Opinion
D071218
12-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JONATHON BENJAMIN COHEN, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE352082) APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jonathon Benjamin Cohen of five counts of arson of forest land (Pen. Code, § 451, subd. (c)) that occurred on five separate dates. The court sentenced Cohen to nine years, four months in state prison, consisting of the middle term of four years on count 1 plus consecutive one-third middle terms of 16-months each on counts 2 through 5. On appeal, Cohen contends the trial court erred and violated his constitutional rights to due process and a fair trial by admitting evidence of prior uncharged acts under Evidence Code section 1101, subdivision (b), and the court's limiting instruction did not prevent the jury from improperly using the evidence. Specifically, he argues the three prior unrelated and uncharged fires were not sufficiently similar to prove identity, common plan, and intent. Cohen maintains the error was prejudicial in that the verdict could have been different had the court excluded the evidence of uncharged acts, warranting reversal of his convictions. We reject these contentions and affirm the judgment.
Undesignated statutory references are to the Evidence Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, the California Department of Forestry and Fire Protection (Cal Fire) started investigating the cause of fires occurring in the area of Wildcat Canyon Road near Barona Casino by reviewing surveillance camera footage. Cal Fire eventually narrowed down possible suspects based on a vehicle that repeatedly appeared in close proximity to the reporting time of the fires. The main vehicle was a 1999 Toyota 4Runner registered to Cohen. A Cal Fire investigator placed a GPS tracker on the vehicle and conducted surveillance. A few months later, Cohen began driving a Volkswagen Golf, also registered to him. Investigators then placed a GPS tracker on the Volkswagen.
Cal Fire is the fire department that responds to wildfires on public lands throughout the state of California.
Additional investigation showed Cohen was a frequent visitor to local casinos, and held a diamond level player status at Harrah's Casino in Valley Center. He also played regularly at Barona Casino in Lakeside and Valley View Casino in Valley Center. Cohen stopped frequenting Barona Casino at the end of September 2014 after he asked to be expelled from the property, claiming to be a gambling addict. On October 24, 2014, Cohen was recorded visiting Valley View Casino. Thereafter, Cohen was found once on Barona Casino's premises in January 2015, but he continued to play at Valley View and Harrah's Casinos.
A casino representative explained that when a player or guest asks casino management to expel them from the property, they are not allowed back on the property until they receive permission from the gambling commission.
The Charged Offenses
October 24, 2014 Fire (Count 5)
On October 24, 2014, around 11:30 a.m., the San Pasqual Reservation Fire Department responded to and investigated a fire off of Lake Wohlford Road near Guejito Road. The fire's estimated start time was 11:20 a.m. An unexploded firework, pieces of a catalytic converter, and a bottle were found near the fire, but were far enough away to be excluded as possible causes. Cal Fire determined arson was the cause.
Player records showed Cohen at Valley View Casino on October 24. A Captain with Cal Fire saw Cohen driving in the area of Lake Wohlford Road in his Toyota 4Runner, and the GPS tracker placed Cohen by the fire minutes before it was reported.
April 18, 2015 Fire (Count 4)
Shortly after midnight on April 18, 2015, firefighters were dispatched to a fire on Lake Wohlford Road near Valley Center. A Cal Fire captain determined that either a vehicle or arson were potential causes of the fire, and estimated it started at 11:45 p.m. A vehicle was suspected because investigators found a metal rim ring near the fire.
Cohen did not use his Valley View Casino playing card on this day, but his cell phone connected to a cell tower on Lake Wohlford Road around 10:44 p.m. Cameras at the intersection of Lake Wohlford Road and Valley Center Road captured Cohen's Volkswagen Golf, and the tracking device placed the Volkswagen in the area at 11:58 p.m.
June 15, 2015 Fire (Count 3)
On June 15, 2015, at about 5:00 p.m., a fire was reported north of Lake Wohlford Road near Valley View Casino. A Valley View Casino player's card in the name of "Ryan Shepherd" and cigarette butts were found near the burned area. A Cal Fire investigator concluded arson was the cause of the fire. An engineer estimated that the fire was ignited around 4:45 p.m.
Valley View Casino video surveillance placed Cohen at the casino on June 15. Cohen also visited Harrah's Casino, and left at 4:55 p.m. in his Volkswagen Golf. The south camera on Lake Wohlford Road captured Cohen's Volkswagen Golf close to the reporting time of the fire.
June 20, 2015 Fire (Count 2)
At around 4:30 p.m. on June 20, 2015, Cal Fire and multiple agencies responded to a fire near a drain opening on the side of the road off southbound Highway 67. Cal Fire excluded all causes for the fire except arson. The GPS tracker placed Cohen's Volkswagen Golf in the area of the fire within minutes of the agencies being dispatched.
June 23, 2015 Fire (Count 1)
On June 23, 2015, around 1:00 a.m., Cal Fire responded to a fire near a culvert on Lake Wohlford Road. Cal Fire determined arson was a possible cause of the fire. Surveillance cameras at Valley View Casino showed Cohen leaving around 12:45 a.m. in the direction of the fire. The GPS tracking device placed Cohen's car in the area of the fire around 12:49 a.m. Surveillance cameras on Lake Wohlford Road showed Cohen's Volkswagen Golf in the area at 12:53 a.m.
Arrest and Search
In July 2015, police arrested Cohen during a traffic stop. His Poway home and Volkswagen Golf were then searched. In searching Cohen's bedroom and bathroom, investigators found mail addressed to Cohen, a Valley View Casino player's card in Cohen's name, a Sony Vaio laptop computer, a Harrah's Casino matchbook, a lighter with a thumbtack pushed into the bottom, matchbooks with the match heads cut off, casings from a .223-caliber firearm round filled with an unknown substance, butane gas, and a five-gallon can of flammable liquid. In the backyard, investigators found a Barona Casino matchbook with the match heads burned off, an unaltered Barona Casino matchbook, and a Harrah's Casino matchbook. Additional .223-caliber rounds and casings were found in the garage. Inside the Volkswagen Golf, investigators found Harrah's, Barona, and Valley View Casino matchbooks, and gunpowder.
Detective Stephen Litwin, a computer forensic examiner, conducted a forensic search of the Sony Vaio computer found in Cohen's house in connection with Cal Fire's investigation. His search showed the user set up a user title of "Nitro-Loco" and named the computer "Nitro-Loco-PC." The search history showed searches of "San Diego wildfires," and news articles regarding wildfires near Barona Casino, Lakeside, and the Wildcat Canyon Road area. The detective determined that the user tried to post a webpage using profane and derogatory language regarding the Indian casinos. The searches regarding Southern California wildfires dated back to 2013, and wildfire articles were viewed on Calfire.blogspot.com in 2014. Detective Litwin found a computer document regarding fire safety that advised having clearly painted addresses on curbs for wildfire identification purposes, and identified Cohen as the contact person. The detective also found a Twitter account was created in October 2014 under the username JohnC@Nitro-Loco, and showed the user followed the Twitter accounts of Cal Fire News and the San Diego sheriff.
Inmate Richard Culver's Testimony
At trial, the People called San Diego County Jail inmate Richard Culver as a witness. He testified that in September 2015, he contacted Cal Fire asking for a reduction in his sentence in exchange for information about an arson. Culver had known Cohen for between five and seven years, even before Culver's August 2015 incarceration. Outside of custody, Culver saw Cohen play with fire on multiple occasions: Cohen once made a torch out of a can of starter fluid and a lighter; he lit his pant leg on fire by pouring lighter fluid on his clothing; and Cohen filled Culver's large homemade outdoor fireplace full of wood, causing huge flames and sparks and resulting in Culver's sister threatening to call the fire department.
While they were in custody, Cohen bragged and laughed to Culver about the fires he had started, claiming that Cal Fire would not find evidence tracing the fires to him and that he would "beat" the case. He boasted that he "knew all the loopholes" because his father was a retired Cal Fire investigator. Cohen admitted using a Volkswagen Golf and a Toyota 4Runner in setting fires in the areas of the road going to the Barona Indian reservation; toward Lake Wohlford out of Escondido in the Valley Center area as well as the main highway going up to Valley Center; and the road from Valley View Casino to Pala Indian Reservation and Harrah's Casino. Culver felt Cohen was proud of what he had done and he told Culver he set the fires to "get even" with the casinos because he spent all of his money there.
Cohen also explained to Culver how he set some of the fires. According to Culver, Cohen would put a piece of gravel in a matchbook, light the matchbook on fire with a match, and throw it out the passenger window while driving. Cohen would also take apart .223-caliber bullets; put the gun powder, the head of the bullet and blue tip matches in cellophane; then throw the package out the window. The package would hit the ground and ignite. Cohen told Culver that he would leave a casino, start a fire, then head to another casino, and sometimes drive back to see the fire.
Uncharged Fires
As more fully described below, the People presented evidence of other fires occurring off rural mountainous roads near casinos on October 8, 2012, August 8, 2014, and September 14, 2014. In these instances, Cal Fire officers observed Cohen's Toyota 4Runner driving in the area close in time to when the fires were reported.
Defense Evidence
Cohen presented the testimony of other inmates he regularly spoke to who denied Cohen told them about starting fires, but stated Cohen maintained his innocence. Other witnesses testified Cohen was someone who respected the property of others and would not start fires. Cohen's counsel argued to the jury that suspicions and assumptions were not evidence and as to the charged and uncharged fires, apart from evidence Cohen was on the road, no evidence placed Cohen at the fire scenes or demonstrated how the fires were started.
DISCUSSION
Cohen contends the court prejudicially abused its discretion when it admitted evidence of the uncharged fires under section 1101, subdivision (b), to show identity, common plan, and intent in setting the charged fires. He maintains the evidence of the uncharged acts was highly prejudicial, "dissimilar, cumulative, and involved strong indicia of arson." According to Cohen, the evidence did not assist in proving identity, common plan, or intent because the pattern and characteristics required for identity were not so unusual or distinctive to be a signature. Cohen additionally contends the People did not present concrete, physical evidence linking him to the fires but only evidence he was present in the areas, which amounts to mere suspicion and conjecture that cannot sustain the verdict. He contends the evidence only established an impermissible inference he had a predisposition to commit crimes, which was not cured by the court's limiting instruction. Cohen argues the erroneous admission of the uncharged offenses was highly prejudicial on the issues of identity and intent, and the error was not harmless because there is a reasonable chance that without the evidence, the verdict would have been different.
I. Admission of Prior Uncharged Acts
A. Background
Pretrial, the People sought to admit evidence of several earlier uncharged fires under section 1101, subdivision (b) to prove Cohen's identity, common plan to commit arson, his intent, and the absence of mistake or accident.
Relying on People v. Erving (1998) 63 Cal.App.4th 652, a case involving admissibility of uncharged fires in an arson prosecution, the People argued the "doctrine of chances" permitted evidence of the uncharged fires on the issues of identity and intent because of their similar and distinctive features: the fires "were set roadside on mountainous rural roads leading up to local casinos; as time went on they were set with no evidence of any incendiary device being left behind; and most importantly the defendant himself drove through the area, in most cases, only minutes before the fires were reported." The People argued the evidence showed the fires followed Cohen from Wildcat Canyon Road to Lake Wohlford Road, and after he expelled himself from Barona Casino no more fires were reported in that area. According to them, on Cohen's first visit back at Valley View Casino, the count 5 fire was reported. The People concluded: "Since [Cohen's] arrest over 12 months ago, no fires have been reported in either area. This evidence will allow a jury to logically infer from the doctrine of chances that [Cohen] is the arsonist in this case and, due to a lack of mistake, he maliciously set those fires."
Wildcat Canyon Road and Lake Wohlford Road are both winding, mountainous roads located in rural areas with lots of flammable brush, and lead to a local Indian Casino.
Cohen responded that the prior bad acts were neither relevant nor admissible on the issue of identity or to prove the existence of a common plan or design. He argued that the People could not give an exact list of the uncharged acts they wished to admit, which was information the court needed in assessing the admissibility of prior act evidence and its purpose in being offered. His main argument was that no evidence linked him to the fires; there were no eyewitnesses who saw him start a fire, nor was there any physical evidence from the scenes that the People could trace back to him. As for the issue of identity, Cohen maintained the prior acts and the alleged offenses shared no distinctive signature; rather, the "uncharged acts [were] in as much dispute as the charged acts." (Italics omitted.) He argued the People misplaced reliance on People v. Erving, supra, 163 Cal.App.4th 652 and the doctrine of chances because in Erving there was a witness, and the uncharged fires there had eerily suspicious hallmarks suggesting the defendant started them. Cohen argued that nothing in the prior acts showed a distinctive common design, plan, or scheme, as little to no evidence was left at the scenes.
The trial court accepted "that some of the prior fires would be relevant and admissible under Evidence Code section 1101[, subdivision] (b), specifically to show motive, opportunity, intent, plan, identity, and absence of mistake or accident." But the court required that the fires have a "strong nexus or connection" to Cohen, and accordingly placed the following limitation: "They have to be at least as recent as 2012 or sooner. Nothing 2011 or older . . . . They would have to be determined to have been arsons versus just some other random fire due to natural causes. There has to be evidence connecting the defendant to being at one of the Native American casinos in the vicinity of the fire. [¶] The defendant or his vehicle would have had to have been seen, obviously, here it appears it is by video, in or around the area of the fire at or around the time of the fire. 2012 or sooner. Arson, defendant at a casino near the fire and his vehicle captured on video near the fire. If those criteria are met, then the prior [un]charged fire is admissible." Based on these factors, the People ultimately presented evidence of uncharged fire incidents from October 8, 2012, August 8, 2014, and September 14, 2014.
1. October 8, 2012 Fire
On October 8, 2012, around 4:30 p.m. a fire was reported off the edge of Wildcat Canyon Road and Muth Valley Road. Cal Fire determined arson was the cause of the fire and the ignition device a burned Barona matchbook. Cohen's Barona player card was used at the casino on October 8, and he lost $3,270 that day. Cohen's Toyota 4Runner was captured on Wildcat Canyon Road at 4:05 p.m. by Cal Fire surveillance cameras.
2. August 8, 2014 Fire
On August 8, 2014, Cal Fire investigated a fire reported near a drain opening off the roadside of Wildcat Canyon Road near Barona Casino. The fire started at approximately 12:49 p.m. The ignition was determined to be a piece of card stock and the cause was ruled as arson. Cohen's Barona Casino player card showed it was used on August 8. Cal Fire surveillance cameras on Wildcat Canyon Road captured Cohen's Toyota 4Runner at 12:39 p.m.
3. September 14, 2014 Fire
At approximately 9:12 p.m. on September 14, 2014, Cal Fire responded to a fire within a drainage ditch on the side of the road on Wildcat Canyon Road. A Barona matchbook was found near the fire. Cal Fire determined the possible causes of the fire to be arson or a vehicle. Cohen's player card was used at Barona Casino, and he lost $360. Surveillance cameras captured Cohen's Toyota 4Runner traveling south at the south camera at 9:01 p.m. on September 14.
Jace Chapin, the lead Cal Fire investigator, testified at trial that after Cal Fire developed the 4Runner as the suspect vehicle toward the end of 2014 and began tracking it, they noticed that a little after September 2014, the fires dropped off in Wildcat Canyon, but started back up in October 2014 by Lake Wohlford Road. B. Standard of Review
We review the trial court's ruling on the admissibility of evidence generally, and under section 1101 in particular, for abuse of discretion. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) The court abuses its discretion when its decision is arbitrary, capricious, or patently absurd (People v. Merriman (2014) 60 Cal.4th 1, 74) and falls outside the bounds of reason. (People v. Carter (2005) 36 Cal.4th 1114, 1147.) C. Legal Principles
Evidence concerning uncharged acts generally cannot be introduced to prove bad character or predisposition to commit a crime. (People v. Cage (2015) 62 Cal.4th 256, 273; People v. Nicholas (2017) 8 Cal.App.5th 1165, 1176.) Under section 1101, however, "[e]vidence of defendant's commission of other crimes, civil wrongs or bad acts . . . may be admitted to prove some material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (Cage, at p. 273; People v. Leon (2015) 61 Cal.4th 569, 597; § 1101, subd. (b).) Specifically, the uncharged acts must be relevant to prove a fact in issue and it must not be unduly prejudicial, confusing, or time consuming under section 352. (Leon, at pp 597-598.)
"Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . . ) other than his or her disposition to commit such an act." (§ 1101 (b).)
"[R]elevance depends, in part, on whether the act is sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or other material fact. [Citation.] 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] . . . In order 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.' " ' [Citation.] Greater similarity is required to prove the existence of a common design or plan. In such a case, evidence of uncharged misconduct must demonstrate ' "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.]' [Citation.] To show a common design, 'evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.' [Citation.] Finally, the greatest similarity is required to prove identity. When offered on this point, 'the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.' [Citation.] These common features need not be unique or nearly unique; 'features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.' " (People v. Leon, supra, 61 Cal.4th at p. 598; see also People v. Erving, supra, 63 Cal.App.4th at p. 660 [to establish identity, " 'the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] "The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature" ' "].)
Under the foregoing principles, "if the uncharged misconduct is similar enough to prove identity, it is similar enough for other disputed issues, i.e., common plan, knowledge, intent, and motive." (People v. Erving, supra, 63 Cal.App.4th at p. 660.)
In People v. Erving, the defendant had been charged with several counts of arson, and the trial court admitted evidence of prior uncharged fires to prove her identity and intent, among other facts, in setting the charged fires. (People v. Erving, supra, 63 Cal.App.4th at p. 660.) On appeal, the defendant argued the uncharged fires were not sufficiently similar to each other or to the charged fires to demonstrate these facts, and further, that the evidence should have been excluded because there was no evidence she set them. (Id. at pp. 656, 659.) She argued the prejudicial effect of the evidence substantially outweighed its probative value. (Id. at pp. 656, 664-665.) The appellate court rejected the contentions. (Id. at p. 659.) It accepted evidence of the defendant's proximity to the fires by itself—"either at her home or within easy walking distance of it"—as the distinctive signature to prove identity: defendant's "proximity to nearly 40 arson fires in these circumstances provides the 'signature' required for the uncharged fires to be relevant to prove her identity as the arsonist. This mark, standing alone, is sufficient to support the trial court's order of admissibility." (Id. at p. 661.) The Court of Appeal was careful to caution that its holding should not be interpreted to apply where a defendant has proximity to a small number of fires and there was no ebb and flow of fires, but it explained that "[t]he logical inference that a defendant sets fires becomes more compelling as the number of fires in proximity to the defendant increases, and even more compelling when the fires only occur at a time when the defendant has proximity to them." (Id. at p. 661, fn. 4.) The court further observed the fires were similar in that they were started using an open flame device, without accelerants during early morning hours, set in areas accessible from the street or to which the defendant had access, and used fuel materials that were already present at the scene, involving one of a limited category of objects. (Id. at p. 661.)
The appellate court in Erving also upheld the trial court's application of the "doctrine of chances" to prove both identity and intent; it explained "[t]he doctrine of chances relies on ' "the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. . . . [T]he oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. . . . [S]imilar results do not usually occur through abnormal causes; and the recurrence of a similar result . . . tends . . . to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish . . . the presence of the normal, i.e., criminal, intent accompanying such an act." ' " (People v. Erving, supra, 63 Cal.App.4th at pp. 661-662.) Under this doctrine, the jury could reach the "purely objective" logical inference that the appellant was the arsonist without subjectively assessing her character: the appellant lived in four geographically different neighborhoods, arson regularly occurred either at her home or within walking distance of her home in each area she lived and stopped when she moved away. (Id. at p. 663.) She was seen attempting to set a fire in one neighborhood, and was the only person seen on the street while five arson fires burned a few blocks away. (Ibid.) The court concluded: "The doctrine of chances tells us it is extremely unlikely that, through bad luck or coincidence, an innocent person would live near so many arson fires, occurring so frequently, in so many different neighborhoods." (Ibid.)
Finally, the court in Erving rejected the defendant's assertion that she suffered undue prejudice given the absence of evidence she set the uncharged fires as well as court's failure to instruct the jury which material fact was sought to be proved by the uncharged fires. (People v. Erving, supra, 63 Cal.App.4th at pp. 664-665.) It held under the circumstances, the court did not abuse its discretion as a matter of law. (Id. at p. 665.) D. Analysis
Here, as did the appellant in People v. Erving, Cohen maintains the uncharged 2012 and 2014 fires were inadmissible as too dissimilar, not unusual or distinctive, and lacking evidence that he set them. The contentions are meritless. While characteristics common to both the charged and uncharged acts must be distinctive to establish identity, they may be few in number. (People v. Erving, supra, 63 Cal.4th at p. 660.) In this case, the fires all had highly distinctive characteristics. All of them, uncharged and charged, occurred on the main road to or from a local Indian casino. The fires were located near the side of the road and a majority of them in a drain opening. On all eight dates one of Cohen's vehicles was caught on camera or placed in close proximity of the fires within minutes of the fires being reported. In three of the five charged offenses, and in all three of the uncharged acts, Cohen's presence was recorded at a nearby casino. All the fires were deliberately set, and most were set with no evidence of an incendiary device left behind.
On this record, particularly in view of investigator Chapin's testimony that reported fires dropped off after Cohen stopped frequenting Barona Casino and started up again in the Lake Wohlford Road area where Cohen's vehicle was tracked, the trial court could reasonably conclude that Cohen's proximity to the fires alone "provide[d] the 'signature' required for the uncharged fire to be relevant to prove [his] identity as the arsonist." (People v. Erving, supra, 7 Cal.4th at p. 661.) The geographical locations of the fires and the presence of Cohen's vehicle when the fires were reported is distinctive enough for the jury to infer the same person committed the uncharged and charged fires. These similarities likewise support admission of the prior act evidence under the less restrictive standards for intent, and common plan. (Id. at p. 660.) The similarities formed a pattern between Cohen and the fires. The common features permit a conclusion that he was the arsonist, that he intended to set the fires, and that he followed a general plan in doing so. Under the circumstances, we cannot say the court's ruling was arbitrary, patently absurd, or otherwise a manifest abuse of the trial court's discretion in admitting the prior fire evidence. Because the court did not abuse its discretion under state law in admitting the evidence, there is no merit to any claim by Cohen that its admission violated his constitutional right to fair trial. (People v. Fuiava (2012) 53 Cal.4th 622, 670.)
We further reject Cohen's contention that the prior act evidence was so inflammatory that the court should have excluded it on grounds its prejudice outweighed its probative value. "Prejudice" as used in section 352, is not synonymous with "damaging." (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) It refers to evidence that " ' "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." ' " (Gionis, at p. 1214.) Thus, prejudicial evidence can still be admissible under section 352; it is only inadmissible where the evidence's "probative value is substantially outweighed by the probability that its admission will . . . create a substantial danger of undue prejudice." (§ 352, italics added.) We see nothing about the three uncharged fires that would meet this standard; the fact that a burned Barona casino matchbook was found at the scene of the October 8, 2012 fire did not make the evidence of that fire any more overwhelming than the other uncharged fires, or the charged offenses. And here, the trial court was careful to identify factors limiting the admissibility of uncharged acts to those with a "strong nexus or connection of the defendant" to the fires. The trial court took precautions by allowing evidence from those acts that were relevant to the main issues of the case, and by instructing the jury (with CALCRIM No. 375, discussed below) how to handle evidence of the prior acts. There is no indication the jury was led to convict Cohen based on bias or emotion. Given the highly probative nature of the evidence, we conclude any danger of undue prejudice did not substantially outweigh its probative value.
Even if we did not reach this conclusion, we would hold on this record that any presumed error in admitting the prior act evidence against Cohen is harmless under the applicable People v. Watson (1956) 46 Cal.2d 818 standard of prejudice. (People v. Malone (1988) 47 Cal.3d 1, 22 [reviewing error in admitting other act evidence under Watson, not Chapman v. California (1967) 386 U.S. 18].) Cohen asserts that without the evidence, a different result was reasonably probable. He points to the fact the case hinged on the jury's determination of credibility, and claims the error was exacerbated when the prosecutor emphasized the "inadmissible evidence" during closing arguments. To the extent Cohen seeks to suggest that the case against him was weak, we disagree. The direct and circumstantial evidence of Cohen's guilt as to the charged fires was overwhelming. The video surveillance placed Cohen's vehicles near the fire scenes around the time firefighters were dispatched. Flammable materials suitable for starting fires were found in Cohen's vehicle, home and garage. The forensic examination of his computer revealed his obsession with fires generally, wildfires in the Lakeside, Barona Casino, and Wildcat Canyon areas, and Cal Fire as well as related law enforcement. In addition to this evidence, the jury credited inmate Culver's testimony that Cohen admitted and bragged about starting the fires—even describing in detail how he set them—to "get even" with the casinos. The case was not close, and we do not disturb the jury's determinations of credibility. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On this record, we are confident it is not reasonably probable the verdict turned on the prior act evidence admitted by the trial court.
II. Instructional Error
Cohen contends the court's limiting instruction failed to prevent the jury from improperly using evidence from the uncharged acts to find he had a propensity to commit arson.
The trial court instructed the jury with a modified version of CALCRIM No. 375 as follows: "The People presented evidence that the defendant committed other offenses of arson that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: the defendant was the person who committed the offense alleged in this case; the defendant acted maliciously in this case; the defendant had a motive to commit the offenses alleged in this case; the defendant's alleged actions were not the result of mistake or accident; or the defendant had a plan or scheme to commit the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. [¶] It is not sufficient by itself to prove the defendant is guilty of arson or the lesser offense of unlawfully causing a fire. The People must still prove each charge beyond a reasonable doubt."
Cohen supports his claim with People v. Gibson (1976) 56 Cal.App.3d 119, 130, in which the court remarked that giving the jury limiting instructions on the belief they cured the effect of the "highly prejudicial" prior acts evidence was unrealistic. But we presume the jurors followed the court's instruction (People v. Bryant (2014) 60 Cal.4th 335, 447-448; People v. Zack (1986) 184 Cal.App.3d 409, 416), and this is not a situation where the prior act evidence—as in Gibson and other cases—was "so potent or inflammatory" that this presumption is overcome. (People v. Dallas (2008) 165 Cal.App.4th 940, 958.) In this case, where the direct and circumstantial evidence of Cohen's guilt was overwhelming and the case was not close, the court's giving of CALCRIM No. 375 to limit the jury's consideration of the prior act evidence was enough to prevent prejudice. (Compare People v. Dellinger (1984) 163 Cal.App.3d 284, 229-300 [limiting instruction held insufficient to cure erroneous admission of prior bad acts in case where case was "very close" and prejudice was exacerbated by prosecutor's repeated reference during closing argument to prior cocaine use, which had only "marginally probative value" to the issues in his trial for first degree murder of his young stepdaughter from blunt force trauma].)
In People v. Gibson, supra, 56 Cal.App.3d 119, the appellate court reversed a judgment convicting the defendant of second degree murder on several grounds, including that the prejudicial effect of other crimes evidence admitted to show motive—in a case where the defendant's commission of the charged murder was disputed—outweighed its probative value. (Id. at pp. 129-130.) The court observed that other crimes evidence admitted to prove motive was "much closer to its use as character trait evidence than when it is offered solely to prove defendant's intent. In terms of prejudicial consequence, there is very little difference, however, between other-crimes evidence that is introduced to establish a defendant's motive and thence to the inference that the charged offense was committed by defendant in accordance with such motive, and other-crimes evidence as character trait evidence that leads to the same inference—that a defendant acted in accordance with such character trait and committed the charged offense." (Ibid.) The court stated: "It is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect. . . . We live in a dream world if we believe that jurors are capable of hearing such prejudicial evidence but not applying it in an improper manner. [¶] . . . The expectation that the jury could limit its use of such evidence as circumstantial evidence of defendant's intent and motive, after applying other evidence in the case to reject defendant's alibi defense in accordance with the court's limiting instructions and admonitions, is indeed an exercise in futility and illusory imagery." (Id. at p. 130.) --------
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: NARES, Acting P. J. DATO, J.