Opinion
C081998
12-22-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DALE BOTTENFIELD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F05353)
A jury found defendant Michael Dale Bottenfield guilty of false imprisonment (Pen. Code, § 236) and willful infliction of corporal injury resulting in a traumatic condition upon a person with whom he has, or previously had, a dating relationship (id., § 273.5, subd. (a)). The jury also found true the allegations he personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (e). In a bifurcated proceeding, the trial court found true the allegations he had a prior serious felony conviction (id., § 667, subd. (a)) that qualified as a strike under the three strikes law (id., §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to an aggregate term of 14 years in state prison.
On appeal, defendant contends his convictions must be reversed because the trial court erred and committed misconduct in failing to enforce a pretrial in limine ruling. He further contends reversal is required because the prosecutor committed misconduct in eliciting or attempting to elicit inadmissible evidence in violation of the same in limine ruling. Anticipating that he may have forfeited his prosecutorial misconduct claim, defendant alternatively argues he received ineffective assistance of counsel. In addition, defendant contends the trial court prejudicially erred in admitting evidence of a phone call he made from jail. He also contends that Evidence Code section 1109 and CALCRIM No. 852 inherently violate his right to a fair trial and due process. He concomitantly contends his trial counsel rendered ineffective assistance in failing to raise these objections below. Finally, he contends the cumulative prejudice from the errors in this case requires reversal. We affirm the judgment.
FACTUAL BACKGROUND
In view of the issues raised on appeal, we will briefly summarize the relevant facts. The background information relevant to defendant's claims on appeal is discussed post.
In August 2015, defendant lived with his fiancée, C.H., in her apartment in Citrus Heights. At that time, C.H. had been an alcoholic for 30 years and had a problem with methamphetamine. According to C.H., she and defendant had been working on their sobriety together.
On the evening of August 31, 2015, defendant and C.H. got into an argument after they had consumed alcohol and used methamphetamine. During the argument, defendant grabbed C.H. by the throat and strangled her until she lost consciousness. While she was unconscious, defendant used duct tape to cover her mouth and bind her wrists and ankles.
When C.H. regained consciousness, she pleaded with defendant to let her go. Defendant disregarded her pleas and strangled her a second time until she lost consciousness. When C.H. regained consciousness the second time, defendant helped her remove the duct tape. At that point, C.H. put clothing on, gathered a few things, and ran out of her apartment and called 911.
A police officer named Christopher Light made contact with C.H. in front of her apartment complex. C.H. was crying, somewhat manic, and panicked. She appeared very fearful and wanted to leave the area. Officer Light noticed that she had small red spots on her ankles, and that there was a light redness around her ankles. He also noticed that C.H. had a piece of duct tape on her right ankle. C.H.'s eyes were red and bloodshot, and she had redness around her neck.
C.H. told Officer Light that defendant had strangled her until she lost consciousness two times. She also told him that defendant had strangled her on numerous occasions in the past but she had never reported the abuse to law enforcement. C.H. did not report that she had been engaged in sex play with defendant involving asphyxiation.
C.H. was taken to the emergency room at Mercy San Juan Hospital. The treating physician determined that she had bilateral carotid artery dissections to both carotid arteries in her neck, which is an injury to the inner lining of the arteries. Because her injuries were serious in nature, C.H. was transferred to the intensive care unit where she received treatment for two days. Due to the nature of her injuries, the treating physician was concerned she could suffer a hemorrhage, blood clots, or a stroke.
At trial, C.H. recanted her claims of abuse and claimed she could not remember the details of what occurred during the incident with defendant. C.H. testified as follows: Defendant never physically abused her, and she could not remember whether she told the police there was a history of domestic violence in her relationship with defendant. She admitted she did not want to testify. She said she loved defendant, wanted him to be acquitted, and had told the prosecutor and investigators from his office several times that she did not want to participate in the prosecution of this case. While she acknowledged that she got into an argument with defendant on August 31, 2015, she claimed she could not remember much of the argument, except that it started because defendant brought alcohol and methamphetamine into her apartment. She also remembered that she was mad at defendant for jeopardizing her sobriety. C.H. claimed that she was not afraid of defendant, and that defendant is "really good" as long as he is sober.
After listening to the 911 call, C.H. acknowledged that she told the 911 operator that defendant had strangled her to the point where she lost consciousness. She also acknowledged that she sounded afraid during the call. However, C.H. claimed that she did not remember being strangled. She only remembered waking up with duct tape on her body. C.H. also claimed that she could not remember whether she told a detective or a responding police officer that defendant had grabbed her by the throat and strangled her until she lost consciousness.
The entire 911 call was played for the jury. During the call, C.H. reported that defendant had "choked" her until she passed out and then placed duct tape on her body. She explained that she was unable to move or breathe because of the duct tape.
C.H. further claimed she could not remember if she had been engaged in a consensual sex act or bondage activity with defendant, but explained that defendant had strangled her a few times in the past while they were engaged in sexual acts. According to C.H., she had lost consciousness on one occasion in the past while they were engaged in such activity.
With regard to her memory, C.H. explained that she had "trouble with [her] memory sometimes" because she has fibromyalgia. She said that she took Norco pills for the pain caused by her condition and Ativan pills to treat her anxiety. According to C.H., on the day of the incident with defendant, she had taken four Norco pills, three Ativan pills, and her prescription medication—Abilify (antipsychotic) and Elavil (antidepressant). C.H. noted that the Ativan pills made her memory "not good."
DISCUSSION
1.0 Trial Court's In Limine Ruling
Defendant contends his convictions must be reversed because the trial court erred and committed misconduct in failing to enforce a pretrial in limine ruling. He further contends reversal is required because the prosecutor committed misconduct in eliciting or attempting to elicit inadmissible evidence in violation of the same in limine ruling. Anticipating that he may have forfeited his prosecutorial misconduct claim, defendant alternatively argues he received ineffective assistance of counsel. We reject defendant's arguments.
1.1 Additional Background
Defendant's theory of the case was that the strangulation was consensual; it occurred during consensual sex acts. The following is a summary of the evidence relevant to defendant's claim that, through a combination of prosecutorial misconduct and trial court error, evidence was improperly placed before the jury due to repeated violations of an in limine ruling.
Prior to trial, the prosecutor filed a motion in limine seeking permission to call Jayne Cohill, a nurse, as an expert witness regarding strangulation. The motion stated that the People intended to call Cohill to testify regarding the significance of strangulation in the context of domestic violence, and offer an opinion as to what the physical evidence—medical records and photographs of C.H.—showed. At the hearing on the motion, the prosecutor explained that he intended to elicit testimony from Cohill about whether C.H.'s injuries were consistent with strangulation, and the role strangulation plays in domestic violence cases. The prosecutor noted that the most important part of her testimony would be to explain why C.H. did not have significant bruising on her neck, despite the fact that she was strangled unconscious. Defense counsel, who had received a statement from the prosecutor describing Cohill's proposed testimony, objected to Cohill's testifying that victims of domestic violence who have been strangled are 700 to 800 percent more likely to be killed by their partner. Counsel stated that, "[T]he fact that people get killed often times of being strangled . . . is highly inflammatory." The parties agreed that an Evidence Code section 402 hearing was warranted on the issue of Cohill's expertise regarding the role strangulation plays in domestic violence cases.
Undesignated statutory references are to the Evidence Code.
Following Cohill's testimony at the evidentiary hearing, the prosecutor said he intended to elicit testimony from Cohill on "[s]trangulation, the physiological manifestations of the same, and the role of strangulation in the domestic violence context." In response, defense counsel noted that Cohill had "at least twice . . . mentioned people dying, and the effect of dying on domestic violence." Counsel stated that he was concerned that Cohill would attempt to inform the jury that C.H. is "going to die . . . soon" because she had been strangled. He argued, "[I] don't think that's a fair . . . expertise," and "I think it's inflammatory." The trial court stated, "I would tend to agree." The court ruled that Cohill could testify but ordered the prosecutor to admonish her not to talk about the percentage of domestic violence strangulation victims "that die, or don't die, or may die." The court reasoned that Cohill's "figures about the number of people who die, or may die, or that [strangulation] leads to death in an escalating pattern [of domestic violence] is not relevant to any issue that's before the jury. [¶] The jury is going to have to decide whether the strangulation . . . was consensual or part of domestic violence." The prosecutor assured the court that he would admonish Cohill not to discuss the "increased . . . lethality in strangulation cases."
During her testimony, Cohill stated that in half of strangulation cases there are no physical marks. However, she explained that when a person has been strangled, they usually have petechiae (i.e., broken blood vessels) on their brain that can be seen during an autopsy. Cohill also noted that C.H. had petechiae in the whites of both of her eyes. When asked by the trial court whether there is something unique or unusual about strangulation in domestic violence cases, Cohill said: "It is frequently seen in domestic violence cases. It is not usually seen early in the relationship. It tends to be later in the relationship. And all victims do not die. Some do."
When Cohill testified, she opined that C.H.'s injuries were "likely the result of a traumatic injury, and the injury . . . was strangulation." She based her opinion on C.H.'s medical records, the police reports, and the photographs taken of C.H.'s injuries. Cohill stated that there was nothing in the documentation she reviewed to suggest asphyxiation from sex play.
During her testimony, Cohill explained that strangulation is usually not the first thing that happens in an abusive relationship; rather, it often occurs "late in domestic violence relationships." She further explained that as an abusive relationship continues, "it can become more violent, and the ultimate violence is strangulation." In response to the prosecutor's request to describe common physical injuries that appear in strangulation cases, Cohill testified that there are physical signs and symptoms in about half the cases, including marks on the neck, swollen eyes, and a swollen tongue. Cohill explained that in cases where no physical injuries are apparent, it is difficult to determine what happened. However, she explained that damage to the brain is sometimes detected during an autopsy when the victim did not have any physical symptoms of strangulation. Defense counsel objected to this testimony on relevance grounds, but the court overruled the objection and told Cohill she could explain her answer. Cohill continued: "Petechiae . . . are broken blood vessels. Sometimes we see them in the eye rounds and sometimes in the mouth itself. [¶] On autopsy of victims that have been strangled to death, sometimes they have absolutely no outward look that there was anything wrong; and when the brain is autopsied, they find petechiae on the brain itself." Defense counsel objected on relevance grounds, which was overruled.
After a sidebar with counsel, the following exchange occurred:
"[PROSECUTOR:] So, Ms. Cohill, what I take your testimony to be is that ultimately, and given cases where somebody has died, obviously nobody died in this case, but even in cases where somebody has died of a strangulation, outward signs, physiological signs, were not there, but an autopsy revealed the cause of death?
"[COHILL:] Correct.
"[PROSECUTOR:] And that's in the literature?
"[COHILL:] Yes."
Thereafter, Cohill told the jury that C.H. had signs of strangulation, including red marks on her neck and petechiae in the whites of her eyes. She also told the jury that when a victim loses consciousness from strangulation, oxygen to the brain has been limited and the victim often cannot remember anything, and sometimes experiences traumatic effects, including posttraumatic stress disorder. She explained: "In the . . . act of strangulation, there is great fear and the struggle to survive. And when you're unable to . . . ward off what is happening and you fall into unconsciousness, that is the fear; and the lack of oxygen really gives a person a posttraumatic stress disorder, thinking, you know, that they may die at another time. [¶] So . . . you are sort of playing with death. [¶] This victim did not die, but the thought of the struggle for survival is there." Defendant did not object to this testimony.
In response to the prosecutor's inquiry as to why perpetrators of domestic violence turn to strangulation, as opposed to hitting, slapping, or kicking the victim, Cohill said: "[Strangulation] is usually not the first thing that happens in a domestic violence relationship. [¶] But when a relationship . . . becomes abusive, [the abuse] sometimes starts as emotional, and then it moves to . . . physical abuse, the ultimate form of power and control is strangulation. [¶] The perpetrator can say to the victim: With this act, I can kill you if I want to. I can . . . let you live if I want to, and you will remember that. [¶] So this is the ultimate form of power and control." Defendant did not object to this testimony.
On cross-examination, Cohill acknowledged that her opinion that C.H. was strangled was based, in part, on C.H.'s statements following the incident. When defense counsel inquired as to whether Cohill could "say with any certainty" that her opinion would be accurate if C.H.'s statements were not true, the following exchange occurred:
"[COHILL]: Well, there were signs and symptoms of strangulation. So how it happened—in other words, the history that the patient gives fits what we have—what we have knowledge of that we can say that she had as a result of that.
"[DEFENSE COUNSEL]: Okay. And if you didn't have that, then what?
"[COHILL]: If I didn't have which?
"[DEFENSE COUNSEL]: Her statement?
"[COHILL]: You mean if she was strangled to death and then we had to look at it on autopsy?
"[DEFENSE COUNSEL]: I'm [not] sure that's what I was asking you.
"[COHILL]: Well, I'm confused as to what you're asking me."
Defense counsel clarified that his question was whether Cohill's opinion would change if she did not have C.H.'s statements. Cohill responded, "[I]f I'm looking at the results of the testing, no, it doesn't change because you would . . . still see the marks and have the results of the CT with contrast."
1.2 Analysis
"[I]t is 'the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.' However, 'a judge should be careful not to throw the weight of his [or her] judicial position into a case, either for or against the defendant.' [Citation.] [¶] Trial judges 'should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.' " (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Nevertheless, a " 'trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias' " or misconduct. (People v. Farley (2009) 46 Cal.4th 1053, 1110.) "As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.] However, a defendant's failure to object does not preclude review 'when an objection and an admonition could not cure the prejudice caused by' such misconduct, or when objecting would be futile." (Sturm, supra, at p. 1237.)
" ' "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, as all of defendant's claims are, " 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument.' " (People v. Linton (2013) 56 Cal.4th 1146, 1205.)
We initially conclude that defendant has forfeited his claims of misconduct and largely forfeited his claims of evidentiary error. A review of the relevant portion of the record reveals that defendant made two objections to Cohill's testimony on relevancy grounds. Defendant did not specifically object to Cohill's testimony on the ground that it ran afoul of the court's pretrial in limine ruling. (People v. Ledesma (2006) 39 Cal.4th 641, 714 [claim of evidentiary error forfeited by counsel's failure to object in the trial court].) Nor did defendant interpose an objection on the ground that the prosecutor or the trial court committed misconduct. And, defendant has not shown that an objection would have been futile or that an objection and admonition would not have cured the prejudice caused by the alleged misconduct.
More significantly, defendant's claims lack merit. The record does not disclose a violation of the trial court's in limine ruling. The prosecutor did not attempt to elicit, and Cohill did not testify about, the percentage of domestic violence strangulation victims who die, or that domestic violence strangulation victims are much more likely to die than domestic violence victims who have not been strangled. Nor was there any testimony elicited that strangulation often leads to death as part of an escalating pattern of domestic violence or that C.H. was likely to die soon because she had been strangled. On this record, there was no violation of the trial court's in limine ruling and no evidence of misconduct. The record does not show that the prosecutor's questioning of Cohill rendered the trial fundamentally unfair or involved the use of deceptive or reprehensible methods to attempt to persuade the jury. Finally, even assuming the trial court erred in failing to enforce its in limine ruling, erroneous evidentiary rulings do not establish a charge of judicial misconduct. (People v. Farley, supra, 46 Cal.4th at p. 1110.) Moreover, defendant has not shown that the alleged improper admission of Cohill's testimony resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13 [no reversal for improper admission of evidence unless it resulted in a miscarriage of justice]; § 353, subd. (b) [same].)
Having concluded that testimony was not elicited in violation of the trial court's in limine ruling, defense counsel's failure to object on that basis did not render his assistance ineffective. Defense counsel is not obligated to interpose futile objections. (People v. Price (1991) 1 Cal.4th 324, 387.) Moreover, defendant has failed to show prejudice. In view of the strong evidence of defendant's guilt, we do not think it is reasonably probable that absent the challenged testimony of Cohill, the jury would have reached a verdict more favorable to defendant. (People v. Lucas (1995) 12 Cal.4th 415, 436 [prejudice is shown when there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance].)
2.0 Jail Phone Call
Defendant contends that the trial court prejudicially erred in admitting a jail phone call between him and C.H. He argues that, other than two specific statements that were relevant to impeach C.H.'s testimony regarding whether defendant had asked her not to cooperate with the prosecution, the call should have been excluded as more prejudicial than probative under section 352. We discern no abuse of discretion.
2.1 Additional Background
Prior to trial, the prosecutor filed a motion in limine advising the trial court that, depending on the evidence adduced at trial, the People may seek to admit jail phone calls between C.H. and defendant. The prosecutor explained that defendant might claim C.H.'s injuries were the result of rough sex, and that C.H. made up her statements to law enforcement. The prosecutor further explained that certain jail conversations could become relevant if C.H. recanted some or all of her statements to law enforcement, said that she did not remember what happened during the incident, or said she made up parts of her statements to law enforcement. At the pretrial hearing on the motion, the prosecutor indicated that he did not intend to introduce the jail phone calls in the People's case-in-chief. Instead, he intended to introduce the phone calls to impeach C.H. Defense counsel indicated he had no objection to the use of the phone calls for that purpose.
At trial, C.H. testified that she visited defendant in jail about six times and spoke to him on the phone almost every day. C.H. claimed that they talked about their future together. She denied that he was verbally abusive to her or that he blamed her for being incarcerated. She also denied that he had asked her not to cooperate with the prosecution, to stop talking to the police, or to claim she could not remember what happened. She also denied that he attempted to manipulate her into not participating with the prosecution. According to C.H., she could not recall a conversation with defendant in which she told him, "I was in the ICU. You did this to me."
Sergeant Dennis Prizmitch of the Sacramento County Sheriff's Department testified as an expert on domestic violence. He said that he had observed a pattern in cases involving "intimate partner battering," which he described as a "cycle of violence." He explained that this cycle of violence is also known as "battered women syndrome." He further explained that the most common pattern is that "a couple gets together and everything is nice and loving. Then there's a tension-building phase where tension starts to build between both parties or one party. [¶] And then there's a trigger which causes an incident. Could be violent, could be verbal. . . . And then the parties usually go in their neutral corners and come back together, and the whole cycle starts over again."
When asked to describe common behaviors and reactions of women who are victims of domestic violence, Sergeant Prizmitch described a "rescue phase" in which victims call the police because they want to be rescued and the abuse to stop. After this phase ends, victims often "recant" their claims of abuse, i.e., deny any abuse occurred. He explained that victims will minimize what happened, blame themselves for what happened, or blame other people for their injuries. Victims will also say they "don't want anything done" about the abuse, and will refuse to cooperate with law enforcement or claim they cannot remember what happened. In his experience, 80 to 85 percent of domestic violence victims recant. However, he noted that the literature indicates that only about 50 percent of domestic violence victims recant.
Sergeant Prizmitch testified that victims of domestic violence do not leave their abuser for a variety of reasons, including fear, intimidation, and love. He also said that a lot of victims report having low self-esteem; they explain that they are isolated and do not have anyone to turn to for help. In his experience, most victims of domestic violence stay in their relationship with the batterer. He estimated that more than 75 percent of victims he has encountered stay in a relationship after they have contact with law enforcement.
After he was given a hypothetical that tracked the facts of this case, Sergeant Prizmitch concluded that such behavior is consistent with the cycle of violence in cases involving intimate partner battering.
After C.H. and Sergeant Prizmitch testified, the prosecutor requested permission to introduce an audio recording of a September 10, 2015 jail phone call between C.H. and defendant. The prosecutor sought admission of this evidence to impeach C.H.'s testimony that defendant never asked her not to cooperate with the prosecution, to show certain admissions made by defendant relating to the facts of the incident, and to show that defendant attempted to suppress evidence. Defense counsel objected to the admission of the "majority" of the call pursuant to section 352. Defense counsel conceded that portions of the call may be relevant, but suggested that the substance of the call would be unfair to defendant because it places him in a bad light, noting that the call was "just a way to dirty up" defendant, as he used bad language and talked really aggressively during the call. Defense counsel argued the prosecutor wanted to introduce the call to show that defendant is unpredictable and emotional, and the phone call is not "a proper avenue for that purpose."
After an extended discussion in which the prosecutor noted that the phone call shows the cycle of violence that Sergeant Prizmitch testified about—the victim is abused and then told she is loved—the trial court listened to the tape. Thereafter, the court ruled that the entire phone call was admissible, except for the portion of the call where defendant stated that his cellmate is an "idiot" and was lucky defendant had not "choked him out and put him under the bed." In so ruling, the court reasoned that, in addition to defendant's trying to persuade C.H. not to cooperate with the prosecution, the overall tone of the conversation shows the emotional manipulation of C.H. and the dominance over her, which was consistent with the testimony of Sergeant Prizmitch regarding the dynamics of partner battering or domestic violence. The court explained that "[t]he relevance . . . of the call is the domestic violence dynamics of [defendant's] manipulating and dominating . . . C.H. . . . [T]o the extent it portrays the defendant in a bad light, that's the relevance of the tape." The redacted version of the phone call was played for the jury.
2.2 Analysis
"A trial court has 'considerable discretion' in determining the relevance of evidence. [Citation.] Similarly, the court has broad discretion under . . . section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An appellate court reviews a court's rulings regarding relevancy and admissibility under . . . section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Merriman (2014) 60 Cal.4th 1, 74.)
" '[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.' " (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) Thus, a trial court is not required "to articulate its consideration of each of a list of particular factors of probability and prejudice in making a decision under section 352." (Ibid.)
Here, defendant sought to exclude the jail phone call under section 352. Thereafter, the trial court found that, with one exception, the phone call was relevant and admissible. The record thus demonstrates that " 'the trial court understood and fulfilled its responsibilities under . . . section 352.' " (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.)
Having reviewed the transcript of the phone call, we conclude the trial court did not abuse its discretion by determining the probative value of the phone call was not substantially outweighed by the probability that the phone call would create a substantial danger of undue prejudice. " 'For purposes of . . . section 352, evidence is considered unduly prejudicial if it tends to evoke an emotional bias against the defendant as an individual and has a negligible bearing on the issues.' " (People v. Suff (2014) 58 Cal.4th 1013, 1073.) Here, the phone call had significant probative value in impeaching C.H.'s testimony and explaining why she recanted her claims of abuse, as the phone call showed the relationship dynamic between C.H. and defendant. The phone call was also probative in that the jury could have inferred consciousness of guilt from the conversation, particularly in light of the other evidence adduced at trial. Defendant has not shown that the probative value of the phone call was substantially outweighed by its prejudicial effect. There is little doubt the phone call was harmful to defendant's theory of the case. However, " '[i]n applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) Undue prejudice does not refer to evidence that tends to prove guilt; it refers to evidence that prompts an emotional reaction against defendant that tends to cause a jury to decide the case on an improper basis. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.) On this record, defendant was not unduly prejudiced by admission of the phone call.
The audio recording is not part of the appellate record. --------
In sum, we conclude the trial court did not err by admitting the redacted jail phone call into evidence. The trial court's ruling was not arbitrary, capricious, or patently absurd such that it resulted in a manifest miscarriage of justice.
3.0 Section 1109 and CALCRIM No. 852
To exhaust his state remedies and preserve his right to a federal challenge, defendant raises two contentions, both settled under California law. He contends both section 1109 and CALCRIM No. 852 inherently violate his right to a fair trial and due process. He concomitantly contends his trial counsel rendered ineffective assistance in failing to raise these objections below. He acknowledges, however, that we are bound to follow state law precedent finding both the statute and jury instruction constitutional. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)
Defendant having now raised these contentions, we reject them under settled California law. (See People v. Johnson (2010) 185 Cal.App.4th 520, 529 ["The Courts of Appeal . . . have uniformly followed the reasoning of [People v.] Falsetta [(1999) 21 Cal.4th 903] in holding section 1109 does not offend due process."]; People v. Reyes (2008) 160 Cal.App.4th 246, 253 [rejecting contentions that CALCRIM No. 852 violated the defendant's due process rights].)
4.0 Cumulative Error
Defendant contends the cumulative prejudice of the asserted errors requires reversal of his convictions. Because we have considered and rejected each of the asserted errors, defendant's claim of cumulative error fails.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: HULL, Acting P. J. MURRAY, J.