P. v. Garcia

Filed 10/10/07 P. v. Garcia CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

While on probation for robbery, defendant was arrested for and convicted of two charges arising from the same incident: lewd and lascivious act on a child under the age of 14 and burglary. Of the two enhancements alleged, the jury found true only Penal Code section 667.61, subdivision (e)(2),^[1]that defendant committed the violation of section 288, subdivision (a) during the commission of a burglary; it rejected the section 667.71, subdivision (d)(4) enhancement that defendant committed the burglary with the intent to violate section 288, subdivision (a).

Sentenced to 33 years to life, defendant appeals and argues: (1) the court erred in including the five-year sentence under section 667, subdivision (a) in the abstract of judgment; (2) there is insufficient evidence of lewd intent to support defendants conviction under section 288, subdivision (a); (3) we must set aside the burglary conviction in count two because the prosecution did not give defendant adequate notice that it changed the factual theory to support the burglary charge; (4) the court erred in denying defendants motion to suppress statements made to police because he never expressly waived his Miranda rights;^[2]and (5) the court erred in admitting evidence of a prior, unrelated incident under Evidence Code sections 1108 and 1101, subdivision (b).

We shall affirm the judgment. Because the abstract of judgment reflects an unauthorized sentence, we remand for resentencing to permit the court to pronounce sentence on the section 667, subdivision (a) enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2005, 11-year-old B.L. lived in a downstairs apartment on Albatross Way with her mother, stepfather, 13-year-old sister V.L., and baby brother. The apartment was near the laundry room.

Early in the morning of October 3, 2005, B.L. was asleep in her bed, covered by two blankets. V.L. was asleep on the floor. The bedroom window was open and there was a screen on it.

B.L. awakened to find a man in the bedroom. She heard a noise that sounded like he kicked the radio beside her bed. B.L. felt the mans body on her back on top of the covers. She felt the bed move when he stood up. The man told B.L., Dont scream, in Spanish. B.L. was scared. She had never seen the man before. She ran crying to her mothers room and told her what had happened.

V.L. woke up, heard B.L. crying, and saw her mother hugging B.L. V.L. noticed that the window blinds were pushed to the side and the screen was missing. She looked out the window and saw a Hispanic man with a mustache leaving the laundry room with a red bike. The man wore a black hat with an S.F. insignia on the front, and a long-sleeved shirt with a tank top underneath. V.L.s stepfather ran after the man but could not catch him. Later, V.L. helped the police create a drawing of the man she saw.

Sacramento Police Sergeant Gerard Camous was the first to arrive at the scene between 5:30 and 6:00 a.m. Checking the outside of the apartment, Camous observed there was no screen on the window to B.L.s bedroom. He found a window screen leaning against the counter in the adjacent laundry room. Camous also found a tube of petroleum jelly on the opposite wall of the laundry room next to the washer and dryer.

Sacramento Police Officer Michele Gigante and her partner were the next to arrive. Gigante interviewed B.L. in English about what had happened. B.L. said that she was awakened by something warm . . . on top of her. She was scared because it turned out to be a man. B.L. told Gigante that the man was not wearing any pants. She could feel his penis on her leg. The man also touched B.L.s inner leg and buttocks with his hand. Officer Gigante could tell that B.L. was unsophisticated about sex. B.L. did not know the difference between a hard or soft penis when they were talking about the mans penis on her leg, and she did not know the word erection. After the man let B.L. get up off the bed, he started putting on his pants. At the time of the incident, B.L. was sleeping directly on the mattress of the bed with a blanket over her and the sheets pushed towards the foot of the bed.

Later that morning, B.L. received a physical examination and forensic interview at the Multi Disciplinary Interview Center. The prosecutor played a videotape of the interview at trial.

Meanwhile, identification technician Tanya Atkinson was working at the crime scene. She processed the window, window screen and tube of petroleum jelly for fingerprints. Atkinson recovered latent prints from the tube of petroleum jelly, the window screen and the interior of the window. Several of the fingerprints matched defendants fingerprints.

After connecting defendant to the crime through fingerprints, Detective Jimmy Vigon showed V.L. a photo lineup which included defendant as subject number two. V.L. indicated that subject number two looked like the man she saw leaving the area of her apartment.

Defendant lived approximately four blocks from B.L. and V.L.s apartment. Vigon placed his residence under surveillance. Police approached defendant when he rode up on a bike. The officers searched the residence. Detective Ernie Barsotti found a photograph of defendant wearing a black baseball cap with an S.F. insignia on the front. The officers arrested defendant and transported him to police headquarters for an interview.

Vigon, who is fluent in Spanish, interviewed defendant in English and Spanish on October 4, 2005. He told defendant that he was under arrest for burglary of the apartment on Albatross. Defendant initially denied owning a red bike or being at B.L.s apartment the morning of October 3.

When confronted about entering the apartment where B.L. was sleeping, defendant asked Vigon if he had positive proof [] . . . [] a doctors report, doctors proof. Vigon thought that the response was odd because Vigon had not said anything about a sexual assault at that point in the interview. Defendant admitted that he had entered B.L.s apartment but stated that he had not raped anyone.

Defendant told Vigon that he entered the apartment because he had no money for drugs. Defendant explained, Well, she . . . she saw me when I -- because she had already seen me, and the girl was smiling at me and everything, and, well, she -- she saw that I got into -- and she saw me. Uh, she even got up. She sat up on the bed and she laid back down.

Defendant answered No when Vigon asked, You didnt penetrate her? He denied taking his clothes off and claimed that he was wearing shorts at the time. Vigon confronted defendant about touching B.L.s buttocks and leg. Defendant responded, But nothing more.

During the interview, defendant described B.L. as a big girl. He told Vigon that he thought she was 17 or 18 years old. Defendant said B.L. just looked at him after he touched her. He told her, Dont be scared. Im leaving. Defendant told Vigon that B.L. never screamed and commented, If she wanted to scream, she should have screamed from the beginning. Vigon responded that the fact she did not scream did not mean defendant could get in bed with her. Defendant said, No, no. I was being stupid also. Defendant admitted that he had looked into other womens bedroom windows in the past.

Defendant agreed to write a letter of apology to B.L. which Vigon read to the jury. The letter stated, Im writing this letter asking forgiveness for the harm that Ive done without thinking. I have caused -- please forgive me for causing -- because the cause of this was drugs -- because the cause of this was drugs that are doing harm. [] . . . [] Please, I beg you and your family and God to forgive me. I promise that Ill never return and bother . . . [you].

The prosecution also introduced evidence of a prior incident pursuant to Evidence Code sections 1108 and 1101, subdivision (b). In January 2004, L.Z. was living in an apartment on Howe Avenue with her 10-month-old son. She was asleep on a futon in her living room between 2:00 a.m. and 3:00 a.m. when she was awakened by tapping at the window. L.Z. saw a shadow and then a mans hand moving at the window. She dialed 911. While waiting for police, L.Z. saw the man move his hand toward his penis area and saw his penis. She also heard the man pull on the window screen.

Sacramento County Sheriffs Lieutenant Annica Hagadorn responded to L.Z.s call for assistance at 2:32 a.m. She saw a man standing outside an apartment window. Hagadorn drew her weapon and asked the man to step away from the window. The man started to turn towards Hagadorn, then turned away and did something with his hands at his waist out of her view. It appeared that he had ejaculated over the bottom of the window.

L.Z. came out of the apartment, upset and crying. She identified the man as the one who had been at her window. As Hagadorn handcuffed the man and led him away, he said, I do very bad thing. He told Hagadorn that his name was Juan Garcia, but later admitted he was Jesus Garcia. Hagadorn arrested defendant for two misdemeanor offenses, including loitering.

DISCUSSION

I.

The Sentence on the Section 667, Subdivision (a) Enhancement Must Be Pronounced and Imposed By the Court

Defendant admitted the robbery conviction for which he was on probation as a prior serious felony conviction. The conviction was alleged as two separate enhancements under section 667, subdivision (a) and the Three Strikes law ( 667, subds. (b)-(I) & 1170.12). The court orally sentenced defendant to an aggregate term of 33 years to life. It revoked probation and sentenced defendant in the robbery case (case No. 05F01091) to three years and in the instant case (case No. 05F08879) to 15 years to life, doubled to 30 years to life, for committing the lewd and lascivious act upon a child; and four years, doubled to eight years, for burglary, which the court stayed pursuant to section 654. Although the court did not pronounce sentence on the section 667, subdivision (a) enhancement, the abstract of judgment added the five-year enhancement to defendants determinate sentence, making his total sentence 38 years to life.

The parties agree that the court failed to pronounce sentence on the five-year section 667, subdivision (a) serious felony enhancement alleged in the information and admitted by the defendant. Citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186 (Mitchell) and People v. Zackery (2007) 147 Cal.App.4th 380, 385 (Zackery), defendant argues that the oral pronouncement is controlling and we must conform the abstract of judgment to the oral pronouncement. The remedy is not as simple as defendant suggests.

Mitchell and Zackery involved clerical errors, specifically, the clerks failure to accurately record in the court minutes or abstract of judgment the sentence pronounced by the court. (See Mitchell, supra, 26 Cal.4th at pp. 185-187; and Zackery, supra, 147 Cal.App.4th at pp. 385-386.) Here, the court failed to sentence on the enhancement in the first instance.

Section 667, subdivision (a)(1) states in pertinent part that, any person convicted of a serious felony [within the meaning of section 1192.7, subdivision (c)] who previously has been convicted of a serious felony in this state . . . , shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively. (Italics added.) Where, as here, the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed. [Citations.] (People v. Turner (1998) 67 Cal.App.4th 1258, 1269.) Failure to impose the five-year enhancement under these circumstances results in an unauthorized sentence, which may be addressed for the first time by the reviewing court. (Ibid.; see also People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)

Given defendants admission of the prior robbery conviction, we conclude that this matter must be remanded with directions that the trial court impose the section 667, subdivision (a) enhancement on the record.

II.

There is Sufficient Evidence To Show Lewd and Lascivious Intent

The jury convicted defendant of violating section 288, subdivision (a), which provides: Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (Italics added.)

Challenging the sufficiency of the evidence, defendant contends that the surrounding circumstances do not support the notion that the touching [of B.L.] was anything other than a non-sexual touching of the blanket or shoulders during a burglary committed to get money for drugs. The question, according to defendant, is whether the minimal and very vaguely described touching qualifies as a criminal act under Penal Code  288(a). We conclude there is sufficient evidence of lewd intent in this case.

Under familiar standards of appellate review, our task is to 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. Johnson (1980) 26 Cal.3d 557, 578.) (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).) In conducting this review, we draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) Defendants argument fails under these standards.

The lewd and lascivious act charged under section 288, subdivision (a) need not be inherently sexual in nature and the prosecution need not show that the accused touched the childs private parts. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.) Under long-established precedent, the statute is violated by any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child. (People v. Martinez (1995) 11 Cal.4th 434, 452 (Martinez).) ‛In all cases arising under this statute the purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. [Citation.] (People v. Nothnagel (1960) 187 Cal.App.2d 219, 225.)

The cases demonstrate that criminal intent is rarely shown by direct evidence. In general, intent must be inferred from defendants conduct and the surrounding circumstances. (In re Paul C. (1990) 221 Cal.App.3d 43, 54; People v. Sharp (1994) 29 Cal.App.4th 1772, 1791, overruled on another ground in Martinez, supra, 11 Cal.4th at p. 452.) The fact finder may also infer intent from evidence of other specific acts of a similar nature. (Evid. Code,  1101, subd. (b).)

Defendant agrees that these principles are correct in the abstract, but maintains the Attorney General simply cant find any cases affirming convictions that have facts that are even remotely as ambiguous as the facts of the present case. However, the question before us is whether there is substantial evidence to support a reasonable jurys finding that defendant was guilty beyond a reasonable doubt. (Rodriguez, supra, 20 Cal.4th at p. 11.) Indeed, here unambiguous evidence shows that defendant acted with the requisite intent.

B.L. testified that she awoke to find a man lying on top of her. She told Officer Gigante that the man was not wearing any pants. B.L. said that she could feel his penis on her leg. The man also touched her inner leg and buttocks. Investigators found defendants fingerprints on a tube of petroleum jelly left in the laundry room. This evidence, taken alone, is sufficient to establish defendants intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] . . . . ( 288, subd. (a).) A reasonable jury could conclude that defendants actions in the bedroom demonstrated the requisite intent and had nothing to do with defendants stated intent to find money for drugs.

Defendants admissions also support the conclusion he committed lewd acts on B.L. During the post-arrest interrogation, defendant asked Detective Vigon if he had positive proof or doctors proof that defendant entered the bedroom where B.L. was sleeping. Vigon had not mentioned sexual assault at that point in the questioning. Defendant then denied raping B.L. At one point in the interrogation, defendant suggested that B.L. smiled at him when he climbed through the window, apparently leading defendant to think that she wanted him to get into her bed. He described B.L. as a big girl and thought she was 17 or 18. Later, defendant agreed that he had touched the girl, but nothing else.

The prosecution also introduced evidence to show that defendant displayed a pattern of similar behavior. Defendant admitted to Detective Vigon that he had looked into other womens bedroom windows in the past. L.Z. testified about the January 2004 incident when police arrested defendant outside her living room window in the early hours of the morning. And in the January 2004 incident, there was evidence indicating defendant masturbated while looking in L.Z.s window.

III.

The Variance in the Burglary Charge Does Not Warrant Reversal

The amended information charged defendant with burglary with the intent to commit sexual assault; the jury convicted him of burglary with the intent to commit larceny. Defendant argues he is entitled to reversal of his burglary conviction because the jury found him guilty of a charge different from the charge alleged in the amended information. We conclude there is no merit in this claim.

[I]t is elementary that every fact or circumstance necessary to constitute the crime charged must be alleged and proved, and the proof must correspond with the allegations in the pleading. But technical or trifling matters of discrepancy will not furnish ground for reversal. Under the generally accepted rule in criminal law a variance is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense. (People v. Williams (1945) 27 Cal.2d 220, 225-226, italics added.) This long-established principle is codified in section 960 which reads: No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits. In this case the record demonstrates that defendant had notice of two theories of burglary from the start, defended on both grounds, and suffered no prejudice.

The original complaint charged defendant with burglary in count two, alleging that he unlawfully entered an inhabited dwelling occupied by B.L. with the intent to commit larceny and any felony. Before trial, the prosecution amended the burglary charge in the information to allege that defendant entered the inhabited dwelling occupied by B.L. with the intent to commit felonious sexual assault. Both the original and amended charging documents included the following section 667.61, subdivision (d)(4) enhancement: It is further alleged that the defendant[] . . . committed the present offense [violation of section 288, subdivision (a)] during the commission of a burglary, within the meaning of Penal Code Section 667.61(d)(4).^[3]

Based on the evidence, which included defendants statement that he entered the apartment because he had no money for drugs, the court decided to instruct the jury that the prosecution could prove burglary on either of two theories -- that defendant entered the inhabited dwelling with the intent to commit either theft or a Lewd and Lascivious Act on a Child Under The Age of 14 Years. Defense counsel responded to both theories at length in closing argument.

The jury returned the following verdict in count two: We, the jury in the above-entitled matter, find the defendant . . . GUILTY of the crime of violation of Section 459 of the Penal Code of the State of California (First Degree Residential Burglary), as charged in Count Two of the Information. The jury also found not true the section 667.61, subdivision (d)(4) enhancement that defendant committed the burglary with the intent to commit the violation of section 288, subdivision (a). Read together, the jurys verdicts and findings indicate that it rejected the prosecution theory that defendant committed the burglary with the specific intent to commit a sexual assault and instead believed defendant entered B.L.s residence or bedroom with the intent to commit larceny and must have later formed the intent to commit the sexual assault.

Defendant acknowledges that, the jury concluded the entry was made with the intent to commit larceny, not child molestation, but notes, that wasnt the charge. However, with notice of the section 667.61, subdivision (d)(4) enhancement, the defense succeeded in convincing the jury that defendant did not enter B.L.s residence or bedroom with the intent to molest her, thereby avoiding an additional enhanced life sentence. We conclude that the variance in the pleadings did not prejudice a substantial right of the defendant upon the merits. ( 960.)

IV.

There was an Implied Waiver of Miranda Rights

Defendant contends he did not expressly waive his Miranda rights and the court erred in denying his motion to suppress statements made to Detective Vigon. We conclude that defendant impliedly waived his rights and there was no error.

The court heard argument on defendants motion to suppress. Detective Vigon testified that he conducted a videotaped interview of defendant at police headquarters shortly after his arrest. Vigon is fluent in English and Spanish and knew that defendant spoke both languages. He advised defendant of his Miranda rights in English and Spanish. Defendant said that he understood those rights. He then spoke with Vigon, making statements he sought to suppress before trial.

The prosecution argued that defendant impliedly waived his right to remain silent by initiating discussion with Vigon. Defense counsel countered that Vigon never asked for a waiver and defendants first comment after being advised of his rights was the question, Am I going to jail? The court reviewed the videotape and stated, [I]t appears to me that what we have here is a classic implied waiver. [] [Defendant] acknowledged - nodded his head after Detective Vigon read him his rights in Spanish and asked him if he understood. He said he understood the rights and then he began to talk. Actual waiver is not necessary under current state of law. The motion to suppress is denied as to the confession.

In evaluating defendants challenge to the courts denial of his section 1538.5 motion to suppress, [w]e must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citations.] (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)

A Miranda waiver can be express or implied. (North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292]; see, e.g., People v. Whitson (1998) 17 Cal.4th 229, 246, 247-248, 250.) Courts properly imply waiver where the officers read the Miranda admonition, the suspect acknowledges that he or she understands, and the suspect responds to the officers questions. (See, e.g., People v. Sully (1991) 53 Cal.3d 1195, 1233; People v. Davis (1981) 29 Cal.3d 814, 823-826.)

Here, Detective Vigon informed defendant of his rights and defendant acknowledged that he understood. Thereafter, defendant spoke with Vigon. We agree with the trial court that it was a classic implied waiver.

V.

Evidence of the Incident Involving L.Z.

Defendant argues he was denied a fair trial because the court erred in admitting evidence of the January 2004 incident in which police arrested defendant at L.Z.s window. We conclude there was no error.

We begin by describing the procedural and factual background to the prosecutions introduction of the prior conduct at trial. During motions in limine, the prosecutor sought to introduce the L.Z. incident and two others under Evidence Code sections 1101, subdivision (b) and 1108. She summarized the facts L.Z. later recounted at trial. Defense counsel objected, arguing the prior conduct was not sexual in nature and not Evidence Code section 1108 evidence. He also asserted: In none of the incidents that the district attorney is seeking to introduce under 1101(b) is there an underage victim; is there an action done with an intent of arousing an underage victim. And I dont even know that the intent is an issue in this case. Absent being an issue, its a bootstrap type argument.

The court ruled that the prosecution could introduce the January 2004 incident involving L.Z. The court stated, [I]t appears to me that that incident is fairly recent and it does share some similar attributes to the current case. It is an unrelated report, which argues in favor of allowing it in. [] [I]t seems to me to actually be less inflammatory than the facts of this case which involve an underage victim, so under 352 thats -- argues in favor of letting it in. [] It appears to me that when you have someone . . . trying to get in someones window in the middle of [the] night, rubbing their groin area aggressively, its certainly something the fact finder can find something to be sexual in nature. [] Appears to me that regardless of what happened, in other words, whether it was prosecuted or entered a plea or what happened, under 1108 it is not necessary that a conviction be obtained, and theres no estoppel theory which I heard of which would stop the People bringing this in under 1108. We have no way of knowing why this might or might not have been prosecuted. [] So the January 17th, 2004 incident will be allowed in under 1108 and 1101, it appears to me under intent and lack of mistake. When you enter a not guilty plea, you put every element of the crime at issue, and it appears to me for that reason it is appropriate to allow this incident in for the fact finder to know about it and make their own conclusions about what it means.

Before L.Z. testified, the court instructed the jury that it could consider the evidence of the January 2004 incident only if the prosecution proved by a preponderance of the evidence that defendant committed indecent exposure. The court gave the following limiting instruction: If you decide that the defendant committed the uncharged offense, that is indecent exposure, 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 a violation of Penal Code Section 288(a), committing a lewd and lascivious act upon a child under the age of 14 years, which is charged here in this case. [] If you conclude that the defendant committed the uncharged offense, that is indecent exposure, that conclusion is only one factor to consider along with all of the other evidence. It is not by itself sufficient to prove that the defendant is guilty of a violation of Penal Code Section 288(a), lewd and lascivious conduct with a child under the age of 14 years. The People must still prove each element of that charge, the lewd and lascivious conduct charge, beyond a reasonable doubt.

The prosecutor argued in closing argument that defendant was using the petroleum jelly to masturbate in the laundry room, based on L.Z.s testimony regarding his prior conduct and other facts in the case. The court repeated its limiting instructions before the jury deliberated.

Evidence Code section 1101, subdivision (a) bars introduction of evidence of a persons character trait when offered to prove his or her conduct on a specified occasion. At the same time, Evidence Code section 1101, subdivision (b) permits introduction of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act.

Evidence Code section 1108 focuses on evidence of sexual offenses and reads in part: 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. (Evid. Code, 1108, subd. (a).) Indecent exposure is among the crimes defined as sexual offenses in Evidence Code section 1108. ( 314; Evid. Code,  1108, subd. (d)(1)(A).)

Under Evidence Code section 1108, 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 uncharged 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. [Citations.] (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.) Prejudice under Evidence Code section 352 is characterized as evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.] (People v. Scheid (1997) 16 Cal.4th 1, 19.)

The trial court enjoys broad discretion under Evidence Code section 352 to assess whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Callahan (1999) 74 Cal.App.4th 356, 367, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We will not disturb the trial court ruling except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.] (Ibid.) There was no miscarriage of justice here.

Contrary to defendants argument, the January 2004 incident at L.Z.s apartment was similar to the case before us. In the earlier case, defendant tampered with the window outside the room where L.Z. was sleeping. There was also evidence that defendant masturbated on the window. In this case, the evidence suggested defendant had attempted to sexually arouse himself using petroleum jelly before he removed the window screen and entered B.L.s room. The evidence was probative to show defendants common plan or scheme of satisfying his sexual desires by watching and, in the case of B.L., touching females while they were sleeping. This evidence of defendants pattern of behavior negated any potential claim of mistake in entering B.L.s bedroom and lying on top of her.

We also reject any claim of undue prejudice. Indeed, the incident involving L.Z. was much less prejudicial than the charged crime. It involved an adult woman and defendant remained outside the apartment. Here, defendant entered B.L.s room and molested her. Nor can the L.Z. incident be viewed as remote in time, having occurred less than two years before the offense at issue here.

DISPOSITION

The matter is remanded with directions that the court pronounce sentence on the mandatory five-year section 667, subdivision (a) enhancement. The judgment is affirmed in all other respects.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P.J.

BUTZ , J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

^[3]The section 667.61, subdivision (d)(4) enhancement carries a sentence of 15 years to life. ( 667.61, subd. (b).)