(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a). The limitations provided by Cal. Evid. Code §1101 do not bar admission of this evidence: (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence ofa person’s characteror trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances ofhis or her conduct) is inadmissible when offered to provehis or her conduct on a specified occasion. (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when 623 relevant to prove somefact (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 anact.

R. 552-54. 2 See Cal. Evid. Code § 1101(b) (permitting admission of such evidence in fraud actions); Morris Stulsaft Found. v. Superior Ct., 245 Cal. App. 2d 409, 422-23 (Cal.

Certainly, inthis case, the prosecutor used the Cube robberies to make an improper and inflammatory guilt phase argumentto the jury. As argued ante and in the openingbrief, not only did thetrial judge err in denying Mr. Leon’s motion, pursuantto both sections 1101(b) and 352, to exclude the testimony of Julio Cube, he violated Mr. Leon’s constitutional rights to a due process anda fair trial because this evidenc e 58 tainted the trial by lightening the State’s burden of proof and allowing the Jury to convict Mr. Leon based,at least in part, on evidence of criminal propensity which had limited probative value while being unduly prejudicial. The State cannot prove beyond a reasonable doubtthat the impropertestimony of Mr. Cube did not affect the convictions and death sentencein this case.

People y. Benavides, 35 Cal. 4th 69, 93 (2005). This Court held that, because Consuelo’s prior injuries were similar to herfatal injuries of November 17, 1991, this evidence was admissible under Evidence Code section 1101, subdivision (b), to show that an accident did not cause herfatal injuries. /d.

The existence or nonexistenceofa criminal recordis oftoolittle probative value to be admissible for any purpose. (California Evidence Code sections 352 and 1101; People v. Ozuna (1963) 13 141 Assumingthis Court disagrees with petitioner’s claim offutility, petitioner claims thattrial counsel’s failure to object on specific grounds of a due process violation amountedto ineffective assistance of counsel. Astrial counsel did object for the record, it was unnecessary for him to request a curative instruction.

Thetrial court therefore erred in allowing Ms. Loftonto testify about unidentified death threats that she claimed impacted her memory and were the reason for her dramatically changed testimony. b. Gang Affiliation Evidence of a defendant’s criminal disposition is inadmissible to prove he committed a specific criminal act. (Cal. Evid. Code §1101; see also People v. Ruiz (1998) 62 Cal.App.4th 234, 240. This Court has recognized that “admission of evidence a of criminal defendant’s gang membership creates a risk the jury will improperly infer the defendanthasa criminal disposition and is therefore guilty of the offense charged.”

The evidence that Appellant was unemployed wasnotprobative of Appellant’s mental state under California and federal authorities. (See Cal. Evidence Code § 1101; Wilson, supra, 3 Cal.4th at 939; Bensimon, supra, 172 F.3d at 1129; and Edelbacher, supra, 47 Cal.3d at 1024). Nevertheless, it was used by the prosecutor to establish a motive for the commission of a violent offense and special circumstance.