Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC591472
ELIA, J.After a jury trial, defendant Chris Pagan was convicted of a 1998 rape and a 2002 burglary with intent to rape. On appeal, he challenges the finding that he kidnapped the rape victim within the meaning of Penal Code section 667.61, subdivisions (a) and (d)(2) and the finding that he intended to rape the burglary victim. Defendant further asserts instructional error related to evidence of two uncharged offenses as well as error in the denial of his motion to sever the two counts for trial. Finally, defendant contends that the court improperly imposed two sentences for the rape. We find the first contention to have merit and must therefore reverse the judgment on that ground alone.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant has also filed a petition for a writ of habeas corpus, which this court ordered to be considered with the appeal. In the petition, defendant contends that his trial attorney rendered ineffective assistance by failing to present testimony challenging the DNA identification evidence, failing to present evidence that the victim had identified a different person in a photo line-up, failing to request correct instructions on the kidnapping allegation, and failing to request an instruction directing the jury not to consider the rape evidence in deciding the burglary count. We dispose of the petition by separate order filed this day.
Background
In the evening of December 25, 1998, Sarah Doe was standing alone inside a Milpitas bus shelter when a young Hispanic “guy” made eye contact with her as he rode by on a bicycle. She ignored him, but he surprised her by returning from behind. The man grabbed her by the hair and pressed a knife to her neck. Sarah was scared; she asked him not to hurt her, and he told her he would not if she did what he wanted. The man pulled her out of the bus shelter and dragged her along the sidewalk behind the shelter, across the parking lot, and over to a dumpster with a fenced area in front of it. He then had forcible sexual intercourse with her and returned to the bus shelter, where he grabbed her backpack and rode away on his bicycle. The officer who responded to the scene estimated the distance from the bus shelter to the dumpster to be “[r]oughly” 60 to 65 feet.
It was undisputed that a rape had occurred, but defendant was not identified until early 2005, when more sophisticated DNA profiling technology produced a match to him. When interviewed on February 23, 2005, defendant admitted that in 1998 he had probably spent Christmas with his family in Milpitas.
On June 12, 2002, Luningning Corpuz lived with her five children on North Temple Drive in Milpitas. Around midnight, while she was in bed with her bedroom window open, she awoke when she felt someone lying next to her, touching her back. Thinking it was her son, she told him to move over. Corpuz went back to sleep, but a few minutes later, she felt the body against her back and legs and heard the sound of pants being pulled down under the sheet.
Corpuz was annoyed that her son was making noise; it was unlike him. She got out of bed and asked angrily what he was doing. It was then that she saw that the person was not her son. The man got out of the bed and pulled up his underwear and pants. Corpuz shouted, “What’s your name? Who are you?” The man sat on the edge of the bed and said his name was Jose. Corpuz noticed that her bedroom door was locked from the inside, although it was not her practice to lock the door. When she opened the door, her children, who had been trying to get in, entered. The man then jumped out of her bedroom window and ran away.
When police arrived, they dusted for fingerprints. One of the prints lifted from the windowsill matched defendant’s right ring finger.
Defendant was charged by information with one count of forcible rape (§ 261, subd. (a)(2)) and one count of first degree burglary with the intent to commit rape (§§ 459, 460, subd. (a)). Attached to count one was an allegation in the language of section 667.61, subdivisions (a) and (d)(2), that defendant had “kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the foregoing offense.” The prosecution further alleged that defendant had “kidnapped the victim in violation of section 207, 209, and 209.5,” within the meaning of section 667.61, subdivisions (b) and (e)
Defendant’s motion to sever the two counts for trial was denied. At trial the prosecutor offered testimony about two prior uncharged offenses, both indecent exposure, occurring three weeks apart in late 1995. The court admitted the evidence under Evidence Code section 1108 as evidence of propensity to commit rape. During argument to the jury, defendant’s attorney did not contest the charge of rape or burglary but only maintained that Sarah Doe was not kidnapped.
The jury convicted defendant of both charges and found the kidnapping allegations to be true. The court sentenced defendant to terms of 25 years to life and 15 years to life, both for the rape with kidnapping, and stayed the second term under section 667.61, subdivision (g). It also imposed a consecutive term of 16 months for the burglary.
Discussion
1. Kidnapping Allegations
Defendant first contests the jury’s findings that in committing the rape he kidnapped Sarah Doe, within the meaning of section 667.61, subdivisions (d)(2) and (e)(1). The People agree that the “simple kidnapping” allegation cannot stand, but they refer to the subdivision (d)(2) allegation. They maintain nonetheless that the “aggravated kidnapping” finding was proper under subdivision (e)(1). Defendant, on the other hand, assumes that the concession of error applies to the “simple kidnapping” allegation under subdivision (e)(1); he thus focuses his appellate argument on subdivision (d)(2), which he calls the “aggravated kidnapping allegation.” We will address the parties’ arguments without invoking the confusing labels they attach to the charged subdivisions.
The Judicial Council appears to have viewed the two provisions similarly to defendant; the jury instruction on subdivision (d)(2) is labeled “aggravated kidnapping.” (CALCRIM No. 3175.)
Section 667.61, often called the “One-Strike” law, “sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, including rape....” (People v. Mancebo (2002) 27 Cal.4th 735, 741.) “The purpose of the One Strike law is ‘to ensure [that] serious and dangerous sex offenders... receive lengthy prison sentences upon their first conviction... where the nature or method of the sex offense “place[d] the victim in a position of elevated vulnerability.” [Citation.]’ ” (People v. Alvarado (2001) 87 Cal.App.4th 178, 186, quoting People v. Palmore (2000) 79 Cal.App.4th 1290, 1296.)
The applicable language of section 667.61 is the same today as in 1998, when the offense against Sarah Doe occurred. Enacted in 1994, the statute prescribes indeterminate sentences of 15 or 25 years to life for enumerated sex offenses (listed in subdivision (c)) which have been “committed under one or more ‘aggravating circumstances,’ such as kidnap[ping of] the victim....” (People v. Alvarado, supra, 87 Cal.App.4th at p. 186.) One of the circumstances that permit a sentence of 25 years to life under subdivision (a) is the following: “The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).” (§ 667.61, subd. (d)(2).) Under subdivisions (b) and (e)(1), on the other hand, a prison term of 15 years to life may be imposed if the defendant “kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.”
“Kidnapping” is defined in section 207 as follows: “(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” Section 209 describes the offense of kidnapping to commit robbery or a specified sex offense, and section 209.5 punishes kidnapping to facilitate a carjacking.
The trial court instructed the jury on the subdivision (d)(2) allegation with CALCRIM No. 3175, which states that the defendant had to move the victim “a substantial distance” and that such movement substantially increased the risk of harm to her beyond that necessarily present in the crime of rape. The court then defined “substantial distance” as follows: “ ‘Substantial distance’ means more than a slight or trivial distance. The movement must be more than merely incidental to the commission of the rape. In deciding whether... the distance was substantial or whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement.”
The court stated: “To prove this allegation, the People must prove that: [¶] 1. The defendant took, held, or detained Sarah Doe by use of force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved Sarah Doe or made her move a substantial di[stance]; [¶] 3. The movement of Sarah Doe substantially increased the risk of harm to her beyond that necessarily present in the crime of rape; and [¶] 4. Sarah Doe did not consent to the movement.”
The court instructed the jury on the subdivisions (b) and (e)(1) kidnapping allegation with CALCRIM No. 1215, which explains the elements of a section 207 violation with reference to movement of the victim “a substantial distance.” The court gave an expanded definition of “substantial distance” as “more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.”
The court added language to CALCRIM No. 1215 so as to conform to CALCRIM No. 3179, an instruction designed for section 667.61, subdivision (e)(1) allegations.
a. The Subdivision (d)(2) Allegation
Subdivision (d)(2) of section 667.61, which lists kidnapping as one of the predicate conditions for a term of 25 years to life, simply refers to kidnapping without qualifying or enhancing that term, except to add that the movement must substantially increase the risk of harm to the victim. Thus, by using the unadorned word “kidnapping” the Legislature must be presumed to have referred to the crime of simple kidnapping as defined in section 207, subdivision (a).
At the time of the rape, simple kidnapping included a specific asportation element circumscribed by the distance the victim was moved. It had long been settled that to constitute kidnapping the movement was required to be substantial—that is, “more than... trivial, slight, or insignificant.” (People v. Caudillo (1978) 21 Cal.3d 562, 572, citing People v. Stanworth (1974) 11 Cal.3d 588, 601.) In People v. Brown (1974) 11 Cal.3d 784, 789, for example, a movement of at most 75 feet was deemed insufficient to establish asportation as a matter of law. The court followed Brown in People v. Green (1980) 27 Cal.3d 1, 67, by rejecting a finding of asportation when the victim was moved 90 feet.
In People v. Martinez (1999) 20 Cal.4th 225, 235-237, the Supreme Court rejected the measure of “substantial” movement used in past kidnapping cases. The court reaffirmed that the movement must be substantial in character, but it replaced distance as the “sole criterion for assessing asportation” in simple kidnapping (section 207 violations) with consideration of the totality of the circumstances, including not only the number of feet or yards the victim is moved but also, where relevant, contextual factors such as “whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (20 Cal.4th at p. 237.)
The trial court instructed the jury on the subdivision (d)(2) allegation with CALCRIM No. 3175, which is consistent with Martinez. Had defendant committed his crime against Sarah Doe after April 8, 1999, the court’s instruction would have correctly defined the crime of kidnapping, which the jury could have applied to the section 667.61 allegation. But the Supreme Court made its holding in Martinez prospective only. Crimes that took place before then were to be decided in accordance with the prior law, represented by Caudillo, Green, and Brown. Thus, for purposes of determining whether defendant kidnapped Sarah Doe within the meaning of section 667.61 the jury was confined to pre-Martinez consideration of distance alone.
The only evidence of the distance Sarah Doe was moved was the police officer’s estimate of 60-65 feet. In December 1998 a movement of 65 feet clearly would not have amounted to asportation within the meaning of section 207, subdivision (a). Accordingly, under the law applicable at the time of the rape, the movement must be deemed insufficient to constitute kidnapping within the meaning of section 667.61, subdivision (d)(2). The subdivision (d)(2) allegation that defendant kidnapped Sarah Doe cannot stand.
b. Subdivision (e)(1) Allegation
The People direct most of their appellate argument to what they call the “aggravated kidnapping allegation,” referring to subdivisions (b) and (e)(1) of section 667.61. This provision prescribes 15 years to life where one circumstance listed in subdivision (e) is applicable. The jury’s finding on this charge also must be overturned. Even if proof of a minimum distance was unnecessary for a violation of section 209, defendant could not have been found to have committed that predicate crime. The information contained a bare allegation in the language of section 667.61, subdivision (e)(1), that defendant “kidnapped the victim in violation of section[s] 207, 209, and 209.5” without describing the offending conduct. Moreover, the only kidnapping definition the jury received in connection with this allegation was CALCRIM 1215, which explains simple kidnapping, a violation of section 207, subdivision (a), and which uses the Martinez definition of asportation. The jury was not instructed on either section 209, kidnapping to commit rape (CALCRIM No. 1203), or section 209.5, kidnapping to facilitate a carjacking (CALCRIM No. 1204). Instead, the court explained that if the defendant did commit the rape, then the jury must further decide whether “the additional allegation that the defendant kidnapped Sarah Doe is true.” In defining “kidnapping” for this purpose, the court again stated that “substantial distance” was more than slight or trivial, and that “all the circumstances relating to the movement” must be considered, including not only the actual distance moved, but the other asportation factors set forth in Martinez as well.
There was no reason to instruct on section 209.5, because this provision is directed at carjacking, which obviously did not occur here.
As the jury instruction on kidnapping was confined to simple kidnapping, the true finding on the subdivision (e)(1) allegation must have been based on a determination that defendant kidnapped Sarah Doe in violation of section 207. As no evidence supported such determination under the law applicable in December 1998, the section 667.61, subdivision (e)(1) finding, like its subdivision (d)(2) counterpart, is unsustainable.
The court’s instructions help explain the task assumed by the jury and the evidence that could have supported its “true” findings. However, in light of our conclusion that the evidence was insufficient to support a determination of asportation, it is unnecessary to address more directly defendant’s claims of error in instructing the jury on the One Strike allegations and his assertion of ineffective assistance of trial counsel for failing to request correct instructions on those allegations. Also moot is defendant’s claim of sentencing error in the court’s imposition of two One-Strike terms.
2. CALCRIM No. 1191 Instruction
Among the trial court’s final instructions was CALCRIM No. 1191, which explained how the jurors were permitted to use the evidence of the two 1995 acts of indecent exposure. The court stated: “The People have presented evidence that the defendant committed the crimes of indecent exposure that were not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit and did commit the crime of rape, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of rape. The People must still prove each element of the charge beyond a reasonable doubt.”
Defendant argues that this instruction was unconstitutional because it authorized a conviction for rape based only on proof of his disposition to commit the uncharged offenses. He recognizes that the jury was admonished not to convict him based solely on the acts of indecent exposure. But the jury was not specifically admonished not to consider the burglary with intent to rape, which, according to defendant, served as further propensity evidence that defendant was disposed to commit sex crimes and thus, to commit the rape of Sarah Doe. The problem was exacerbated, defendant adds, by the prosecutor’s argument that the burglary for rape was probative of the rape, “which rendered it even more likely the jurors considered evidence of the burglary for rape in deciding the rape charge.” Furthermore, although the jurors were reminded that they must find each element of the rape beyond a reasonable doubt, that instruction, defendant argues, was contradicted by CALCRIM No. 1191 allowing proof of disposition to establish guilt on the charged offense. No clarifying instruction was given to help the jurors reconcile this conflict.
We cannot agree. The instruction did not authorize an inference of disposition based on the burglary with intent to rape, and there is no reason to assume that the jurors extrapolated the information on the use of uncharged offenses to the use of the charged burglary offense. Furthermore, CALCRIM No. 1191 itself is not constitutionally defective either in the abstract or as applied in this case. Defendant acknowledges People v. Reliford (2003) 29 Cal.4th 1007, where the Supreme Court approved a predecessor instruction (the 1999 revision of CALJIC No. 2.50.01) to be sound, but he argues that the case is inapplicable because the Supreme Court did not address the precise issue he raises. Defendant’s challenge, however, has been rejected on similar grounds by the appellate courts of this state, including this district. (See, e.g., People v. Schnabel (2007) 150 Cal.App.4th 83, 87; People v. Cromp (2007) 153 Cal.App.4th 476, 480; accord, People v. Wilson (2008) 166 Cal.App.4th 1034, 1049.) We need not repeat the entire reasoning of those decisions. We are convinced that “[t]he version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to CALCRIM No. 1191 (which was given here) in its explanation of the law on permissive inferences and the burden of proof.” (People v. Schnabel, supra, 150 Cal.App.4th at p. 87.) Like the 1999 version of CALJIC No. 2.50.1, the CALCRIM instructions did not authorize the jury to use the preponderance-of-the-evidence standard for any purpose other than the preliminary determination of whether he had previously committed indecent exposure.
Moreover, CALCRIM No. 1191 goes further than the previous CALJIC instruction. It did not merely tell jurors generally that the uncharged offenses were insufficient to prove guilt beyond a reasonable doubt. The instruction expressly told jurors that the evidence was not sufficient by itself to prove defendant’s guilt but was only one factor to be considered along with the other evidence and that the prosecution still had the burden to prove each element of the rape charge beyond a reasonable doubt. In addition, as in Reliford, the court instructed jurors about circumstantial evidence, informing them that they could rely on such evidence to find defendant guilty only if guilt was the only reasonable conclusion supported by that evidence and only if the prosecution had proved each fact essential to that conclusion beyond a reasonable doubt. (CALCRIM No. 224.) The court’s instructions on the presumption of innocence (CALCRIM No. 220) and defendant’s right not to testify (CALCRIM No. 355) also emphasized that the prosecution had the burden to prove guilt beyond a reasonable doubt. No instructional error occurred on this point, nor, in light of the context of the instructions as a whole, was there a reasonable likelihood that the jury “ ‘ “applied the challenged instruction in a way” that violate[d] the Constitution.’ ” (People v. Reliford, supra, 29 Cal.4th 1007, 1013, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.)
3. Evidence of Intent to Rape
Defendant next contends that the evidence was insufficient to support a conviction on count two, burglary with intent to rape. In his view of the record, there was “no substantial evidence force was used or threatened by the perpetrator. There was no substantial evidence the perpetrator intended to have sexual intercourse.” In amplifying his appellate argument, defendant modifies his assertion to state that there was no evidence that he “intended to use force or threat of any sort.”
Defendant’s argument cannot succeed in light of the established principles of appellate review. Under the substantial evidence standard, we must “review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11.) Even if we believed that defendant did not intend to use force or threat or even to have sexual intercourse with Corpuz, we cannot overturn the conviction unless no substantial evidence supports the verdict reached by the jury. In other words, the question is not whether we agree that the evidence established guilt, but “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Thus, “ ‘ “[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1054.)
In burglary cases, the requisite felonious intent “usually must be inferred from all the facts and circumstances revealed by the evidence, because only rarely can it be proved directly.” (People v. Proctor (1992) 4 Cal.4th 499, 533.) Corpuz’s testimony was circumstantial, but it was sufficient to permit an inference of intent to rape. Defendant entered her bedroom through a window late at night while she was sleeping. He locked the door, climbed into her bed, and pressed up against her back. Soon after she ordered him to move away (thinking it was her sleeping son) and went back to sleep, he lowered his pants and underwear and again pressed against her back and legs. Only when she stood up and shouted at him did defendant get out of the bed and pull his clothes back up. Even then he did not leave, but sat on the bed. Only when she opened the door and her children entered did defendant leave, escaping out the window. While a rational factfinder could have found otherwise, this jury reasonably inferred from the events related by Corpuz that defendant entered her bedroom with the intent to rape her. A display of force or threat of force was not necessary for the burglary. No basis for reversal is shown on these facts.
4. Joinder of Charges
At the outset of trial, defense counsel opposed the joinder of the two counts on the grounds that the crimes were not of the same class and the prejudice to defendant would be “overwhelming,” as jurors would be likely to use the two charges together to find him guilty of both. The court disagreed. While the two crimes were not equally egregious, the burglary was “fairly serious,” “in the realm of egregious.” Together the charged crimes were “not that disparate to prevent a joinder.” Defendant challenges this ruling, asserting abuse of discretion and “gross unfairness” that denied him the right to a fair trial.
Section 954 permits an accusatory pleading to charge “two or more different offenses connected together in their commission... or two or more different offenses of the same class of crimes or offenses, under separate counts.....” “[I]n the interests of justice and for good cause shown, [a court] may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately....” (§ 954.) “For purposes of joinder, offenses are deemed to have been connected together in their commission, where there exists ‘a common element of substantial importance in their commission,’ even though the offenses charged do not relate to the same transaction and were committed at different times and places against different victims. [Citations.] Offenses are of the ‘ “same class” ’ if they possess ‘common characteristics or attributes.’ ” (People v. Poon (1981) 125 Cal.App.3d 55, 68.) Defendant does not dispute the establishment of sufficient commonality to satisfy section 954; instead, he focuses on the prejudice caused by joinder of the two offenses.
In general, the law prefers consolidation of charges. (People v. Manriquez (2005) 37 Cal.4th 547, 574; People v. Smith (2007) 40 Cal.4th 483, 510.) “Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.” (People v. Brock (1967) 66 Cal.2d 645, 655, overruled on another point in People v. Cook (1983) 33 Cal.3d 400, 413.) Consequently, “[w]e review the denial of severance under a deferential abuse of discretion standard. [Citation.] Where the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1128; see also People v. Poggi (1988) 45 Cal.3d 306, 320; People v. Stitely (2005) 35 Cal.4th 514, 531 [“substantial danger of prejudice”].) “Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 127.)
“In assessing potential prejudice, we examine the record before the trial court at the time of its ruling. The relevant factors are whether (1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case. [Citations.]” (People v. Zambrano, supra, 41 Cal.4th at pp. 1128-1129; see also People v. Mendoza (2000) 24 Cal.4th 130, 160.) “A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process.” (People v. Stitely, supra, 35 Cal.4th at p. 531.)
“Cross-admissibility ordinarily dispels any inference of prejudice. [Citations.]” (People v. Zambrano, supra, 41 Cal.4th at p. 1129.) The parties debate whether the evidence relevant to the two charged offenses were cross-admissible. We need not resolve this issue, however. Even if evidence of each crime was not cross-admissible, “ ‘cross-admissibility is not the sine qua non of joint trials.’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 575; see also People v. Poggi, supra, 45 Cal.3d at p. 321 [mere lack of cross-admissibility is not enough to establish prejudice].) “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading... evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.” (§ 954.1.) The lack of cross-admissibility of evidence between charged offenses does not establish prejudice where “the offenses were of the same class and therefore statutorily joinable under section 954.1” and “none of the factors relevant to the assessment of prejudice supports defendant’s claim of prejudice.” (People v. Geier, supra, 41 Cal.4th at pp. 577-578.)
The other factors do not support defendant’s assertion of prejudice in this case. Defendant contends that the “brutal” circumstances of the rape were “manifestly inflammatory,” which would have caused the jury to convict him of the burglary charge based on “the worst sort of character,” whereas the case for burglary alone was weak. Joining the weak count with the strong case of rape “almost certainly” caused the jury to consider the circumstances of the rape in considering the charge of burglary, especially in light of the prosecutor’s urging the jury to consider the rape as probative of the burglary and the lack of defense argument regarding the burglary. Defendant further asserts the converse, that the evidence of the burglary for rape “unfairly increased the jury’s disposition to convict [him] of rape.”
We are not convinced. The premise of defendant’s argument, that the burglary case was weak, is faulty. There was no dispute that defendant entered Corpuz’s bedroom; his fingerprint was found on the windowsill. Further, as discussed earlier, the evidence of defendant’s intent to commit rape was independently demonstrated by his locking the door, climbing into her bed, pressing against her, and pulling down his pants. The evidence supporting the rape of Sarah Doe was distinct from the evidence of burglary with intent to rape and thus was unlikely to create a “spillover effect” warranting severance. (Cf. People v. Geier, supra, 41 Cal.4th at p. 578; People v. Sandoval (1992) 4 Cal.4th 155, 173.) Indeed, the evidence of both counts was so strong that defense counsel elected not to contest either the fact of rape or the burglary charge but focused his argument on the kidnapping allegation.
Nor can we find “gross unfairness” amounting to a denial of a fair trial or due process. To his other arguments in favor of prejudice defendant adds that (1) the jury was not instructed to consider the evidence separately as to the two charges, (2) the district attorney urged consideration of each charge as probative evidence of the other, and (3) defense counsel presented no closing argument on the burglary. The jurors were in fact instructed that they must consider each count separately (CALCRIM No. 3515), and the prosecutor did not suggest that they use any evidence of one crime to establish the other. Each witness was asked to mark the location of the incident on the same map. But that does not indicate that the evidence of one event should be used to prove another. The furthest the prosecutor went in the direction of overlap was to query rhetorically whether it was a coincidence that the women targeted in the rape, the burglary, and the prior incidents of indecent exposure were all either Hispanic or Asian. This argument, however, only contributed to the inference that it was defendant who committed each crime. Identity was not contested, as it was strong. As for defense counsel’s argument, there is no evidence that trying the two counts together was what kept him from attacking the burglary charge. He could have elected to concentrate his efforts on the scenario that would be most plausible to the jury -- that defendant did not kidnap Sarah Doe -- rather than attempt to refute accusations backed by fingerprint and DNA analysis. No prejudice resulted from denying the request to sever the two counts, and hence no violation of defendant’s right to due process and a fair trial.
Disposition
The judgment is reversed. The trial court is directed to strike the kidnapping findings under section 667.61 and then re-sentence defendant on both counts. The court shall amend the abstract of judgment accordingly and forward a copy to the Department of Corrections.
WE CONCUR: RUSHING, P. J., PREMO, J.