Opinion
A137759
04-09-2014
THE PEOPLE, Plaintiff and Respondent, v. OKALANI FABINA LATU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County
Super. Ct. Nos. SC071794A,
SC075715B)
I. INTRODUCTION
Appellant Okalani Fabina Latu was convicted by a jury of several charges related to shooting his friend and neighbor, Maurice Perez, in the face. On appeal, he contends the trial court erred in admitting evidence of a prior assault to prove intent and absence of mistake or accident. Appellant also notes an error in the abstract of judgment, with which the Attorney General agrees. We find no evidentiary error, but agree with the parties that the abstract of judgment must be amended to correct a clerical error. We direct the trial court to correct the error in the abstract ofjudgment. In all other respects, the judgment is affirmed.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2012, the San Mateo District Attorney filed an information charging appellant with attempted murder (Pen. Code, §§ 664/187, count), mayhem (§ 203, count 2), assault with a firearm (§ 245, subd. (a)(2), count 3), and being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 4). The information also charged allegations as follows: intentional and personal firearm use (§ 12022.53, subd. (d)) as to counts 1 and 2; and personal use of a firearm and personal infliction of great bodily injury (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a)) as to count 3. In addition, the information alleged that appellant had a prior serious felony conviction and a prior strike conviction (§§ 667, subd. (a), 1170.12, subd. (c)(1)).
All further unspecified statutory references are to the Penal Code.
At trial, the evidence showed that after a night of heavy drinking, appellant shot Perez in the face. There was no issue as to whether appellant committed the act. Appellant defended his case on the theory that he had fired the gun accidentally.
Prosecution Case
On February 15, 2012, around 2:30 a.m., San Mateo County Deputy Sheriff Michael Marty responded to a report of someone bleeding from the face on San Carlos Avenue. He found Maurice Perez, whose face was bleeding profusely, and attempted to administer first aid as Perez went in and out of consciousness. Deputy Marty feared Perez was going to die. Marty asked Perez what had happened; Perez told him, "Lani did it. He shot me." Perez was transported to the hospital when paramedics arrived.
Deputy Marty learned that a vehicle had been stopped by another deputy about 75 to 100 yards from where he had found Perez. There were three individuals in the vehicle: appellant was in the front passenger seat, Sefita Afu was in the driver's seat, and Alejandro Arguello was in the back seat. A holster for a small caliber firearm was on the rear floorboard. Appellant said nothing about the shooting before he was placed under arrest. He did not seem impaired or intoxicated. A pair of stained white latex gloves was found in his back pants pocket.
An expended .25 caliber shell casing was found in the street near an area saturated with blood. Two t-shirts appellant had been wearing, collected after his arrest, tested positive for gunshot residue particles on the neck and shoulders. A half-full bottle of alcohol was found in appellant's car. Also entered into evidence were several photographs from appellant's cell phone depicting: (1) an AK-47 firearm with a banana- clip magazine; (2) appellant's left hand and a handgun; and (3) four people inside a residence.
Perez testified that he and appellant had been neighbors. They often drank together in the evenings with other individuals from their neighborhood in Redwood City. Perez was also friends with Alejandro Arguello. On the night of February 14, 2012, he, appellant, and Arguello were drinking beer and tequila in appellant's car outside his apartment. At some point, they drove to a nearby pizza place to eat and play pool. After about an hour, they returned to appellant's apartment where they met a young woman who lived in the same complex. The four of them went to a bar in Palo Alto, where they each had four or five drinks. The group left the bar around 2:00 a.m. and returned to appellant's apartment complex, where they dropped off the woman.
Appellant, Perez, and Arguello drove off again in appellant's car. Appellant drove to a neighborhood of expensive houses and parked the car. At first, appellant asked Arguello to go with him and told Perez to stay in the car. Then appellant repeatedly asked Perez to go with him, too. Perez repeatedly told appellant he did not want to go with him. Perez had had contacts with law enforcement, and he was concerned about what they were planning to do. When Perez said he did not want to go, appellant "looked a little bit angry. He looked upset." Appellant had become more persistent in his requests, but Perez "had a bad feeling. . . . I just knew nothing good was gonna come out of it."
Eventually, and because appellant kept urging him to get out of the car, Perez did in fact get out of the vehicle. After taking a couple of steps, he felt an arm go around him and then felt something against his cheek. Then there was a flash; appellant had fired a gun into Perez's cheek. Perez fell to the ground. He could see appellant holding a gun, looking surprised. Appellant did not say anything before, during, or after the shooting. There was no argument or physical altercation between appellant and Perez, and Perez did nothing to cause the gun to fire accidentally. Arguello was still on the sidewalk by appellant's car. After he was shot, Perez noticed that appellant was wearing white latex gloves.
Perez ran to seek help. He feared appellant would shoot him again. The occupants of a nearby house gave Perez a towel to hold against the wound and called for help. While Perez was waiting for an ambulance, he saw appellant and Arguello drive by slowly and look at him.
The police arrived and Perez was transported to the hospital. As a result of being shot, Perez could no longer taste or smell anything and his hearing was impaired. The bullet was still lodged in his neck.
Trauma surgeon David Gregg, M.D., testified that Perez had suffered a gunshot wound to the face with no exit wound. The bullet missed many vital areas, including his airway, major arteries and veins, and his spinal cord, and lodged in the bony portion of the second cervical vertebrae. The bullet was fired at point blank range, causing tearing and burning of the skin around the bullet hole. Perez was "amazingly lucky" to be alive. The bullet fractured the base of his skull, leading to loss of smell and, secondarily, taste, which was likely to be permanent. The bullet's trajectory impacted a portion of the ear anatomy outside the brain, causing his hearing loss. Perez also suffered fractures of his cheek bone and other facial bones. A gunshot wound in that location is frequently fatal or, with the exception of Perez, "almost invariably . . . associated with significant disability."
Detective Hector Acosta talked to Perez at the hospital. Perez was not expected to survive. Perez identified appellant as the shooter. He said appellant had been yelling at him before the shooting, but that "they were friends and everything was fine." He said appellant shot him "for no reason."
Detective Acosta interviewed appellant after his arrest. Appellant said he had been out drinking with Perez and Arguello, and that he and Arguello dropped Perez and an unknown woman off at Perez's house. Appellant then drove to Afu's house; he wanted Afu to take him to get something to eat. As they were driving, appellant noticed police activity and asked Afu to drive toward it. Appellant said he had no knowledge of a shooting. He denied firing a gun that night and, when asked if the police would find any gunshot residue on him, appellant said, "probably not." When the officers accused him of shooting Perez, appellant denied it. He did not ask about Perez's condition or who may have been responsible. Detective Acosta played an audio recording of Perez saying that appellant shot him, after which appellant continued to deny shooting Perez. Appellant also denied any knowledge of the guns and ammunition that had been found behind a paint store. When shown the photograph from his cell phone of his left hand and a gun, appellant said he did not recall taking the photograph and did not recognize the gun.
Sefita Afu, appellant's cousin, was close to appellant and saw him frequently. Afu testified regarding a prior incident involving appellant. On July 31, 2010, appellant was at Afu's home for a family barbecue. Afu's friend Eric Chavez was also there. Appellant drank about 10 beers. Everyone seemed to be having a good time. At some point, appellant, Afu, and Chavez walked to appellant's car to put some food away before appellant left. On the way to the car, appellant struck Chavez, who had not been looking at him, hard in the mouth. There had been no argument, threat, or any other verbal or physical provocation before the attack. As Chavez and appellant were standing side by side, appellant hit him so hard in the jaw that he fell to the ground. As Chavez lay on the ground, appellant kept punching him. Chavez tried to move underneath a car to get away from appellant, but appellant pulled him out to keep hitting him. Appellant punched Chavez numerous times in the face, but Chavez did not fight back; he was trying to cover up and protect himself. While appellant was hitting Chavez, Afu tried to grab him to make him stop, but appellant was too strong. Afu learned afterwards that appellant had gotten in trouble for the incident, and he did not see him for awhile.
Regarding the charged offenses, Afu testified that on February 15, 2012, at around 3:00 a.m., he was awakened by several phone calls. He did not know who called and did not recognize the phone number. Afu then heard a knock at his door. Appellant was there, alone, wearing white latex gloves. Afu could tell appellant had been drinking. Appellant asked Afu if he could give him a ride to his friend's car, and Afu agreed. When he went outside, Afu saw appellant's silver Infinity and another person he did not know, whom the parties stipulated was Arguello, standing by appellant's car. The three men got into Afu's Nissan Sentra. Afu was driving, appellant was in the front passenger seat, and Arguello was seated in the back behind appellant. Appellant directed Afu to a paint store near Woodside Road and San Carlos Avenue, where Afu pulled into a parking space and stopped the car. Appellant asked Arguello "to give him the stuff." Afu could not tell what Arguello gave to appellant. Appellant got out of the car and went over to the dumpsters. Afu could hear something being thrown in; it sounded like more than one metallic object. Afterward, they drove down San Carlos Avenue and Afu heard appellant say, " 'We fucked somebody up.' " Appellant did not explain, and Afu did not ask any questions. Appellant never said anything about an accident; he was "kind of laughing" when he said it. Appellant then directed Afu to drive toward an area of police activity to "check it out, see what was going on." When they arrived in the area, the police detained them.
Two handguns and some loose ammunition were subsequently found behind a pile of pallets next to the dumpsters in the parking lot behind the paint store. Both guns were loaded. The safety on the semiautomatic pistol was off, there was a round in the chamber, and the hammer was pulled back, consistent with having been discharged.
Criminalist Eugene Banga-an examined the two handguns. One was a semiautomatic .25 caliber handgun. It had no alterations or defects. The gun was functional and the safety operated correctly. Banga-an hammered on the gun in different places to see if it would accidentally discharge, but it did not. In single-action mode, the trigger pull pressure required to fire the gun was two and a half to three pounds. In double-action mode, the trigger pull pressure was six and a half to seven pounds. Banga-an test-fired the gun to compare a test casing with the casing recovered from the scene; he was able to conclude that the casing recovered from the scene was fired from the recovered .25 caliber pistol. The second handgun was a .38 caliber revolver. Banga-an detected no problems with respect to its operability, safety, and functionality. Neither gun would fire without pulling the trigger.
The correctional officer who processed appellant into the housing unit of the jail testified that another inmate asked appellant why he was in custody. Appellant answered, "Shot someone in the face." He said nothing about it being an accident.
Defense Case
John Jacobson, an independent forensic consultant, examined the .25 caliber semiautomatic handgun recovered in this case. The gun was fully functional with no mechanical defects, and all the safety features functioned normally. Jacobson was unable to make the gun go off without pulling the trigger. In single action mode, the trigger pull pressure required to fire the gun was 3.17 pounds; in double action mode, it was 7.41 pounds. Jacobson opined that the gunshot wound was a "hard contact shot," meaning that the muzzle of the gun was against the victim's skin when it was fired. For the gun to have fired, a loaded magazine was inserted in the gun, there was a round in the chamber, the safety was off, and the necessary pressure was applied to the trigger. If there was bumping or movement between the two people involved, the person with the firearm would still have to have the gun in his hand with his finger on the trigger while the gun was up against the other person's head.
Appellant testified in his own defense. With respect to the 2010 incident at his cousin's house, appellant said Chavez arrived as he was leaving. Chavez called appellant "a pussy" when appellant said he did not want to smoke marijuana. In response, appellant "just like smiled at him." They stood around drinking, and then appellant got some phone calls from friends inviting him to come over and drink with them. Appellant walked to his car and Chavez was leaning on it. Chavez did not move when appellant told him to, so appellant punched him. Appellant testified that he punched Chavez because he called him a "pussy" earlier; appellant was still mad about that. Appellant said he punched Chavez two or three times and then he went down; appellant continued to kick him after he went down. As a result, appellant pled guilty to "assault and battery" and spent a year in jail.
Appellant was aware of the two firearms recovered in this case. The .38 caliber gun used to belong to him. Before he went to jail, he sold it to Arguello. After he was released from jail, he knew he was not supposed to have a gun, but he bought the .25 semiautomatic for protection because of gang activity in his neighborhood.
Appellant testified that Perez was "a good friend," "like a brother to me." When appellant saw Perez on February 14, 2012, they had not seen each other since appellant's release from custody about a week earlier. They started drinking tequila and beer together in appellant's car. After awhile, Arguello joined them. They went to a pizza place because Arguello was hungry; then they went to a liquor store and bought more tequila and beer. They returned to appellant's parking lot to continue drinking. At some point, a young woman who was a friend of Arguello's joined them. The four of them went to a bar and had several more drinks until the bar closed. They drove back to appellant's apartment complex and the woman left.
Appellant said he and Perez had "other plans." They "decided to go do a [sic] auto burglary." Appellant drove to an area they had never been to before. They saw a lot of cars parked in a driveway, so they pulled over to see if any of the doors were open. Appellant parked his car and put on some gloves; he also gave some gloves to Perez. He and Perez got out of the car to urinate. At that point, appellant changed his mind and decided he did not want to end up back in jail again. Perez said he did not want to do it, either. Appellant walked over to Perez and put his hand around him; Perez had his hand around appellant. They decided to go back home and keep drinking. "And then that's when the thing happened." Appellant said he grabbed his gun when they got out of the car to urinate. He wanted it in case they needed to scare someone while they were breaking into cars, so they would be able to get away. Appellant said that earlier he had been playing with the hammer of the gun. He put his right arm around Perez and had the gun in his left hand.
As they stood there talking and laughing, with their arms around each other, appellant heard the gun go off. Appellant was "shocked" that the gun went off and did not know that Perez had been shot. Perez fell to the ground and appellant asked him if he was okay. Appellant tried to help him up, but Perez got up and ran toward some houses. Appellant called out to him that they needed to leave; he was afraid of getting in trouble for having the gun. He saw Perez knock on some doors and saw someone answer. Appellant got in his car and drove by slowly to be sure appellant was okay. He saw Perez holding a towel to his face. Appellant then drove away fast. He could see that Perez was getting help, and he knew that he would be "in big trouble" because of the gun, alcohol in the car, and driving drunk.
Appellant testified that he did not intentionally fire the gun. He did not know what happened. "Maybe I had my hand on the, hit the trigger part and caused the gun to go off or something. I don't know." If he had meant to shoot the gun, he would have had it in his right hand. After driving away from the scene, appellant went to his cousin's house and changed cars. He got rid of the guns by throwing them behind a dumpster. They drove to the area of police activity because appellant "just wanted to make sure he [Perez] was okay."
On cross-examination, appellant admitted that, after being arrested, he lied to Detective Acosta because he did not want to get in trouble. Appellant bought the .25 caliber gun a day or two after getting out of jail from an acquaintance in his neighborhood. He got the .38 caliber gun from someone in San Bruno. He also had a shotgun when he was 18, but he never intentionally fired any of the guns. He denied ever having an AK-47, but acknowledged having a photograph of one on his phone. He admitted he liked guns.
Regarding the 2010 incident involving Chavez, appellant acknowledged hitting Chavez when he did not move away from the car. Appellant said he stopped hitting Chavez when he went underneath the car; no one tried to get him to stop.
The night of the shooting, appellant did not know if Arguello heard him discussing auto burglaries with Perez. Appellant did not see Arguello with the .38 that night, but acknowledged that he dumped both guns behind the dumpster.
Appellant described getting out of the car with Perez and grabbing his gun. He had the gun in his left hand, and he and Perez had their arms around each other. They were talking and laughing. Appellant said he never put the gun to Perez's head. He remembered having it in his hand, but did not remember where it was pointed when it went off. The gun was at his side and he had Perez in a headlock with his right arm against the right side of his body; Perez's head was in front of him. Appellant demonstrated the positioning in court. He had two fingers on the handle of the gun and the other two fingers were off the trigger. The gun did not touch Perez's face; appellant held it about 16 inches away from Perez's head. The prosecutor asked appellant if, when he was walking around with the gun, his finger was on the trigger. Appellant responded, "Maybe I did it, but I don't remember. I just heard the gun went off. And then I was just shocked when the gun went off. That's it." Further, "I didn't pull the trigger. When I have my hand around him, you know, when I was playing around with him, that's when the gun went off." The two had their arms around each other's necks and were wrestling "[a] little bit." He did not know if Perez saw him holding the gun. They were "just drunk and being stupid."
After the shooting, he knew he had to get rid of the gun. He admitted to switching cars at Afu's house because he did not want to be caught in his car after the shooting. He threw away the gloves and beer from his car in Afu's garbage. He did not tell Afu that he had been involved in a shooting or that the gun had gone off accidentally. Appellant did not stay to help Perez because he saw Perez getting help and he did not want to get in trouble because of the gun. Appellant denied that he was yelling at Perez prior to the gun going off. He also denied that he joked about somebody getting "fucked up."
The jury acquitted appellant of the attempted murder charge, but found him guilty of the other three offenses and found the related allegations to be true. The jury also found true the prior conviction allegations. On count 2, the trial court sentenced appellant to the four-year midterm, doubled as a second strike, plus five years for the serious felony prior, in addition to 25 years to life for the firearm enhancement. The court imposed doubled midterm sentences on the remaining counts, but ordered the sentences stayed. The total prison term is 38 years to life.
Appellant filed a timely notice of appeal.
III. DISCUSSION
A. Evidence of Prior Assaultive Conduct.
Appellant contends the trial court erred in admitting evidence of his previous assaultive conduct. He argues the evidence was improperly used to prove propensity and violated his due process rights.
1. Background.
Before trial, the prosecution filed an in limine motion requesting the admission of evidence of three prior assaultive incidents under Evidence Code section 1101, subdivision (b). The defense moved to exclude his prior assault conviction and opposed admission of any evidence of prior assaultive conduct, arguing the incidents mainly showed appellant's propensity to commit such acts and that the evidence was unduly prejudicial. The court heard argument on the motions.
The prosecution originally sought admission of evidence of three prior assaultive incidents. Only one of these incidents is at issue in this appeal, so we will limit our discussion accordingly.
The prosecutor argued it was the People's burden to prove all the elements of the charged offenses, including the specific intent required for the attempted murder and mayhem charges. An incident that took place in July 2010 and resulted in appellant's conviction was recent and similar to the instant offenses in that it involved appellant's drinking and then an unprovoked violent assault. The prosecutor expected the defense would be that the shooting was not intentional, i.e., an accident. Therefore, the prior incident was relevant and probative on issues including whether he fired the gun intentionally, intent to kill, absence of mistake or accident, and common plan or scheme. The prosecutor acknowledged the prejudicial effect of the evidence, but argued that it was highly probative that the shooting was not an accident. The 2010 incident was also the subject of a separate probation violation matter. The prosecutor intended to call only one witness to testify about the incident, and that witness was already on the witness list to testify regarding the charged offenses. Defense counsel opposed admission of the incident, arguing there were disputed facts about the offense, it was not sufficiently similar to be probative, and it was improper propensity evidence.
The trial court decided to admit the July 2010 incident. The court explained its ruling: "Starting with the [July 2010] incident I think there are, there clearly are some prejudicial effect. It would be foolish to not recognize that. [¶] However, I do think there are legitimate 1101 purposes for that, admission of that incident that go beyond strictly propensity. I think it can be demonstrative of intent which is certainly a major issue in a crime charged such as this. It can be evidence of motive. Perhaps preparation [or] plan if we're talking about analyzing this from the standpoint of presence or absence of premeditation. The absence of mistake or accident which is something Mr. Fitzgerald as prosecutor needs to contend with. In the absence of a specific defense he needs to assume a possible variety of defenses. [¶] I think all of those are legitimate 1101 purposes that need to be balanced against what admittedly a prejudicial effect and some, admittedly also some tendency to show propensity. However, where both purposes exist then the Court has a weighing decision. And I rule in this matter that the July 31st, 2010 incident can be admitted and that it does not seem to me to be unduly prejudicial, nor unduly consuming of time and does have relevance. So I'll admit that."
Before Afu testified at trial, defense counsel renewed his objection to the evidence regarding prior conduct. The prosecutor agreed that Afu would not be permitted to speculate regarding what appellant was thinking at the time of the prior incident.
During a discussion on jury instructions, defense counsel objected to CALCRIM No. 375 on other crimes evidence. The court noted that the objection pertained to the evidence of the July 2010 Chavez incident. The prosecutor suggested that the form instruction be edited to limit the use of the prior conduct evidence to purposes of (1) intent and (2) absence of mistake or accident. The court modified the instruction to specify those two purposes. Subsequently, the court instructed the jury with the modified version of CALCRIM No. 375.
2. Legal Principles.
"Evidence Code section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b) of the statute, however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .).' " (People v. Cole (2004) 33 Cal.4th 1158, 1194; see People v. Edwards (2013) 57 Cal.4th 658, 711; People v. Lindberg (2008) 45 Cal.4th 1, 22.)
" 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg, supra, 45 Cal.4th at p. 22.) " 'Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. "Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome [citation].' " ' [Citation.]" (People v. Edwards, supra, 57 Cal.4th at p. 713.)
"To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented. The least degree of similarity is needed when, as here, the evidence is offered to prove intent. [Citation.]" (People v. Jones (2011) 51 Cal.4th 346, 371; see also People v. Scott (2011) 52 Cal.4th 452, 470 ["A higher degree [of similarity] is required to prove common plan, and the highest degree to prove identity."].) To be admissible to show intent, the prior offense and the charged offense must be sufficiently similar to support the inference that the defendant probably harbored the same intent on both occasions. (People v. Davis (2009) 46 Cal.4th 539, 602.) "[T]he recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent. [Citations.]" (People v. Jones, supra, 51 Cal.4th at p. 371.)
Our Supreme Court has observed that " 'intent' and 'absence of accident' merely reflect[] two ways of describing the same relevant issue, namely, that defendant performed the acts [that killed the victim] intentionally rather than accidentally." (People v. Whisenhunt (2008) 44 Cal.4th 174, 204.) "[W]hen a defendant admits committing an act but denies the necessary intent for the charged crime because of mistake or accident, other-crimes evidence is admissible to show absence of accident. [Citation.]" (Ibid.)
"We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." (People v. Cole, supra, 33 Cal.4th at p. 1195.) The trial court's decision "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
3. Analysis.
Appellant contends the prior offense evidence should not have been admitted because it was not sufficiently similar to the charged offense to be admissible on the issue of intent/absence of mistake or accident under Evidence Code section 1101, subdivision (b). Appellant emphasizes that the prior incident involved using his fists in a sustained attack on a victim who was a stranger, while the instant charges were based on an accidental shooting of a close friend. He acknowledges the prosecution's argument that the two incidents involved unprovoked acts of violence by appellant after he had been drinking, but argues that the similarities end there. We find no abuse of discretion by the trial court.
Appellant conceded that he was holding the gun when it discharged, injuring Perez, but claimed that the discharge was accidental, i.e., he did not intend to shoot. The count 2 charge of mayhem included the element of malice. (See People v. Rodarte (2014) 223 Cal.App.4th 1158.) As applicable to mayhem, the jury was instructed that "Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else." (CALCRIM No. 801.) The enhancement alleged as to count 2, that appellant personally discharged a firearm and caused great bodily injury (§ 12022.53, subd. (d)), required proof that the discharge was intentional. The jury was instructed that the People were required to prove that appellant "intended to discharge the firearm." Assault with a firearm, count 3, is a general intent crime and required that appellant act willfully. (See People v. Valdez (2002) 27 Cal.4th 778, 787.) The intent required for a general intent crime is "the purpose or willingness to do the act or omission." (People v. Johnson (1998) 67 Cal.App.4th 67, 72.) As to count 3, the jury was instructed that "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage." (CALCRIM No. 875.) Thus, whether appellant acted intentionally was a key issue at trial. (See People v. Lindberg, supra, 45 Cal.4th at p. 22 [first requirement for admissibility of other crimes evidence is the materiality of the facts sought to be proved].)
Prior crimes evidence "is admissible in cases where the proof of defendant's intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident." (People v. Kelley (1967) 66 Cal.2d 232, 242-243 [concerning sexual crimes].) To show intent, the factual similarities of the prior crime and the charged offense need not be great. (People v. Jones, supra, 51 Cal.4th at p. 371.) Rather, the evidence must be sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. (People v. Davis, supra, 46 Cal.4th at p. 602.) Dissimilarities between the crimes go to the weight of the evidence and do not preclude the prosecution from introducing the evidence of prior conduct. (People v. Edwards, supra, 57 Cal.4th at p. 712 [prior misconduct evidence used to show identity; highest degree of similarity required], citing People v. Carter (2005) 36 Cal.4th 1114, 1148 [same].)
We disagree with appellant that the prior offense and the charged conduct were too dissimilar to admit the prior as evidence of intent or absence of mistake or accident. In the prior assault, appellant had been drinking heavily and attacked Chavez either for no apparent reason or because he felt provoked. According to Afu, appellant suddenly attacked Chavez, knocked him to the ground and continued beating him, for what appeared to be no reason. Afu also testified that Chavez had been present during the gathering, which conflicted with appellant's testimony that Chavez arrived as appellant was leaving. In contrast to Afu's testimony, appellant testified that Chavez both insulted him and subsequently refused to move away from his car when appellant wanted to leave. Appellant testified that he felt "disrespected" when Chavez insulted him, and stated that respect and "disrespect" were important to him.
In the present case, appellant and Perez had been drinking heavily for hours. Perez testified that, when they parked in the unfamiliar neighborhood, appellant wanted him to get out of the car and got "upset" and "a little bit angry" when Perez refused to do so. When Perez did get out of the car, he almost immediately felt appellant's arm around him and then the gunshot. Perez told Detective Acosta that appellant shot him for no reason.
Thus, the evidence showed that, on both occasions, appellant engaged in seemingly unprovoked attacks on another individual. There was also evidence that, on both occasions, the victim refused to comply with appellant's wishes: Chavez refused to move away from appellant's car and Perez refused to get out of the car and go with appellant. A jury could infer that on both occasions appellant lashed out because he felt "disrespected." Stated another way, the prior attack on Chavez tended to show that the gun discharge was not accidental; it had a tendency to prove intent with respect to the current offenses. (See People v. Lindberg, supra, 45 Cal.4th at p. 22 [second requirement for admissibility is tendency of the uncharged crimes to prove material facts].)
Appellant also argues that the prior offense should not have been admitted because of its prejudicial effect. Although the court instructed the jurors with a version of CALCRIM No. 375 not to consider the prior offense evidence to show propensity or bad character, appellant contends it is likely the jury did just that. Other crimes evidence is "inherently prejudicial," and decisions regarding admission of such evidence must be made with " 'extreme caution,' and all doubts about its connection to the crime charged must be resolved in the accused's favor." (People v. Alcala (1984) 36 Cal.3d 604, 631.)
In People v. Holford (2012) 203 Cal.App.4th 155, 167, our colleagues in the Third District considered the prejudice analysis required under Evidence Code section 352: "This court has noted 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.' " [Citations.]' [Citation.]" (People v. Holford, supra, 203 Cal.App.4th at p. 167.) Moreover, "[e]vidence is not inadmissible under section 352 unless the probative value is 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice or other statutory counterweights." (Ibid.)
Appellant fails to establish that the prior offense evidence violated Evidence Code section 352 or any other rule or policy requiring the exclusion of the evidence, the third requirement for admissibility under People v. Lindberg, supra, 45 Cal.4th at page 22. The prior offense evidence was presented through one witness, Afu, and it was brief. In our view, and contrary to appellant's argument to us, the testimony describing appellant hitting and kicking Chavez was no more inflammatory than the testimony concerning his shooting Perez in the face, a circumstance that tended to decrease the potential for prejudice because it was unlikely that "the jury's passions were inflamed by the evidence of [appellant's] uncharged offense[]." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Moreover, although neither party argues this point, appellant was convicted of the prior offense, thus lessening the risk that a jury would be tempted to punish appellant for it regardless of whether it considered him guilty of the instant charges. (See ibid. [noting that the prejudicial effect of other crimes evidence is heightened where the uncharged acts did not result in criminal convictions].) Further, the court instructed the jury not to conclude from the prior offense evidence that appellant had a bad character or was predisposed to commit crimes, but only to consider the evidence for the limited purposes of determining whether or not appellant "acted with the intent required for the crimes alleged" against him in this case or his "alleged actions were the result of mistake or accident." The jury is presumed to have followed this instruction. (People v. Jones, supra, 51 Cal.4th at p. 371; People v. Lindberg, supra, 45 Cal.4th at pp. 25-26.) Finally, the Attorney General points out that the jury necessarily would have heard some of the evidence of the prior offense because the jury was charged with determining the truth of the allegations that appellant had a prior serious felony offense and a prior strike offense, both of which were based on the Chavez assault.
Thus, the prior offense evidence did not pose " 'an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Edwards, supra, 57 Cal.4th at p. 713.) The trial court's determinations that the prior offense was sufficiently similar to the charged offense and that its probative value was not " 'substantially outweighed by concerns of undue prejudice, confusion, or consumption of time' " (ibid.), were not abuses of its discretion.
Even if appellant could show the trial court erred in admitting the prior offense evidence, he could not show prejudice. First, the jury acquitted him of attempted murder, the most serious charge against him. This suggests that the prior offense evidence was not as damaging as appellant claims. Second, the other evidence against appellant was strong. Appellant admitted to holding the gun in his hand with his other arm around Perez when the gun discharged into Perez's face, and he admitted to having handled the gun earlier in the evening. Neither expert could cause the gun to discharge accidentally; both testified that it was necessary to exert the necessary amount of pressure on the trigger to cause it to shoot. Although appellant testified at length, his testimony conflicted with Perez's and with the physical evidence, and it appears that the jury did not find him credible. In addition, the evidence established that appellant was a felon in possession of a firearm; he testified to that fact and knew he was not supposed to have a firearm. Under the circumstances, appellant fails to show that it is reasonably probable he would have received more favorable verdicts had the court excluded the prior offense evidence. (People v. Jones, supra, 51 Cal.4th at p. 372; People v. Watson (1956) 46 Cal.2d 818, 836.)
Finally, appellant contends the admission of the prior offense evidence violated his constitutional right to due process. The argument is based on appellant's contention that the prior offense evidence was used to prove propensity, a premise we have already rejected. Moreover, because we have already concluded that the evidence was properly admitted, his constitutional claim fails. (People v. Rogers (2013) 57 Cal.4th 296, 332; People v. Valdez (2012) 55 Cal.4th 82, 134.) B. The Abstract of Judgment.
Appellant points out that, with respect to the conviction for mayhem, count 2, the court imposed a five-year enhancement for the serious felony prior pursuant to section 667, subdivision (a). The abstract of judgment correctly reflects the five-year sentence, but incorrectly states the term was imposed under Penal Code section 667.5, subdivision (c)(8). The Attorney General acknowledges the error. We order the abstract of judgment amended to reflect the correct section of the Penal Code. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
IV. DISPOSITION
The superior court is instructed to amend the abstract of judgment to properly reflect the five-year enhancement for the serious felony prior conviction was imposed pursuant to Penal Code section 667, subdivision (a), and not Penal Code section 667.5, subdivision (c)(8). The clerk of the superior court shall send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
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Haerle, J.
We concur: _________________
Kline, P.J.
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Richman, J.