in Apprendi that “Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.” (Apprendi, supra, 530 U.S. at pp. 489-490 [147 L.Ed.2d at pp. 454-455], fn. omitted.)
The difficulty with defendant’s argument is that the United States Supreme Court has not, in fact, overruled Almendarez-Torres, and we are bound by current law. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.) In Epps, the California Supreme Court declined to consider the question whether Apprendi gave the defendant a federal constitutional right to a jury trial on his prior convictions. The court explained: “The Los Angeles County Public Defender as an amicus curiae argues we should reconsider our holding in Kelii in light of the high court’s decision in Apprendi, supra, 530 U.S. 466 . . ., and thereby confer a more significant role on the jury. Specifically, amicus curiae argue[], Apprendi gives defendants a right to have a jury decide whether a prior conviction is a serious felony for purposes of the three strikes law. Apprendi, however, reaffirms that defendants have no right to a jury trial of ‘the fact of a prior conviction’ [citation], and here, at least, only the bare fact of the prior conviction was at issue, because the prior conviction (kidnapping) was a serious felony by definition under section 1192.7, subdivision (c)(20). We do not now decide how Apprendi would apply were we faced with a situation like that at issue in Kelii, where some fact needed to be proved regarding the circumstances of the prior conviction--such as whether a prior burglary was residential--in order to establish that the conviction is a serious felony.” (Epps, supra, 25 Cal.4th at p. 28.) Both Kelii and Almendarez-Torres remain good law.
C. Sufficiency of the Evidence of the 1988 Burglary Prior:
Defendant contends there is insufficient evidence to support the jury’s verdict that he had a 1988 conviction for first degree burglary. He cites the discrepancy between the information, change of plea form, and minute order, which collectively indicate that defendant pled guilty to assault with intent to commit rape in count 1 and burglary in count 2, and the abstract of judgment which lists only the conviction for assault with intent to commit rape. He argues that “in light of the ambiguous plea agreement and the lack of reference to a 459 conviction on the abstract of judgment,” we are required to strike the jury’s true finding on the 1988 burglary conviction. We conclude that the record supports the jury verdict.
Due process requires the prosecution to prove each element of a sentence enhancement beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566.) When a defendant challenges the sufficiency of documentary exhibits at a bifurcated trial on strike priors, our role is limited to deciding whether, when viewed in the light most favorable to the judgment, the documents disclose “substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact” could find the prior convictions true beyond a reasonable doubt. (People v. Garrett (2001) 92 Cal.App.4th 1417, 1433 [prior convictions]; see People v. Fielder (2004) 114 Cal.App.4th 1221, 1232 [enhancements generally].)
The prosecution introduced People’s exhibit 8 which contained evidence of defendant’s 1988 convictions. The information in Shasta County Superior Court case No. 87-6638 shows that defendant was charged with forcible rape in count 1 (§ 261, subd. (2)) and with first degree burglary (§ 459) in count 2. Defendant entered into a plea agreement in which he stated: “Defendant pleads guilty to assault with intent to commit rape in violation of section 220 PC a lesser included to Count I and to Count II & DA agrees to a grant of probation with a jail sentence of 1 year.” Defendant signed the form, acknowledging that he fully understood the statements he initialed and the consequences of his plea. Defense counsel also signed the form. The minute order set forth the judgment as follows: “IT IS THE JUDGMENT OF THE COURT that the defendant is GUILTY of violating Section 220 PC, ASSAULT WITH INTENT TO COMMIT RAPE, a felony, a lesser included offense of COUNT 1; and GUILTY of violating Section 459 PC, BURGLARY IN THE FIRST DEGREE, a felony, as charged in COUNT 2 of the Information on file.” Given that the plea agreement and minute order were consistent, the jury could reasonably find that the omission of the burglary count from the abstract was a simple clerical error. Accordingly, we conclude that the record fully supports the jury finding that defendant was convicted of two serious felonies in 1988.
V.
Juror Misconduct
Defendant moved for a new trial based on a declaration in which Juror No. 162625 described misconduct. Defendant requested juror contact information and an evidentiary hearing pursuant to People v. Hedgecock (1990) 51 Cal.3d 395, 415 (Hedgecock), to investigate the claim that jurors discussed defendant’s failure to testify. The defense filed additional declarations in support of its claim of misconduct, including the declaration of Juror No. 164876. Defendant contends that the court abused its discretion in denying his request for a hearing. He maintains that in denying an evidentiary hearing, the court “declared the juror misconduct harmless without knowing the full extent of the wrongful conduct.”
A careful review of the record reveals that defendant waived the hearing issue at trial. Defense counsel agreed with the prosecution that no Hedgecock hearing was required because there was “no material conflict of evidence for the court to decide.” (Capitalization omitted.) Accordingly, the issue is not properly before us.
Defendant also asserts that the court erred in denying the motion for new trial because “the mere statement of the commenting juror provided a prima facie showing of jury misconduct.” Even assuming that defendant’s reference to the “commenting juror” includes both Juror No. 162625 and Juror No. 164876, the defense failed to establish a prima facie showing of misconduct. The bulk of the evidence supplied in the jurors’ declarations was inadmissible because it involved mental processes of members of the jury (Evid. Code, § 1150) and the court properly rejected it. The court considered only paragraph 12 from the February 3, 2006 declaration of Juror No. 162625 which read: “During our deliberations, a couple of the jurors briefly spoke about the fact that [defendant] did not testify in his own defense. Two other jurors and I said we were wondering why [defendant] didn’t testify in his own defense.” The court also considered part of paragraph 13 from the March 15, 2006 declaration of Juror No. 164876 which read: “During deliberations, some jurors spoke about the fact that [defendant] did not testify in his own defense. Some of the jurors wondered why [defendant] did not testify . . . .”
Evidence Code section 1150, subdivision (a) provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Italics added.)
This record supports the court’s finding that the jurors’ reference to defendant not testifying was “a transient or passing comment of curiosity by jurors that [did] not rise to the level . . . of even being close to justifying a new trial.”
VI.
Defendant’s Romero Motion
Defendant argues that the court erred in denying his request to dismiss all three prior strikes. He contends that the court abused its discretion by: (1) failing to consider all the facts surrounding the current offense, including the fact that the jury acquitted him of violating section 288, subdivision (a), in count 1; (2) erroneously relying on a 1988 burglary that did not appear on the abstract of judgment; and (3) improperly focusing on his criminal history. We conclude there was no abuse of discretion.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court held that section 1385, subdivision (a) permits “a [trial] court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (Id. at pp. 529-530.) The court explained that the exercise of discretion under section 1385 was limited by the “amorphous” concept of “furtherance of justice” which required the sentencing court to consider both the constitutional rights of the defendant and the interests of society represented by the People. (Id. at p. 530.) The Supreme Court clarified the standard governing a decision to strike a “strike” in People v. Williams (1998) 17 Cal.4th 148 (Williams), stating that “in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.)
We reject defendant’s argument regarding the current offense and the 1988 burglary prior. As we already concluded, there is sufficient evidence to support the jury’s guilty verdicts in count 1 and count 2, and its true finding on the enhancement allegations, including the 1988 burglary.
Turning to the standard set forth in Williams, the record demonstrates that the court considered the circumstances surrounding the current offenses, the nature of defendant’s 20-year criminal history dating from the age of 19, and the lack of mitigating factors. The court noted that defendant failed to take the opportunity to straighten out his life at age 21 after serving a one-year sentence for assault to commit rape and burglary in 1988. The court observed that defendant’s crimes were not “minor prior crimes.” Instead, defendant repeatedly put the public at risk. In denying defendant’s motion to strike the strikes, the court stated: “[T]here is no way this Court could conclude that [defendant] is outside the sentencing scheme for three strikes. He is squarely within it. He is the very type of offender who should be treated as a multiple strike offender.” There was no abuse of discretion under Romero.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.
“[A structure is part of an inhabited dwelling if it is functionally interconnected with and immediately contiguous to other portions of the dwelling house.
“‘Functionally interconnected’ means used in related or complimentary ways. ‘Contiguous’ means adjacent, adjoining, and in actual close contact. It is not necessary that there be interconnecting doors.]”
Section 1025, subdivision (c) states: “Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.”