NOT TO BE PUBLISHED IN OFFICIAL REPORTS
A jury convicted Dwayne A. Farrell of two counts of first degree burglary, committing a lewd act on a child under age 14, and two counts of annoying or molesting a minor after entering an inhabited dwelling without consent. On appeal, Farrell raises two issues. He asserts the trial court abused its discretion by permitting evidence of two uncharged sex offenses, which he argues should have been excluded as dissimilar and highly prejudicial. We reject this argument. Farrell also contends the trial court should have stayed his concurrent sentences for burglary and annoying or molesting a minor under Penal Code section 654. The Attorney General concedes the error under Penal Code section 654, but asks this court to modify the sentence. Because the record does not indicate a modification is appropriate, we remand the cause for the limited purpose of resentencing Farrell in accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In the late evening of February 15, 2014, Farrell was drinking and using marijuana at the Terra Cotta apartment complex in San Marcos, about a mile and half from his own apartment. After a night of partying, around 5:00 a.m. the following day, Farrell entered another apartment in the complex through an unlocked sliding glass door. Once inside, Farrell entered the bedroom of seven-year-old Kimberly S. and her three-year-old sister, who were asleep in their beds. Kimberly was awakened by Farrell pulling on her shirt and touching her back. Kimberly looked up at the person, and saw a stranger with braids wearing a beanie. Farrell was holding a phone that appeared to be video-recording. Thinking the man was her father, Kimberly pushed Farrell's beanie towards the top of his head, Farrell then pulled the beanie back down and ran out of the bedroom. Frightened, Kimberly ran to her parents' bedroom. When Kimberly told them someone was in the house, her father ran out of his room and saw the blinds moving on the sliding glass door where Farrell entered. Kimberly's parents called the police.
After leaving Kimberly's apartment, Farrell entered another apartment in the complex. Farrell had been to the second apartment seven months earlier, where Diane R. lived with her eight-year-old boy-girl twins, when he helped the family move from their apartment in the complex where Farrell lived. Diane asked Farrell's brother to help her move some large items to her new Terra Cotta apartment and Farrell assisted. In the early morning hours of February 16, 2014, Farrell climbed to Diane's second-story balcony and entered the two-bedroom apartment through an unlocked sliding door. Diane was asleep in her bedroom, which she shared with her daughter, Hannah. Her son was asleep in the other bedroom. After Farrell entered the apartment, Hannah woke up and asked her mother if they could get up. Diane told Hannah to go back to sleep, but then heard heavy breathing.
Diane sat up and saw someone lying on the floor next to Hannah. Thinking it was her son, she leaned over to touch him on the back and then realized it was a strange man. Farrell got up from the floor and Diane screamed and yelled at the man to leave. Farrell ran through the apartment, back out through the sliding door, then climbed over the balcony railing. Diane heard Farrell hit the ground, which was 10 to 12 feet below, with a hard thud. Diane saw Farrell scramble to get up, pick something up off the ground and run away. She immediately called 911. When the police arrived, they found fresh droplets of blood where Farrell had landed and down the path Diane saw him run. DNA from the blood droplets matched Farrell's DNA.
Another resident of the Terra Cotta apartments later reported to police that as she was leaving the complex to pick up some friends around midnight on the night of the incidents, Farrell approached her car in a frightening manner. The woman told police Farrell got within a few inches of the passenger side window of her car and stared at her, before she drove away. The woman also reported that she saw Farrell with a woman in her twenties just before he approached her car, and that as she drove away she saw him return to a group of people at a nearby bench who looked like they were drinking beer from bottles.
Sheriff's deputies went to Farrell's apartment later in the day on February 16, 2014. Farrell had a fresh abrasion above his right eye. The deputies took pictures of beanies and clothing that matched the descriptions of the perpetrator given by Kimberly, Diane and Hannah. A white t-shirt in the apartment appeared to have blood stains around the collar. Sheriff's deputies also saved images from Farrell's Facebook page that showed him wearing beanies and with braids in his hair. Sheriff's deputies obtained Farrell's cell phone and found several photographs of nude and partially nude girls with labels suggesting they were underage. Some photos also showed an erect penis in the foreground or against the girls. Farrell's phone also contained a nine-minute video of a young, possibly underage, girl that zoomed in on her breasts and vaginal area, and also appeared to show her sleeping.
When Farrell was interviewed by a detective the following day, he stated that the night of the incidents he was out at a bar in Oceanside with his friends Jessica Brotherton and Anthony Brown. Farrell said he could not remember the name of the bar, and that he got the abrasion on his head in a fight there with a Mexican man. According to Farrell, after the fight ended Brotherton drove him home around 1:00 or 1:30 a.m., then he went straight to bed and slept until late that morning. Farrell recalled helping Diane move, but claimed he had not been back to the Terra Cotta apartment complex since that day.
Farrell was arrested on February 17, 2014, and spoke to his brother from jail that night. His brother told Farrell he was on the news and Facebook, and that reporters had been to their apartment. When Farrell asked his brother what was being said, he responded, "they're sayin you were in some house while a lady and some, her daughter were sleepin' or somethin' like that. And then . . . I guess the lady woke up and saw you and you jumped out the window and hit your head. . . ." Farrell responded "It looks like I'm gonna be in for an extended stay, so. . . ."
Farrell was charged with two counts of burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a); counts 1 and 4), committing a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a); count 2), and two counts of annoying or molesting a minor after entering an inhabited dwelling without consent (Pen. Code, § 647.6, subds. (a)(1) & (b); counts 3 and 5). The prosecution also alleged a prison prior under Penal Code section 667.5, subdivision (b).
Prior to trial, the district attorney moved to introduce evidence of two prior uncharged sexual offenses under Evidence Code sections 1108 and 352.
The defense opposed the prosecution's motion, arguing both that the evidence did not fall within the requirements of section 1108 and that it was unduly prejudicial under section 352. The trial court disagreed, finding the evidence was within the exception for prior sexual misconduct contained in section 1108, that the evidence was not unduly prejudicial, confusing or misleading to the jury, and that the presentation of the evidence would not necessitate an undue consumption of time. After the conclusion of evidence, which included the uncharged sexual conduct, the court provided a detailed instruction to the jury, stating: "The People presented evidence the defendant committed the crime of annoying or molesting a minor on two separate occasions in 2011 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 the defendant in fact committed the uncharged offenses. [¶] Proof by a preponderance of the evidence is a different burden 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 the defendant committed the uncharged offenses, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude the defendant was likely to commit and did commit the crimes of committing a lewd act on a child under 14 years of age as charged in count 2 and the crime of entering a residence without consent to annoy or molest a minor as charged in counts 3 and 5. [¶] If you conclude 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 conclude the defendant is guilty of the crimes of committing a lewd act on a child under 14 years of age as charged in count 2 and the crime of entering a residence without consent to annoy or molest a minor as charged in counts 3 and 5. [¶] The People must still prove each charge and allegation beyond a reasonable doubt."
At the conclusion of trial, the jury found Farrell guilty on all five counts. As to each burglary count (counts 1 and 4), the jury found true that another person was present in the residence during the burglary (Pen. Code, § 667.5, subd. (c)(21)). As to the lewd act count (count 2), the jury found true that Farrell was a stranger to the victim (Pen. Code, § 1203.066, subd. (a)(3)), that Farrell committed the crime during the commission of a residential burglary with the intent to commit a lewd act on a child under age 14 (Pen. Code, § 667.61, subds. (a), (c) & (d)), and that Farrell committed the crime during the commission of a burglary with the intent to commit a lewd act on a child under age 14 or to annoy or molest a minor after entering a residence without consent (Pen. Code, § 667.61, subds. (b), (c) & (e)). The trial court also found true that Farrell had served a prior prison term. The court sentenced Farrell to a total term of 32 years to life in prison, consisting of an indeterminate term of 25 years to life for count 2, a consecutive term of six years for count 1, and a consecutive one-year term for the prison prior. The court imposed concurrent terms for counts 3, 4 and 5.
Farrell contends the admission of evidence concerning the two uncharged offenses was an abuse of the trial court's discretion under section 352. Specifically, Farrell argues the evidence was improperly admitted because it was dissimilar to the charged crimes in three key respects: (1) Neither uncharged offense involved entry into the victim's home; (2) there was no attempt of physical contact in the uncharged offenses; and (3) the victims of the uncharged offenses were teenagers, not young girls like the victims in the charged offenses.
"Subject to Evidence Code section 352, Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's propensity to commit offenses of the same type, and essentially allowing such evidence to be used in determining whether the defendant is guilty of the current sexual offense charge." (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1096.) " "[T]he willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.'" (People v. Falsetta (1999) 21 Cal.4th 903, 912 (Falsetta).) Further, "`"[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108."'" (People v. Cordova (2015) 62 Cal.4th 104, 133.)
Although there is a risk of unfairness inherent in all propensity evidence, the Legislature has determined that the need for uncharged sexual offense evidence is critical given the serious and secretive nature of sex crimes. (Falsetta, supra, 21 Cal.4th at p. 911.) Trial courts must determine whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, danger of undue prejudice, confusion of issues, or misleading the jury. (Id. at p. 917.) The weighing process is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence." (People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
In evaluating propensity evidence under section 352, trial judges "must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives. . . ." (Falsetta, supra, 21 Cal.4th at p. 917.) We will not find that a trial court abused its discretion in admitting other sexual acts evidence unless its ruling "`falls outside the bounds of reason.'" (People v. Kipp (1998) 18 Cal.4th 349, 371.) Similarly, we will disturb a trial court's ruling under section 352 only where the court has exercised its discretion in a manner that has resulted in a miscarriage of justice. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
The trial court's ruling was consistent with the purpose of section 1108 "to permit the jury's consideration of evidence of a defendant's propensity to commit sexual offenses. `The propensity to commit sexual offenses is not a common attribute among the general public. Therefore, evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of a victim's testimony.' [Citations.]. `[C]ase law clearly shows that evidence that [a defendant] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses.'" (People v. Villatoro (2012) 54 Cal.4th 1152, 1164, italics omitted.)
Here, the court conducted a thorough balancing test, considering the potential prejudice of the uncharged conduct evidence, before concluding it should be admitted at trial. As the trial court observed, although the victims of the earlier conduct were older than those in the case at bar, all four instances involved observing minors asleep in their bedrooms at night. This similarity, coupled with the clear sexual intent evidenced in the uncharged conduct, made the evidence of the uncharged conduct highly probative of the contested issue of Farrell's sexual intent in this case.
Further, the dissimilarities of Farrell not entering the homes of the earlier victims and the lack of physical contact showed the evidence was less inflammatory than the charged conduct. Contrary to Farrell's assertion that the evidence was unduly prejudicial because it played into a "general public perception that any adult involved in any form of sexual misconduct with an underage person is a pedophile who . . . will always reoffend," Farrell's trial counsel argued the evidence showed Farrell was not interested in victims the age of Hannah and Kimberly. The argument supported his theory that Farrell was not the perpetrator. Defense counsel's argument shows the uncharged conduct evidence was not prone to improperly inflame the jury against Farrell, and thus was not highly prejudicial in the way Farrell advances on appeal. (See People v. Cordova, supra, 62 Cal.4th at p. 133 ["because the uncharged crimes were not inflammatory compared to the charged crime, there was little prejudice"]; People v. McCurdy (2014) 59 Cal.4th 1063, 1099 [noting evidence of less inflammatory conduct than charged offenses not unduly prejudicial].) Finally, the trial court gave clear instructions to the jury on how the uncharged conduct evidence could be evaluated.
On this record, we cannot conclude that the trial court's decision to permit evidence of these two earlier events under section 1108 was outside the bounds of reason.
Farrell also contends the court should have stayed the sentences it imposed on counts 1 and 3 under Penal Code section 654, since those charges all stemmed from the same underlying conduct as count 2 (the charge of lewd conduct related to Kimberly) on which the court imposed the indeterminate term of 25 years-to-life. Likewise, he asserts the sentence on count 5, which related to the same conduct as count 4 (molestation of Hannah), should also have been stayed under Penal Code section 654. The Attorney General concedes the sentences should have been stayed, but asks this court to modify the sentence imposed by the trial court to reflect the court's intention to impose consecutive sentences on counts 2 and 4.
Penal Code section 654, subdivision (a), provides in part: "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 provision." As clarified by the California Supreme Court, this section "prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358; People v. Sanders (2012) 55 Cal.4th 731, 743-744.) When the factual basis for a burglary conviction is entry with intent to commit a felony sex offense, Penal Code section 654 bars concurrent sentences for the burglary and sex offenses. (In re McGrew (1967) 66 Cal.2d 685, 688.)
In this case, as noted, Farrell's convictions for counts 1, 2 and 3 were based on the entry into Kimberly's bedroom and his conduct while there, and counts 4 and 5 were based on the entry into Hannah's bedroom. As to Kimberly, both the concurrent sentence for the burglary and the concurrent sentence for annoying or molesting a minor after entering an inhabited dwelling without consent should have been stayed under Penal Code section 654. Equally, his conviction on count 5 should have been stayed in favor of the sentence imposed on count 4.
We do not agree with the Attorney General, however, that it is clear from the record that the court confused count 1 with count 4, and that the court intended to impose the consecutive determinate term sentence of six years on count 4, not on count 1 as it did. The prosecutor did recommend sentencing Farrell to a consecutive term on count 4. Additionally, in its report, the probation department recommended consecutive sentences for all terms not stayed under Penal Code section 654. However, the court was clear in its pronouncement that it was imposing a consecutive six-year term on count 1 and a concurrent term on count 4. The abstract of judgment reflects this pronouncement. Because there is no indication of any confusion on the court's part or error in the abstract, we must remand to the trial court to conduct a new sentencing hearing in accordance with this opinion. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 ["[T]he appropriate remedy is to remand for resentencing unless the record `clearly indicate[s]' that the trial court would have reached the same conclusion"].)
The cause is remanded with directions to resentence Farrell in accordance with this opinion. The judgment is otherwise affirmed.
HUFFMAN, J. and O'ROURKE, J., concurs.