P. v. Smith

Filed 8/1/08 P. v. Smith CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal from a judgment of conviction after a jury trial. The jury found appellant Terrence Lorran Smith guilty of three counts of residential burglary, two counts of assault with intent to commit a sexual offense, and one count each of forcible oral copulation, forcible rape, and forcible penetration by a foreign object. Appellant contends the judgment must be reversed because the trial court erred in denying his motion to sever certain of the counts, in admitting a nurses prejudicial testimony, and in declining to stay imposition of sentences with respect to two of the counts. We modify the judgment to stay execution of the sentence imposed with respect to one of the assault counts, and affirm the judgment as modified.

Factual and Procedural Background

On July 28, 2005, appellant was charged by information with four counts of residential burglary (counts 1, 3, 9 & 10); three counts of assault with intent to commit a sexual offense (counts 2, 7 & 8); and one count each of forcible oral copulation (count 4), forcible rape (count 5), and forcible penetration by a foreign object (count 6). The charges related to four separate incidents occurring within a half-mile radius and during a six-month period in the City of Fairfield.

I. SS. (Counts 3 through 7)

On the night of March 20, 2005, SS was sleeping on the couch in the living room of her apartment, located in Fairfield. SSs two-year-old daughter was asleep in a bed behind the couch. SS, who was suffering from recurrent, incurable breast cancer, awakened at about 5:00 a.m. to open a window after feeling hot. She returned to the couch to continue sleeping, but felt the presence of another person in the room. She opened her eyes and saw a Black male with a dark hooded sweatshirt standing over her.

The man, later identified as appellant, covered SSs face with a pillow. SS tried to fight back, but was weakened by her cancer and was concerned that, if she continued fighting, appellant would harm her young daughter, who was also in the room. Appellant removed SSs underpants, put his finger into her vagina, and then orally copulated her. SS begged him to stop and not to harm her daughter, and offered him money if he would leave. She also told him she was suffering from cancer, to which appellant responded:  Oh, you have cancer. Im so sorry.  But appellant did not stop; rather, appellant proceeded to rape SS. When he was finished, appellant placed both hands on the pillow still covering SSs face, and ordered her not to remove the pillow for two minutes. SS obeyed and, after the two minutes were over, called 911 and then ran to a neighbors home.

Officer Matthew Bloesch responded to SSs 911 call. When he was less than a tenth of a mile from SSs apartment, Officer Bloesch saw a man who matched SSs descriptiona light-skinned Black man with cornrows in his hair wearing a navy blue sweatshirt. Officer Bloesch made a U-turn with his vehicle, and the man started to run away. The man eventually disappeared at an apartment complex located on Clay Bank Road. Appellant lived at 2000 Clay Bank Road.

SS was later shown a six-person photographic lineup by Detective Steve Trojanowski. She identified appellant as the man who sexually assaulted her. In addition, a vaginal swab taken from SS shortly after her attack retrieved semen that matched the DNA profile from a swab taken of appellants semen. According to Tanya Vermeulen-Beede, the expert in DNA analysis who tested the swab, this particular DNA profile is found in about one and 2.5 quintillion African-Americans, one in 590 quintillion Caucasians, and one in 1.6 sextillion Hispanics.

SSs health deteriorated rapidly following her attack, and she died before trial, four days after giving sworn testimony for this case.

II.AS. (Counts 1 & 2)

AS lived a few doors down from SS in Fairfield. At approximately 4:30 a.m. on January 7, 2005, AS was awakened by a noise and went to check the door. Finding nothing unusual, AS returned to the couch in the living room to continue sleeping. Her four-year-old son was also sleeping in the living room.

Just before dozing off, AS felt a presence and opened her eyes to see appellant standing over her. AS later described appellant as a tall, thin Black man with a narrow face, big eyes, dreadlocks in his hair, and wearing a dark sweatshirt. Appellant placed one hand over ASs mouth and began to touch her vagina with his other hand. AS tried to get away from appellant, but the more she struggled the more force he put on her. When AS screamed for her son to wake up, appellant grabbed her neck. Appellant then moved his hand from her vagina to her breast.

ASs son woke up and screamed [M]om, at which point AS bit appellants hand. Appellant got off of AS and ran out the bedroom window. AS called the police, and later identified appellant in a six-person photographic lineup. AS told police she was a hundred percent sure of her identification.

Appellant worked for an inventory service company based in Fairfield. Company records showed that, on the night of January 6, 2005, appellant worked from 8 p.m. until 12:30 a.m. on the morning of January 7, picking up inventory at a store located in the City of Newark. Newark is located about 70 miles from Fairfield.

III. ZI. (Counts 8 & 9)

On May 21, 2005, in the early morning hours, ZI was asleep on the floor in the loft of her familys home in Fairfield. ZI had fallen asleep watching television, but woke up after hearing someone walking around. ZI opened her eyes and found a tall man, later identified as appellant, walking in the loft wearing a red hooded sweatshirt. ZI tried to get up, but appellant pushed her back to the floor and placed his hand over her mouth. With his other hand, appellant began to touch ZIs breasts over the top of her shirt. ZI bit the hand that was covering her mouth, and appellant released her and ran down the staircase. ZI chased him, screaming at him, but appellant got away.

ZIs sister called the police, who later found a handprint on the bedroom window that matched a print of appellants right index finger. ZI later identified appellant in a photographic police lineup shown to her by Detective Trojanowski.

IV. SL. (Count 10)

SL also lived in Fairfield. In the early morning hours of June 1, 2005, SL woke up and went into the kitchen for a drink. She felt someones presence, and noticed the window in her brothers room was open. She went into the computer room where her brother, who usually returns from work between 4:00 a.m. and 6:00 a.m., was working, and told him that she believed someone was in the house. As SL and her brother walked toward the living room, a person ran past them through the front door. SL later described the intruder as a tall Black man wearing a hooded sweatshirt.

In a police interview, appellant admitted entering into SLs residence, but explained he was there to warn her about some teenage kids who were throwing rocks over the fence at 2000 Clay Bank Road. Appellant also admitted running away when SL saw him in the hallway.

V. Other Prosecution Evidence.

Appellant was arrested while hiding in the bathroom of his apartment at 2000 Clay Bank Road. Detective Trojanowski thereafter measured the distances from appellants apartment to the residences of the four victims. Detective Trojanowski found that appellants apartment was .42 miles from ASs residence, 946 feet from ZIs residence, .41 miles from SSs residence, and .22 miles from SLs residence.

VI. Defense Evidence.

Ramona C., who lived about 1,000 feet from appellants apartment, testified that she was awakened at 3:00 a.m. on May 15, 2005, to find a man standing over her bed squeezing her breasts. Ramona screamed and the man ran out of the house. Ramona later described her attacker as a tall, thin man with straight hair who appeared to be Hispanic or Asian, perhaps Indian. However, in a photographic police lineup that Detective Trojanowski later showed her, Ramona identified appellant as the person who most resembled the man in her home.

Amy C., who lived with appellant, testified that she did not recall appellant ever wearing hooded sweatshirts or leaving their apartment in the early morning hours.

VII. The Jurys Verdict and Sentencing.

On January 25, 2007, the jury found appellant guilty with respect to counts 3 through 10, and found true the special allegation that counts 4 through 6 were committed during the commission of a burglary within the meaning of Penal Code section 667.61, subdivisions (c) and (d). The jury failed to reach a verdict with respect to counts 1 and 2, and the trial court declared a mistrial.

On April 2, 2007, the trial court sentenced appellant to a total of 42 years and 4 months to life in state prison. This timely appeal followed.

Discussion

Appellant contends the judgment must be reversed because the trial court erred in: (1) denying his motion to sever the charges involving each of the victims so that the four incidents could be tried separately; (2) admitting the testimony of nurse Judy Herriman; and (3) declining to stay the sentences imposed with respect to certain of the charges pursuant to Penal Code section 654. We address each argument in turn.

I. Joinder of the Charges.

Before trial, appellant moved to sever counts 1 and 2 (involving AS), counts 3 through 7 (involving SS), counts 8 and 9 (involving ZI), and count 10 (involving SL), so that the counts relating to each victim could be tried separately. Appellant reasoned that trying the counts together would be unduly prejudicial, particularly given that the most serious countsrape (count 5), forcible oral copulation (count 4), and penetration by a foreign object (count 6)involved a victim, SS, who was suffering from incurable, advanced-stage cancer when the crime occurred and who died before trial.

The trial court denied the motion after finding: (1) the evidence relating to each victim would have been cross-admissible in the trials involving the other victims had the charges been tried separately; (2) the evidence relating to each victim was relatively strong and, thus, weak charges had not been joined with stronger ones; and (3) highly inflammatory charges had not been joined with noninflammatory charges. Appellant contends this decision was erroneous and deprived him of his constitutional rights to a fair trial and due process.

We review the trial courts denial of appellants severance motion for abuse of discretion. (People v. Ochoa (2001) 26 Cal.4th 398, 423.) In doing so, we keep in mind that [t]he law prefers consolidation of charges. (Ibid.) As such, we reverse the trial courts decision only if appellant puts forth a clear showing of potential prejudice. (Ibid.) Applying this standard here, we begin with the applicable law.

Penal Code section 954 provides in relevant part: An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . . [T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.

Further, even where these statutory requirements for permissive joinder are met, severance of the charges may nonetheless be required if joinder would be so prejudicial that it would deny a defendant a fair trial. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244.)

The California Supreme Court has developed the following criteria to aid our review of a trial courts ruling on a severance motion:    Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the 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 spillover effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.   ([People v.] Kraft [(2000)] 23 Cal.4th [978,] 1030.) (People v. Ochoa, supra, 26 Cal.4th at p. 423; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1120.)

 Significantly, if evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, such cross-admissibility   ordinarily dispels any inference of prejudice . . . .   [Citation.]  (People v. Gutierrez, supra, 28 Cal.4th at p. 1120.) Because, however, the above four-part test is stated in the conjunctive, [c]ross-admissibility of evidence is sufficient but not necessary to deny severance. (People v. Ochoa, supra, 26 Cal.4th at p. 423.) As otherwise stated, lack of cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder. ([Pen. Code,]  954.1; People v. Osband (1996) 13 Cal.4th 622, 667 . . . .) (People v. Stitely (2005) 35 Cal.4th 514, 532-533.)

Here, there is no dispute that the offenses charged were of the same class of crimes or offenses. (Pen. Code,  954; see also People v. Kemp (1961) 55 Cal.2d 458, 476 [under section 954, the same class of crimes or offenses means offenses possessing common characteristics or attributes].) Rather, the dispute is whether the trial court nonetheless abused its discretion in denying the severance motion based, as appellant argues, on extreme prejudice caused by the charges joinder. (People v. Stitely, supra, 35 Cal.4th at p. 531.)

Applying the California Supreme Courts standard, set forth above, we first consider the cross-admissibility of the evidence in this case. In doing so, the following provisions of the Evidence Code are relevant.[1]

Section 1101 bars admission of evidence of a persons character or a trait of his or her character when offered to prove his or her conduct on a specific occasion, but permits admission of such evidence when offered to prove some fact other than his or her disposition to engage in such conductsuch as motive, opportunity, intent, plan or identity.[2] Under section 1108, however, where the defendant in a criminal case is charged with a sexual offense, admission of evidence of his or her commission of another sexual offense is not barred by section 1101, so long as the evidence is not barred under section 352.[3] Section 352, in turn, bars the admission of evidence if the probative value of such evidence is substantially outweighed by the probability that its admission will necessitate an undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.[4]

According to the prosecution, the evidence from the four incidents would have been cross-admissible had each incident been tried separately because, under section 1108, three of the incidents involved charges of sexual misconduct, and because, under section 1101, the evidence was relevant with respect to each incident to issues of intent, identity and common plan. We agree.

We first examine section 1108. Our Supreme Court has explained that section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility. (People v. Falsetta (1999) 21 Cal.4th 903, 911.)

By reason of section 1108, trial courts may no longer deem propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, 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 [other] offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)

Here, as set forth above, appellant was charged in the incidents involving SS, AS and ZI with assault with intent to commit a sexual offense (Pen. Code,  220) (counts 2, 7 & 8), and also in the incident involving SS with forcible oral copulation (Pen. Code,  288a, subd. (c)(2)) (count 4), forcible rape (Pen. Code,  261, subd. (a)(2)) (count 5), and forcible acts of sexual penetration with a foreign object (Pen. Code,  289, subd. (a)(1)) (count 6). Based on clear statutory language, each of those offenses falls within the definition of sexual offense under section 1108, subdivision (d)(1)(A) and (B). (See fn. 3, ante.) As such, under section 1108, subdivision (a), evidence relating to each of those sexual offenses would have been cross-admissible had the three incidents been tried separately so long as the evidence was not otherwise barred by section 352. We thus turn to section 352 and the careful weighing of factors including factors relating to the evidences relevance, possible remoteness and prejudicial effect that it requires. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)

Relevant to our inquiry, the California Supreme Court has instructed that the probative value of other crimes evidence is increased by the relative similarity between the [different] offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. ([People v.] Balcom [(1994)] 7 Cal.4th [414,] 427.) (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Here, in each of the three incidents involving sexual abuse, appellant was charged with first degree burglary and with assault with intent to commit a sexual offense. Each of the offenses was committed against a woman living within a half-mile of appellants apartment, in the early morning hours between 4:00 a.m. and 6:00 a.m., and during a six-month period of time. Each of the three victims of sexual offensesSS, ZI and ASawoke to find appellant in the room or standing over them. Appellant then placed a hand or pillow over each womans face before sexually abusing them. Further, each of the three victims subsequently identified appellant in a police lineup as the perpetrator of the sexual offense.[5]

Given these commonalities, the evidence relating to the alleged sexual abuse of SS, AS and ZI was extremely probative, when considered together, of appellants credibility in challenging the victims identification of him in police lineups. Appellants primary defense was that someone else entered into each victims home and sexually assaulted her. It was further probative of appellants propensity to break into nearby residences in the early morning hours with the intent to sexually assault the female victims sleeping inside.

Moreover, putting aside the evidences probative value, we note that any prejudice to appellant resulting from its admission was for the most part the type inherent in all propensity evidence. In particular, the evidence permitted the jury to consider appellants alleged repeated acts of breaking into womens homes to sexually abuse them. We acknowledge the additional prejudice arising from evidence relating to SSs incurable cancer and subsequent death. However, given the marked similarities between these separate incidents, we conclude the trial court acted within the realm of permissible discretion in implicitly finding such prejudice did not substantially outweigh the evidences probative value. (People v. Soto (1998) 64 Cal.App.4th 966, 991-992 [concluding section 352 was no bar to admission of evidence of other sexual assaults where the other victims testimony presented evidence of prior sexual molestations similar to the one at issue].)

Indeed, we find the evidence relating to appellants sexual abuse of SS, AS and ZI to be exactly the type contemplated by the Legislature in enacting section 1108. (See People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) As such, the trial court did not exceed the bounds of reason in finding that the probative value of the evidence  was not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] (People v. Carter (2005) 36 Cal.4th 1114, 1152.)

Given, however, that at least one of the alleged crimes did not involve appellants commission of a sexual offense mainly, the burglary committed against SL (count 10)we turn briefly to section 1101 in reviewing the trial courts finding of cross-admissibility in this case. In doing so, we keep in mind complete cross-admissibility is not necessary to justify joinder. (People v. Cummings (1993) 4 Cal.4th 1233, 1284.)

Under well-established California Supreme Court authority, evidence of other criminal acts is admissible under section 1101 to prove intent, identity and common plan where the other acts and the charged offense are sufficiently similar to support a rational inference of identity, common design or plan, or intent.  (People v. Carter, supra,36 Cal.4th at p. 1147.) The degree of similarity required depends on what is sought to be proved. The greatest degree of similarity is required to prove identity the two acts must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.  (People v. Roldan (2005) 35 Cal.4th 646, 706; see also People v. Carter, supra, 36 Cal.4th at p. 1148 [ Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a  pattern and characteristics . . . so unusual and distinctive as to be like a signature.   [Citations.] ].) The least degree of similarity is required to prove intentthe two acts need only be sufficiently similar to suggest that the defendant probably had the same intent each time. (People v. Stitely, supra, 35 Cal.4th at p. 532.)And a moderate degree of similarity is required to prove a common planthe two acts must be sufficiently similar to indicate the existence of a plan rather than a series of similar spontaneous acts. (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)

Here, we recall that in each of the four separate incidents appellant was charged with first degree burglary, and in three of the four incidents appellant was also charged with assault with intent to commit a sex offense. As the jury was instructed, first degree burglary requires a finding beyond a reasonable doubt of specific intent to enter an inhabited house with the intent to commit a theft or a felony; and assault with intent to commit a sex offense requires a finding beyond a reasonable doubt of specific intent to commit mayhem, rape, sodomy, oral copulation or digital penetration. Each of the four burglary offenses was committed against a woman living within a half-mile of appellants residence, in the early morning hours, and during a six-month period of time. Three of the victims, SS, ZI and AS, awoke to find appellant in the room or standing over them. With each, appellant then placed a hand or pillow over their faces before sexually abusing them. Further, three of the victims, SS, ZI and AS, subsequently identified appellant in a police lineup as the perpetrator of the crimes, and all four victims gave similar verbal descriptions of their attacker soon after the crime. And appellant admitted entering the home of the fourth victim, SL.

These shared characteristics of all four incidents, including their proximity in time, place and nature, tend to show that appellant, rather than someone else, committed each with the same or similar motive and pursuant to a common design or planto break into the residences of women living nearby for the purpose of fondling or raping them.[6] That appellant may have failed to accomplish his objective with respect to SL does not change our conclusion. Here, as the prosecutor argued, the jury could reasonably have found that, given the evidence as a whole, appellant entered SLs residence with the same intent and plan to commit a sexual offense that he had upon entering the residences of the other three victims.[7]

As such, we conclude the trial court could reasonably have found the evidence relating to the separate incidents cross-admissible under section 1101 to prove identity, intent or common plan so long as, under section 352, the probative value of such evidence was substantial and not substantially outweighed by the probability that admission of the evidence would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) But we need not prolong this section 352 inquiry. Our reasons for concluding that section 352 was no bar to the admission of evidence under section 1108, stated above, apply equally here. Briefly stated, while we acknowledge the prejudicial effect this sort of evidence ordinarily has, as well as the additional prejudice arising from the circumstances of SSs fatal disease, given the significant similarities between the four incidents in this case, we conclude the trial court acted within the permissible scope of its discretion in finding that the evidences probative value was not substantially outweighed by its prejudice.

Accordingly, for the reasons provided, we conclude the trial courts joinder of the charges in this case was within the bounds of its discretion and was not an infringement upon appellants rights to a fair trial and due process.[8]

II. Admission of Testimony From the SART Nurse.

At trial, the prosecution advised of its intention to call Judy Herriman, a sexual assault response team (SART) nurse, as a witness to testify regarding statements SS allegedly made to her when she examined SS shortly after the attack, and regarding the results of her examination of SS. Appellant objected on grounds that the evidence was hearsay, that its prejudicial effect substantially outweighed its probative value, and that its admission would violate his right to confrontation. The trial court overruled his objections and allowed the testimony.

The SART nurse was thus permitted to testify regarding her physical examination of SS at about 7:30 a.m. on the day of her attack. In particular, the SART nurse described what SS told her regarding the attack, including that she was restrained on the couch and then raped, digitally penetrated and orally copulated by her assailant. The SART nurse also described SSs physical state, including the presence of bulky dressings covering the left side of her chest as a result of chemotherapy treatment for recurrent metastatic breast cancer. The SART nurse noted SSs concerns about odor coming from the bandaged area on her chest, and described the evidence she found that SS had been raped, including redness and an abrasion in the vaginal area. Finally, the SART nurse explained her testing for the presence of sperm in SSs vaginal area.

On appeal, appellant contends the admission of the SART nurses testimony violated section 352 because the prejudicial effect of such testimony substantially outweighed its probative value, and because the evidence was cumulative of SSs own statements regarding her attack when she was interviewed shortly before her death. Appellant does not renew his challenges to the evidence based on hearsay and his right to confrontation.[9]

As we have already explained, section 352 gives the trial court discretion to exclude evidence if its probative value is substantially outweighed by the likelihood that its admission would create a substantial danger of undue prejudice, consume an undue amount of time or confuse or mislead the jury. ( 352; People v.Harris (1998) 60 Cal.App.4th 727, 736.) And, on appeal, we will not disturb the trial courts admission of evidence under section 352 absent a manifest abuse of discretion resulting in a miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)

No such manifest abuse of discretion occurred here. Having reviewed the record, we conclude the SART nurses testimony was probative with respect to several important issues. First, the SART nurses testimony corroborated the description of the attack that SS, unavailable at trial, gave before her death. Because SS died before trial, the jury was unable to assess firsthand her credibility and demeanor. As such, in this case, the SART nurses corroborative testimony was helpful to the jury in determining what happened to SS on the night of the crime, particularly when appellant later challenged SSs credibility with respect to her identification of him as her attacker in the police lineup.

The SART nurses testimony was also probative of whether SS was in fact digitally penetrated, the act charged in count 6, in addition to being raped and orally copulated. While appellant claims on appeal that such fact was not disputed, appellants cross-examination of the SART nurse during trial regarding whether or not SS reported being digitally penetrated reveals just such a dispute.

Finally, the SART nurses testimony was probative with respect to the DNA analysis that linked appellant to SSs rapeperhaps the strongest evidence of guilt in the case. As the SART nurse explained, during the examination, she used a swab to retrieve semen from SSs vagina and then sent the swab to the police laboratory for DNA testing. California Department of Justice DNA supervisor, Tanya Vermeulen-Beede, then performed the testing, which identified a match between the DNA profile found in the semen in SSs vagina and that found in semen later taken from appellant.[10]

Further, putting aside the probative value of the testimony, we conclude any prejudice from the testimony was not undue, but was primarily the type naturally resulting from the nature of appellants conduct. SS was the victim of rape and other serious sexual abuse, and the jury was entitled to hear information regarding such crimes from the medical professional who subsequently examined her. While some of the SART nurses testimony may have been cumulative to SSs own sworn statements, given that SS died before trial and was thus unavailable to testify in person before the jury, such cumulativeness did not warrant the testimonys exclusion in this case because the probative value of the corroborative evidence was not substantially outweighed by its prejudice or the amount of time it required at trial. And in any event, to the extent appellant found any weaknesses or inconsistencies in the SART nurses testimony, he had ample opportunity to explore them with the jury during her cross-examination.

Accordingly, for the reasons stated, we conclude the trial court did not err in admitting the testimony. (People v. Carter, supra, 36 Cal.4th at p. 1152; People v. Soto, supra, 64 Cal.App.4th at p. 992.)

III. Staying of Sentences Pursuant to Penal Code Section 654.

Appellant further contends the trial court erred by failing to stay the sentences imposed with respect to two of the charges. Specifically, appellant claims the sentence imposed with respect to count 8 or count 9, and with respect to count 7, should have been stayed pursuant to Penal Code section 654, subdivision (a), which 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 provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. (Pen. Code,  654, subd. (a).)

As interpreted by the California Supreme Court, Penal Code section 654, subdivision (a) permits multiple convictions, but precludes multiple punishments, for a single, indivisible course of criminal conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 18-19 (Neal).) Where a course of criminal conduct is found to be divisible into separate acts, they are treated as more than one act within the meaning of section 654, and each act may result in a separate punishment. (People v. Beamon (1973) 8 Cal.3d 625, 637 . . . , citing People v. Brown (1958) 49 Cal.2d 577, 591 . . . .) (People v. Bradley (1993) 15 Cal.App.4th 1144, 1157.)

 Whether 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, supra, 55 Cal.2d at p. 19, italics added.) (People v. Latimer, supra, 5 Cal.4th at p. 1208.) The fact that certain criminal acts are closely connected in time is not dispositive in finding an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 336.) Further, on appeal, the reviewing court affirms a trial courts findings regarding the divisibility of a course of conduct so long as such finding is supported by substantial evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731.)

In People v. Latimer, supra, the California Supreme Court made the following comments with respect to the intent and objective test set forth in Neal, supra: We have often said that the purpose of section 654 is to insure that a defendants punishment will be commensurate with his culpability. [Citation.] The Neal test does not, however, so ensure. A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective. A grand criminal enterprise is more deserving of censure than a less ambitious one, even if there is only one ultimate objective. Specifically, as the Attorney General notes, defendant having been lawfully convicted of kidnapping and rape(s), is clearly more culpable than a defendant who rapes without kidnapping. A rapist should not be insulated from punishment for separate crimes such as kidnapping even if part of the same criminal venture. (People v. Latimer, supra, 5 Cal.4th at p. 1211.)

Decisions since Neal, supra, have thus sought to reign in application of the intent and objective test, particularly in cases like this one involving multiple sexual offenses. As our colleagues in the Fourth Appellate District, Division One, have noted, permitting a defendant to escape additional punishment for the commission of multiple sexual offenses based on a finding of a single sexual gratification objective would reward [defendant] for his greater criminal ambition. (People v. Bradley, supra, 15 Cal.App.4th at p. 1158; see also People v. Perez (1979) 23 Cal.3d 545, 553 [A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.].)

With these principles in mind, we turn to the facts of this case. The trial court imposed a total sentence of 42 years and 4 months to life. With respect to the crimes against SS, appellant received an indeterminate 25-year-to-life term on count 4, oral copulation; a consecutive 6-year term on count 5, rape; a consecutive 6-year term on count 6, sexual penetration; a consecutive 16-month term on count 7, assault with intent to commit a sexual offense; and a 4-year term on count 3, burglary, which was stayed pursuant to Penal Code section 654. With respect to the crimes against ZI, appellant received a consecutive 16-month term on count 8, assault with intent to commit a sexual offense; and a consecutive 16-month term on count 9, burglary. With respect to SL, appellant received a consecutive 16-month term on count 10, burglary.

According to appellant, Penal Code section 654 mandates a stay of the sentence imposed with respect to either count 8 or count 9 because appellant burglarized and assaulted ZI with the same intent and objectiveto accomplish a sexual offense. Appellant further argues that Penal Code section 654 mandates a stay of the sentence imposed with respect to count 7 because the assault against SS was committed to facilitate the base sexual offenses charged in counts 4, 5, and 6.

We first consider counts 8 and 9. The record reveals that appellant broke into ZIs home, entered the loft area where she was sleeping on the floor, and then proceeded to sexually assault her, placing one hand on her breasts over her shirt and another hand over her mouth. Appellant stopped the assault and fled the home after ZI began struggling with him and bit his hand.

If this were all the evidence in the record regarding the crimes against ZI, we would likely agree with appellant that both the burglary and the assault were committed with a single objectiveto commit a sexual assault. The record, however, reveals additional evidence, which the prosecution pointed to during sentencing, which is at least minimally probative of appellant having entertained multiple objectives when he entered ZIs home, as the trial court implicitly found. Specifically, the record reveals that appellant, after breaking into ZIs home, removed electrical cords from a computer system plugged in near to where she was sleeping in the loft. ZI later found the cords unplugged and laying next to where she was sleeping on the floor. This additional evidence indicates that appellant may have committed the burglary and the assault with distinct criminal objectives. To wit, appellant may have entered the home with the intent to commit a more serious sexual offense such as rape, oral copulation, or digital penetration, as he did in the case of SS, after restraining ZI, perhaps with the cords from the computer system. Once in the home, however, perhaps because ZI awoke, appellant entertained a separate intent to commit a sexual battery by fondling ZI over her clothing the only sexual act he in fact accomplished before being chased off.

Given this reasonable interpretation of the evidence, we conclude the trial courts decision to punish appellant for his commission against ZI of both burglary and assault with intent to commit a sexual offense must be affirmed. (People v. Perez, supra, 23 Cal.3d at p. 553 [explaining an earlier case, People v. Greer (1947) 30 Cal.2d 589, in which the defendant was found to have had a single objective in engaging in lewd and lascivious conduct for removal of clothes and rape, where the clothes were removed to facilitate the rape, but had multiple objectives in engaging in lewd and lascivious conduct and oral copulation, because the conduct in each was distinct and not incidental to the other].)

With respect to count 7, however, we conclude the record reveals no evidence of an independent intent to commit a sexual offense apart from appellants commission of the three base sexual offenses charged in count 4 (oral copulation), count 5 (rape), and count 6 (forcible sexual penetration). Our conclusion is consistent with the prosecutions closing argument to the jury regarding the assault charge: How do we know that he had that intent [to commit a sexual offense]? Because he did it. He committed all three of those sexual assault offenses. As the prosecutors argument makes clear, appellants commission of assault against SS was incident to and a means of perpetrating the other three sexual offenses, which were in fact accomplished. As such, we conclude Penal Code section 654 precludes appellants separate punishment for the assault against SS. (People v. Latimer, supra, 5 Cal.4th at p. 1216 [section 654 precludes the defendants punishment for both rape and kidnapping where  the kidnapping was for the purpose of committing the sexual offenses and [defendant] has been punished for each of the sexual offenses ]; People v. Perez, supra, 23 Cal.3d at p. 553.) The trial courts contrary finding with respect to count 7 therefore must be reversed.

Disposition

The judgment of conviction is modified to stay execution of the sentence imposed for count 7, assault with intent to commit a sexual offense. The trial court is directed to modify the abstract of judgment accordingly and forward it to the Department of Corrections. As modified, the judgment is affirmed.

_________________________

Jenkins, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1]All further statutory references are to the Evidence Code unless otherwise indicated.

[2] Section 1101 provides: (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.

[3] Section 1108 provides in relevant part: (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

[] . . . [] (d) As used in this section, the following definitions shall apply:

(1) Sexual offense means a crime under the law of a state or of the United States that involved any of the following:

(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.

(B) Any conduct proscribed by Section 220 of the Penal Code, except assault with intent to commit mayhem.

(C) Contact, without consent, between any part of the defendants body or an object and the genitals or anus of another person.

(D) Contact, without consent, between the genitals or anus of the defendant and any part of another persons body.

(E) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.

(F) An attempt or conspiracy to engage in conduct described in this paragraph.

[4] Section 352 provides: 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.

[5] In addition, before making these identifications, each of the victims gave similar descriptions of appellant to the police. SS described her attacker as a Black man with cornrows in his hair wearing a navy blue sweatshirt; AS described a tall Black man with dreadlocks wearing a dark sweatshirt; ZI described a tall man wearing a red hooded sweatshirt; and SL described a tall Black man wearing a hooded sweatshirt.

[6] We acknowledge a higher degree of similarity is required to prove identity (People v. Roldan, supra, 35 Cal.4th at p. 706), but conclude such higher degree exists in this case. As stated above, three of the four victims positively identified appellant in a police lineup, and appellant admitted entering the home of the fourth victim.

[7] Our conclusion is not affected by the fact that no verdict was reached with respect to counts 1 and 2. If anything, the fact that the jury did not convict appellant on counts 1 and 2 demonstrates the jury was fully capable of distinguishing among the four separate incidents, and that appellant was thus not unduly prejudiced by the joinder of the charges in this case.

[8]Because we conclude the cross-admissibility of the evidence provides a sufficient basis for affirming the trial courts joinder decision (People v. Bradford (1997) 15 Cal.4th 1229, 1315-1316), we need not consider the other factors considered by the court in rendering its decision, including the likelihood of inflaming the jury and the strength of the evidence.

[9] As the prosecution points out, the SART nurses testimony, even if hearsay, was admissible under the hearsay exception set forth in section 1370, subdivision (a), which provides: (a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:

(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.

(2) The declarant is unavailable as a witness pursuant to Section 240.

(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.

(4) The statement was made under circumstances that would indicate its trustworthiness.

(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.

[10] Vermeulen-Beede opined that the matching DNA profile could be found in about one in 2.5 quintillion African-Americans, one in 590 quintillion Caucasians, and one in 1.6 sextillion Hispanics.