Opinion
A130487
04-27-2012
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY COOK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. SC169286A)
Appellant Robert Anthony Cook was convicted, after a jury trial, of stalking his estranged wife (Pen. Code, § 646.9, subd. (a), a felony) and disobeying a court order to have no contact with her (§ 166, subd. (a)(4), a misdemeanor). He was sentenced to serve five years in state prison. On appeal, Cook contends that the trial court abused its discretion in admitting evidence of his prior acts and threats of violence against the same victim. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
I. B ACKGROUND
In 2003, Marguerite Matan met Cook at an Alcoholics Anonymous (AA) meeting. They were married in 2005, and Matan became pregnant with their son later that year. At the time, Matan was an assistant principal at a middle school.
Matan has an older son from a previous marriage.
Cook was frequently abusive and violent during the marriage. After Matan became pregnant, Matan and Cook began having violent fights. Matan relapsed into alcohol use. In November 2005, when Matan was five months pregnant, she spent five days in the hospital after Cook kicked her. Cook began screaming at Matan at 3:30 a.m. and turned on the lights to wake her. Matan hit Cook in the arm because he was blocking the light switch with his hand. Cook responded by kicking Matan between the legs. Her labia swelled to the size of a football. Cook took Matan to the hospital where the swelling burst, spraying the room with blood. Matan required emergency surgery and four units of blood. Because Matan did not want to involve the police, she told hospital staff she had fallen on a bike. Their son was born two months early.
In January 2006, Cook hit Matan in the head. Cook also hit Matan in the face two days after she gave birth to their son. In April 2006, Matan became angry because Cook was not helping her pack the household belongings for a move. They argued. Matan hit Cook in the arm and shoulder and he responded by knocking her to the bed, kicking her, and punching her twice in the face with a closed fist. Matan sustained two black eyes and a cut.
Matan went to stay with Cook's parents for two weeks. She told them what had occurred. Matan told Cook she wanted to live apart. Nonetheless, Cook came to her new home and would not leave. Matan moved in with her parents for several days. Cook called to tell her he had slashed the couches and their son's bed so she would know how much he was hurting. Matan informed Cook she was getting a restraining order. He sent her a text message saying he would break it.
While Matan was staying with her parents, she saw Cook sitting in the driveway in a Jeep. Cook also came to Matan's office and informed her he was going to tell everyone in the building what was going on between them. He threatened to vandalize the school in the middle of the night.
Later in April 2006, Matan and Cook went to counseling together. While they were driving home, Cook hit her in the face and told her she deserved it. He later threw his wedding ring out the car window and told Matan he did not want to be married anymore. In a separate incident, Cook put a butcher knife to Matan's throat.
In May 2006, Cook was arrested and Matan obtained protective orders requiring him to stay away from her, her parents, her home, and her work. On July 7, 2006, Cook pleaded guilty to one count of corporal injury on spouse/cohabitant (§ 273.5, subd. (a)) and one count of stalking (§ 646.9, subd. (b)). Matan also obtained a court order giving her sole custody of their son. Cook was allowed supervised visitation. Despite the orders, Matan received numerous letters and phone calls from Cook, which continued even after Cook was in custody.
At trial on the instant case, the prosecution introduced a binder of approximately 50 letters Cook sent Matan between March 23, 2007, and November 24, 2007 (People's Exhibit 7). The following are excerpts from the letters Cook wrote to Matan during that time frame:
Several excerpts were read aloud during trial. Excerpts recited herein are as they appear in People's Exhibits 7 or 8; however, emphasis in the form of capitalization or underlining has been omitted.
• "You are not allowed to change your mind. [¶] . . . [¶] [M]y release date is listed for September . . . . If you don't love me, you'd better be long gone."
• "I can tell her this: if she thinks we're having problems now (while she's not doing anything about them), just wait until we're over."
• "My hate grows for you . . . . [¶] . . . There will be retribution, Bitch, and you won't like the price."
• "I've told you a million times, I'm not going to just let you go—if you're going to go, you're really going to have to go. . . . [¶] . . . [¶] So what if I raised my hand to hit the damn plexiglass!!"
Matan had brought their son to visit Cook in jail. During that visit, Cook raised his hand as if he would hit her. Matan never visited him again.
• "My need, my lack of being loved, is turning to rage. I want to destroy; I'm efficient and quite capable of it. Moreover, I've so little to lose. Rage: I've so much of it, and only one person can fix it. There's going to be a price that'll be payed and it's that one persons' choice how it turns out. [¶] . . . I want to erase [Matan], I want to erase [Matan's older son], I want to erase [our son], I want to erase all of their memories . . . . [¶] . . . [¶] . . . I won't . . . let you go—I just won't do it."
• "I can't ever see you, or [our son] again. I think it'd be bad for you, and bad for me. Understand? I mean it."
• "[L]et me spell it out for you: You make me mother fucking hate you, because of the way you treat me. I will not accept it. The hate burns my stomach . . . . I fantasize about hurting you back. My hate for you festers, it waits, it seeth[e]s, it grows."
• "[S]ooner than you think I'll be free again . . . ."
• "I swear on [our son's] life that you're going to have the most angry enemy/ex-husband/adversary . . . if you keep treating me this way. [¶] . . . [¶] You're going to have to face me some day. And, when that day comes, there's going to be a huge pile of shit over it. You're not going to like the price you have to pay. If we're done before we're through this—You'd better go . . . . [¶] . . . I know I can be a good enemy."
These letters frightened Matan; she was afraid that Cook would hurt her. She believed Cook was telling her that if she left the relationship, he would come after her, and there would be retribution. On September 12, 2006, Matan filed a request for dissolution of the marriage.
Cook also wrote letters to their son, Matan's school, her neighbors, the superintendent of her school district, to other schools in the district, to her former teachers, and to her family. He wrote that Matan had given him herpes, that she was an alcoholic, and that she was not a team player. He would send Matan drafts of letters he intended to send to other people if she refused to do what he asked. Cook told Matan he was going to send letters to their son's pediatrician, her secretary, the coffee shop she frequented, and her elder son's high school.
Because their son was less than two years old at the time, Matan had no doubt the letters had been intended for her.
In one of several letters sent to Matan at her middle school, Cook wrote on the back of the envelope: "Attention all men and women: Use extreme caution. Stay away from this womans' dirty, black hole: Do not stick it in; Do not bump uglies . . . . This woman spreads her genital herpes and, you won't find out until you do, also. She'll lie to you, cheat on you, hit you, keep secrets from you, destroy you. After that's all finished, she'll blame it all on you!!"
In June 2008, Cook was sent to prison for violating his probation and Matan obtained another restraining order prohibiting Cook from contacting her. Thereafter, Cook continued to write directly to Matan, as well as to their son, and Matan's brother-in-law. Matan could tell from the content, however, that the letters were meant for her. The prosecution introduced a binder of more than 35 letters Cook sent between July 12, 2008, and September 25, 2009, while Cook was in prison (People's Exhibit 8). Matan testified at length regarding the contents. The following are excerpts from the letters Cook wrote, ostensibly to their toddler, during that time frame:
• "This place, where I now am, . . . is minimum security, with only one fence keeping us from freedom . . . I am free to go where I like; there are no officers standing over us. . . . [¶] . . . I have just finished talking with you on the phone. Although I am sure that you did not know who I am, I told you that I am your Dah-Dee, and that I love you; you told me that you love me, also! . . . I cannot wait to hold you, again. . . . [¶] I hear that your Mah-Mee has lost her job, due to her alcoholism, and will be moving back into her mother and fathers house. When that happens, I will write to you there; I love you, and will never leave you alone."
Matan understood Cook to be telling her he could escape, if he wanted to, and that he continued to track the details of her life.
• "I still want a happy, healthy family, and a good, healthy marriage. [¶] . . . [¶] [T]here was an escape here . . . ."
• "Would you, please, write to me; tell me about my child. . . . I do not want to know anything more . . . ."
• "[S]he can never make me forget about you, and she is wrong to be so cruel as to try. [¶] . . . [¶] . . . Ask your Mah-Mee to help us resolve our issues; it is all about you, and not at all about us. [¶] I have included a psalm that hit me, regarding this, and us . . . . [¶] . . . [¶] Those who do evil will be cut off, but those who wait for the Lord will possess the land. [¶] . . . [¶] The wicked perish . . . ."
• "I love you . . . . [¶] On every level, your Mah-Mee is wrong to keep us apart— and actually; her intended cruelty is evil. My only intent is to fulfill my responsibility to you as a Dah-Dee, and to love you like the father that I have never had. [¶] . . . [¶] . . . [D]oes she realize, by not allowing us a bond, she is playing Russian Roulette with your healthy upbringing?"
• "It is an evil woman that, because of inconvenience, keeps father and son apart. Beyond just the torture, it is dangerous for you. I never did anything to warrant this!"
Given the prior abuse she had endured, Matan was afraid because of Cook's use of the word "dangerous."
• "I really need closure, and I really need my little boy. So, if you really are the 'very good person' that you had said that you were, you will make a move to help me bring this to a proper end. [¶] . . . [¶] I am so sorry that I had hurt you . . . I wish that I could take back everything that I had done wrong. . . . [¶] . . . [¶] . . . I had figured that you were 'scared' of me, because you were afraid of the truth . . . that you were keeping from me."
• "When I had thought you had moved to an unknown-to-me location, I had been devastated, and had had no idea what to do . . . . [¶] . . . [¶] I am only asking for you— and, at least a peaceful relationship with your Mah-Mee . . . . [¶] . . . [¶] Could we please try?"
• "Not a day passes that I do not think about you, and dream about the day that we soon will be reunited—to never again be separated. [¶] . . . [¶] . . . I will not ever willingly let you out of my life; I will fight for you, eternally . . . ."
Cook also wrote directly to Matan: "I am reaching out to you, once again, to establish peace between us; you can use it to, selfishly, hurt me, but I will retaliate . . . ." Matan testified: "This is written by a man that almost killed me several times. [¶] . . . [¶] [W]hen he said that he's going to retaliate against me . . . I am fearful if he is in my vicinity, that I am going to end up dead." In a lengthy letter addressed to Matan's brother-in-law, Cook wrote: "I am never going to give up my son . . . . [¶] . . . I am not just going to go away. It would be best if we could make peace, work together, and raise our son in a loving, dual environment. . . . [¶] . . . [¶] I've heard that [Matan] was spotted at 19 Broadway, in Fairfax." Matan was "[t]otally freaked out," when she read this because it meant Cook was tracking her movements. In another letter to Matan's brother-in-law, Cook wrote: "I love you, and wanted you in my life. I would have never stopped trying, and after the mistakes, I would have succeeded . . . . [¶] . . . [¶] Love always, - Me."
Matan was fearful after receiving the letters and thought Cook was "going to hurt [her]" or their son. She conceded, on cross-examination, that many of the most recent letters did not contain overt threats. Nonetheless, Matan felt scared and "haunted" because the letters kept coming. To try to put a stop to the letters, Matan spoke to Cook's trial counsel, officials at the Marin County Jail, the Kentfield Police Department, an investigator from the district attorney's office, and officials at two prisons. Ultimately, Matan took the letters as Cook's way of telling her " 'I'm still here.' "
Cook's father, Robert Cook, Sr., also received several letters threatening Matan. In one, Cook wrote to his father: "If she isn't stopped legally, she'll disappear. It's a fact." In another, Cook told his father "you had better tell [Matan] to hold on and hold on tight because it's going to be a rough ride. I have begun to write again." In yet another letter to his father, Cook wrote: "I am or have been trying to force and manipulate her to come see me. . . . You say she's scared of me. My biggest problem is that I don't know what she wants." Cook also wrote: "I fear if I ever see [Matan] again . . . that I might hurt her if she can't be at the very least diplomatic about us. That's the way it's going to be. I'm that angry." Cook had also expressed his desire to speak with their son over the phone. Matan had rejected such requests. Cook's father told him many times to stop writing to Matan.
Based on this most recent conduct while he was in custody, Cook was charged, by information, with stalking (§ 646.9, subd. (a); Count 1) and criminal contempt for disobeying a court order (§ 166, subd. (a)(4); Count 2). The information alleged that the acts occurred between July 12, 2008, and September 25, 2009, while a restraining order was in place prohibiting such behavior (§ 646.9, subd. (b)). Pursuant to section 646.9, subdivisions (c)(1) and (c)(2), the information further alleged that Cook had previously been convicted of a felony violation of section 273.5, subdivision (a) (inflicting corporal injury on spouse), and that he had previously been convicted of a felony violation of section 646.9, subdivision (a).
The jury convicted Cook of both counts and found the enhancement allegations true. The trial court sentenced Cook to a five-year term in prison and issued another restraining order prohibiting him from having any contact with the victim for 10 years. Cook filed a timely notice of appeal.
II. DISCUSSION
Cook contends that his stalking conviction must be reversed because the trial court abused its discretion by admitting, under Evidence Code sections 1101 and 1109, evidence underlying his 2006 convictions, over his Evidence Code section 352 objection. Cook's claims are without merit.
Evidence Code section 1101, subdivision (a), provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." But, Evidence Code section 1101, subdivision (b), provides: "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, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Evidence Code section 1109, subdivision (a)(1), provides in relevant part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 1109, subdivision (e), provides: "Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109)." (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) The legislative history for Evidence Code section 1109 states: " 'The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. . . .' (Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 3-4.)" (People v. Johnson (2000) 77 Cal.App.4th 410, 419.) Accordingly, "the California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence." (Id. at p. 420.)
Cook concedes that both Matan's testimony regarding his prior physical attacks on her and the letters contained in People's Exhibit 7 were potentially admissible under section 1109 to show his propensity for stalking. (See People v. Ogle (2010) 185 Cal.App.4th 1138, 1140, 1142-1143 ["stalking is an act of domestic violence and admissible to prove propensity to commit the crime of making criminal threats"]; but see People v. Zavala (2005) 130 Cal.App.4th 758, 770-771 [concluding, without analysis, that trial court erred in instructing jury, pursuant to Evid. Code, § 1109, that it could consider evidence of prior domestic violence to infer defendant was likely to commit stalking].) Instead, Cook focuses his argument on Evidence Code section 352 and asserts that the details of his prior offenses should have been excluded as unduly inflammatory. He suggests that the letters contained in People's Exhibit 8 were merely "expressions of [his] concern for the safety of his son and his love for his son" and that the jury must have convicted him because "[t]he other crimes evidence was compellingly prejudicial."
To prove the stalking charge, the prosecution was required to show that Cook "willfully, maliciously, and repeatedly followed or willfully and maliciously harassed [Matan] and . . . [made] a credible threat with the intent to place [Matan] in reasonable fear for . . . her safety, or the safety of . . . her immediate family . . . ." (§ 646.9, subd. (a).) Thus, the evidence was also properly admitted, pursuant to Evidence Code section 1101, subdivision (b), to show Cook's intent and that Matan reasonably feared for her safety. (See People v. Ogle, supra, 185 Cal.App.4th at p. 1143; People v. Garrett (1994) 30 Cal.App.4th 962, 966-967 [holding defendant's prior assaults on victim admissible to show defendant's intent that words be taken as threat and threat caused victim "sustained fear" for her safety, as required to prove charge of making a criminal threat]; People v. McCray (1997) 58 Cal.App.4th 159, 172 [evidence of prior violence against victim was highly relevant to show defendant intended to place stalking victim in fear for her safety].)
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"Even if the evidence is admissible under [Evidence Code] section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.) A. Background
Before the jury was selected, the prosecutor moved to admit evidence of Cook's uncharged offenses, pursuant to Evidence Code, sections 1101, subdivision (b), and 1109. The prosecutor argued: "[I]t is a continuous course of conduct, and . . . [¶] . . . [¶] [i]t's relevant to [Cook's] intent and to [Matan's] fear, because you can take one letter out of the most recent case, and it . . . could seem pretty innocuous to any juror, but without knowing the entire history and the hundreds of letters and veiled threats in all of the different contacts, they would not understand her fear and how reasonable her fear is." Cook opposed the prosecutor's motion, arguing the evidence was unduly prejudicial. Specifically, Cook's trial counsel argued: "[W]e're going to dredge up all this other stuff, and the jury is going to hate and despise Mr. Cook for reasons beyond the facts of this case."
The court agreed that, under Evidence Code sections 352, 1101, subdivision (b), and 1109, evidence of the uncharged offenses was admissible. The court explained its ruling as follows: "In the Court's view, a case like this really involves the totality of a relationship. It's impossible to glean the intent and the fear of the relative parties by taking a single portion of a long relationship in a vacuum. There are stalking cases, threats cases in which somebody might leave a single rose on a doorstep, and to you or I that might be seen as one act, perhaps even a friendly act, but to somebody who's been stalked and threatened and has a history with another, depending on the context, just a simple act like that can be a horrifying threat, depending on their prior relationship and what the meaning of all those things is. [¶] It would be unjust to excise this long relationship . . . and admit only letters that [Cook] technically wrote to his son and require the People to prove a reasonable fear on the part of [Matan] based on what in a vacuum might seem innocuous. Another way to look at it is if one has a long history of stalking, abuse and violence, and is sentenced to prison for that, he's not entitled to wipe the slate clean and start over and have to build an entire new set of circumstances before he can be brought to justice again. All of those things are not erased from the mind of the alleged victim. [¶] In this case, [Matan's] fear can be expressed by the People by referencing the long history between her and [Cook.] . . . [¶] . . . [¶] On balance, with some sort of limiting instruction and the high degree of probative value, the Court's view is that Evidence Code Section 352 should not preclude the admission of [the uncharged offenses.]"
The court also dismissed Cook's argument that presentation of the prior offense evidence would necessitate undue consumption of time. Finally, the court reasoned: "I do agree that the degree of violence in the priors in comparison to the nature of the current offense is a consideration to be made. I've made that consideration in my [Evidence Code section] 352 analysis and conclude that with the limiting instruction and the strong probative value of the prior conduct, and the case authority and legislative intent and language behind [Evidence Code section] 1109, the probative value is overwhelming in its weight as compared to any potential prejudice. The priors will be then admitted under [Evidence Code section] 1109 as well." B. Analysis
In deciding whether propensity evidence is admissible under Evidence Code section 352, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶] . . . [T]he probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]" (People v. Falsetta (1999) 21 Cal.4th 903, 917.)
In assessing prejudice, we must remember that "[t]he 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. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. . . .' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
The trial court did not abuse its discretion in admitting evidence of Cook's prior criminal conduct. The court recognized that Evidence Code section 1109 reflects a legislative policy determination that prior acts of domestic violence have inherent probative value in later domestic violence prosecutions. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334.) Furthermore, the prior events gave context and assisted the jury in understanding why Matan was scared after receiving the recent letters, despite the fact that they contained few explicit threats to her physical safety. Matan's testimony regarding the previous threats and beatings she had received also countered Cook's argument that he was merely writing for the legitimate purpose of connecting with and inquiring about his son. (See § 646.9, subd. (e) [defining "harass" to mean "engag[ing] in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose"].) Thus, the court properly concluded that the disputed evidence had high probative value.
The evidence was limited to Matan's testimony and the corroborating documents. Accordingly, the trial court considered, but rejected, Cook's contention that presentation of the disputed evidence would necessitate undue consumption of time. The court did not consider admitting evidence of some, but not all, of Cook's prior conduct. But, all of Cook's prior criminal conduct involved the same victim and occurred within the presumptively relevant 10-year timeframe. We, like the trial court, see no reason why he should be entitled to wipe the slate even partially clean. Cook's previous letters to Matan, contained in People's Exhibit 7, may have been, on the whole, more overtly threatening. And, the letters contained in People's Exhibit 8 did express Cook's love for his son. But, these same letters were not without threats. For example, in one letter Cook wrote to Matan: "I will retaliate." Ultimately, it was clear to the jury that Cook was serving time when he sent the letters contained in People's Exhibit 8. Thus, there was little risk that that jury would convict Cook simply to punish him for his prior offenses.
In light of all of the above circumstances, we conclude that the trial court did not abuse its discretion when it concluded that the probative value of the uncharged offense evidence was not outweighed by its risk for undue prejudice. The jury was properly instructed: "If you conclude that the defendant committed the other offenses or acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Counts 1 and 2. The People must still prove every charge beyond a reasonable doubt."
III. DISPOSITION
The judgment is affirmed.
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Bruiniers, J.
We concur:
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Jones, P. J.
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Needham, J.