Opinion
F071494
02-08-2017
THE PEOPLE, Plaintiff and Respondent, v. SAUL HERNANDEZ, Defendant and Appellant.
Maria R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Carry, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 1435877)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Maria R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Carry, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant's brother was jumped by gang members. Later that day, defendant's brother got into a fight with another gang member. During that fight, defendant shot the gang member several times, killing him. On appeal from his murder conviction, defendant contends the trial court erred in admitting evidence that, years before the killing, he sold false identification documents in a store parking lot, threatened a store manager who told him to leave, and kicked the store manager's van. We disagree, and affirm the judgment.
BACKGROUND
In an information filed October 2, 2012, appellant/defendant Saul Hernandez was charged with the first degree premeditated murder of Alberto Ledesma Beraza (count 1 - Pen. Code, § 187, subd. (a)) and discharging a firearm in a grossly negligent manner (count 2 - Pen. Code, § 246.3, subd. (a)). The information alleged a great bodily injury/death enhancement to the murder count. (Pen. Code, § 12022.53, subd. (d).)
On March 24, 2014, a jury convicted defendant on all counts and allegations. Defendant was sentenced to a term of 25 years to life on the first degree murder count, and another consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. Defendant was also sentenced to two years on the firearm discharge conviction, and that term was stayed pursuant to section 654.
Defendant appealed.
FACTS
Testimony of Kelli Parker
Kelli Parker was driving on Crows Landing Road in Stanislaus County at around 5:20 p.m. on August 22, 2011. Parker called 911 and told the dispatcher that someone had been shot on the corner of Hatch and Crows Landing. The dispatcher asked who had shot the victim, and Parker said, "There was two guys. One with a green T-shirt and another one - they were speaking Spanish; they got into a white vehicle." Parker said she thought the second man had a white shirt.
The recording was played for the jury but not transcribed. The parties agreed that the court reporter need not transcribe the recording.
Testimony of Gloria Baeza
Gloria Baeza (Baeza) was also driving on Crows Landing at around 5:20 p.m. on August 22, 2011. Her attention was drawn to three "guys" who appeared to be involved in a physical altercation. One of the three was wearing a white shirt. Baeza heard what sounded like firecrackers, followed by one of the individuals falling to the ground bleeding. She believed the victim had on a baseball cap. The other two individuals ran towards a white Audi and were saying something like, " 'Let's get out of here,' " in Spanish.
The question posed to Baeza asked if she was in the area of Crows Landing and Hatch Road "at around 5:20" without specifying a.m. or p.m. Other testimony establishes that the shooting occurred around 5:20 p.m.
Testimony of Joe Mendonza
Sheriff's Deputy Joe Mendonza was on patrol August 22, 2011. Mendonza parked at Crows Landing and Butte to monitor a car wash being held to raise money for a funeral. There were about 20 people participating in the car wash, most of whom were wearing red. Mendonza felt it was fair to say they might be associated with a gang.
Deputy Mendonza had been parked near the car wash for about 45 minutes when the shooting at issue in this case took place, approximately 200 yards north of his location. Mendonza was the first responder on the scene and observed about 15 young men running on both sides of the street. Eventually, Mendonza located a person lying face down on a nearby sidewalk. The victim was pronounced dead at the scene.
Deputy Mendonza located a bullet hole in the door of a nearby business, Boomers Audio.
Deputy Mendonza also noticed Boomers Audio had cameras. He was later able to view the footage, which showed the victim, Beraza, walking southbound on Crows Landing Road. Beraza was nearing the south gate of Boomers Audio when Guillermo Ochoa (defendant's brother) approached him from the south. A fight started suddenly, and Ochoa was quickly knocked to the ground. Mendonza testified that it "[s]eems like on the video [Beraza] was kicking ... [Ochoa when he] fell to the ground." Mendonza could not tell whether Ochoa was kicked in the head. Beraza stood over Ochoa and was "still kind of swinging at him" when defendant came running into the picture. Defendant fired several rounds from a handgun at Beraza. Beraza turned "and didn't make it more than two or three steps and fell." Later examination of Beraza's facial injuries were consistent with Beraza landing on his face.
Throughout his description of the footage, Mendonza refers to "the victim" and the individual in the green shirt. It is undisputed that the victim is Beraza and the individual in the green shirt was Ochoa. He later refers to "a third person" which other testimony showed was defendant.
That Ochoa was defendant's brother was established by other testimony.
Recovery of Vehicles
Later that night, law enforcement initiated a traffic stop of a white Audi. The Audi was being driven by Juan Lepe, a relative of defendant's wife. Apparent blood stains were found on the passenger's side door handle and underneath the driver's side door handle. Blood stains belonging to Ochoa were found on the front passenger door and front passenger seat.
This fact was established by stipulation.
Sergeant Jon McQueary, the lead investigator, later learned that defendant and Ochoa left defendant's residence in a Cadillac. The Cadillac was also recovered in the course of the investigation. Law enforcement found inside a tissue with apparent blood stains and a Jack-in-the-Box receipt dated August 22, 2011, with a timestamp of 8:25 p.m. No shell casings or ammunition were found in the Cadillac.
Defendant's Interrogation
Later on the day of the shooting, defendant turned himself in at the sheriff's department and was arrested. Defendant said he had "shot somebody."
Defendant explained to a Detective Delgado that his brother had been "jumped" by 10 to 15 people who had been participating in a car wash and drinking alcohol. When he saw his brother return from the car wash "all bloody and beat up," he was very angry and wanted to find out who was responsible. Defendant felt disrespected because he had supported the car wash by giving money. He also suspected the car wash participants thought he was a gangster, which was untrue. Defendant retrieved a .40-caliber Glock from a friend named Juan and went to find the people who had fought with his brother.
Defendant referred to his brother as Ishmael Hernandez. Guillermo Ochoa testified that he also went by the name Ishmael Hernandez. We will use the name Ochoa for continuity and clarity.
Defendant said he had originally bought the gun from a drug addict or drug dealer two years prior and had left it with Juan.
According to Delgado, defendant changed his story "a little bit" during his interrogation. The interviewing deputy informed defendant there was security camera footage of the shooting. Defendant then told the deputy that he eventually located one of the men believed to have jumped his brother. Ochoa got out of the vehicle and started a fight with the man. Defendant saw Ochoa get knocked to the ground, so he got out of the car, approached the man, and shot him. He and Ochoa then drove to the car wash and fired two shots in the air because "he was really angry" and wanted people to run away.
Defendant went home and told his wife what had happened. He told his wife to pick up the car he had been driving so she could hide it. He then left for Ochoa's house. Defendant said he gave the gun to a friend who disposed of it. He said he kept bullets in magazines at his home. Defendant did not know where his brother was.
Detective Delgado never asked defendant if he was afraid during the encounter.
Testimony of Guillermo Ochoa
Defendant's brother testified at trial. His true name is Guillermo Ochoa, though he has been called Ishmael Hernandez-Torres.
Ochoa testified that the Mi Pueblo Market is an establishment on Crows Landing Road. Ochoa was near Mi Pueblo Market advertising his brother's landscaping services. Ochoa went to eat at a taco truck on the other side of Crows Landing. While Ochoa was eating, there were around 30 gang members staring at him. They were "smoking drugs" and were drunk. Ochoa saw one of the men urinating who then gave him an "ugly look." Ochoa turned around and 10 of the gang members started attacking him. They threw him to the ground and kicked him while Ochoa covered his face. Ochoa stopped moving and they stepped back. The men took Ochoa's wallet and cell phone. Ochoa testified he was not a gang member and had not provoked the men.
The "lady from the lunch truck" told Ochoa that she had a video of the incident. Ochoa crossed the street and another group of 15 to 20 gang members intercepted him and told him that if he called the police they would kill him. Ochoa then saw defendant, who drove him away in a white Audi. Ochoa told defendant what had happened, including the threats they had made.
Defendant drove to a house about five or eight minutes away. Defendant went in to the home for one or two minutes. Ochoa did not know why they had stopped. When they began driving again, Ochoa noticed a "black weapon" on or near the center console.
The questions posed to Ochoa referred to a gun, but his answers - given through an interpreter - used the word "weapon."
They drove back to Crows Landing Road where they saw a young man walking "to the area to [sic] where the rest of the gang members were at." Ochoa told defendant to stop, and identified the young man as one of the people who had beaten him. Defendant stopped the car. Ochoa got out and asked for his things back. Ochoa began "trying to take hold of him to ask for [his] things." The man started hitting Ochoa again and started saying "bad words in English" including, " 'F**k you, mother f**ker.' " Ochoa tried to hit him back and "take hold of him" but could not. Ochoa came to be on the ground where the man continued hitting him. Ochoa believed the man was trying to kill him. The man started kicking Ochoa's face, causing him to scream for help. The man continued to kick Ochoa in the head until Ochoa heard gunshots. Defendant then lifted Ochoa up and got him into the car. Ochoa was bleeding profusely.
About 15 days later, Ochoa called law enforcement and told them the blood in the car was his. He also told law enforcement he had received death threats and was afraid to return to Modesto.
Ochoa testified he had previously been convicted for driving without a license and without insurance, and had been ticketed for speeding on a jet ski.
Testimony of Soccorro Farias
In August 2011, Soccorro Farias was working at a lunch truck on Crows Landing Road. During her entire time at that location, Farias never saw any fights occur. Farias did hear gunshots fired across the street, but did not see the shooting. Farias did not witness any abnormal behavior before the gunshots. Farias denied having video of any fight.
Testimony of Defendant
Defendant testified. Near the beginning of his testimony, he admitted he had been arrested for vandalism and giving a false name to a police officer in July 2009. Defendant explained that he had been "selling ID cards in a parking lot." The manager of a store wanted to charge defendant for the opportunity to sell the ID cards in the parking lot. The manager told defendant to leave, but he refused to do so. Defendant told the manager he needed to "watch his back" and not call the police because this was "a very bad area." Defendant also made "a threatening gesture" to the manager. When the manager drove by in a van, defendant walked up to the van and kicked the passenger side door, leaving a "medium size" dent. Defendant testified he "did it out of anger." When he was arrested, defendant gave a false name to the police officer.
The quotation comes from the prosecutor's question to which defendant responded affirmatively.
On August 22, 2011, defendant was selling false identification documents with his brothers Ochoa and Hugo in the Mi Pueblo parking lot and at the car wash. Ochoa had left to get something to eat and returned "completely bleeding, all beaten up." More than eight Norteño gang members wearing red shirts and caps from the car wash approached Ochoa and defendant. The gang members told defendant and Ochoa that if they went to the police, they would be killed. Defendant also heard them say, " 'Green light,' " which defendant understood to mean they were going to kill him and his brother.
Ochoa told defendant there was a video recording of the incident. Defendant immediately thought about obtaining a pistol because they had been threatened. He left to a friend's house with Ochoa with the purpose of obtaining a weapon. Defendant retrieved his .40-caliber Glock from his friend's house because he was afraid.
Ochoa told defendant he wanted to go back to get the video recording of the incident. When they arrived back at Crows Landing Road, Ochoa told defendant to stop. Defendant complied but did not know why Ochoa had asked him to stop. Ochoa got out of the car and started running. Defendant saw Ochoa get into a fight with someone and fall to the ground. He saw the person hitting Ochoa with his fist and kicking him in the head. Defendant thought his brother was going to die, so he got out of the car. Ochoa was saying, " 'Help me. Help me.' " Defendant yelled at the person and fired two shots in the air. The person did not stop "beating" Ochoa. Defendant shot the person an unknown number of times. Defendant did not keep shooting the man once he fell to the ground.
Defendant helped Ochoa back to the car. They went back to the parking lot near Mi Pueblo, where Hugo was. Defendant heard two gunshots and then fired two shots of his own into the air. Defendant saw the gang members nearby, who were saying, " 'Let's get them.' " Defendant and his brother left and headed to defendant's house. Defendant told his wife to move the car (a white Audi) because he was scared that gang members would recognize it. Defendant turned himself into the sheriff's department later that day.
Defendant claimed that during his interrogation when he told Detective Delgado that he "wanted to get even," he was referring to the individuals in the parking lot at Mi Pueblo, not the person he had shot. Defendant had merely meant that he wanted the assailants to have been put in jail. Defendant claimed the only reason he fired at the individual was to save Ochoa's life.
Sergeant McQueary's Views and Training on Use of Force
Sergeant McQueary testified that he has had ongoing training in the use of force throughout his 20 years of experience with law enforcement. McQueary said that law enforcement personnel are trained "to use enough force to overcome resistance and not any force thereafter." If there was a fistfight between two people, law enforcement personnel would entertain multiple options. Verbal commands could be used. Also, McQueary had seen pepper spray used to break up two people fighting. Additionally, the combatants could be grabbed and physically separated. Impact weapons and Tasers are also options. Use of a firearm would be the last resort. However, once a firearm is employed, law enforcement is trained to continue firing until the threat is neutralized.
Sergeant McQueary reviewed the surveillance footage and testified that he "think[s]" he saw Beraza administer two kicks "and something I'll describe as one or two stomps." McQueary testified that this conduct "could be" considered lethal force.
McQueary was asked about Beraza not by name but by description (i.e., "the person wearing the baseball hat.") Likewise, his response did not identify Beraza by name.
Sergeant McQueary was recalled to the stand after defendant and Ochoa testified. A hypothetical similar to the facts of the case were presented to McQueary, and he testified that in such a situation, he would try to tackle the assailant first, rather than shoot him. McQueary did acknowledge that the use of deadly force is a reasonable response to deadly force if there are no other options.
Sergeant McQueary denied talking to Ochoa or ever receiving a phone call from him.
Testimony of Amber Brown
Amber Brown is the crime analyst technician who investigated the crime scene. She testified that pictures showed what appeared to be bloodstains along the sidewalk, as well as a pool of blood on the driveway near Boomer's Audio. Brown estimated the blood trail was about five to six feet.
However, Brown also testified that she was "really, really bad at estimating."
Search of Defendant's House
Sergeant McQueary served a search warrant on defendant's home. In the home, law enforcement recovered a white T-shirt with a blood "smudge," a green T-shirt with "possible" blood stains, a loaded .40-caliber Glock magazine, a live ammunition round, and an empty handgun magazine. The brand of the ammunition recovered in defendant's home was Fiocchi - the same brand as the shell casings found at the crime scene.
The firearm used in the shooting was never recovered.
Autopsy
The forensic pathologist who performed the autopsy on Beraza testified that he died from blood loss caused by multiple gunshot wounds. Beraza was shot once each in the head, face, right arm, and twice in the back. The bullet causing one of the wounds to Beraza's back showed evidence that it had ricocheted. The bullet to Beraza's head entered from the back of the head.
No gunpowder was found in the wounds, indicating Beraza was shot from more than 18 inches away. No drugs or alcohol were found in Beraza's system.
The pathologist testified he or she had performed autopsies on people who had died from being kicked in the head.
Evidence of Beraza's Gang History
Eve Quesada
Eve Quesada (Quesada) was an assistant principal at Blaker-Kinser Junior High School where she was responsible for managing the safety of the school and handling student discipline. According to discipline records, Beraza was disciplined for an incident that occurred on January 28, 2009. The records merely describe the incident as Beraza " '[c]aus[ing], attempt[ing] to cause or threaten[ing] serious physical injury to another person.' "
Beraza was disciplined for " 'punching another student in the body with his face' " on February 6, 2009.
Beraza claimed " 'he was playing.' "
On February 27, 2009, Beraza had drawn " 'Norteño-related pictures with four dots, Norcal star, and bandannas [sic].' " The notation for this incident also stated Beraza had gotten " 'into a gang-related fight in January.' " Nonetheless, the discipline records described the February 27, 2009, incident as Beraza's " 'first gang violation.' " Beraza was prohibited from wearing red, drawing gang-related pictures or getting into gang-related fights under threat of expulsion.
On March 13, 2009, Beraza was " '[i]nvolved in a confrontation with another student on gang affiliations.' " The discipline records further noted: " 'He also, along with friends, created disruption. Alberto was cursing at other students. Second gang violation on shoes, Norcal star on paper.' "
On March 17, 2009, Beraza committed a third gang violation by wearing a red backpack. Two days later, Beraza committed another gang violation by possessing permanent markers. Quesada testified that gang-affiliated students would sometimes use permanent markers for graffiti or "tagging."
This incident was also marked as a "third" gang violation.
On May 5, 2009, Beraza wore the color "red." The discipline records did not indicate what item of clothing Beraza had worn.
Quesada testified that it appeared to her, based on the discipline records, Beraza's gang activity was escalating over time.
Brian Murphy
Brian Murphy (Murphy) was an assistant principal at Central Valley High School where he administered student discipline.
On September 2, 2010, Beraza was brought to Murphy's office for "behaviors associated with gang activity." Beraza had walked up to a group of Sureño students, spit at them, and called them "scraps" which is a derogatory term. Usually when a student displayed this type of behavior, it is considered a gang violation and certain restrictions are placed on the student including colors they may not wear, etc. Murphy did not recall whether this process was followed with respect to Beraza.
On October 1, 2010, Murphy was notified that Beraza had a verbal altercation with another student in class. The incident involved "whistling and posturing" which would typically be seen "with students who identify themselves with gangs." Beraza claimed the incident was not gang-related, and he was not disciplined.
On October 11, 2010, a student reported to Murphy that Beraza had a handgun in his backpack. Beraza's backpack was inspected and a gun was found inside. The gun had no clip loaded in, but Beraza had a loaded clip in his pocket. Beraza claimed he did not intend to use the gun. He was suspended for five days pending an expulsion hearing.
The reporter's transcript indicates Murphy testified Beraza was given a "five-day suspicion [sic] pending expulsion." The context clearly indicates that "suspicion" should read "suspension" and defendant's opening brief uses the word "suspension."
Murphy testified Beraza's conduct had quickly escalated in seriousness.
Rebuttal Testimony of Detective Delgado
Detective Delgado was called as a prosecution rebuttal witness. Delgado responded to the July 2009 incident involving defendant and the store manager. He saw the dent in the store manager's van and arrested defendant for vandalism. Defendant claimed his name was "Christian Hernandez Gomez."
Testimony of Alberto Martinez
Alberto Martinez (Martinez) was the store manager involved in the July 2009 incident. Martinez testified that he would observe people selling ID's at the entrance of his store. He told them to move away a "few times" because they were bothering customers. The people would not leave, and one of them behaved aggressively, using "bad words." He told "this person" to move away. The person got upset and kicked the right-side door of his van, causing a small dent.
Martinez would often call the police when this type of incident occurred but the people would be gone before the police arrived. However, on one occasion, Martinez saw the same people drinking and bothering customers. Martinez called the police, and the people did not have enough time to get away. He told police which individual had kicked the door of his van and the person was arrested.
When Martinez was asked if he saw the person who had been arrested in court, Martinez responded, "No." However, on appeal, defendant acknowledges that Martinez was referring to him.
Three months later, Martinez saw the man who had been arrested while he was walking. The man said, " 'Next time is going to be [your] time.' " Martinez responded that he was not afraid of the man.
Martinez said the people had been "around" his store for "[a]bout a year or more" before police arrested the aggressive man. Martinez said none of the people physically harmed him. He also denied asking the people for money.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in Admitting the Prior Bad Acts Evidence
The trial court ruled that the evidence of defendant's 2009 vandalism incident was admissible under Evidence Code section 352. Defendant's sole contention on appeal is that the trial court should have excluded the evidence concerning the vandalism, threats made to Martinez, and defendant's false identification enterprise under section 352. We conclude the court did not abuse its discretion in admitting the evidence.
All further statutory references are to the Evidence Code unless otherwise stated.
Standard of Review
We review the trial court's ruling that the evidence was admissible under section 352 for abuse of discretion. (People v. Rogers (2013) 57 Cal.4th 296, 326.) "Under the abuse of discretion standard, a trial court's ruling will not be disturbed, and reversal ... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.] [Citation]." (Ibid., internal quotation marks omitted.)
Section 352"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice ...." (§ 352.)
As its plain language makes clear, section 352 is only concerned with the risk of prejudice that is "undue."
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in ... section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Not only must the prejudice be "undue," it "must substantially outweigh the probative value. [Citation.]" (Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 782, original italics.)
The crux of section 352 requires us to compare the "probative value" of the evidence against the "probability that its admission will ... create substantial danger of undue prejudice." (§ 352.) We will address these competing considerations in turn.
Probative Value
The evidence concerning defendant's conduct in 2009 undoubtedly had some probative value. Defendant was charged with murder. The prosecutor argued it was a "revenge killing" while defendant insisted he was merely protecting his brother. The July 2009 incident clearly raised an inference that defendant was the type of person to respond violently when he felt wronged. This aided the prosecution in arguing that defendant acted in conformity with that character trait when he killed Beraza. The evidence had probative value for that purpose.
This inference was permissible because the defense offered evidence "that the victim had a character for violence or a trait of character tending to show violence ...." (§ 1103, subd. (b).)
Defendant contends that the evidence he threatened and used foul language with Martinez was "irrelevant." Not so. Section 1103 permits evidence of "the defendant's character for violence or trait of character for violence ...." (§ 1103, subd. (b), italics added.) Defendant's statement to Martinez - "[n]ext time is going to be [your] time" - can be reasonably perceived as a threat of physical violence. And the broader evidence of defendant's aggressive verbal response to Martinez tends to suggest defendant may have a trait of vengefulness which can escalate to violence.
However, the probative value of the evidence was not overwhelming. Kicking an occupied van is considerably different than vengefully murdering someone. While both involve some form of violence, the nature of the violence exhibited in each instance was substantially different. Consequently, we conclude the evidence had only moderate probative value.
Probability Evidence Will Create Substantial Danger of Undue Prejudice
Next, we consider undue prejudice.
Defendant argues that whatever probative value the vandalism evidence had, it was outweighed by the prejudice stemming from accompanying testimony that he sold false identification documents for over a year around 2009. But, as defendant concedes, he himself admitted on the witness stand "he was selling identification papers at the car wash on the day of the shooting." As a result, the fact that defendant sold "identification papers" was in front of the jury apart from the section 1103 evidence. However, as defendant notes, it was only through the prior bad acts evidence that the jury was made aware it was an "ongoing enterprise." But once the jury knew defendant sold identification papers apart from the prior bad acts evidence, the incremental harm from additionally learning that he had done so continuously is minimal. The probability the jury reacted emotionally to this additional evidence is low.
And, while the prior bad acts evidence was only moderately probative because it was substantially less serious than the alleged murder, that same fact lessens the potential for prejudice. That is, the 2009 acts of kicking the van, threatening Martinez and selling false identification documents "were not particularly inflammatory when compared to" (People v. Harris (2013) 57 Cal.4th 804, 842) Beraza's murder.
Moreover, the prosecutor did not use the 2009 incidents to appeal to the jury's emotions in closing argument. In fact, the prosecutor did not even mention the 2009 incidents in his closing arguments.
We conclude the risk of undue prejudice was very low.
Conclusion
The probative value of the prior bad acts evidence was not "substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice ...." (§ 352.) As a result, the trial court did not abuse its discretion in allowing the evidence to be admitted.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.