(Id. at p. 919.) Therefore, the improper application of section 352 in this particular instance is elevated to constitutionalerror. The admission ofthe uncharged offenses statement was unquestionably an error in federal constitutional law, and reversal is mandated unless respondent can prove the error harmless beyond a reasonable doubt.

The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendantas an individual and whichhasvery little effect on the issues... In applying section 352, “prejudicial” is not synonymouswith “damaging.” ‘ [Citation.

That conclusion was certainly an important factor in the jury’s decision in favor of death. Beswick’s failure to renew his objection to Morrison’s testimony based on section 352 coupled with his failure to conduct any investigation, prejudiced Appellant. Because of Mr. Beswick’s incompetence at this crucial phase ofthetrial, the penalty phase verdict should be invalidated.

Exh. 73, Peo. Trial Exhibit 40. 656. During the penalty phase of Petitioner's trial, Trial Counsel objected to the introduction of the crime scene of the Paramount killings video on the ground that it was more prejudicial than probative pursuant to California Evidence Code section 352, but the trial court nevertheless allowed the video to be played to the jury without sound. RT 1997-98.

Even if the 1981 dissociation was relevant, the 1981 crime was not. It is commonplace under Evidence Code section 352 56 to limit evidence to its relevant and probative aspects while excluding unduly prejudicial factors. See People v. Cole, 31 Cal. 3d 568, 680 (1982).

Indeed, it is impossible to imagine any reason why an attorney in a capital case would consent to the prosecution’s substantial reliance on completely irrelevant and inflammatory evidence. Had the evidence been challenged by the defense, the court would have weighed the admissibility of this evidence under Evidence Code section 352, and would have found that, if the evidence had any probative value at all, it was far outweighed by the prejudice that it engendered. The admission ofthis evidence thus rendered Mr. Benavides’s trial fundamentally unfair in violation of his constitutional rights on this ground as well.

This is non-responsive to the contention that the uncharged conspiracy theory wasusedas a substitute for evidence that appellant Vo wasguilty ofthe charged offenses, and the state failed to provide constitutionalpretrial notice of the breadth and object(s) of the alleged conspiracy. 128 Hajek’s letters are hearsay, are not shown to be adoptive admissions,are irrelevant and objectionable under Evidence Code §352 (16 RT 3903); and that the admission of this evidence would invite jurors to speculate sinceit is unclear who waspart of the alleged conspiracy, and what the object of the alleged conspiracy was. (16 RT 3903.)

(Wheeler, 4 Cal.4"at p. 300.) Even though such evidence regarding Mrs. Carr’s convictions might have been relevant, under Evidence Codesection 210, nonetheless the potential for prejudice far outweighed any possible probative value, under Evidence Code section 352. A trial court should, andin this case did, “consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighsits probative value.”

" Pet. 87 ~~ 226-27. N73079964.1 42 Trial Counsel failed to object to any of this prejudicial testimony, which violated Evidence Code section 352. Pet. 86 ~ 225. He had no tactical reason for not objecting and moving to strike this highly inflammatory testimony.

(Cf. Davis v. Alaska (1974) 415 US. 308, 320 [39 L.Ed.2d 347, 356, 94 S.CT. 1105][state procedural restriction on cross examination not permitted to defeat Sixth Amendmentright to confront); Chipmanv. Mercer (9th Cir. 1980) 628 F.2d 528, 530-532 [California Evidence Code section 352 restriction on impeachmentevidence cannotdefeat the Sixth Amendmentright to cross examine]; People v. Reeder (1978) 82 Cal.App.3d 543. [Judge's statutory discretion under Penal Codesection 352 may notoverride the defendant's substantive due processrights].) For these reasons, excludingracial and cultural considerations whereit hurt the defense and allowing them whereit helped the prosecution unfairly deprived appellant of due process anda fairtrial.