Filed 9/7/21 P. v. Santanabollas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075528
v. (Super.Ct.No. RIF1904383)
JAVIER SANTANABOLLAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven G. Counelis,
Judge. Affirmed.
Melcher & Melcher and William Paul Melcher, by appointment of the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy
Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
Defendant Javier Santanabollas was convicted by a jury of one count of felony
evading a police officer (Veh. Code, § 2800.2, count 1); one count of possession of
burglary tools (Pen. Code, § 466, count 4); and one count of petty theft (Pen. Code,
§ 488, count 3), arising out of an October 19, 2019, incident involving a vehicle pursuit
by police. In a bifurcated proceeding, defendant also admitted he suffered a prior strike
offense. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) Defendant was
sentenced to an aggregate term of six years in state prison, representing the aggravated
term of three years, doubled for his prior strike offense in count 1 and concurrent terms of
180 days on counts 3 and 4.
On appeal, defendant argues the judgment should be reversed because (1) the trial
court erred in permitting the prosecution to present evidence of two prior vehicle pursuits
involving defendant pursuant to Evidence Code1 section 1101, subdivision (b), and
(2) the trial court erred in permitting the prosecution to present evidence of the
convictions arising out of these prior incidents for the purpose of impeachment. We find
no error in the record before us, and we affirm the judgment.
II. FACTS & PROCEDURAL HISTORY
A. Facts and Charges
At approximately 4:30 a.m., on October 19, 2019, police officers with the City of
Corona Police Department were dispatched to a business in order to investigate a report
1 Undesignated statutory references are to the Evidence Code.
2 of trespassing and possible burglary. The business owner had reported seeing live
surveillance footage depicting unknown individuals within the secured yard of his
business and provided a description for an unidentified vehicle parked outside his
business (suspect vehicle). When officers appeared at the scene, the suspect vehicle
drove away, and a police pursuit was initiated. The pursuit eventually ended when the
suspect vehicle collided with a wrought iron fence in front of a residential apartment
complex.
As a result of this incident, defendant was charged with evading a police officer
(Veh. Code, § 2800.2, count 1); possession of a stolen vehicle (Pen. Code, § 496d,
subd. (a), count 2); grand theft (Pen. Code, § 487, subd. (a), count 3); and possession of
burglary tools (Pen. Code, § 466, count 4). Count 1 was charged as a felony.
Additionally, it was alleged that defendant had suffered a prior conviction qualifying as a
strike and prior serious felony. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1).)
B. Relevant Evidence at Trial
1. Testimony of Officer B.
Officer B. testified that he is a peace officer with the City of Corona Police
Department and was assigned to patrol duty on October 19, 2019. He was dressed in his
police uniform and was driving a police vehicle. His vehicle was painted black and
white; marked with the words “Corona Police Department”; and equipped with a standard
white, blue, and red emergency light bar. At approximately 4:30 a.m., Officer B. was
dispatched to a business in response to a report of trespassing and a possible burglary.
3 The business owner had reported seeing live surveillance video depicting an unknown
individual within the secured yard of his business premises as well the suspect vehicle
parked outside. He provided police with a description of the suspect vehicle.
When Officer B. arrived at the business, he parked his vehicle approximately
75 feet away from the driveway of the business and waited for backup to arrive. After
waiting for about one minute, another officer arrived at the scene. However, before
Officer B. had a chance to speak with the other officer, the suspect vehicle pulled out of
the driveway of the business at a high rate of speed.
As the suspect vehicle drove past Officer B.’s vehicle, Officer B. maneuvered his
vehicle in order to follow and activated the vehicle’s overhead emergency lights and
siren. The second officer who arrived at the scene did the same with his vehicle.
Instead of yielding, the suspect vehicle turned onto another street and increased its
rate of speed. As Officer B. pursued the suspect vehicle, the suspect vehicle’s rate of
speed continued to increase to about 70 to 80 miles an hour, despite a 40 mile-an-hour
posted speed limit in the area The vehicle also failed to stop while driving through four
intersections governed by stop signs. The suspect vehicle finally came to rest when it
collided with a wrought iron fence in front of a residential apartment complex, and
Officer B. witnessed four occupants quickly exit the vehicle. Officer B. exited his
vehicle and apprehended two of the occupants at gunpoint. The other two occupants fled
on foot and were not apprehended at the time.
4 2. Testimony of Officer H.
Officer H. testified he is a peace officer with the City of Corona Police
Department and was assigned to patrol duty on October 19, 2019. He was wearing his
police uniform and was driving a police vehicle at the time. His vehicle was painted
black and white; marked with the words “police”; bore the seal of the City of Corona; and
was equipped with a standard white, blue, and red emergency light bar.
At approximately 4:30 a.m., he was dispatched to a business in response to a
report of trespassing. The business owner had reported seeing live surveillance video
depicting individuals within a secured yard on his business premises and the suspect
vehicle parked outside. When he arrived at the business, Officer H. pulled his vehicle
behind a second police vehicle driven by Officer B. Officer H. then witnessed the
suspect vehicle, which matched the description reported by the business owner, exit the
driveway of the business. Both he and Officer B. maneuvered their vehicles in an
attempt to stop the suspect vehicle. Officer B. activated the emergency lights and siren of
his vehicle, and Officer H. followed suit. The suspect vehicle failed to yield, and both
officers began a pursuit of the suspect vehicle.
Officer H. estimated that during the pursuit, the suspect vehicle accelerated to a
speed in excess of 70 miles an hour, despite a posted speed limit of 40 miles an hour. He
also witnessed the suspect vehicle fail to stop while driving through at least two
intersections governed by stop signs. Eventually, the suspect vehicle collided with a
fence in front of a residential apartment complex. When Officer H. exited his vehicle, he
assisted Officer B. with securing two women who had exited the suspect vehicle
5 following its collision with the fence. The remaining two occupants of the vehicle were
not located at the time. Ultimately, one of the women apprehended at the scene of the
suspect vehicle’s collision identified defendant as the driver of the suspect vehicle.
3. Testimony Regarding Prior Uncharged Acts
Over defendant’s objection, the trial court granted a motion in limine permitting
the People to introduce evidence of three prior incidents in which defendant was involved
in a police pursuit. The trial court concluded the evidence was admissible under section
1101, subdivision (b), for the purpose of showing intent as well as showing defendant
acted in accordance with a general or common plan.2 The trial court further concluded
that such evidence was not unduly prejudicial. Ultimately, the People introduced
testimony of only two of the incidents at trial.
Officer P. testified that he is employed as a peace officer with the City of Corona
Police Department. On July 25, 2015, he was on duty, in full police uniform, and driving
a marked police vehicle equipped with an emergency light bar, when he was alerted to
the possibility of a stolen vehicle nearby. When he activated the emergency lights on his
vehicle in an attempt to stop the suspected stolen vehicle, the vehicle failed to yield. As
he pursued the vehicle, he observed the vehicle fail to yield for red traffic signals while
2 The People also argued that the evidence was relevant for the purpose of establishing defendant’s identity, but the trial court disagreed. Ultimately, the People introduced other evidence to establish defendant’s identity, such as the testimony of one of the passengers in the suspect vehicle, who testified she was defendant’s ex-girlfriend and identified defendant as the driver, and the business’s surveillance video depicting an individual, who appeared to match defendant’s description, entering the driver’s side of the suspect vehicle moments before the police pursuit.
6 driving through multiple intersections. The vehicle drove at rates of speed estimated to
be about 60 to 65 miles an hour despite a posted speed limit of 35 miles an hour.
Eventually, the vehicle collided with a light pole, and defendant was arrested as the
driver.
Officer R. testified he is a peace officer with the City of Corona Police
Department. On December 22, 2017, he was on patrol duty, in full uniform, and driving
a marked police vehicle equipped with an emergency light bar. His attention was drawn
to a vehicle matching the description of a recently stolen vehicle. When he activated the
emergency lights of his police vehicle to initiate a stop, the suspected stolen vehicle
failed to yield. As he pursued the vehicle, it accelerated to speeds in excess of 100 miles
an hour. As a result, the police pursuit was cancelled due to safety concerns. Shortly
after cancelling his pursuit, Officer R. was notified the vehicle had crashed after driving
off the road. Defendant had left the vehicle, but he was discovered hiding nearby and
eventually admitted to being the driver of the vehicle involved in the police pursuit.
4. Impeachment Evidence
In a pre-trial motion, the People also sought permission to introduce evidence of
six prior convictions for the purpose of impeachment, should defendant elect to testify in
7 his own defense.3 Three of the prior convictions arose out of the events of July 25, 2015,
and December 22, 2017—evidence that the trial court had already permitted to be
introduced pursuant to section 1101, subdivision (b). As a result, the trial court permitted
the prosecution to use these three convictions for impeachment purposes but excluded the
remaining convictions.
Defendant elected to testify in his own defense and denied any involvement in the
events of October 19, 2019. Instead, defendant claimed he was with his fiancée in her
mother’s home the entire time. On cross-examination, defendant admitted he had been
previously convicted for evading police as a result of the events of July 25, 2015, and
December 22, 2017, referenced in the testimony of Officer P. and Officer R. Thus, only
two of the three prior convictions previously held admissible by the trial court were
ultimately referenced at trial.
C. Verdict and Sentence
The trial court granted a motion to dismiss count 2, which charged vehicle theft.
The jury found defendant guilty of evading a police officer (Veh. Code, § 2800.2, count
1); possession of burglary tools (Pen. Code, § 466, count 4); and the lesser included
offense of petty theft on count 3 (Pen. Code, § 488). In a bifurcated proceeding,
defendant admitted he suffered the prior strike offense as alleged. Pen. Code, §§ 667,
3 Specifically, the People sought to introduce a 2010 conviction for burglary (Pen. Code, § 459); a 2012 conviction for making criminal threats (Pen. Code, § 422); a 2016 conviction for evading a police officer (Veh. Code, § 2800.2); a 2016 conviction for grand theft auto (Veh. Code, § 10851); a 2018 conviction for possession of a stolen vehicle (Pen. Code, § 496d); and a 2018 conviction for evading a police officer (Veh. Code, § 2800.2).
8 subds. (c), (e)(1), 1170.12, subd. (c)(1).) Defendant was sentenced to an aggregate term
of six years in state prison, representing the aggravated term of three years, doubled for
his prior strike offense in count 1, and concurrent terms of 180 days for counts 3 and 4.
III. DISCUSSION
A. Evidence of Prior Uncharged Acts Were Properly Admitted
On appeal, defendant asserts the trial court abused its discretion in admitting
evidence of uncharged prior acts. Specifically, defendant contends the trial court erred in
concluding that evidence of the events of June 2015 and December 2017 were admissible
to show intent and a common plan pursuant to section 1101, subdivision (b); and, even if
admissible, the trial court erred in admitting such evidence over his objection pursuant to
section 352. We disagree.
1. General Legal Principles and Standard of Review
“Evidence Code section 1101, subdivision (a) generally prohibits the admission of
evidence of a prior criminal act against a criminal defendant ‘when offered to prove his
or her conduct on a specified occasion.’ Subdivision (b) of that section, however,
provides that such evidence is admissible when relevant to prove some fact in issue, such
as motive, intent, knowledge, identity, or the existence of a common design or plan.”
(People v. Lindberg (2008) 45 Cal.4th 1, 22.)
“In cases where the underlying act of the uncharged act event is a given, probative
value strictly depends on the degree of similarity between the uncharged act and charged
crime.” (People v. Winkler (2020) 56 Cal.App.5th 1102, 1145.) “ ‘To be relevant on the
issue of identity, the uncharged crimes must be highly similar to the charged offenses. . . .
9 [¶] . . . [¶] A lesser degree of similarity is required to establish relevance on the issue of
common design or plan . . . . [¶] The least degree of similarity is required to establish
relevance on the issue of intent.’ ” (People v. Lewis (2001) 25 Cal.4th 610, 636-637
(Lewis) ; see People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)
“Even if evidence of the uncharged conduct is sufficiently similar to the charged
crimes to be relevant for a nonpropensity purpose, the trial court must next determine
whether the evidence’s probative value is ‘substantially outweighed by the probability
that its admission [would] . . . create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.’ ” (People v. Chhoun (2021) 11 Cal.5th 1, 26
(Chhoun); People v. Foster (2010) 50 Cal.4th 1301, 1328 (Foster); Lewis, supra,
25 Cal.4th at p. 637 [“[T]o be admissible, such evidence ‘ “must not contravene other
policies limiting admission, such as those contained in Evidence Code section 352.” ’ ”].)
“On appeal, a trial court’s ruling under Evidence Code sections 1101 and 352 is
reviewed for abuse of discretion.” (Lewis, supra, 25 Cal.4th at p. 637; see Foster, supra,
50 Cal.4th at p. 1328.) Under this 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.” ’ ” (Foster, at p. 1329; see Chhoun, supra, 11 Cal.5th at p. 26.)
Here, the trial court permitted evidence of prior uncharged acts related to incidents
that occurred in June 2015 and December 2017 for the purpose of proving intent and the
existence of a common plan. As we explain, such evidence bore sufficient similarity to
be probative on these issues and was therefore admissible under section 1101,
10 subdivision (b). Further, the evidence of uncharged acts in this case was not unduly
prejudicial, and we find no abuse of discretion in the trial court’s decision to permit such
evidence over defendant’s section 352 objection.
2. The Evidence of Prior Uncharged Acts Was Probative to the Issue of Intent
The prior uncharged acts were clearly probative to defendant’s intent. A violation
of Vehicle Code section 2800.2 requires the prosecution to prove defendant harbored the
specific “intent to evade” police. (Veh. Code, §§ 2800.2, 2800.1; see People v. Taylor
(2018) 19 Cal.App.5th 1195, 1203 [Section 2800.2 requires the “ ‘ “intent to
evade.” ’ ”].) “ ‘ “ ‘We have long recognized “that if a person acts similarly in similar
situations, he probably harbors the same intent in each instance” . . . . The inference to be
drawn is not that the actor is disposed to commit such acts; instead, the inference to be
drawn is that, in light of the first event, the actor, at the time of the second event, must
have had the intent attributed to him by the prosecution.’ ” ’ ” (Chhoun, supra,
11 Cal.5th at p. 27.)
With respect to defendant’s charged offense, witnesses testified that defendant
failed to yield in response to marked police vehicles despite activation of emergency
lights and sirens; drove at speeds in excess of posted speed limits; disregarded posted
traffic signs governing intersections; and drove his vehicle off the road, leading to a
collision. In both of the incidents admitted as uncharged acts, defendant encountered
uniformed police officers driving marked police vehicles; refused to yield when the
officers engaged emergency lights and sirens; drove his vehicle at speeds well in excess
of posted speed limits; drove his vehicle off the road; and was apprehended only after
11 crashing his vehicle. Evidence that defendant had, on two prior occasions, failed to yield
and, instead, fled in response to a marked police vehicle’s activation of emergency lights
and sirens gives rise to a strong inference that defendant harbored the same “intent to
evade” police when he engaged in the same actions with respect to the charged offense.
On appeal, defendant now claims the probative value of such evidence was
minimal because defendant’s intent was “not reasonably in dispute.” However, “a not
guilty plea places in issue all elements of the charged crimes.” (Chhoun, supra,
11 Cal.5th at p. 29.) Absent an explicit concession of guilt on an issue, the fact that the
defendant chooses to focus on one element of the case in his defense does “ ‘not
eliminate the prosecution’s burden to establish [the other elements] beyond a reasonable
doubt.’ [Citation.] Even when other evidence is present, it remains the prosecution’s
burden . . .[,]” and the prosecution “has the ‘right to introduce all relevant and admissible
evidence toward that end.’ ” (Ibid.) Thus, contrary to defendant’s contention, the mere
fact that he chose to focus his defense on other aspects of the case does not reduce the
probative value of evidence otherwise relevant to an essential element of the charged
offense. We find no error in the trial court’s conclusion that the evidence of uncharged
acts here was probative to the issue of defendant’s intent and, therefore, admissible under
section 1101, subdivision (b).
3. The Evidence of Prior Uncharged Acts Was Probative to the Issue of Whether
Defendant Acted Pursuant to a Common Plan
We also find no error in the trial court’s conclusion that the evidence of uncharged
acts in this case was admissible for the purpose of proving defendant acted pursuant to a
12 common plan. Notably, separate from any “intent to evade,” the prosecution was also
required to prove defendant drove a vehicle with “willful or wanton disregard for the
safety of persons or property” in order to prove the charged offense. (Veh. Code,
§ 2800.2, subd. (a); see People v. Weddington (2016) 246 Cal.App.4th 468, 489
[“[D]istinction between the crimes of felony and misdemeanor evading is that in
committing the felony, the pursued vehicle is driven ‘ “in a willful or wanton disregard
for the safety of persons or property.” ’ ”].) Additionally, the prosecution may prove this
element by presenting evidence that defendant committed three or more traffic violations
while fleeing or attempting to elude a pursuing peace officer. (Veh. Code, § 2800.2,
subd. (b); People v. Taylor (2018) 19 Cal.App.5th 1195, 1203-1204.) Thus, the
prosecution’s burden in this case included establishing that defendant engaged in specific
acts, including specific types of traffic violations, while attempting to evade police.
The purpose of common plan evidence is to prove defendant engaged in a specific
act, by showing that defendant acted pursuant to a common pattern or planned course of
conduct in similar prior instances. (People v. Myers (2014) 227 Cal.App.4th 1219, 1224
[The purpose of common plan evidence is “to prove the defendant engaged in the conduct
alleged by the prosecution.”]; People v. Scheer (1998) 68 Cal.App.4th 1009, 1020
(Scheer) [“Evidence of a common design or plan is admissible to establish that the
defendant committed the act alleged.”].) While two officers provided direct testimony of
defendant’s various traffic violations in the commission of the charged offense, this does
not render evidence of a common plan irrelevant, since one recognized purpose for
13 evidence of a common plan is to “corroborate the prosecuting witness’s testimony.”
(People v. Epps (1981) 122 Cal.App.3d 691, 699.)
Here, the evidence that defendant committed identical or similar traffic violations
while attempting to flee police on prior occasions permits a reasonable inference that
defendant followed the same course of conduct when committing the charged offense.
(People v. Abrahamian (2020) 45 Cal.App.5th 314, 329 [“The charged offense and
uncharged acts must be ‘sufficiently similar,’ not identical, to be admissible to show
intent or common scheme or plan.”]; People v. Merchant (2019) 40 Cal.App.5th 1179,
1193, fn. 4 [The similarity “requires only enough common features to suggest the
existence of a general pattern or scheme rather than a series of spontaneous acts.”].)
Notably, in all three instances, defendant reportedly drove off the road and crashed his
vehicle. This commonality is particularly distinctive given that, in one instance,
defendant reportedly did so even after police had abandoned pursuit, and he was no
longer in sight of the pursuing officer. This common feature permits a reasonable
inference that defendant intentionally causes such collisions, in wanton disregard for the
safety of property, as part of a plan to divert the attention of police in order to permit him
to evade capture while fleeing on foot.
Defendant argues the evidence of his prior attempts to evade police were not
sufficiently probative to show he acted pursuant to a common plan, relying principally on
Scheer, supra, 68 Cal.App.4th 1009. We find Scheer readily distinguishable. In Scheer,
the defendant was charged with felony hit and run (Veh. Code, former § 20001, subd. (a);
Stats. 1996, ch. 645, § 4.) after driving through an intersection, colliding with another
14 vehicle, and fleeing from the scene when a witness attempted to get the defendant to stop
his vehicle. (Scheer, at pp. 1014-1015.) The Court of Appeal in Scheer concluded that a
single prior instance of evading a police officer was not sufficiently similar to the charged
offense to be admissible under Evidence Code section 1101, subdivision (b). (Scheer, at
pp. 1019-1021) While the Court of Appeal acknowledged that both instances involved
defendant driving recklessly while attempting to flee, such evidence did not give rise to a
reasonable inference of a common plan. (Ibid.)
Scheer is clearly distinguishable from the facts of this case because the charged
offense in Scheer required only proof that defendant was involved in an accident and
failed to stop. (Veh. Code, former § 20001, subd. (a).) Thus, the fact that defendant
reportedly drove recklessly while trying to flee the scene was not an act the prosecution
needed to establish to prove the charged offense. In this context, evidence of a “common
plan” involving reckless driving had no probative value because the similarities involved
acts entirely ancillary and unrelated to the acts the prosecution needed to prove to
establish the charged offense.
In contrast, defendant here was charged with felony evasion. As we have already
explained, the very nature of this offense involves an examination of the specific acts
undertaken by defendant while driving in his attempt to evade. Unlike in Scheer, supra,
68 Cal.App.4th 1009, the similarities between the charged and uncharged conduct in this
case involve the very acts the prosecution was required to establish in order to prove the
charged offense. Because the manner in which defendant drove his vehicle while
attempting to evade police was directly at issue in this case, and the evidence of
15 uncharged acts bore significant similarity to the charged conduct in this regard, we find
no error in the trial court’s conclusion that the evidence of uncharged acts here was
probative to the issue of whether defendant acted pursuant to a common plan.
4. The Evidence Was Not Unduly Prejudicial
On appeal, defendant also claims the evidence of uncharged prior acts should have
been excluded as unduly prejudicial under section 352. Specifically, defendant claims he
was prejudiced in that the uncharged acts evidence improperly encouraged the jury to
view the evidence “simply as evidence of [defendant’s] propensity.”4 We disagree.
“ ‘ “ ‘ “ ‘Evidence is not prejudicial, as that term is used in a section 352 context,
merely because it undermines the opponent’s position or shores up that of the
proponent. . . .’ ” ’ ” ’ ‘ “ ‘ “The prejudice that section 352 ‘ “is designed to avoid is not
the prejudice or damage to a defense that naturally flows from relevant, highly probative
evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of
‘prejudging’ a person or cause on the basis of extraneous factors.” ’ ” ’ ” ’ ” (People v.
Baker (2021) 10 Cal.5th 1044, 1089.) Generally, “ ‘[u]ndue prejudice’ refers . . . to
evidence that prompts an emotional reaction against the defendant and tends to cause the
trier of fact to decide the case on an improper basis.” (People v. Walker (2006)
139 Cal.App.4th 782, 806; see People v. Wang (2020) 46 Cal.App.5th 1055, 1075
4 Defendant also suggests the evidence of uncharged acts was more inflammatory than the evidence of his charged acts and required an undue consumption of time, but he makes these arguments in the context that any error was not harmless, instead of suggesting the trial court abused its discretion in failing to balance these factors pursuant to section 352.
16 [Unduly prejudicial evidence is that “ ‘ “ ‘which uniquely tends to evoke an emotional
bias against defendant as an individual and which has very little effect on the
issues.’ ” ’ ”].)
Here, the evidence of prior uncharged acts was not particularly inflammatory or
the type of evidence that would uniquely tend to evoke some type of emotional bias
against the defendant. While not minimizing the seriousness of defendant’s conduct, the
prior uncharged acts here were not violent crimes, were not sexual in nature, did not
involve the use of weapons, did not involve a significant intrusion into the privacy of
another, did not involve particularly vulnerable victims, and did not result in serious
injury or death. Instead, the prior uncharged acts consisted of numerous traffic
violations. While some of these traffic violations were clearly dangerous, such acts are
simply not the type of acts considered so heinous or morally repugnant that they would
evoke a serious or emotional bias against defendant.
To the extent defendant argues the evidence was unduly prejudicial because the
jury was tempted to consider the evidence as improper character and propensity evidence,
we disagree. “As part of the section 352 prejudice analysis, courts consider whether the
trial court gave a limiting instruction. A limiting instruction can ameliorate section 352
prejudice by eliminating the danger the jury could consider the evidence for an improper
purpose.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 247; see People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 406 [no violation of § 1101, subd. (a), where
trial court gives proper limiting instructions].) Here, the trial court explicitly instructed
the jury on the limited purpose for which it could consider evidence of defendant’s
17 uncharged acts, and defendant has not claimed any instructional error on appeal.
Accordingly, we are not persuaded that the challenged evidence in this case was unduly
prejudicial because the jury was encouraged to consider it for an improper purpose.
Because the uncharged acts were not of the type that would evoke an emotional
reaction and because the trial court gave a limiting instruction to the jury regarding
consideration of the evidence, we find no abuse of discretion in the trial court’s decision
to admit such evidence over defendant’s section 352 objection. Further, because we
conclude the trial court did not abuse its discretion in admitting the evidence of
uncharged acts, we need not address whether such alleged error was harmless.
B. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Defendant’s
Prior Convictions
Defendant also argues the trial court abused its discretion in admitting evidence of
three prior convictions for the purpose of impeachment. We find no abuse of discretion
on this record.
“A witness may be impeached with any prior conduct involving moral turpitude
whether or not it resulted in a felony conviction, subject to the trial court’s exercise of
discretion under Evidence Code section 352. [Citations.] [¶] ‘The admissibility of any
past misconduct for impeachment is limited at the outset by the relevance requirement of
moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for
exclusion of impeachment evidence in individual cases is broad.’ [Citations.] When
determining whether to admit a prior conviction for impeachment purposes, the court
should consider, among other factors, whether it reflects on the witness’s honesty or
18 veracity, whether it is near or remote in time, whether it is for the same or similar conduct
as the charged offense, and what effect its admission would have on defendant’s decision
to testify.” (People v. Clark (2011) 52 Cal.4th 856, 931; see People v. Mendoza (2000)
78 Cal.App.4th 918, 925 (Mendoza).) The trial court’s decision to admit evidence of a
prior conviction for the purpose of impeachment is reviewed for abuse of discretion.
(People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
Here, defendant concedes that the prior convictions at issue involved moral
turpitude, the prior convictions were not remote in time, admission of the prior
convictions did not prevent defendant from testifying, and the prior convictions were
relevant, at least “marginally,” to show defendant’s veracity. Where defendant admits
that almost all of the considerations relevant to the trial court’s decision to admit
evidence of a prior conviction weigh in favor of admission, defendant has failed to meet
his burden on appeal to establish an abuse of discretion.
Defendant’s sole argument appears to be that, because the prior convictions
involved identical offenses, this single factor should have outweighed all the other
relevant factors in the trial court’s section 352 analysis. However, as this court has
recognized, “ ‘[p]rior convictions for the identical offense are not automatically excluded.
“The identity or similarity of current and impeaching offenses is just one factor to be
considered by the trial court in exercising its discretion.” ’ ” (Mendoza, supra,
78 Cal.App.4th at p. 926; see People v. Gutierrez (2018) 28 Cal.App.5th 85, 91) Thus,
defendant does not show an abuse of discretion by simply identifying one factor that
19 might have weighed in favor of exclusion where all of the other factors, admittedly,
support the trial court’s ruling.
Additionally, it is undisputed that the prior convictions at issue in this case were
the result of the uncharged acts the trial court found admissible under section 1101,
subdivision (b). In such circumstances, our Supreme Court has explained that the
admission of evidence of defendant’s convictions actually results in the reduction of any
prejudicial impact to defendant. (People v. Edwards (2013) 57 Cal.4th 658, 722
[admission of evidence of conviction after jury has already heard evidence of underlying
acts of crime under § 1101, subd. (b), reduces prejudice to defendant].) As our high court
has repeatedly explained, admission of a prior conviction in this context “ensur[es] that
the jury [will] not be tempted to convict the defendant simply to punish him for the other
offenses, and that the jury’s attention [will] not be diverted by having to make a separate
determination whether defendant committed the other offenses.” (People v. Falsetta
(1999) 21 Cal.4th 903, 917; see People v. Balcom (1994) 7 Cal.4th 414, 427.) Thus,
when presented with a request to admit six prior convictions for the purpose of
impeachment, it was not outside the bounds of reason for the trial court to select the three
convictions that were relevant on the question of credibility but that would also serve to
minimize any potential prejudice to defendant, while not allowing defendant to project a
“false aura of veracity.” (See People v. Beagle (2001) 6 Cal.3d 441, 453.)
Because it is undisputed that the prior convictions involved crimes of moral
turpitude, that three of the four relevant factors weighed in favor of admission, and that
20 admission of the prior convictions in this context neutralized any prejudice presented by
other evidence, we find no abuse of discretion warranting reversal.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
RAMIREZ P. J.
McKINSTER J.