Filed 9/12/24 P. v. Bridgette CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

THOMAS ANDRE BRIDGETTE,

 Defendant and Appellant.

 G062195

 (Super. Ct. No. 16WF2665)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

Michael A. Leversen, Judge. Affirmed in part, reversed in part, and 

remanded.

Jennifer A. Gambale, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa 

Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Defendant Thomas Andre Bridgette was convicted of sexually 

assaulting two different women on two separate occasions in the fall of 2016.

On appeal, he contends 1) the trial court erred in failing to suppress 

incriminating evidence that was seized during a warrantless search of his 

home, 2) the trial court erred in denying his request for a separate trial as to 

each victim, and 3) the jury instruction on the use of propensity evidence was 

fundamentally unfair. Although we find these contentions unpersuasive, 

defendant also raises a narrow sentencing issue that, as respondent concedes, 

does have merit. Therefore, we will reverse one aspect of his sentence and 

remand the matter for limited resentencing. In all other respects, we affirm 

the judgment.

STATEMENT OF FACTS

Incident Involving Jane Doe 2 (JD2)

In 2016, JD2 was a young single mother living with her parents

in Anaheim. Hoping to find a place of her own, she joined a Facebook group 

designed to help people locate room rentals in Orange County. Defendant 

contacted her through the group on October 1, 2016. At his request, she 

agreed to meet him at a Jack in the Box restaurant later that day to discuss a 

property he supposedly had for rent.

During the meeting, defendant said he had a pool-house studio 

that he was looking to rent for $600 a month, and after seeing pictures of the 

alleged property on his phone, JD2 said she was interested. She even offered 

to give defendant half of the first month’s rent as a down payment. However, 

rather than closing the deal with JD2 at that point, defendant suggested that 

they meet back at the restaurant in a couple hours to discuss the matter 

further, and she agreed to do so.
3

When JD2 returned to the restaurant that afternoon, she brought 

along her four-year-old daughter. Defendant arrived in a blue Toyota pickup 

truck. He offered to take JD2 to see the studio, and because defendant 

“looked harmless” to her, she got in his truck with her daughter. However, 

instead of taking them to see the studio, defendant drove to a Home Depot 

store in Garden Grove.

Upon pulling into the parking lot, defendant stopped his truck 

and told JD2 he was a federal drug agent. Although defendant was not 

actually associated with law enforcement, JD2 believed he was a police officer 

because he showed her an official looking card and spoke in an authoritative 

manner. She also noticed he had a pair of handcuffs with him at that point.

Defendant told JD2 he had been trying to track her down for 

some time. He then began questioning her about some murder case that was 

supposedly connected to the pool-house studio. JD2 had no idea what 

defendant was talking about. However, when she tried to tell him that, he 

told her he was going to have to take her to the Fullerton police station for 

additional questioning.

Still thinking defendant was a police officer, JD2 asked him if 

they could drop off her daughter at her parents’ house first, and he agreed to 

do so. On arrival at the house, defendant told JD2 that if she did not return 

to his truck after taking her daughter inside, he was going to come into the 

house and arrest her. So, she entered the house, left her daughter with her 

mother, and promptly returned to defendant’s truck. Then they headed back 

out on the road together.

As they were driving, defendant made a phone call to a female 

and asked her to bring him his gun. He also asked JD2 to hand him a 

cigarette package that was in the truck. However, when she handed him the 
4

package, she noticed it did not have any cigarettes inside. Defendant told her 

the package contained methamphetamine, and now that her fingerprints 

were on it, he could have her arrested for drug possession. Fearing defendant 

was a crooked cop, JD2 became very worried. Her anxiety only increased 

when she realized defendant was not driving in the direction of the Fullerton 

police station.

Instead of taking JD2 to the station, defendant took her to a quiet 

alley in Buena Park, where he stopped his truck and put her in the 

handcuffs. When she tried to escape, defendant grabbed her hair and 

slammed her head into the center gear shifter. Then he pulled out a 

switchblade-like knife, held the blade up to her neck, and asked her how bad 

she wanted to go home. JD2 took that to mean defendant wanted something 

from her. Although she begged him to let her go, he told her the only “easy 

way” out was for her to give him oral sex.

When JD2 refused, defendant forcibly kissed her and grabbed her 

breasts and vagina over her clothing. Then he tried to reach underneath her 

clothing, but JD2 successfully resisted that attempt by squirming around and 

fighting back the best she could. She also tried to yell for help, however, 

defendant covered her mouth and continued to pull her hair and rough her 

up. Out of desperation, JD2 made an appeal to defendant’s religious faith and 

promised not to tell anyone about their encounter if he would only let her go.

At that point, defendant finally relented and agreed to take JD2 back to her 

parents’ house.

As he was dropping her off, he removed her handcuffs and gave 

her $20 to buy a pizza for her daughter. He also told her to delete all of the 

messages that they had exchanged about the room rental that day. However, 

JD2 did not do that, nor did she keep quiet. Instead, she proceeded to tell her 
5

parents what defendant had done to her. As it turned out, her father did not 

believe her, and her mother was skeptical of her story. So, she called a friend 

and told her about the ordeal. JD2 does not remember who called the police, 

but Garden Grove Police Officer Jane Raney came out to talk to her at her 

parents’ house at about 11:45 that evening.

After briefly speaking with JD2 at the house, Raney took her to 

the station for further questioning. JD2 told Raney that in addition to pulling 

a knife on her and pressuring her for oral sex, defendant had threatened to 

tase her and spray her with pepper spray. She also claimed that defendant 

punched her in the side of the head during the attack.

Following the interview, JD2 identified defendant from a 

photographic lineup. She also turned over a cell phone to the police, but it 

was not the one she had used to communicate with defendant about the room 

rental. And although the police drove her around the area where she said 

that defendant had attacked her, she could not identify the precise location 

where the attack occurred.

Nevertheless, the police obtained a warrant to search defendant’s 

home in Garden Grove. During the search, they found a box of .22 caliber 

ammunition, a fake police badge, and a box for a stun gun. And inside 

defendant’s pickup truck, they found pepper spray, handcuffs and a 

switchblade-like knife. Both the pepper spray and the handcuffs had JD2’s 

DNA on them.

Defendant waived his Miranda rights and agreed to be 

interviewed. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) At 

first, he denied knowing JD2 or communicating with her about any room 

rental. But after the police showed him surveillance photos of them together 

at the Jack in the Box, he admitted “hitting her up” on Facebook and meeting 
6

her there to discuss property rentals. He also admitted driving JD2 to the 

parking lot of Home Depot. However, he insisted that she went along with 

him willingly and that he never told her he was a police officer. He also 

claimed that he never handcuffed her, demanded sex from her, or hurt her in 

any way. Rather, according to defendant, he was just trying to help her out 

by finding her a place to stay.

Following his interview, defendant was released pending further 

investigation. Less than six weeks later, he was involved in a second incident 

of alleged sexual misconduct that occurred on November 11, 2016.

Incident Involving Jane Doe 1 (JD1)

On that day, JD1 was working as a prostitute at the Quality Inn 

motel in Westminster. Sometime after 3:00 p.m., defendant called her about 

an advertisement for sexual services that she had placed online. JD1 gave 

defendant her location and then went to a nearby liquor store to get a bottle 

of water. When she returned to her room, she thought she closed the door 

behind her, but it was actually slightly ajar. She realized this a few minutes 

later when defendant abruptly entered her room with a gun and told her to 

take off her clothes. He also threatened to kill her if she screamed or made 

any loud noises.

After JD1 disrobed, defendant took off his pants and directed her 

to put on a black dress that was lying on the bed. But after she put it on, 

defendant told her to take it off and became violent. He grabbed a towel off 

the bed, wrapped it around JD1’s neck, and pulled her hair. He also grabbed 

her breasts and buttocks and tried to kiss her. JD1 tried to resist and get 

away. However, defendant was too strong, and because he was choking her 

with the towel, she was having trouble breathing and could not yell for help.
7

Defendant eventually eased up with the choking. However, while 

still holding the gun, he demanded that JD1 suck his penis, or he would kill 

her and throw her in the bathtub. JD1 complied out of fear for her life.

Defendant then pushed her onto the bed and tried to have intercourse with 

her. But he could not achieve an erection and was only able to penetrate her 

vagina slightly with his flaccid penis.

Defendant also put his fingers inside JD1’s vagina momentarily 

and touched her anus. While doing so, he directed her to call him “daddy” and 

to tell “daddy” how much she wanted him. However, due to his inability to 

obtain an erection, he eventually gave up the cruel charade and ceased the 

attack.

As he was getting dressed, defendant warned JD1 not to call the 

police. He also picked up the bottle of water that she had purchased from the 

liquor store and threatened to kill her with it. But instead of doing that, 

defendant took JD1’s phones—both her personal phone and her “business”

phone—and left the room.

After that, JD1 went down to the lobby and called 911. Even 

though she was not able to identify defendant as her attacker at trial, 

surveillance videos captured defendant leaving the motel shortly before she 

called the police. Defendant’s DNA was also found on JD1’s neck and on the 

towel and the bottle of water that she described in her testimony. However, 

defendant’s DNA was not found on JD1’s genitals, and her DNA was not 

found on his penis.

When interviewed at the scene by members of the Westminster 

Police Department, JD1 was scared and nervous. Although she initially gave 

the police a false name and denied engaging in prostitution activity that day, 

she eventually admitted she was a sex worker. She said a man robbed her at 
8

gunpoint in her room, pulling her hair and choking her with a towel. She also 

alleged that he digitally penetrated her vagina and anus and that he 

unsuccessfully tried to sodomize her. Consistent with her claim of being 

choked, JD1 had red marks—possibly scratches—on her neck. After 

photographing the marks, the police transported her to the hospital for a 

sexual assault examination.

The examination was performed by nurse Jennifer Rivera. Rivera 

did not observe any external injuries on JD1, but she did notice that she had 

a fresh bruise on the inside of her left cheek. The bruise was consistent with 

JD1 biting her cheek during some type of trauma, such as being strangled.

JD1 also reported having head pain, trouble swallowing, and difficulty 

recalling the details of her attack, which was consistent with her claim of 

being choked.

While JD1 did not have any physical signs of strangulation in the 

area around her neck, and her voice did not sound hoarse or raspy, Rivera did 

not find that unusual. In fact, she said that roughly half of all assault victims 

who report being strangled do not have any physical manifestations of such 

abuse. Rivera also downplayed the lack of physical injury to JD1’s genital 

area, saying that about three quarters of all rape victims show no signs of 

trauma in that area.

During the time that JD1 was speaking with the Westminster 

police and undergoing her examination, another important development in 

her case was beginning to unfold. The impetus for that development was 

JD1’s boyfriend, A.M. On the night in question, he did not know anything 

about what had happened to JD1 or that defendant had stolen her phones. 

All he knew is that JD1 was not answering her phone or returning any of his 

numerous phone calls, which was very unusual for her. Eventually, he 
9

became so worried about JD1 that he reported her to the police as a missing

person.

1

A.M.’s missing person’s report came in at about 1:00 a.m. on 

November 12, 2016, roughly eight hours after JD1 was attacked by defendant

in her motel room. A.M. told the authorities that by using a location finder 

app on his phone, he had been able to track JD1’s phone to a residential 

neighborhood in Garden Grove. Fearing for JD1’s wellbeing, he then drove to 

that neighborhood from his home in Los Angeles to look for her.

To assist A.M. in that endeavor, officers from the Garden Grove

Police Department were dispatched to his location. When they arrived on the 

scene and contacted A.M., the officers did not know about the incident that 

had transpired earlier that evening between JD1 and defendant in 

Westminster. But based on previous contacts with defendant, they did know 

that he lived in the area where they met A.M. And with A.M.’s help, they 

were able to find JD1’s phones, which were located in the backyard of 

defendant’s rear neighbor. After finding the phones, the police contacted 

defendant at his home, and he agreed to talk to them about his encounter 

with JD1.

At the start of the interview, defendant claimed that nothing 

happened between him and JD1. But in response to further questioning, he 

admitted contacting JD1 through her ad and negotiating to have sex with her 

for $100. He said that when he arrived at JD1’s motel room, he noticed she 

did not look like the woman who was pictured in her ad.2 Nevertheless, he 

1 A.M. did not know that JD1 was a prostitute. She had told him 

that she worked as a mobile hairdresser.

2 At trial, JD1 admitted she used the photo of another woman in 

her ad.
10

took off his clothes and washed his hands, in anticipation of having sex with 

her. However, at that point, JD1 raised her price to $250 and began rifling 

through his wallet, and therefore he decided to call things off before they had 

any sexual relations.

Defendant told the police that he did not have a gun with him 

during his encounter with JD1, nor did he attack her or hurt her in any way.

But he did admit taking her phones because he was angry over the situation.

He also admitted throwing the phones into his neighbor’s backyard. The 

police arrested defendant and took him into custody. When interviewed at the 

station, he again denied attacking JD1.

Later that morning, the police conducted a consent search of 

defendant’s residence and found a .22 caliber handgun in the garage. The gun 

was located in a pouch inside of a toolbox. Although the pouch was open and 

the toolbox was very dusty, the gun was clean. According to the officer who 

found it, the gun “did not appear that it had been sitting in there gathering 

dust and cobwebs, or anything like that.”

In order to help the jury understand why JD1 might have been 

reluctant to tell the police she was a prostitute and to testify at trial (she 

testified under a grant of immunity), the prosecution called an expert witness 

on sex trafficking. He testified that prostitutes often use fake names and ad 

photos to conceal their identity. And because they work outside the confines 

of the law, they are highly vulnerable to exploitation and violence.

The Defense

The main witness for the defense was defendant’s wife, L.M. She 

testified that at the time this case arose, she was defendant’s girlfriend and 

was living with him, along with her mother, in a house in Garden Grove. She

said she decided to marry defendant while his trial was pending because he is 
11

honest and caring and would never do any of the things he was accused of 

doing.

Speaking to those accusations, L.M. said that when she had 

lunch with defendant on the day of the incident involving JD2, he told her 

that he was going to be helping a young woman and her daughter find a place 

to stay. That did not seem unusual to L.M., because she knew defendant as a 

kind and generous person. However, when she tried to contact defendant 

later that day—during the time that he was allegedly attacking JD2—he did 

not answer his phone or respond to any of her numerous text messages.

L.M. also testified that she owned the blue pickup truck that 

defendant was driving at the time he met up with JD2 and allegedly attacked 

her. L.M. claimed the pepper spray and the switchblade-like knife that the 

police found in the truck belonged to her. And, she also owned a small taser 

at that time. But she did not know anything about the handcuffs that were 

found in the truck.

In an attempt to discredit JD2’s allegations, the defense also

presented testimony from her father. Contrary to what JD2 said in her 

testimony, he said he was not at home on the day she was allegedly assaulted 

by defendant. He was also confronted with statements he allegedly made to a 

defense investigator impugning JD2’s credibility and parenting skills.

Regarding the incident involving JD1, the defense presented 

evidence that, in speaking with her boyfriend A.M. about the incident, JD1 

told him that defendant took her phones. But she did not say anything to him 

about defendant having a gun.

Trial Proceedings

As to JD1, defendant was charged with two counts of forcible 

sexual penetration with a foreign object and one count each of forcible rape, 
12

forcible oral copulation, assault with the intent to commit a sex offense, and 

robbery. (Pen. Code, §§ 289, subd. (a)(1)(A); 261, subd. (a)(2); 288a, subd. 

(c)(2)(A); 220, subd. (a)(1) & 211, subd. (a).)3It was further alleged that 

defendant personally used a firearm during those offenses. (§ 12022.53, subd. 

(b).)

As to JD2, defendant was charged with kidnapping to commit a 

sex offense, sexual battery by restraint, assault with intent to commit a sex

offense, and attempted forcible oral copulation. (§§ 209, subd. (b)(1); 243.4, 

subd. (a); 220, subd. (a)(1) & 664/287, subd. (c)(2)(A).) And he was alleged to 

have used a deadly weapon during the latter two crimes. (§ 12022.3, subd. 

(a).)

Prior to trial, the court denied defendant’s request to sever the 

counts involving JD1 from the counts involving JD2, and therefore all of the 

charges were adjudicated in a single trial. In the end, the jury convicted

defendant as charged and found all of the weapon enhancement allegations to 

be true. In a bifurcated proceeding, the trial court then found true additional 

allegations that defendant had suffered three prior strike convictions and 

three prior serious felony convictions. (§§ 667, subds. (d), (e)(2)(A); 1170.12, 

subds. (b), (c)(2)(A); 667, subd. (a)(1).) The trial court sentenced him to prison 

for 54 years and 4 months, plus an indeterminate term of 7 years to life.

DISCUSSION

Defendant contends his convictions must be reversed for three 

reasons. First, the trial court erred by denying his motion to suppress the gun 

that was found in his garage. Second, the trial court erred by denying his 

3 Unless noted otherwise, all further statutory references are to 

the Penal Code.
13

request for a separate trial as to each of the victims. And third, the trial court 

erred in giving CALCRIM No. 1191B on the use of propensity evidence. For 

the reasons explained below, we find defendant’s claims unconvincing. 

However, due to an undisputed sentencing error, he is entitled to 

resentencing on one of his offenses.

I.

SUPPRESSION MOTION

Before trial, defendant filed a motion to suppress the gun and 

any other incriminating evidence stemming from the warrantless search of 

his home on November 12, 2016. Although defendant, L.M., and L.M.’s 

mother each consented to the search, defendant maintained their consent 

was tainted by illegal police activity that proceeded the search. In particular, 

defendant accused the police of unlawfully entering his home while they were 

investigating the whereabouts of JD1. 

At the motion hearing, the court heard from several police 

officers who were involved in that investigation, as well as L.M. The court 

also considered various statements that were picked up by the officers’ body 

microphones while they were talking with L.M. and defendant at their home.

A. Factual Background

1. Prosecution Evidence

At about 1:15 a.m. on November 12, Garden Grove Police Officers

Charles Starnes and Troy Haller were dispatched to defendant’s 

neighborhood in response to A.M.’s missing person’s call. This was not the 

first time the officers had been to that neighborhood. Roughly a month 

earlier, in October 2016, they had been to defendant’s house to investigate 

JD2’s allegations that defendant had kidnapped and sexually assaulted her 

after taking her to a Home Depot store in Garden Grove.
14

On this occasion, however, Starnes and Haller were investigating 

a different matter, namely the whereabouts of JD1. As noted in the 

statement of facts above, JD1’s boyfriend A.M. had reported her missing 

because she was not answering her phone and he did not know where she 

was. Although A.M. had managed to track JD1’s phone to the area around 

defendant’s house, he did not know exactly where the phone was, or how to 

retrieve it in the middle of the night, which is why he called the police.

When Starnes and Haller arrived at the scene, they spoke with 

A.M. about his concerns. A.M. said that despite repeated attempts to contact 

JD1, he had not heard from her in about eight hours. He was worried about 

her because she had children to care for, and it was not like her not to answer 

her phone, or at least return his calls.

According to the locator app on A.M.’s phone, JD1’s phone was in 

close proximity to defendant’s house. The officers instructed A.M. to keep 

calling the phone, in the hope that they would hear it “pinging” in the area. 

They then began knocking on doors to see if anyone in the neighborhood had 

seen JD1 or heard her phone. When they got to defendant’s house, L.M. 

answered the door alone. The officers told her they were looking for a missing 

person whose phone was in the area, and she said she had heard a pinging 

sound coming from the rear of her residence.

Following that brief encounter with L.M., Starnes and Haller 

went back and talked to A.M. By then, Garden Grove Police Officer Aldo 

Guereca had also arrived on the scene. Like Starnes and Haller, Guereca 

knew that defendant had previously been investigated for kidnapping and 

sexually assaulting JD2. In fact, Guereca was part of the team that had 

arrested defendant at his house in connection with that earlier incident, in 

October 2016. The officers decided to have Starnes stay with A.M. and 
15

monitor his phone, and for Haller and Guereca to go back to defendant’s 

house to see if L.M. would let them enter her backyard to look for JD1’s 

missing phone.

During this second contact, L.M. reiterated that she had heard a 

pinging sound coming from the rear of her residence. She also stated that she 

and defendant had been to Walmart earlier that evening. Haller asked if he 

could go into her backyard to look for the phone, and she said yes or 

something to that effect.

Haller walked to the side of the house and looked over a wall into 

the backyard, where he saw defendant running from the rear of the yard 

toward the back of the house. Haller yelled out to him, identifying himself as 

a police officer, and in response, defendant stopped running and joined him 

by the wall. When Haller asked him what he was doing, defendant said his 

girlfriend had heard a phone pinging in their backyard, so he went to check it 

out. Although he was not happy about the police being at his house, he 

eventually allowed Haller to enter his backyard to look for the phone.

Guereca also entered the backyard around this time. He stayed 

with defendant and L.M., while Haller walked to the rear fence to 

investigate. While looking over the fence into the adjoining backyard, Haller 

heard a pinging sound coming from that location. He radioed Officer Starnes 

to let him know where the sound was coming from. Then he jumped the fence 

and met Starnes on the other side. Within minutes, they found JD1’s pinging 

phone, along with her other phone. The phones were located inside a plastic 

Walmart bag in the backyard of defendant’s rear neighbor.

While Haller and Starnes were tracking down the phones, 

defendant told Guereca he was uncomfortable with the police being on his 

property and asked him to leave. Guereca walked over to a side gate that 
16

leads to defendant’s front yard and radioed Haller his location. He remained 

there for several minutes as defendant and L.M. returned to their home.

Before long, Haller returned to defendant’s house and met up 

with Guereca at the side gate. Given all of the circumstances, Haller was 

concerned that A.M.’s girlfriend, i.e., JD1, might be inside defendant’s 

residence and in need of help. He wanted to speak with defendant and L.M. 

about allowing him to enter their home to look for her.

The conversation about entering the home occurred at 

defendant’s back sliding door, while Officers Guereca and Haller were 

standing in the backyard, and defendant and L.M. were standing inside their 

house. When Haller said he would like the enter the house to search for 

A.M.’s girlfriend, defendant and L.M. became agitated. L.M. said she had 

been willing to cooperate with the officers up until that point, but now she 

was tired and wanted to go to bed. And defendant indicated he was worried 

about the officers planting evidence in his home.

Haller told defendant that was not going to happen. He assured 

defendant and L.M. that he did not want to conduct an extensive search of 

their home but merely wanted to make sure A.M.’s girlfriend was not inside.

In making his pitch for entry, Haller also asked defendant and L.M. to 

consider how they would feel if one of their relatives were missing. He told 

them, “The best way to get us (the police) out of your hair right now is [to] 

make sure nobody’s in the house.”

L.M. replied, “No way . . . I can’t help you[.] I can’t do it.” She 

insisted that no one else was in the home, and so did defendant. However, 

during the back and forth, defendant told Haller, “I’ll make you a deal” and 

alluded to the prospect of Haller getting a supervisor to conduct the search.

Defendant also indicated that the officers could come in if they allowed him to 
17

accompany them during the search. Although Haller rejected that idea for 

officer safety reasons, he said L.M. could follow him around the house during 

the search if she wanted to. Haller also told defendant, “We’re not trying to 

get anybody. We’re going to come in. We would like to do it cooperatively[.]”

At that point, defendant said alright, fine and let the officers into his house.

Once inside, Guereca took defendant into the living room, and 

L.M. followed Haller as he conducted a protective sweep around the house in 

search of JD1. As it turned out, the sweep turned up empty, as no one else 

was in the house. However, that did not bring an end to the encounter 

because right after Haller completed the protective sweep, new information 

came to light. 

It just so happened that while Guereca and Haller were inside 

defendant’s house carrying out the protective sweep, JD1 called A.M., who 

was still standing by with Officer Starnes outside the house. Starnes spoke to 

JD1 on A.M.’s phone to see if she was okay. She reported that she had been 

sexually assaulted in Westminster earlier that evening by a white man with 

tattoos who was driving a red Chevy El Camino. Because defendant fit that 

description and there was just such a vehicle parked outside his home, 

Starnes directed Haller to detain defendant as a possible suspect in JD1’s 

attack.

That made defendant upset. He told Haller, “We let you into this 

house under the assumption you were going to search the house,” and now 

that you are done, “We’re asking you to leave.” However, based on the new 

information from Officer Starnes, Haller and Guereca detained defendant 

and L.M. at their home pending further investigation.

Because the incident involving JD1 occurred in Westminster, 

police officers from that city were called to the scene. At about 2:30 a.m., 
18

defendant agreed to speak to them in his front yard. He was not handcuffed 

at that time, but he was informed that he was being detained.

Defendant admitted to the officers that there was a gun in his 

house. When asked if the police could search his car and bedroom, defendant 

said they could search “all day long[.]” At one point, he also gave the officers 

broader permission to search the entire house.

However, after defendant was arrested and taken into custody, 

the police spoke to L.M., as well as her mother, who owned the house and had 

arrived there from work in the early morning hours following defendant’s 

arrest. Because L.M. and her mother both declined a request to search, the 

police began the process of obtaining a warrant to search the house.

Meanwhile, the police contacted defendant for further 

questioning at the police station. After waiving his Miranda rights, he again 

consented to a search of his car and bedroom. He also called L.M. and told her 

it was okay for the police to search the house. Although L.M. had previously 

refused to give consent to search, defendant told her to sign the officers’

consent-to-search form, and that is what she did. Her mother also gave 

written consent to search the house. At that point, the police stopped working 

on the search warrant application and searched the house, which led to the 

discovery of the handgun in defendant’s garage.

2. Defense Evidence

L.M. testified that she did not give the officers permission to 

enter her backyard when they initially asked her to do so. However, she 
19

eventually capitulated and gave in to them because they were being 

persistent and she was greatly outnumbered.

4

L.M. also testified about the situation that unfolded at her back 

sliding door after the police found JD1’s phones. She claimed that she and 

defendant repeatedly told the officers they did not want them coming into 

their house, but they said they had the right to enter and were going to do so 

anyway. According to L.M., the officers also tried to open the sliding door at 

that time, but it was locked. Then they told her that she needed to open the 

door. Fearing the officers were going to break it down, L.M. opened the door 

and allowed them inside. 

Upon entering, the officers said they were going to look around 

the house to see if anyone else was present. Although L.M. and defendant 

objected to that, the officers told them that did not matter and proceeded to 

search the house. After that, the police detained L.M. inside the house for 

several hours before eventually taking her outside and asking if they could 

search the house. L.M. refused to give her consent at first, but after 

defendant called her and gave her the okay, she had a change of mind. By 

that point, L.M. had been outside for quite some time and was concerned 

about not being able to access certain medications that were inside the house.

In light of all the circumstances, she signed the consent form at about 10:30 

a.m.

B. Trial Court’s Ruling

Defendant’s suppression motion focused on the officers’ initial 

entrance into his home to search for JD1. Although that search did not turn 

4 L.M. was unable to recall how many officers were present when 

she answered her door, but she testified that it felt like there were four or 

five of them. 
20

up any incriminating evidence, defendant argued it tainted any subsequent 

consent that was given to search his house.

The trial court ruled by minute order. As a preliminary matter, it 

found the police had consent to enter defendant’s backyard to look for JD1’s 

phone. Although L.M. testified her consent was coerced, the court “did not 

find her testimony credible as to the issues she testified to.”

The court also found the police had consent to enter defendant’s 

home through the back sliding door after finding JD1’s phones. While 

recognizing that defendant and L.M. balked at the officers’ initial requests to 

open the door, and the officers were somewhat persistent about coming in, 

the court did not believe the situation was so hostile, threatening or coercive

as to render defendant’s consent to enter involuntary.

Assuming otherwise, the court ruled the officers’ entry into 

defendant’s house was justified under the exigent circumstances exception to 

the warrant requirement. In fact, based on all of the information available to 

the officers, the court concluded they would have been derelict in their duties 

if they had not entered defendant’s house to look for JD1.

Furthermore, the court found that even if the officers’ initial 

entrance was illegal, the taint from that illegality was attenuated by the 

subsequent consent to search that was given by defendant, L.M. and her 

mother. And, irrespective of that, the police had an independent basis to 

search the house through the search warrant process. Therefore, the evidence 

they found during the search would have been admissible under the 

inevitable discovery doctrine. For all these reasons, the court denied 

defendant’s motion to suppress that evidence.
21

C. Standard of Review

“In reviewing the denial of a suppression motion, we consider the 

record in the light most favorable to the disposition and defer to the court’s

factual findings if supported by substantial evidence. [Citation.] Any conflicts 

in the evidence are resolved in favor of the court’s order. [Citation.]” (People v. 

Mathews (2018) 21 Cal.App.5th 130, 137.) Construing the evidence in that 

deferential light, we then “independently assess, as a matter of law, whether 

the challenged search or seizure conforms to constitutional standards of 

reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.)

D. Consent

Consent is a well-recognized exception to the warrant 

requirement that may be given in direct express terms, or by implication.

(Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219; People v. Robles (2000) 

23 Cal.4th 789, 795; People v. Frye (1998) 18 Cal.4th 894, 990, disapproved on 

another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 

However, consent may not be the product of coercion. (Bumper v. North 

Carolina (1968) 391 U.S. 543, 550.) Thus, when the legality of a search turns 

on the issue of consent, the prosecution must prove not only that the 

necessary consent was given, but that it was freely and voluntarily offered, 

meaning it was not obtained by threats or force, or granted in submission to a 

claim of lawful authority. (Florida v. Royer (1983) 460 U.S. 491, 497; People v. 

Boyer (2006) 38 Cal.4th 412, 445–446.)

Defendant does not challenge the legality of the officers’ actions 

in entering his backyard. However, he contends the officers lacked consent to 

enter his home through the backdoor slider to look for JD1. In defendant’s 

view, express consent was never given, and any implied consent was merely a 

submission to the officers’ claim of lawful authority.
22

Actually, though, the record reflects that defendant did give his 

verbal consent for the officers to enter his home. He can be heard on the 

recording of Guereca’s body microphone saying “alright . . . fine” and “[c]ome 

on” in, in response to the officers’ repeated requests to enter. But that was 

after defendant had already asked the officers to leave his property, and after 

he and L.M. had made it clear that they did not want the officers to enter 

their home. The fact that defendant gave his consent in response to repeated 

and persistent requests for entry suggests it was not freely and voluntarily

given. (United States v. Clark (D.V.I. 2019) 2019 WL 3456813 [defendant’s 

consent found involuntary where it “constituted mere acquiescence to the 

officers’ repeated requests”]; State v. Garcia (Kan. 1992) 827 P.2d 727 [same 

where the defendant “was subjected to repeated requests by the trooper for 

permission to search”]; State v. Diede (Minn. 2011) 795 N.W.2d 836, 848

[consent given in response to dogged police questioning deemed invalid].) 

It is true that defendant offered to make a “deal” with the officers 

in regard to letting them come inside his house. His proposal was for Officer 

Haller to get a supervisor to conduct the search, or for Haller to let him 

(defendant) accompany him during the search. However, Haller did not 

accept either one of those proposals. Instead, he offered to let L.M. follow him 

around during the search. He also told defendant, “We’re going to come in. 

We would like to do it cooperatively[.]” This implied the officers were 

prepared to enter the house forcefully if defendant did not agree to let them 

in. It was immediately after this implied threat that defendant gave the 

officers permission to enter his house.

On this record, it is hard to tell whether defendant consented in 

response to Haller’s offer to let L.M. accompany him during the search, which 

would favor a finding defendant’s consent was voluntary, or whether he 
23

consented because the officers told him they were going to come in regardless 

of what he said to them, which would favor a contrary finding. The trial court 

did not make any findings in regard to that particular issue. Instead, it 

focused on what defendant and L.M. said after the officers entered their 

home, in finding the officers had consent to enter. 

In that regard, the trial court found it significant that defendant 

and L.M. expressed regret for letting the officers into their home, once they 

realized the officers were not going to let them go in the wake of the search.

However, the fact defendant and L.M. expressed what the trial court 

described as “buyer’s remorse” after letting the police into their home does 

not speak to the circumstances under which consent was given in the first 

place. 

If the circumstances indicated that resistance to the officers’

repeated requests to enter the home would be futile, which is what Haller’s 

statement “[w]e’re going to come in” strongly implied, it would be hard to 

characterize defendant’s consent as being free and voluntary. Indeed, courts 

have been reluctant to find a suspect’s consent valid when it was given under 

similar circumstances. (See, e.g., Gregg v. Ham (4th Cir. 2012) 678 F.3d 333, 

342 [consent to enter deemed involuntary because, inter alia, the requesting 

authorities told the resident that if she did not let them in, they were going to 

come in anyway]; United States v. Allen (N.D. Cal. 1972) 349 F. Supp. 749, 

752 [consent deemed involuntary where although the defendant “ultimately 

uttered words of assent to the request by the officers to open the bag, his 

acquiescence came only after repeated requests by the agents accompanied by 

references to the inevitability of a search by the local authorities”]; People v. 

Valenzuela (1994) 28 Cal.App.4th 817, 832-833 [consent will be deemed 

involuntary if it was given in response to an officer’s suggestion that it would 
24

be fruitless or unwise to decline a request to search]; Campos v. State (Ind. 

2008) 885 N.E.2d 590 [by telling the defendant that the search was 

necessary, the police effectively conveyed to him that he had no real choice in 

the matter]; State v. Johnson (Wis. 2007) 729 N.W.2d 182 [defendant’s 

consent deemed involuntary where it was preceded by an officer’s statement 

indicating the police were going to search his vehicle].)

However, we need not decide whether the officers had lawful 

consent to enter defendant’s home. That is because, as we now explain, their 

entry was clearly justified under the exigent circumstances exception to the 

warrant requirement. (See United States v. Murray (N.D.W.V. 2022) 2022 

WL 356352 [officers did not need consent to undertake warrantless search 

where exigent circumstances for the search existed].)

E. Exigent Circumstances

Under the exigent circumstances exception, a warrantless search 

is permitted “[w]hen there is a compelling need for official action and no time 

to secure a warrant[.]” (People v. Coddington (2000) 23 Cal.4th 529, 580, 

overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 

1069, fn. 13.) Although the parameters of the exception defy precise 

description, a warrantless entry into a suspect’s home will be upheld so long 

as “the facts available to the officer at the moment of the entry would cause a 

person of reasonable caution to believe that the action taken was appropriate. 

[Citation.]” (People v. Rogers (2009) 46 Cal.4th 1136, 1157.) This includes the 

situation where there is “probable cause to believe that a person reliably 

reported missing is within” the home and in need of aid. (People v. 

Coddington, supra, 23 Cal.4th at p. 580.) 

In this case, when the officers entered defendant’s home to search 

for JD1, they were aware of the following facts: 1) defendant had been 
25

arrested about a month earlier for kidnapping and sexual assault; 2) A.M. 

was very concerned about JD1’s welfare because he had not been able to get a

hold of her for eight hours, and it was unlike her not to return his calls or 

neglect the care of her children; 3) A.M. reported JD1’s phone was located in 

the vicinity of defendant’s house; 4) while the officers were looking for the 

phone, they saw defendant running in his backyard; 5) soon thereafter, the 

officers found JD1’s phones in the backyard of defendant’s rear neighbor; and 

6) the phones were located inside a bag from a store (Walmart) that 

defendant had been to earlier that evening.

Based on these circumstances, it was reasonable for the officers 

to believe that defendant discarded JD1’s phones in his neighbor’s backyard 

in response to the police arriving at his residence. Defendant obviously did 

not want the police to find the phones or know they had been in his 

possession. Attempting to hide a missing person’s phones is suspicious in its 

own right. But factoring in defendant’s recent arrest for kidnapping and 

sexual assault, it is easy to see why the officers were concerned that 

defendant may have done something more than simply steal a missing 

person’s phones. Given everything the officers knew about defendant’s 

criminal history and his connection to the phones, they had good reason to 

believe that JD1 might be inside his home and in need of emergency 

assistance.

This is true regardless of the fact that the police did not know 

whether JD1 was in danger, or whether defendant had ever threatened her.

Nor does it matter that the officers did not hear any suspicious noises 

consistent with a woman being held against her will inside defendant’s home. 

Defendant argues a warrantless search of his home was unjustified absent 

such evidence. But the police “do not need ironclad proof of a ‘likely serious, 
26

life-threatening’ injury” to enter a home under the exigent circumstances 

exception. (Michigan v. Fisher (2009) 558 U.S. 45, 49; People v. Troyer (2011) 

51 Cal.4th 599, 602.) 

When a woman is reported missing to the police, it always raises 

the specter of foul play. And given defendant’s recent arrest for serious sexual 

misconduct and his highly suspicious conduct respecting JD1’s phones, the 

police had every right to believe he might have taken JD1 inside his home

against her will. (Dempsey v. Gibson (9th Cir. 2023) 2023 WL 2064546 [citing 

the defendant’s deceptive conduct as a factor justifying the warrantless entry 

into his room under the exigent circumstances doctrine].) Therefore, the 

officers were justified in entering defendant’s home to look for her. (People v. 

Rogers, supra, 46 Cal.4th at p. 1157 [noting that even in the absence of 

obvious signs of distress, a warrantless entry may be appropriate to look for a 

person who has been reliably reported as missing and may be in need of 

help]; People v. Panah (2005) 35 Cal.4th 395, 465-466 [upholding the 

warrantless search of defendant’s apartment to look for a person who had 

been missing for several hours]; People v. Lucero (1988) 44 Cal.3d 1006, 1017 

[perceived danger to missing children justified warrantless entry and search];

People v. Hochstraser (2009) 178 Cal.App.4th 883 [concern over missing 

woman’s safety justified warrantless police entry into the defendant’s home].)

Defendant argues that even if exigent circumstances existed at 

the time the officers entered his home to look for JD1, they ceased to exist 

once Officer Starnes spoke to JD1 and learned that she was safe. That may 

be true, but in speaking with Starnes, JD1 reported that she had been 

sexually assaulted earlier that evening by a man who looked like defendant 

and who drove the same type of car that was parked outside his home. The 

receipt of this new information, coupled with all of the other attendant 
27

circumstances, fully justified defendant’s detention pending further 

investigation. (See generally In re Tony C. (1978) 21 Cal.3d 888, 894 [a 

suspect’s detention is permissible when the police have reasonable suspicion 

he or she has engaged in criminal activity].) The police were not required to 

let defendant go the instant they learned that JD1 was no longer in danger.

And, of course, once defendant, L.M. and L.M.’s mother consented 

to a search of their home, the police were fully justified in searching it 

without a warrant. Defendant argues their consent was tainted by the 

officer’s initial entry to look for JD1. But, as we have explained, that entry 

was permissible under the exigent circumstances exception. Because there 

was no illegality to begin with, defendant’s tainted-consent argument lacks 

merit. (United States v. Sandoval-Vasquez (7th Cir. 2006) 435 F.3d 739, 744; 

People v. Panah, supra, 35 Cal.4th at p. 466.)

Therefore, we need not consider whether the alleged taint was 

attenuated by other circumstances, or whether the gun found inside 

defendant’s garage would inevitably have been discovered through other 

lawful means. As there was no violation of defendant’s Fourth Amendment 

rights, the trial court properly denied his motion to suppress.

II.

SEVERANCE MOTION

Defendant contends the trial court also erred in denying his 

motion to sever the charges involving JD1 from the charges involving JD2.

That motion was litigated in conjunction with the prosecution’s request to 

give CALCRIM No. 1191B on the use of propensity evidence, which we 

discuss in the next section of our opinion. Therefore, we will combine the 

background section for these two related issues.
28

A. Procedural Background

Defendant filed extensive points and authorities in support of his 

request for separate trials as to each victim. As a threshold matter, he argued 

the statutory requirements for joinder were not satisfied because, in his view, 

the alleged offenses against JD1 and JD2 were not connected together in 

their commission or of the same class of crime, nor were they merely different 

statements of the same offense. (See § 954.)

Alternatively, defendant argued severance was required because 

trying all of the charges together in a single trial would create a substantial 

danger of undue prejudice. His prejudice argument rested on the assumption 

that the evidence pertaining to the alleged attacks was not cross-admissible

and that “joinder of the charges would result in the admittance of additional 

prejudicial evidence in each of the cases, allowing two weak cases to be 

combined in order to create one seemingly stronger case.”

In its opposition papers, the prosecution disputed both aspects of 

defendant’s argument. It maintained joinder was proper under section 954, 

and it would not cause undue prejudice because, among other things, the 

evidence as to each of the victims was cross-admissible under Evidence Code 

sections 1101, subdivision (b), and Evidence Code section 1108.

In conjunction with its opposition motion, the prosecution

requested the court to give CALCRIM No. 1191B, which allows jurors to 

consider the defendant’s charged sexual offenses as evidence of his propensity 

to commit other charged sexual offenses. The prosecution argued that 

instruction was a logical extension of Evidence Code section 1108, which 

authorizes the use of propensity evidence in sex crime cases.

At the hearing on these issues, the trial court ruled the incident 

regarding JD1 and the incident regarding JD2 involved the same class of 
29

crimes because both incidents were sexually motivated and characterized by 

violent assaultive behavior. Therefore, the severance issuance and the 

instructional issue came down to the question of cross-admissibility and 

fundamental fairness. Relying on Evidence Code section 352 and due process, 

defense counsel argued that trying all of the charges together would inflame 

the jury and create an uneven playing field for his client. However, the trial 

court disagreed. It determined any inference of prejudice was negated

because the evidence as to each incident was cross-admissible pursuant to 

Evidence Code section 1108. It thus denied defendant’s severance motion.

The court then turned to the instructional issue, at which time 

defense counsel renewed his Evidence Code section 352 and due process

objections. Counsel simply did not think it was fair to allow the jury to use 

the evidence as to one victim to prove the charges against the other victim.

But the court, having listened to all the arguments and having read the 

parties’ extensive briefing on the issue “two or three times,” ruled that 

CALCRIM No. 1191B was “probably . . . an appropriate instruction.” And 

ultimately, it did give that instruction to the jury.

B. Standard of Review

“In reviewing whether the trial court improperly denied a 

defendant’s motion to sever, ‘“we apply the familiar standard of review 

providing that the trial court’s ruling may be reversed only if the court has 

abused its discretion. [Citations.] An abuse of discretion may be found when 

the trial court’s ruling ‘“falls outside the bounds of reason.”’” [Citations.]

Defendant has the burden of showing error in denial of a motion to sever and 

does so only on a clear showing of prejudice to establish the trial court abused 

its discretion. [Citation.]” (People v. Johnson (2015) 61 Cal.4th 734, 750.)
30

C. Applicable Law

In the interest of judicial economy, there is a preference that all 

charges against a defendant be handled in one proceeding. (People v. 

Capistrano (2014) 59 Cal.4th 830, 848.) Joinder of charges “ordinarily avoids 

the increased expenditure of funds and judicial resources which may result if 

the charges were to be tried in two or more separate trials. [Citations.]”

(Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) Joinder also speeds up 

the disposition of criminal charges. (People v. Bean (1988) 46 Cal.3d 919, 

940.)

To that end, section 954 permits joinder in a variety of situations, 

including when the accusatory pleading charges two or more offenses that are 

of the same class of crime or were connected together in their commission. If 

the statutory criteria for joinder have been met, “the burden is on the party 

seeking severance to establish clearly that a substantial danger of prejudice 

exists requiring that the charges be tried separately. [Citation.]” (People v. 

Cunningham (2001) 25 Cal.4th 926, 985.) Prejudice may arise where the 

evidence related to the charges to be tried would not be cross-admissible in 

separate trials, some of the charges are unusually likely to inflame the jury 

against the defendant, or a weak case has been joined with a strong case. 

(Ibid.)

D. The Charges Were Properly Joined 

For purposes of section 954, criminal offenses are “of the same 

class,” and thus subject to joinder, when they share common characteristics 

or attributes. (People v. Landry (2016) 2 Cal.5th 52, 76; People v. Carson

(2003) 109 Cal.App.4th 978, 990.) Defendant admits the desire for sexual 

gratification was a common characteristic of the crimes he was accused of 

committing, and that sex crimes are typically considered to be of the same 
31

class. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1113.) However, he 

argues the crimes against JD1 and JD2 were carried out in such a dissimilar 

manner that they should not be deemed to be of the same class.

In so arguing, defendant correctly notes that the crimes against 

JD2 involved a ruse, a knife and handcuffs, whereas the crimes against JD1 

involved an ambush and a gun. But by focusing on these particular factual 

differences, defendant overlooks the broader common circumstances that link 

these two criminal episodes. Namely, that they were both sexually motivated, 

assaultive in nature, and carried out with a deadly weapon. As the trial court 

rightly found, these shared characteristics were sufficient to satisfy the sameclass-of-crimes requirement. (People v. Landry, supra, 2 Cal.5th at p. 76; 

People v. Ochoa (1998) 19 Cal.4th 353, 409; People v. Lindsay (1964) 227 

Cal.App.2d 482, 492.) Therefore, all of the charged offenses were joinable 

under section 954.

E. Joinder Did Not Create a Substantial Danger of Prejudice

Turning to the issue of prejudice, we must keep in mind that of 

all the various factors noted above, “[c]ross-admissibility is the crucial factor 

affecting prejudice.” (People v. Stitely (2005) 35 Cal.4th 514, 531.) “Where 

evidence would have been cross-admissible in separate trials, . . . ‘“any 

inference of prejudice is dispelled.”’ [Citation.]” (People v. Gray (2005) 37 

Cal.4th 168, 222.)

In this case, the trial court determined the crimes involving JD1 

and the crimes involving JD2 would have been cross-admissible in separate 

trials pursuant to Evidence Code section 1108. Although evidence of 

uncharged offenses—sometimes called character or propensity evidence—is 

generally prohibited in criminal trials, that section states: “In a criminal 

action in which the defendant is accused of a sexual offense, evidence of the 
32

defendant’s commission of another sexual offense or offenses is not made 

inadmissible by [Evidence Code] [s]ection 1101, if the evidence is not 

inadmissible pursuant to [Evidence Code] [s]ection 352.” (Evid. Code, § 1108, 

subd. (a).) This provision was specifically enacted “to expand the 

admissibility of disposition or propensity evidence in sex offense cases.”

(People v. Falsetta (1999) 21 Cal.4th 903, 911.)

Since defendant was accused of committing sex crimes against 

both his victims, the only potential obstacle to cross-admissibility would have 

been Evidence Code section 352. That section empowers the trial court to 

exclude evidence if its probative value is substantially outweighed by the 

probability its admission would cause undue prejudice. This weighing process 

is highly discretionary; a trial court’s decision to admit or exclude evidence

under Evidence Code section 352 will only be disturbed if it is arbitrary, 

capricious or patently absurd. (People v. Kelly (2007) 42 Cal.4th 763, 783; 

People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Soto (1998) 64 

Cal.App.4th 966, 984-985.)

While admitting this deferential standard of review applies in 

most cases involving Evidence Code sections 1108 and 352, defendant claims 

it should not govern here because the trial court did not expressly balance the 

probative value of cross-admissibility against the potential prejudice it might 

cause. However, an express, on-the-record assessment and weighing of the 

pertinent factors is not required. (People v. Catlin (2001) 26 Cal.4th 81, 122.) 

Rather, it is sufficient if the record shows the trial court understood and 

fulfilled its responsibility under Evidence Code section 352, which is simply 

to weigh the probative value of the proffered evidence against its potential 

prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 214.)
33

Such is the case here. The parties’ briefing on the joinder issue—

which the trial court read multiple times—included numerous references to 

Evidence Code sections 1108 and 352. And at the hearing on that issue, 

defense counsel reiterated he was relying on Evidence Code section 352 and 

the lack of cross-admissibility as the basis for opposing joinder. It was 

abundantly clear from his remarks that he felt the prejudicial impact of 

joinder outweighed the probative value of trying all the charges in a single 

trial. Under these circumstances, we may infer the court engaged in the 

requisite weighing process and made an informed decision on the issue of 

cross-admissibility. (People v. Padilla (1995) 11 Cal.4th 891, 924.) Therefore, 

the abuse-of-discretion standard applies in reviewing that decision.

Anticipating that could be the case, defendant contends the trial 

court abused its discretion under Evidence Code sections 1108 and 352 in 

determining the evidence as to each victim was cross-admissible as to the 

other. While admitting the charged offenses had a common sexual theme to 

them, he claims the episode involving JD1 was so factually, temporally and 

geographically distinct from the episode involving JD2 that any probative 

value of cross-admissibility was substantially outweighed by the prejudicial

impact of allowing the jury to consider both episodes together in assessing 

the truth of the charges.

To be sure, defendant’s two attacks were temporally and 

geographically distinct. However, they were only separated by a few weeks 

and a few miles. Compared to other cases which have addressed this issue, 

they were not so disconnected from one another as to render the probative 

value of cross-admissibility insignificant. (See People v. Frazier (2001) 89 

Cal.App.4th 30, 40-41 [upholding the admission of evidence regarding a 15-

year-old sexual offense]; People v. Branch (2001) 91 Cal.App.4th 274, 284-285 
34

[30-year-old sexual offense not unduly remote or prejudicial under Evidence 

Code section 352].)

As for the factual differences between the two episodes, 

defendant asserts, “[a]n elaborate ruse ending in a sexual assault,” which is 

how he describes the incident involving JD2, “is fundamentally different than 

a prostitution negotiation . . . gone bad,” which is how he describes the 

incident involving JD1. However, JD1 testified that defendant confronted her 

with his gun, demanded her to take off her clothes, and threatened to kill her 

right when he entered her room. There was no negotiating for anything under 

her version of events.

Moreover, contrary to defendant’s understanding, similarity 

between the two episodes is not required under Evidence Code section 1108.

(People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41.) Indeed, courts have 

recognized that imposing a similarity requirement would undermine the 

purpose of the statute and ignore the fact many sex offenders are not 

specialists in terms of the crimes they commit. (People v. Soto, supra, 64 

Cal.App.4th at p. 984.) We are satisfied the circumstances surrounding the 

two sexual assaults that defendant committed were sufficiently alike to 

support the conclusion he had a propensity to engage in sexual misconduct.

In that regard, it is telling that during both assaults defendant 

utilized threats and a weapon in attempting to gain compliance from the 

victim, he pulled the victim’s hair, he demanded the victim to orally copulate 

him, and he kissed and groped the victim without her consent. Defendant 

also subjected both victims to a frightening level of physical violence, yet 

neither assault was particularly more inflammatory than the other. So, the 

danger of the jury being emotionally swayed to convict defendant across the 

board based solely on the evidence of one assault or the other was very low. 
35

(Compare People v. Harris (1998) 60 Cal.App.4th 727, 738-741 [evidence of 

the defendant’s prior sex offense should have been excluded because it was 

much more inflammatory and violent than the charged sex crimes].)

For all these reasons, we find no abuse of discretion in the trial 

court’s finding on cross-admissibility. And because the evidence regarding 

one assault was admissible to prove the other, there is no reason to question 

the court’s decision to try all of the charges in a single trial. (People v. Kraft

(2000) 23 Cal.4th 978, 1030 [cross-admissibility dispels any inference of 

prejudice].)

As a fallback argument, defendant contends that even if the trial

court did not err in denying his severance motion at the time it was heard, 

the subsequent joint trial was so fundamentally unfair that it violated his 

right to due process of law. (See People v. Landry, supra, 2 Cal.5th at p. 77.)

In so arguing, defendant renews his claim that the evidence pertaining to the 

two attacks was not cross-admissible. However, for the reasons explained 

above, we find that claim unpersuasive.

We also reject defendant’s claim that joinder impermissibly 

allowed the prosecution to bootstrap a weaker case with a stronger case.

Granted, the charges involving JD1 might have been a little harder to prove

in comparison to the charges involving JD2, because JD1 was working as a 

prostitute at the time of her encounter with defendant, and she did not have 

any significant injuries to substantiate her claim that defendant physically 

assaulted her. But, JD1 was clearly rattled when the police interviewed her 

at the scene, and the nurse who examined her testified it is not uncommon 

for sexual assault victims to lack outward signs of their abuse. JD1’s 

allegations were also corroborated by the fact that a gun was found in 

defendant’s garage.
36

On the other hand, defendant lied to the police so often during 

his police interviews that his claim of innocence likely carried very little 

weight with the jury. It is not just that he lied with respect to one episode or 

the other. Rather, as respondent puts it, defendant lied “[a]t every turn”

during his police interviews, thus evidencing a consciousness of guilt as to all 

of the charges. Defendant’s clumsy attempt to dispose of JD1’s phones was 

also a glaring sign that his encounter with JD1 involved more than a simple 

misunderstanding over the price he was willing to pay to have sex with her.

Suffice it to say, the relative strength of the evidence as to the 

victims was not so disparate as to create an undue danger of prejudice by 

virtue of a joint trial. Whether considered at the time it was made, or in light 

of the evidence adduced at trial, the court’s denial of defendant’s severance 

motion did not render his trial unfair or violate due process. (See People v. 

Merriman (2014) 60 Cal.4th 1, 41-43 [upholding the denial of the defendant’s 

motion to sever sexually related charges involving different victims]; People v. 

Nguyen, supra, 184 Cal.App.4th at p. 1114 [same].)

III.

PROPENSITY INSTRUCTION

Defendant also contends the trial court committed reversible 

error by instructing the jury with CALCRIM No. 1191B on the permissible 

use of propensity evidence. Again, we disagree.5

5 Respondent argues defendant forfeited his right to challenge the 

giving of CALCRIM No. 1191B because although he objected to the 

instruction before trial, he did not renew his objection later on, during the 

evidentiary phase of the trial. However, because the instruction arguably 

violated defendant’s right to a fair trial, we will entertain his challenge to it. 

(§ 1259 [a jury instruction impacting the defendant’s substantial rights is 

reviewable on appeal even if he did not object to it at trial].)
37

A. Procedural Background

As explained in the previous section, the trial court adjudicated 

the instructional issue in conjunction with defendant’s severance motion.

After finding the evidence as to each victim was cross-admissible, the court 

granted the prosecution’s request to give CALCRIM No. 1191B. Pursuant to 

that instruction, the jury was told:

“The People presented evidence that the defendant committed 

the crimes of Sexual Penetration by Foreign Object and Force as charged in 

Counts 1 and 2; Forcible Rape as charged in Count 3; Forcible Oral 

Copulation as charged in Count 4; Assault with Intent to Commit Sexual 

Offenses as charged in Counts 5 and 8; Kidnapping to Commit Sex Offenses 

as charged in Count 7; Attempted Forcible Oral Copulation as charged in 

Count 9; and Sexual Battery by Restraint as charged in Count 10. Please 

refer to the separate instructions that I will give you on those crimes.

“If the People have proved beyond a reasonable doubt that the 

defendant committed one or more of these crimes, you may, but you are not 

required to, conclude from that the evidence that the defendant was disposed 

or inclined to commit sexual offenses, and based on that decision, also 

conclude that the defendant was likely to commit and did commit the other 

offenses charged in this case.

“If you find that the defendant committed one or more of these 

crimes, that conclusion is only one factor to consider along with all the other 

evidence. It is not sufficient by itself to prove that the defendant is guilty of 

another crime. The People must still prove each charge and allegation beyond 

a reasonable doubt.”
38

B. Analysis

In challenging this instruction, defendant concedes the California 

Supreme Court upheld a materially similar instruction in People v. Villatoro

(2012) 54 Cal.4th 1152 (Villatoro). Although Evidence Code section 1108 is 

typically used in sex crimes cases to introduce evidence of uncharged sex 

crimes, Villatoro determined “nothing in the language of [that] section . . .

restricts its application to uncharged offenses.” (Id. at p. 1164.) To the 

contrary, Evidence Code section 1108 was broadly intended to allow the jury 

to consider any evidence of the defendant’s propensity to commit sex crimes. 

(Ibid.) Therefore, Villatoro held it was permissible for the jury to consider the 

defendant’s charged sex offenses in deciding whether he committed other 

charged sex offenses. (Ibid.)

Despite this holding, defendant urges us not to follow Villatoro

for several reasons. First, as a foundational matter, defendant maintains the 

trial court failed to undertake the necessary weighing process under Evidence 

Code section 352 in finding the charged offenses were cross-admissible under 

Evidence Code section 1108.

However, as we explained in the previous section, the parties’

written and verbal arguments highlighted the importance of Evidence Code 

section 352 on the issue of cross-admissibility, which was the pivotal issue in 

terms of the trial court giving CALCRIM No. 1191B. Although the trial court 

did not explicitly explain its reasoning under that section, “an express 

statement” of reasons was not required. (Villatoro, supra, 54 Cal.4th at p. 

1168.) Based on the extensive briefing and argument the parties presented on 

the Evidence Code 352 issue, we are satisfied the trial court implicitly 

conducted the necessary analysis under that section. (Ibid.)
39

Defendant also argues that Villatoro was wrongly decided 

because an instruction like CALCRIM No. 1191B undermines the 

presumption of innocence and impermissibly allows the jury to make a guilty 

finding based on a lesser standard than proof beyond a reasonable doubt.

However, as a lower appellate court, we are not at liberty to disregard the 

Supreme Court’s decision in Villatoro, which held to the contrary. (Auto 

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. 

Meneses (2019) 41 Cal.App.5th 63, 67-68.) Like the instruction in Villatoro, 

CALCRIM No. 1191B “clearly told the jury that all offenses must be proven 

beyond a reasonable doubt, even those used to draw an inference of 

propensity.” (Villatoro, supra, 54 Cal.4th at pp. 1167-1168.) As such, the 

instruction did not lower the standard of proof or violate defendant’s rights in 

any respect. (Ibid.)

IV.

SENTENCING

Lastly, the parties agree, as do we, that the trial court erred in 

sentencing defendant to a full consecutive sentence of three years for 

attempted forcible oral copulation on count 9. In so doing, the trial court 

appears to have applied section 667.6, subdivision (d), which requires a full 

consecutive term for certain sex offenses. However, that provision does not 

apply to attempted sex offenses. (People v. Rodriguez (2012) 207 Cal.App.4th 

204, 217.) Therefore, we will reverse defendant’s sentence on count 9 and 

remand for limited resentencing. (People v. Le (1984) 154 Cal.App.3d 1, 11, 

disapproved on other grounds in People v. Piper (1986) 42 Cal.3d 471, 477, fn. 

5.)
40

DISPOSITION

Defendant’s sentence for attempted forcible oral copulation in 

count 9 is reversed, and the matter is remanded for resentencing on that 

count. In all other respects, the judgment is affirmed.

DELANEY, J.

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.