Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA326465 John S. Fisher, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Deputy Attorney General, and Sara J. Farhat, Deputy Attorney General, for Plaintiff and Respondent.
ZELON, J.
Appellant Anthony Chandler (“Chandler”) appeals his conviction for one count of possession of cocaine base for sale (Health and Saf. Code, § 11351.5), one count of making criminal threats (Pen. Code, § 422), and one count of resisting an executive officer (Pen. Code, § 69). Chandler contends that the trial court abused its discretion and denied him due process when it admitted evidence of a subsequent assault that Chandler committed against a deputy sheriff while in custody in the county jail. We conclude that the admission of the challenged evidence was neither an abuse of discretion nor a violation of the constitutional right to due process. Accordingly, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Charges
In an information filed on September 5, 2007, the Los Angeles County District Attorney’s Office charged Chandler with shooting at an inhabited dwelling (Pen. Code, § 246), possession of cocaine base for sale (Health and Saf. Code, § 11351.5), making criminal threats (Pen. Code, § 422), and resisting an executive officer (Pen. Code, § 69). The information further alleged that, except for the shooting, Chandler committed each of the charged offenses for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subds. (b)(1)(A) and (b)(1)(B)). In the same information, the Los Angeles County District Attorney’s Office charged codefendant Jerry Jackson (“Jackson”) with shooting at an inhabited dwelling (Pen. Code, § 246) and permitting another to shoot from a vehicle (Pen. Code, § 12034, subd. (b)). Chandler pleaded not guilty to the charges and denied the special allegations.
Jackson was acquitted of all charges and is not a party to this appeal.
II. The Prosecution’s Case
On July 27, 2007, Los Angeles Police Officers Craig Piantanida and Asatur Mkrtchyan were patrolling the residential area near 1783 West 25th Street in Los Angeles for narcotics activity. At approximately 4:00 p.m., the officers observed Eddie Chapman (“Chapman”), a Rollin 20’s gang member, exit the front yard of the residence. Officer Piantanida recognized Chapman because he was being investigated for distributing and transporting narcotics within the Rollin 20’s gang territory, which included the area surrounding 1783 West 25th Street. Chapman exited the residence, entered a vehicle and drove away. The officers remained parked in their unmarked police vehicle to monitor possible narcotics activity at the residence.
Approximately two minutes later, Officers Piantanida and Mkrtchyan observed a burgundy four-door Ford Focus turn westbound onto 25th Street. Jackson was in the driver’s seat, Chandler was in the right rear passenger seat, and a third person, Chris Walker (“Walker”), was in the front passenger seat. As the vehicle stopped in front of 1783 West 25th Street, Chandler extended his arm out of the right rear passenger window and, holding a handgun, fired one round at the residence. The vehicle then sped away. Officers Piantanida and Mkrtchyan pursued the Ford Focus for a period of time, but later lost sight of it. Officer Mkrtchyan placed a radio call for assistance during the pursuit.
Officers Gustavo Tarin and James Moon were in their black-and-white patrol car when they received the radio call. They saw a car fitting the description of the suspect vehicle travelling westbound on the 10 freeway. The officers positioned their patrol car 30 to 40 feet behind the Ford Focus and activated their vehicle’s lights and sirens. The Ford Focus took the La Brea Avenue exit. As it drove across an overpass, it slowed to approximately 30 miles per hour. Officer Moon observed an individual resembling Chandler open the rear passenger door of the car and drop a clear plastic baggie containing a solid off-white substance consistent with rock cocaine. The baggie fell over the edge of the freeway overpass.
The Ford Focus encountered heavy traffic on La Brea Avenue and eventually came to a stop. Officers Tarin and Moon stopped their patrol car directly behind it. As soon as the Ford Focus stopped, Chandler exited the car from the rear passenger side and Walker exited from the front passenger seat. Jackson opened the driver’s side door, but stayed inside the vehicle. Both Chandler and Walker then fled on foot. While Officer Moon chased Chandler and Walker, Officer Tarin took Jackson into custody without incident. Following a foot pursuit, Officer Moon and another officer detained Chandler in an alley and took him into custody. Other officers detained Walker approximately 15 to 30 minutes later.
Officer Joseph Lopes searched the area surrounding the La Brea Avenue off-ramp for the plastic baggie that Officer Moon had observed Chandler drop during the vehicle pursuit. During the search, Officer Lopes recovered a clear sandwich bag containing individual bindles of a solid off-white substance resembling rock cocaine. The substance later was analyzed by a criminalist with the Los Angeles Police Department and was found to contain 2.35 grams of cocaine base. After the Ford Focus was impounded, officers searched the vehicle and recovered one nine millimeter bullet and six shotgun shells from the rear passenger area. Officers also recovered a single nine millimeter spent casing from the front of the residence at 1783 West 25th Street and found a single bullet hole in the window of the residence. Officers also searched the area where Chandler had been arrested for a firearm, but failed to find a weapon.
In the early evening of July 27, 2007, Officers John Flores and Eric Quach were assigned to transport Chandler from Olympia Hospital to the Southwest Police Station. The officers handcuffed Chandler and placed him in the right rear passenger seat of the patrol car with his seatbelt secured. Officer Quach drove while Officer Flores sat in the back seat beside Chandler. As they were driving, Chandler continually looked around and asked where they were. Officer Flores told him that they were going to the Southwest Station. At some point, Chandler unbuckled his seatbelt and began moving around in the patrol car. Officer Flores put his hand on Chandler’s chest and told him to sit back so that he could refasten the seatbelt. Chandler said, “Don’t fuckin’ touch me, Flores. If you touch me, I’ll fuck you up.” Chandler then tried to hit Officer Flores with his head. In response, Officer Flores struck Chandler in the face or neck area with his right elbow. Officer Flores ordered Chandler to stop resisting, but Chandler did not comply.
Officer Quach stopped the patrol car and placed a radio call for assistance. He then walked over to the right rear passenger side of the vehicle where Chandler was seated. When Officer Quach opened the passenger door, Chandler lunged out of the car and onto the grassy area of the sidewalk. Officers Quach and Flores both grabbed Chandler and attempted to hold him down on the ground. Chandler said, “You are going to die, Flores.... I’m going to kill you. This is on Rollin 20’s. Rollin 20’s is going to get you.” Several officers arrived on the scene and assisted in restraining Chandler. Chandler was then transported by other officers to the Southwest Station.
At the Southwest Station, Chandler complained of injuries. Because the station did not have any available medical care, Officer Romulo Frias and his partner were assigned to transport Chandler to the 77th Street Station so that he could be treated in the dispensary before booking. Officers Flores and Quach also were asked to be present at the 77th Street Station to provide additional security. During the booking process, Chandler continually looked at Officer Flores and told him “you’re going to die.” Chandler asked Officer Flores if he remembered the police officer who was shot and killed by a Rollin 20’s gang member a few years earlier. Officer Flores replied that he did. Chandler then said, “That’s what’s going to happen to you.... You better roll with your gun in your lap because I’m gonna get you.” As Chandler made these threats, he pointed his finger at Officer Flores and simulated a gun, pretending to pull the trigger several times.
On September 8, 2007, Los Angeles County Deputy Sheriff Josh Lambert was performing the hourly security row check at the Men’s Central Jail. When he arrived at Chandler’s single-man cell, Deputy Lambert saw that Chandler appeared to have hung himself. He observed Chandler in a sitting position behind his bunk with a white piece of linen tied in a noose around his neck. Deputy Lambert entered Chandler’s cell for a medical rescue and removed the linen that was tied around his neck, hands and feet. As soon as Deputy Lambert removed the linen, Chandler jumped up and struck him in the chest area with a cast that was on Chandler’s left hand. When Deputy Lambert covered his face in defense, Chandler struck him on the collarbone and the back of the head with the cast. Deputy Lambert called for assistance and then countered the attack by punching Chandler in the face several times. He ordered Chandler to stop fighting, but Chandler continued to hit Deputy Lambert; both men fell to the floor. While they were on the ground, Deputy Lambert sprayed Chandler with pepper spray, but it did not deter him. Another deputy responded to the scene and also tried to restrain Chandler. Chandler, however, continued to fight and was able to get up and flee from the cell.
As Chandler ran from the cell, Deputy Lambert grabbed his pants and pulled him to the ground. Deputy Lambert then got on top of Chandler, placed his hand on the back of Chandler’s neck, and pushed Chandler to the floor. He ordered Chandler to put his hands behind his back, but in response, Chandler turned and tried to hit Deputy Lambert in the face. Deputy Lambert punched Chandler in the neck, back and face, and also struck Chandler’s arms and legs with his flashlight. At that point, three other deputies arrived and were able to assist in restraining Chandler. Throughout the struggle, Deputy Lambert ordered Chandler to stop fighting, but Chandler never complied.
Officer Geraldine Thomsen was a gang officer whose primary job duties were to monitor the activities of the Rollin 20’s, a criminal street gang. Officer Thomsen identified Chandler as an active member of the Rollin 20’s. Based on hypothetical questions posed by the prosecution, Officer Thomsen opined that Chandler’s alleged crimes were committed for the benefit of the Rollin 20’s, and were intended to promote, further or assist the criminal conduct of the gang.
III. The Defense Case
Chandler testified on his own behalf. On July 27, 2007, Chandler was in the back seat of a Ford Focus. Jackson was driving and Walker was in the front passenger seat. Chandler admitted that their vehicle turned onto 25th Street that afternoon, but he denied reaching his arm out of the window or shooting at a residence. According to Chandler, Jackson was driving him home. Jackson took surface streets, including 25th Street, and then got on the 10 freeway. Once they exited the freeway at La Brea Avenue, they encountered heavy traffic. At that point, Chandler saw the police lights behind him, but he did not hear any sirens. As soon as the car came to a stop, Chandler jumped out and ran because his prior “run-ins with the police [had] been bad” and he believed they would judge him based on his race and status as a former gang member. Chandler denied that he disposed of any drugs as the car was exiting the freeway or that he had a gun in his hand when he fled from the police.
When Chandler was being transferred from Olympia Hospital to the Southwest Police Station, he was handcuffed and placed in the rear passenger seat of a patrol car. According to Chandler, the officers drove him to an area occupied by a rival gang and asked him who had fired the gun. When Chandler responded that he did not know, the officers threatened to throw him out into the rival gang’s territory. Chandler denied that he attempted to unbuckle his seatbelt or to assault Officer Flores. He testified that Officer Flores struck him in the ear with his elbow and ordered Officer Quach to stop the car. After parking and opening the rear passenger door, Officer Quach pulled Chandler from the car and threw him onto a grassy area. The officers then wrestled with him. At the Southwest Station, Chandler asked for a complaint form, but was never given one. Chandler saw Officer Flores again at the 77th Street Station, but he denied making any threats against Officer Flores or mentioning the prior murder of another police officer.
Chandler also testified about the September 8, 2007 incident involving Deputy Lambert. According to Chandler, prior to that incident, other deputies had physically assaulted him in the county jail for protesting their failure to provide him with medical care. When Chandler refused to go to his cell on that occasion, the deputies wrestled him to the ground and choked him. While Chandler was handcuffed to a bench, one of the deputies also grabbed him by his hair and smashed his head against a metal hook. After receiving treatment for his head injury and returning to the cell block, Chandler complained that the deputies were putting pepper spray in his food. Chandler was then moved to a different area in the jail where Deputy Lambert worked. Chandler denied that he staged a suicide attempt to lure Deputy Lambert into his cell. Instead, Chandler testified that Deputy Lambert ran into his cell and “socked” him in the face. When Chandler attempted to run away, Deputy Lambert pulled him to the ground and sprayed him with pepper spray. Another deputy arrived and both he and Deputy Lambert hit Chandler in the face and beat him with their flashlights. Chandler tried to get away, but did not attempt to assault Deputy Lambert.
On February 20, 2008, Chandler was convicted of assaulting and resisting a peace officer in violation of Penal Code sections 241 and 148 in connection with the assault on Deputy Lambert.
Codefendant Jackson testified on his own behalf. He admitted that he was driving a Ford Focus on July 27, 2007. Walker was in the front passenger seat and Chandler was seated in the back. Jackson acknowledged that he was driving westbound on 25th Street, but denied that Chandler shot a firearm from his vehicle. According to Jackson, he first saw a patrol car behind him as he was exiting the 10 freeway and stopped his vehicle because of traffic on La Brea Avenue. After coming to a stop, Jackson stayed inside the car until he was arrested by the police. Timothy Williams, a private investigator and former Los Angeles Police Officer, testified in Jackson’s defense. Williams opined that the police investigation was deficient in several areas, including the failure of the investigating officers to take photographs of the crime scene at the time of the incident, to perform gunshot residue testing on Chandler or a fingerprint analysis on the plastic baggie, and to prepare a use of force report regarding the assault on Officer Flores.
IV. Verdict and Sentencing
At the conclusion of the trial, the jury found Chandler guilty of possession of cocaine base for sale (Health and Saf. Code, § 11351.5), making criminal threats (Pen. Code, §422), and resisting an executive officer (Pen. Code, § 69). The jury also found true the special allegations that Chandler committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)). The jury deadlocked on the charge of shooting at an inhabited dwelling and the trial court declared a mistrial as to that count. Following the jury verdict, the trial court sentenced Chandler to state prison for an aggregate term of 112 months. On June 11, 2008, Chandler filed a timely notice of appeal.
DISCUSSION
On appeal, Chandler argues that the trial court erred in allowing the prosecution to present evidence of the assault on Deputy Lambert under Evidence Code section 1101, subdivision (b), and that the error resulted in a violation of Chandler’s constitutional right to due process. Chandler also asserts that if his due process claim was not preserved for appeal, his trial counsel rendered ineffective assistance in failing to timely raise the argument before the trial court. For the reasons set forth below, we conclude that the trial court did not abuse its discretion or violate due process in admitting the challenged evidence, and that even if the evidence was erroneously admitted, any such error was harmless.
I. Relevant Proceedings
Prior to the commencement of trial, the prosecution sought to introduce evidence at trial of Chandler’s assault on Deputy Lambert pursuant to Evidence Code section 1101, subdivision (b). Chandler had recently been convicted of misdemeanor battery and resisting a peace officer in connection with the incident involving Deputy Lambert. The prosecutor argued that evidence of the jailhouse attack on Deputy Lambert was relevant to Chandler’s motive and intent in threatening and resisting Officer Flores. The prosecutor reasoned that Chandler’s subsequent conduct toward Deputy Lambert could negate any theory of self-defense regarding his conduct toward Officer Flores because the evidence supported the claim that Chandler’s intent in both cases was to draw law enforcement officers close to him so that he could then assault them.
Defense counsel contended that the court should exclude evidence of Chandler’s conduct toward Deputy Lambert because it was more prejudicial than probative. The defense also argued that Chandler had been charged with assaulting Deputy Lambert only because his mother and counsel had complained to the Los Angeles County Sheriff about multiple acts of police brutality against Chandler while he was in custody. Defense counsel reasoned that the incidents involving Deputy Lambert and Officer Flores were too dissimilar and that they did not support a claim that Chandler had a propensity for assaulting peace officers, but rather that the officers had committed unprovoked attacks on Chandler. After hearing the argument of counsel, the trial court ruled that the evidence of Chandler’s assault on Deputy Lambert was admissible.
II. Evidence Code Section 1101
A trial court generally has broad discretion concerning the admission of evidence. (People v. Cole (2004) 33 Cal.4th 1158, 1197; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question....’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 805.) The trial court’s exercise of discretion “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citations.]” (People v. Rodrigues, supra, at pp. 1124-1125.)
Evidence Code section 1101, subdivision (a), “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Subdivision (b) of the statute clarifies, however, that this rule “does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (Ibid., fn. omitted; see Evid. Code, § 1101, subd. (b) [“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact... other than his or her disposition to commit such an act.”].) “‘[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.]’” (People v. Carter (2005) 36 Cal.4th 1114, 1147.) Ultimately, “‘[t]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22.)
Under Evidence Code section 1101, subdivision (b), “[e]vidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 369.) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The more often a similar result occurs, the less likely it is the defendant acted inadvertently or in self-defense. Consequently, “to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’” (Ibid.; see also People v. Stitely (2005) 35 Cal.4th 514, 532 [Unlike identity, “the degree of similarity required to prove mental state is far less exacting. The two acts need only be sufficiently similar to suggest that the defendant probably had the same intent each time.”].) “The decision whether to admit other crimes evidence rests within the discretion of the trial court.” (People v. Lindberg, supra, 45 Cal.4th at p. 23.)
In the instant case, Chandler was charged with, among other offenses, resisting an executive officer in violation of Penal Code section 69. To prove this charge, the prosecution had to show that Chandler acted with a specific intent “to deter or prevent an executive officer from performing any duty imposed upon such officer by law,” or that he “knowingly resist[ed], by the use of force or violence, such officer, in the performance of his duty.” (Pen. Code, § 69.) We conclude that evidence of Chandler’s assault on Deputy Lambert was sufficiently similar to the events involving Officer Flores to be probative of his intent.
At trial, the prosecution presented evidence that, after being taken into police custody, Chandler was handcuffed and placed in the rear passenger seat of a patrol car with his seatbelt securely fastened. En route to the police station, Chandler unbuckled his seatbelt and began moving around in the back seat of the car as Officer Flores sat beside him. When Officer Flores attempted to restrain Chandler and to refasten his seatbelt, Chandler forcibly resisted, threatening Officer Flores and trying to hit the officer with his head. Chandler’s aggressive conduct required Officer Quach to stop the car to assist Officer Flores in restraining him. When Officer Quach opened the passenger door, Chandler lunged out of the car. Both Officers Flores and Quach attempted to hold Chandler to the ground, but it was not until several other officers arrived at the scene that Chandler was fully restrained.
Approximately six weeks later, while in custody at the county jail, Chandler staged a suicide attempt in his cell. When Deputy Lambert saw Chandler with a piece of linen tied in a noose around his neck, the deputy entered the cell in an effort to render medical aid. As soon as Deputy Lambert removed from the linen from Chandler’s body, Chandler jumped up and struck him in the chest, collarbone and head. Deputy Lambert attempted to restrain Chandler by punching him in the face and spraying him with pepper spray, but Chandler fought back and was able to flee from the cell. Once outside the cell, Deputy Lambert again tried to restrain Chandler while Chandler continued to forcibly resist. It was not until several other deputies arrived to assist Deputy Lambert that Chandler was fully restrained.
Based on the similarities in the incidents involving Officer Flores and Deputy Lambert, the jury reasonably could conclude that Chandler was not acting in self-defense against Officer Flores, as he testified at trial, but rather harbored a specific intent to deter and resist Officer Flores in the performance of his duties. In each instance, Chandler created a scenario that allowed him to gain physical access to a law enforcement officer, and once he had such access, to attempt to assault the officer while forcibly resisting the officer’s counter-efforts to restrain him. In the case of Officer Flores, Chandler created an opportunity for a physical confrontation by unbuckling his seatbelt and moving around in the back seat of the patrol car. When Officers Flores and Quach attempted to restrain him, Chandler responded by trying to hit Officer Flores with his head and then jumping out of the car. In the case of Deputy Lambert, Chandler lured the deputy into his cell by staging a suicide attempt. Once Deputy Lambert was inside the cell, Chandler physically attacked him and then tried to flee. Both encounters reasonably supported the inference that Chandler’s intent in each instance was to bring law enforcement officers in closer proximity to him so that he could then attempt to assault them and flee from their custody. The assault on Deputy Lambert was therefore relevant to demonstrating Chandler’s intent in resisting Officer Flores and to rebutting Chandler’s defense that Officer Flores was the aggressor in their altercation and that Chandler was only trying to protect himself against an unprovoked attack by the police. Because the two incidents were sufficiently similar to be probative on the issue of intent, the trial court did not err in concluding that the evidence of the assault on Deputy Lambert was relevant under Evidence Code section 1101, subdivision (b).
III. Evidence Code Section 352
Even where evidence of other crimes is relevant under Evidence Code section 1101, subdivision (b), before admitting the evidence a trial court must also find that its probative value is not substantially outweighed by its potential for undue prejudice under Evidence Code section 352. (People v. Ewoldt, supra, 7 Cal.4th at p. 404 [“‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’”].) “A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great.” (People v. Walker (2006) 139 Cal.App.4th 782, 806.) “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.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.) Instead, Evidence Code section 352 only applies to prevent undue prejudice, that is, “‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’” (Ibid.)
Several factors affect the analysis under Evidence Code section 352. The principal factor affecting the probative value of the evidence of defendant’s uncharged offenses is the tendency of that evidence to demonstrate the existence of the fact for which it is being admitted, such as intent or a common design or plan. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Other factors affecting the probative value include the extent to which the source of the evidence is independent of the evidence of the charged offense, the amount of time between the uncharged acts and the charged offense, and whether the evidence is merely cumulative regarding an issue that was not reasonably subject to dispute. (Id. at pp. 404-406; People v. Balcom (1994) 7 Cal.4th 414, 427.) The primary factors affecting the prejudicial effect of other crimes evidence are whether the uncharged acts resulted in criminal convictions and whether the evidence of the uncharged acts is stronger or more inflammatory than the evidence of the charged offenses. (People v. Ewoldt, supra, at p. 405.) This court will not disturb a trial court’s exercise of discretion under Evidence Code section 352 absent a showing that the court acted in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)
In this case, the trial court acted within its discretion in concluding that the probative value of the challenged evidence outweighed its prejudicial effect. As discussed, the evidence of Chandler’s conduct in assaulting Deputy Lambert was highly probative on the issue of his intent in forcibly resisting Officer Flores and his asserted claim of self-defense. Moreover, Deputy Lambert’s testimony was independent of the evidence of the charged offenses, as the deputy was not involved in the arrest or investigation of Chandler and offered no testimony about the incident involving Officer Flores. The close proximity in time between Chandler’s altercations with Officer Flores and Deputy Lambert also supports the probative value of the challenged evidence. As for the prejudicial effect of the evidence, the jury was aware that Chandler was convicted of assaulting and resisting a peace officer in connection with the incident involving Deputy Lambert, thus minimizing the risk that the jury would be motivated to punish Chandler for that offense. In addition, the assault on Deputy Lambert was not significantly more inflammatory than the crimes against Officer Flores that were at issue in this case. While Chandler’s encounters with Deputy Lambert and Officer Flores both involved the use of force against a law enforcement officer, the instant case also included charges that Chandler threatened to kill Officer Flores, in part, by bringing up the prior murder of another police officer and warning Officer Flores that the same thing would happen to him. Considering all of the relevant factors, we conclude that the trial court did not abuse its discretion in admitting the evidence of Chandler’s assault on Deputy Lambert.
IV. Constitutional Right to Due Process
On appeal, Chandler contends that the admission of the challenged evidence was not only an abuse of discretion, but also violated his constitutional right to due process. At trial, Chandler’s counsel objected to the admission of the other crimes evidence on the grounds that it was more prejudicial than probative, but did not assert any due process violation. However, the Attorney General concedes, and we agree, that Chandler has not forfeited his due process argument on appeal. As our Supreme Court has recognized, a defendant may argue on appeal that “the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.” (People v. Partida (2005) 37 Cal.4th 428, 435.) Because Chandler raises this particular contention on appeal, his due process claim has been preserved for review.
In light of our conclusion that Chandler has not forfeited his due process claim, we need not address his argument that his trial counsel rendered ineffective assistance in failing to object to the admission of the evidence on due process grounds.
As a general matter, application of the ordinary rules of evidence does not impermissibly infringe on a defendant’s constitutional rights. (People v. Lindberg, supra, 45 Cal.4th at p. 26; People v. Cudjo (1993) 6 Cal.4th 585, 611.) “To prove a deprivation of federal due process rights, [the defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Accordingly, “[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) “Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional... test [set forth in People v. Watson (1956) 46 Cal.2d 818, 836]: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]” (People v. Partida, supra, 37 Cal.4th at p. 439.)
As discussed, the evidence of Chandler’s assault on Deputy Lambert was probative on the issue of his intent in resisting Officer Flores and was not unduly prejudicial. Given the similarities between the incidents involving Officer Flores and Deputy Lambert, the jury reasonably could infer from Chandler’s assaultive conduct toward Deputy Lambert that he acted with the same intent when he forcibly resisted Officer Flores. Additionally, the trial court’s limiting instruction, which directed the jury that it could not consider such evidence for the purpose of finding criminal propensity, diminished any potential prejudice from admission of the evidence. We must presume that the jury followed the trial court’s instructions. (People v. Lindberg, supra, 45 Cal.4th at pp. 25-26.) In view of the foregoing, we conclude that the admission of the challenged evidence was not so prejudicial as to render Chandler’s trial fundamentally unfair, and therefore, did not result in any due process violation.
Finally, even assuming that the trial court abused its discretion in admitting the evidence of the assault on Deputy Lambert, reversal is not required because there was other substantial evidence offered at trial to establish Chandler’s guilt. In their trial testimony, Officers Flores and Quach provided detailed accounts of Chandler’s actions in the patrol car. The officers similarly testified that Chandler unbuckled his seatbelt and started moving around in the patrol car as they were transporting him to the station, and when they responded by trying to restrain him, Chandler threatened Officer Flores, attempted to assault him, and then lunged out of the car. Once outside the car, Chandler continued to forcibly resist Officers Flores and Quach until other officers arrived and assisted in restraining him. At trial, three officers also provided testimony about Chandler’s criminal threats against Officer Flores while in custody at the police station. Officers Flores, Quach and Frias similarly described how Chandler reminded Officer Flores about a police officer who was shot and killed several years before, warned Officer Flores that the same thing would happen to him, and then simulated pointing a gun at Officer Flores and pulling the trigger.
The testimony of the police officers thus constituted substantial evidence that Chandler forcibly resisted and made criminal threats against Officers Flores. In light of such evidence, it is not reasonably probable that the verdict would have been more favorable to Chandler had the evidence of his assault on Deputy Lambert been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.) For these same reasons, any alleged constitutional error in admitting the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS Acting P. J., JACKSON J.