Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC956944
Duffy, J.
Defendant Timothy S. Johnston was convicted after a trial by jury of two felony counts (robbery and burglary) and two misdemeanors (false imprisonment and impersonating a police officer) arising out of an incident involving a prostitute. The jury also found true the allegation that defendant impersonated a police officer during the commission of the robbery and burglary. Defendant was sentenced to a five-year prison term.
Defendant raises two challenges on appeal. He claims that the court erred in the admission of other-crime evidence, i.e., that defendant—in an incident occurring 10 days earlier than the events involved in the charged crimes—impersonated a police officer in the course of performing forcible sex acts on, and the robbery of, a female victim. Defendant also contends that the court erred in imposing sentences for the burglary and misdemeanor convictions concurrent to the robbery conviction, arguing that each of the convictions arose out of the same conduct and were based on a single objective, thereby requiring that the sentences for convictions other than the robbery conviction be stayed pursuant to Penal Code section 654.
We conclude that the court did not abuse its discretion by admitting the other-crime evidence. We hold further that the court committed sentencing error. We will therefore modify the judgment to read that the sentences for the burglary and misdemeanor convictions are ordered stayed pursuant to Penal Code section 654 and that the restitution and parole revocation restitution fines shall each be $1,000. As so modified, we will affirm the judgment.
FACTS
I. Evidence Concerning Charged Offenses
A. Prosecution Evidence
Nhu Tran is a hairstylist in a salon and also provides massage services in motel rooms in San Jose that she rents. She advertises for massage services on Craigslist and through other adult publications, using her cell phone number, a fictitious name (“Jenny”) and pictures not depicting herself. Tran sometimes performs sex acts with her massage clients in exchange for money. She had been arrested previously for prostitution.
On June 8, 2009, Tran checked into the Days Inn motel in San Jose. She had an appointment on June 9 with a new client, defendant. He had arranged for the appointment by calling her on the cell phone number that she listed on her advertisements. There were several calls between defendant and her. During one call, Tran told him the location of the motel complex where she was staying. When defendant arrived and called her from the parking lot, she told him her room number.
All dates are 2009 unless otherwise stated.
When he came to her room and Tran let him in, he expressed concern about people who were outside “looking around.” She told him not to worry about anything and that the people wouldn’t bother them. Tran asked if defendant was a policeman and he said he was not. She asked if defendant was there for a massage, and she requested $40 for one-half hour. He asked her if he could perform oral sex on her and she shrugged her shoulders, suggesting “Maybe. Maybe not.” Defendant then pulled out a badge that he was wearing around his neck with attached identification; he said he was a police officer and that she was under arrest. The badge had a multi-pointed star with the words “San Mateo” and “535” on it, and had an attached California photo identification card with defendant’s name. He instructed her to go to the corner of the room, sit down, and be quiet. Tran believed that defendant was a policeman, and she was afraid she would be arrested.
Defendant then searched Tran’s room, including her luggage, dresser and nightstand drawers, and bathroom, saying that he was looking for drugs and weapons. She pleaded with him to let her go. He found money and condoms and told Tran that she could go to jail for a long time. He placed the money on the bed. Defendant also found two cell phones, one that Tran used for her massage business (a black Samsung phone with Metro PCS as the provider) and the other for personal calls, and placed them beside the television. He told her that if he were not a policeman, he would have sex with her. After he said this, and after some time passed without any other officers arriving, Tran became suspicious; she thought that defendant might not be a police officer, but, rather, intended to rob her. This made her even more scared. Tran did not tell defendant that she realized he was not a policeman; instead, she kept pretending she believed him.
Defendant took the money on the bed (over $700) and Tran’s cell phones, and left. As he left, he told her that he was going to the next room to have a female police officer come and take a report. He instructed her not to close the door. Tran waited a moment and then followed him. She saw him drive out of the parking lot in a gold BMW; she got the license plate number and went back to her room to write it down. After about 15 minutes, she called the police. While she waited for the police to arrive, Tran called a friend and asked him to send a text message to her stolen phone and ask defendant to return it to her.
Defendant lived in the Fremont home of Brian Walton for about three months. Walton testified that defendant often spoke about a long-time personal friend, Jamie, who was a madam in the sex industry. Jamie had asked defendant a number of times “to provide security for her girls.” Defendant indicated that he understood “[s]ecurity was a problem because [the women] were often times preyed upon and could not call the authorities because [what they were doing was illegal].” As far as Walton understood from speaking with defendant, he had never actually provided security for Jamie.
When defendant was arrested at Walton’s home on June 19, Walton gave the police permission to search the premises. During the search of the property and of defendant’s vehicles parked there, the police found six cell phones, one of them being a black Samsung Metro PCS phone. Officers recovered a seventh cell phone, also a black Samsung Metro PCS phone, when they searched defendant’s person at the time of his arrest. They also found in defendant’s gold BMW a five-pointed-star badge with a photo identification similar to one a police officer would wear. At the time the police officer who recovered it retrieved it, the badge “looked very much like a police badge.” The photo identification listed defendant’s name on it.
B. Defense Evidence
Defendant testified that he had been a frequent customer of prostitutes for about six to 10 years, had seen over 100 prostitutes, and was a “sex addict.” He said that as a result of two bad experiences with pimps threatening him with weapons, he began bringing along a security guard badge with his identification when he saw prostitutes; he thought that using the badge would help him “neutralize a bad situation if it occurred again.” This was the badge identified at trial by Tran. He testified that he had never presented the badge to anyone or claimed that he was a police officer.
Defendant testified that on the morning of June 9, he saw Tran’s advertisement under the name “Jenny” for massage services. He called her and asked her what kind of massage she performed. She said she did a $40 back massage and asked what kind he was looking for. He responded that he wanted a “full service” massage—which he understood to include sex—and she said that would cost $180 for one hour. They arranged to meet later in the evening at a Day’s Inn motel where she was staying in south San Jose. When he arrived at the motel and called Tran (whom he knew as “Jenny”), she told him she needed a couple of minutes and would call him right back. As he waited, he saw through his rearview mirror a man noting defendant’s license plate number. Shortly afterward, Tran called back and gave defendant her room number.
As soon as Tran let him into her room, defendant testified that she put her hand in the area of his crotch and asked if he was a police officer. Defendant said, “No, ” and also asked her the same question and she also said, “No.” They talked about what kind of services she provided and she asked defendant to place a $180 “donation” on the nightstand and he did so. Defendant asked her if she knew the person who had taken down his license plate number, and she told him not to worry about it and that he wouldn’t harm them. He was certain that the man was her pimp. They got undressed and Tran gave defendant oral sex and then they had intercourse. After about four to seven minutes, she interrupted defendant and told him to get off of her because he was hurting her. Defendant complied but was not happy about it and told her “she was ripping [him] off.” Defendant went into the bathroom and got dressed. When he came out, he told her he was not going to leave without getting his money back. Tran told defendant that he had gotten what he had paid for and that if he didn’t leave, her pimp would take care of him. Defendant then “said the hell with you and your pimp” and pulled his badge out. He never told Tran that she was under arrest or ordered her to sit down, and he did not go through her dresser drawers. He grabbed the $180 he had left on the nightstand and one black Samsung cell phone that he thought was his, and left. As he was getting into his car, defendant saw the man who had previously copied down his license plate that defendant thought was Tran’s pimp; he was outside near the window of her room.
Defendant testified that while driving on the freeway on his way home to Fremont, he received a text message on the cell phone he had taken from the room that he had thought was his. The message had his license plate number and instructions to return what he had taken in 10 minutes or the police would be called. He then realized that the cell phone was not his and threw it out the window.
II. Other-Crime Evidence
Y. Doe testified that she and her boyfriend, Raul V., were staying at the Beverly Heritage Hotel in Milpitas on May 30, 2009. While Raul V. was away that evening, she went down the hall to get some ice. She saw a man in the hallway who “look[ed] suspicious.” As she was opening the door to her room, the man pushed her into the room with him and displayed a badge with an identification card that was hanging from his neck and outside of his shirt and said that he was a police officer. She identified defendant as that man and identified the badge with identification card—previously identified by Tran as the badge and identification card defendant used—as the items he had shown her.
Defendant told Y. Doe that she had to do whatever he asked. He took off her shorts and tried to force her to give him oral sex. Because she was crying so much and he was angry with her, she did not get to the point of giving him oral sex. He then pushed her down on the bed and forced her to have sexual intercourse with him for a short while. After he stopped having intercourse with her, he went through her purse and took her money (about $400 to $500) and identification (an Oregon driver’s license). He left, telling Y. Doe not to do anything. After Raul V. arrived and she told him what had happened, he called the police.
On cross-examination, Yuliana denied that she was working in May 2009 as a prostitute, or that defendant gave her any money on the evening of May 30. The defense also presented evidence that, among other things, Yuliana told police officers investigating the incident that she had actually performed oral sex on defendant for a couple of seconds before backing away.
Defendant testified that he had met Y. Doe at her hotel room as part of a prearranged meeting. He saw a man whom he believed was her pimp when he arrived and attempted to avoid contact with him. Y. Doe invited him into her room, he sat down on the bed, and they came to an agreement that he would receive one-half hour of sex for $120. He put the money on a nightstand, she got undressed, and then gave him oral sex. They had intercourse for a very short time. He got dressed, grabbed $100 of the money he had previously left on the nightstand, and left. Before he left, Y. Doe found a badge that had been in his jacket. Defendant testified that he did not tell Y. Doe he was a police officer, did not display the badge, did not have forcible oral sex or intercourse with her, and did not steal her money or identification.
PROCEDURAL BACKGROUND
Defendant was charged by information filed November 5 with four counts: robbery in an inhabited building, a felony (Pen. Code, §§ 211, 212.5, subd. (a)); burglary by entry into a building with intent to commit theft, a felony (Pen. Code, §§ 459, 460, subd. (a)); false imprisonment, a felony (Pen. Code, §§ 236, 237); and impersonating a peace officer, a misdemeanor (Pen. Code, § 538d, subd. (b)(2)). The information also alleged that in the commission of the first three offenses, defendant impersonated a peace officer in violation of Penal Code section 538d.
After a jury trial, defendant was convicted on January 25, 2010, of robbery in an inhabited building, first degree burglary, misdemeanor false imprisonment, and impersonating a peace officer. The jury also found true the special allegations that defendant impersonated a peace officer in the commission of the robbery and burglary, and that a person other than defendant was present when defendant committed the burglary. The court sentenced defendant to a prison term of five years, based upon a midterm sentence of four years for the robbery conviction, plus an additional one year for the enhancement under Penal Code section 667.17 (i.e., impersonation of a peace officer in violation of Penal Code section 538d in the commission of the offense); a concurrent five-year term for the burglary conviction and the Penal Code section 667.17 enhancement; and concurrent six-month sentences in county jail for each of the two misdemeanor convictions. Defendant filed a timely notice of appeal.
DISCUSSION
I. Admissibility of Other-Crime Evidence
A. Background and Contentions
The People filed a motion in limine for leave to introduce evidence pursuant to Evidence Code section 1101, subdivision (b) (section 1101(b)) of a prior crime committed by defendant. The offer of proof was that on May 30—10 days before the incident with Tran—defendant forced his way into the Milpitas hotel room of Y. Doe, impersonated a peace officer, ordered the victim to disrobe, forced her to orally copulate him and then have intercourse, and left with her money and identification (hereafter, sometimes “the May 30 incident”). The People argued that evidence of the May 30 incident was material and admissible to show intent and the existence of a common design or plan. Defendant opposed the People’s in limine motion, arguing that the other-crime evidence was of limited probative value and that its potential of extreme prejudice required that it be excluded.
All further statutory references are to the Evidence Code unless otherwise indicated.
The court concluded that the proffered evidence was admissible under section 1101(b) to show intent, and that under section 352, the probative value of the evidence was not substantially outweighed by its prejudicial effect. At the time of the court’s ruling, the People were uncertain whether they would be able to compel the appearance of Y. Doe as a witness. Accordingly, the court held that the other-crime evidence could not be alluded to by the prosecution during its case-in-chief “until [the court] had some assurance that [the alleged victim] has been ordered to appear in court and is going to appear in court.”
Defendant contends that the court committed prejudicial error when it allowed the prosecution to admit this other-crime evidence. He argues that because the circumstances of the May 30 incident were very different from the charged crimes, the proffered evidence did not satisfy the requirement that “the charged and uncharged crimes [be] sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) Defendant contends further that even if the other-crime evidence was relevant and admissible under section 1101(b), the court should have excluded it under section 352 because its probative value was substantially outweighed by the probability that its admission would result in a substantial danger of undue prejudice.
B. Other-Crime Evidence Generally and Standard of Review
Evidence of a person’s conduct on one occasion is generally not admissible to prove the conduct at issue at trial. (See § 1101, subd. (a).) Thus, evidence of the commission of other crimes is generally inadmissible if its purpose is simply to show defendant’s criminal propensity or bad character. (People v. Gibson (1976) 56 Cal.App.3d 119, 127.) Evidence of other crimes or acts, however, may be admissible for a limited purpose under certain circumstances: “Nothing in [section 1101] prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his or her disposition to commit such an act.” (§ 1101(b).)
The Supreme Court has articulated a three-part test for determining the admissibility of other-crime evidence under which the court evaluates: “(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson), disapproved on another ground in People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7.) The materiality prong is satisfied “if the fact is either an ultimate fact or an intermediate fact from which an ultimate fact can be inferred, and the ultimate fact is actually in dispute.” (People v. Gillard (1997) 57 Cal.App.4th 136, 160.) The second Thompson element requires that the court scrutinize the proffered evidence to determine its probative value on the issue(s) for which it is offered. The other-act evidence has a tendency to prove or disprove the material fact when it “serves ‘ “logically, naturally, and by reasonable inference” ’ to establish [or disprove] that fact. [Citations.]” (Thompson, at p. 316, fn. omitted.)
In evaluating the relevance of other-crime evidence to determine its admissibility under section 1101(b), it is important to identify the purpose for which the evidence is offered. (People v. Ewoldt (1994) 7 Cal.4th 380, 406 (Ewoldt) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Id. at p. 402.) Where the other conduct is offered to show a common design or plan, courts require a greater degree of similarity between the prior conduct and the charged crime (id. at pp. 402-403); there must be “ ‘a high degree of similarity.’ ” (Id. at p. 403.) The highest quantum of similarity between the other conduct and the charged crime is necessary where the other-act evidence is offered to prove identity. (Ibid.; see also People v. Hovarter (2008) 44 Cal.4th 983, 1003.)
Lastly, under Thompson, supra, 27 Cal.3d at page 315, the court must ascertain and evaluate “the existence of any rule or policy requiring the exclusion of relevant evidence.” Those “policies limiting admission [include] those contained in Evidence Code section 352.” (People v. Thompson (1988) 45 Cal.3d 86, 109.) This evaluation is required because “[e]vidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ [Citations.]” (Ewoldt, supra, 7 Cal.4th at p. 404.) “[F]or uncharged crime evidence to be admissible, it must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence.” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.)
We review a trial court’s admission of uncharged-crimes evidence “for an abuse of discretion, examining the evidence in the light most favorable to the court’s ruling. [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 120.) Such abuse of discretion will be found only where the court’s “ ruling ‘falls outside the bounds of reason.’ ” (Kipp, supra, 18 Cal.4th at p. 371.)
C. Discussion of Claimed Error
We address below, using the three-part test enunciated in Thompson, whether the court abused its discretion by admitting evidence of the May 30 incident to prove intent. We will also address whether the evidence was admissible as a common scheme or plan under section 1101(b).
The court in ruling on the prosecution’s motion in limine held that the evidence of the May 30 incident was admissible to show intent. In so concluding, it observed that “there is a very similar pattern of conduct between the two [incidents involving] Mr. Johnston.” In subsequent proceedings before the other-crime evidence was introduced, the court reiterated its conclusion that the challenged evidence was admissible to show defendant’s intent to commit the charged crimes. For reasons unexplained by the parties, the court’s instructions included two grounds in addition to intent. It instructed the jury could consider the other-crime evidence “for the limited purpose of deciding whether or not: 1, the defendant acted with [the] required intent for the charged crimes, and/or 2, the defendant had the motive to commit the charged crimes[, ] and/or 3, the defendant had a plan or scheme to commit the charged crimes.” Although defendant presents argument here based upon the court’s ruling that the other-crime evidence was admissible to show intent and mentions in passing in his reply brief “common plan or design, ” he makes no claim that the court erred in allowing the evidence to show motive. We will therefore not address such unasserted contention.
1. Materiality
Under the first prong enunciated by the high court in Thompson, supra, 27 Cal.3d at page 315, we evaluate the materiality of the fact sought to be proved by the other-crime evidence. Here, the prosecution offered the evidence to show intent, as well as common design or plan.
It was the People’s burden to establish that defendant intended to enter Tran’s motel room to rob her, and that he intended to deprive her of her property, i.e., her money and cell phones. Such intent was an essential element of the charged crimes of burglary (Pen. Code, § 459 [requiring entry “with intent to commit grand or petit larceny or any felony”]; In re Matthew A. (2008) 165 Cal.App.4th 537, 540-541) and robbery (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007 [“specific intent to deprive the victim of his or her property permanently” is required for the crime of robbery]). This issue was a highly contested one. Defendant admitted meeting with Tran for the purpose of having paid-for sex, but denied that he went to her room to rob her. Further, although he admitted having mistakenly taken one of Tran’s cell phones, he denied that he intended to take her property. Thus, intent—the issue for which the other-crime evidence was proffered—was highly material.
“ ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]” “Evidence of a common design or plan, therefore, is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (Ewoldt, supra, 7 Cal.4th at pp. 393, 394, fn. omitted.) Defendant admitted that he met with Tran in her motel room but vigorously contested that he did so to rob from her or that he in fact did rob her. The existence of a common design or plan, as evidence supporting the prosecution’s theory that defendant in fact committed the charged crimes (i.e., that he entered the motel room with the intent to commit theft and that he then robbed Tran), was thus a material fact here.
2. Tendency to prove material fact
In order to be admissible under section 1101(b), the other-crime evidence must also have had a tendency to prove the material fact. (Thompson, supra, 27 Cal.3d at p. 315.) Defendant argues that the evidence should have been excluded because this second prong was not satisfied. We disagree.
As noted, where the other-crime evidence is offered to show intent, “[t]he least degree of similarity (between the uncharged act and the charged offense) is required.” (Ewoldt, supra, 7 Cal.4th at p. 402.) The other-act evidence, if offered for this purpose, “must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ibid.; see also Kipp, supra, 18 Cal.4th at p. 371.)
Comparing the two incidents, there were a number of similarities. In both the May 30 encounter with Y. Doe and the June 9 encounter with Tran, there was a young woman alone in her motel room at night that defendant contacted. Tran was a prostitute. According to defendant, Y. Doe was a prostitute as well, and, Y. Doe’s testimony notwithstanding, there was evidence to support that conclusion. In both cases, defendant used the phony badge worn around his neck, coupled with statements that he was a police officer, to force the women to comply with his wishes. Assuming the trier of fact concluded that both victims were prostitutes—a reasonable conclusion based on the evidence—this demonstration of authority had the potential of being particularly effective, since the victims would be reasonably fearful of being arrested for their illegal activities. (Cf. Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1226, fn. 15 [emphasizing one common feature in both charged and uncharged crimes was vulnerability of victims].) In the June 9 incident, defendant impersonated a police officer to rob Tran of substantial cash and two cell phones; in the May 30 incident, he impersonated an officer to commit forcible sex acts against Y. Doe’s will as well as to rob her. Plainly, the incidents were “sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402.)
Other-crime evidence has been found in many cases to satisfy the second Thompson prong of having a tendency to prove the material fact of the defendant’s intent. For instance, other-crime evidence to show burglarious intent has been permitted where the defendant employed common entry methods in both the charged and uncharged crimes. (See, e.g. People v. Pendleton (1979) 25 Cal.3d 371, 376-377; People v. Wilson (1991) 227 Cal.App.3d 1210, 1216-1218; People v. Nible (1988) 200 Cal.App.3d 838, 848-850.) Likewise, where both the charged and uncharged crimes of robbery have sufficient similar features that evidence of the uncharged crime is probative on the element of intent, the other-crime evidence has been allowed. (See, e.g., People v. Yeoman (2003) 31 Cal.4th 93, 121-122; People v. Hayes (1990) 52 Cal.3d 577, 617; People v. Denis (1990) 224 Cal.App.3d 563, 567-568.)
Here, however, defendant claims that because the other-crime evidence included forcible sex acts in addition to robbery while the incident involving Tran did not, the crimes were not sufficiently similar and the evidence of the uncharged crime should therefore have been excluded. This argument is without merit and seemingly confuses the lower level of similarity required to prove intent with the higher similarity level necessary when the other-crime evidence is offered to show identity.
Given the common features between the two incidents and the distinctive methods employed by defendant in the commission of both the charged and uncharged crimes, it is conceivable that the other-crime evidence may have been admissible to show identity. Because it was neither offered nor admitted for this purpose, however, we need not decide this question.
People v. Denis, supra, 224 Cal.App.3d 563, is illustrative. There, the intent to rob was a critical issue because the defendant, although admitting he tried to sell drugs to the victim before he was shot by the defendant’s accomplice, did not admit he was part of his accomplice’s plan to rob the victim. (Id. at pp. 567-568.) The prosecution offered evidence that the defendant admitted involvement in other robberies resulting from drug sales at the same location with the same accomplice. (Id. at p. 568.) The appellate court concluded that the other-crime evidence was admissible, specifically rejecting the defendant’s argument that the other crimes were dissimilar because in the prior incidents, no one had been shot: “The fact that neither [the defendant nor his accomplice] shot at anyone on those occasions hardly destroys the logical inference that [the defendant] intended to rob [the victim of the charged crime] also. In addition, a lesser degree of similarity is required to show intent than to show identity. [Citations.]” (Ibid.; see also People v. Yeoman, supra, 31 Cal.4th at pp. 121-122 [where prior crime involved robbery of victim through the defendant posing as Good Samaritan in manner similar to charged crime, other-crime evidence was admissible to show intent to rob, notwithstanding fact that current crime involved more serious robbery-murder].)
Evidence of the May 30 incident was also admissible to show a common design or plan. As the high court has explained: “[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.] ‘[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind;...’ [Citations. ¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.... [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
Here, there was not merely a similarity in results between the charged and uncharged crimes. In light of the common features involved in the May 30 incident and the June 9 incident we have noted above—including defendant’s use of the phony badge coupled with his announcement that he was a police officer—we readily conclude that there was “ ‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402.)
The other-crime evidence clearly had a tendency to prove the material fact of intent. It was also admissible to show common design or plan. The challenged evidence was therefore admissible under section 1101(b).
Turning to the third issue, we consider whether the other-crime evidence has “substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence.” (People v. Lenart, supra, 32 Cal.4th at p. 1123.) The record disclosed that the court performed this analysis on at least two separate occasions. Defendant asserts that the court should have excluded the evidence under section 352 because the minimal probative value of the other-crime evidence was substantially outweighed by the probability that its admission would “create substantial danger of undue prejudice.” (§ 352.) This argument also fails.
As we have previously explained, evidence of defendant’s encounter with Y. Doe had a tendency to show that defendant had the requisite intent to commit the burglary and robbery charged here. The other-crime evidence also showed a common design or plan that supported the conclusion that defendant committed the charged crimes. In light of the similarities between the two incidents and the common means by which defendant achieved his objectives, we view the other-crime evidence as having been highly probative.
On the other side of the Evidence Code section 352 equation, we acknowledge that admission of the other-crime evidence had a certain level of potential prejudicial effect. (See Ewoldt, supra, 7 Cal.4th at p. 404.) The trial court, however, twice instructed the jury (under CALCRIM No. 375) that it could, but was not required to, consider evidence of the May 30 incident for the limited purpose of determining whether or not defendant acted with the requisite intent in committing the charged crimes, had the motive to commit them, and/or used a common plan or scheme in committing them. We presume that the jury followed the court’s instructions as given. (People v. Cain (1995) 10 Cal.4th 1, 34.) Further, the prosecution did nothing to exacerbate the likelihood of significant prejudice or jury confusion. The prosecutor in his opening argument specifically admonished the jury that it should not consider whether defendant had ever been charged with any crime as a result of the May 30 incident, and he emphasized that the other-crime evidence should only be considered on the issue of defendant’s intent to commit the charged crimes.
Defendant argues that the May 30 incident was highly inflammatory because it entailed a higher level of alleged misconduct, including rape, than was involved in the incident with Tran. But this argument minimizes the seriousness of the charged offenses and ignores the sexual overtones present with both the charged and uncharged offenses. Moreover, the possibility that evidence of defendant’s uncharged crimes may have negatively impacted the defense is not the issue. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll 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.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
Evidence of the May 30 incident had substantial probative value in proving defendant’s intent to commit the charged crimes and that he committed them using a common deign or plan. The probative value of the other-crime evidence was thus not “substantially outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Accordingly, the court here did not abuse its discretion by admitting the other-crime evidence.
II. Stay of Sentence for Counts 2 through 4 (Penal Code Section 654)
Defendant contends that the imposition of concurrent sentences with respect to the burglary and two misdemeanor convictions was prohibited by Penal Code section 654. He argues that the facts underlying the robbery, burglary, impersonation of a peace officer, and false imprisonment charges were part of “a continuous course of conduct” and that the crimes had a single objective, namely, theft. As such, he claims that the convictions were not subject to multiple punishment, and that the concurrent sentences imposed for counts 2 through 4 should have been stayed pursuant to Penal Code section 654. The Attorney General responds that, at least as the claim of error relates to the burglary count, defendant is mistaken because there were multiple objectives in the commission of the robbery and the burglary.
Defendant did not raise this issue below. But this did not constitute a forfeiture of defendant’s argument on appeal. “ ‘Errors in the applicability of [Penal Code] section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.’ [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 295; see also People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
Penal Code section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one....” The statute thus “precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The purpose of section 654 “is... to ensure that punishment is commensurate with a defendant’s criminal culpability. [Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
As construed by the Supreme Court, “[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) And as the high court later emphasized, “[t]he initial inquiry in any [Penal Code] section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Here, the prosecutor argued against the probation officer’s recommendation that the sentence for the burglary conviction be stayed. He asserted: “I do not think [a stay is] appropriate. [Penal Code section] 654 would not apply because there [are] additional elements in the burglary that would not be included in the robbery and they are simply not 654 to each other.” The court agreed with the prosecutor that Penal Code section 654 did not apply: “I agree [that] it is not [a] 654 situation. [The sentence on the burglary conviction] is going to run concurrent because it arises from the same transaction, not because it is 654.”
The Attorney General concedes that the prosecution “likely applied the wrong standard in arguing that [Penal Code] section 654 did not apply, omitting reference to [defendant’s] intents and objectives and instead reasoning that burglary and robbery simply have different elements.” She acknowledges further that the court may have adopted this erroneous standard, but argues that any error in reasoning is without consequence because the court’s holding that Penal Code section 654 was inapplicable was otherwise correct. We disagree with the Attorney General’s analysis.
We recognize that a determination of whether Penal Code section 654 acts as a bar to multiple punishment depends upon the facts of a given case, and that “whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We observe further that the issue of whether the defendant’s criminal conduct is divisible such that it constitutes more than one act under Penal Code section 654 “may be either express or implied from the court’s ruling. [Citation.]” (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) The problem however, here is twofold.
First, although a reviewing court may imply factual findings in support of a trial court’s determination of the inapplicability of Penal Code section 654 because defendant had multiple objectives in the commission of the subject crimes, such implication is improper where the record contradicts it. Here, a fair reading of the record is that the court found Penal Code section 654 inapplicable not because defendant entertained multiple objectives in committing the burglary and robbery offenses; rather, its legal conclusion was apparently based upon the reasoning that the two crimes were distinct because burglary had elements additional to those of robbery. Thus, while we recognize that a trial court’s factual findings regarding its determination of the applicability of Penal Code section 654 may be implied by the appellate court, such an implication should be made only where it is reasonable.
Second, even were we to conclude that the court impliedly found that defendant entertained multiple objectives in the commission of the burglary and robbery, that implied finding on review would be upheld only if it were supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; see also People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) The Attorney General—citing the other-crime evidence involving Y. Doe—argues that evidence of multiple objectives was present here because when defendant entered Tran’s motel room he may have entertained the objective of raping the victim, and only later formed the objective of robbing her. But there was no substantial evidence that defendant, in the case of Tran, ever harbored the objective of raping her. To the contrary, the People charged defendant with first degree burglary based upon his entering Tran’s motel room with the intent to commit a theft. Moreover, the People’s theory of the crime, as argued by the prosecutor, was that defendant’s intent when he entered the room “was to steal from [Tran].”
The two offenses appear to have been part of an indivisible course of conduct, and there is no substantial evidence that defendant entertained multiple objectives in committing the robbery and the burglary offenses. Therefore, we cannot sustain the trial court’s conclusion that Penal Code section 654 was inapplicable under any implied finding that defendant entertained multiple objectives in committing the two offenses. We will therefore order that the judgment be modified to provide that the sentence for the count 2 through 4 convictions be stayed.
The court imposed a restitution fine of $2,000 and a parole revocation restitution fine of a like amount, pursuant to Penal Code sections 1202.4 and 1202.45, respectively. Those fines were calculated based upon the permissive statutory formula by which $200 is multiplied by the number of years of the sentence (five), multiplied by the number of felony convictions (two). (See Pen. Code, § 1202.4, subd. (b)(2).) Because restitution fines are a form of punishment, the ban on multiple punishments under Penal Code section 654 is applicable to the imposition of such fines under Penal Code section 1202.4. (People v. Le (2006) 136 Cal.App.4th 925, 933-934.) Since the punishment for the burglary conviction must be stayed, the restitution fine (as well as the parole revocation restitution fine), properly calculated, should be $1,000. We will order the judgment modified accordingly.
DISPOSITION
The judgment is order modified to provide (a) that the punishment for the conviction of burglary (Count 2), misdemeanor false imprisonment (Count 3), and impersonation of a peace officer (Count 4), is ordered stayed pursuant to Penal Code section 654; (b) that the restitution fine is $1,000, pursuant to Penal Code section 1202.4; and (3) the parole revocation restitution fine is $1,000, pursuant to Penal Code section 1202.45. As so modified, the judgment is affirmed. The superior court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Rushing, P.J., Premo, J.