Filed 5/15/18
Reposted with correct filed date
                                   CERTIFIED FOR PUBLICATION




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   THIRD APPELLATE DISTRICT
                                          (Sacramento)
                                              ----




THE PEOPLE,                                                      C081267

                  Plaintiff and Respondent,              (Super. Ct. No. 14F04470)

         v.

MICHAEL WILLIAMS,

                  Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sacramento County, Geoffrey
A. Goodman, Judge. Reversed with directions.

      Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.




                                               1
       Defendant Michael Williams stabbed his wife, victim Tanganyika Hoover
Williams, twice in the neck, and she bled to death. The trial court permitted the People to
introduce evidence at trial of defendant’s then 23-year-old conviction (out of Oklahoma)
for shooting with intent to kill and the circumstances thereof.
       Defendant’s jury found him guilty of first degree murder with personal use of a
deadly weapon. The jury then found defendant sane, and the trial court found he had a
prior serious felony conviction and prior strike (the 1992 Oklahoma conviction). (Pen.
Code, §§ 187, subd. (a), 667, subds. (a), (b)-(i), 1170.12, 12022, subd. (b)(1).) The court
sentenced defendant to prison for 50 years to life plus six years. Defendant timely
appealed.
       Defendant claims in part that the trial court abused its discretion when it permitted
the People to introduce evidence underlying his 1992 Oklahoma conviction. As we will
explain, we agree that this evidence had scant--if any--relevance to this case, and any
relevance it did have was vastly outweighed by its potential for unfair prejudice. This
evidence was heavily relied on by the prosecutor in arguing for premeditation and
deliberation in what was otherwise not a strong case for first degree murder, thus the
error was prejudicial.
       However, because sufficient evidence (apart from the prior acts evidence) was
presented in the case-in-chief to support first degree murder, we reject defendant’s claims
that trial counsel should have moved to acquit and that no substantial evidence supports
the verdict. Therefore, a retrial on the first degree murder charge is not precluded. In
light of these holdings, we do not address the many other claims raised.
                                          FACTS
       There was no dispute that defendant killed the victim on the morning of July 8,
2014. The issues at trial were his state of mind and his sanity at the time of the killing.



                                              2
       People’s Case
       According to the victim’s son, the victim was married to defendant for less than a
year, but they had been together for three or four years. In July 2014, the victim lived
with her daughter Taquita Lugo, but sometimes stayed with defendant in a van or a
motel. The victim received Supplemental Security Income (SSI) and used crack cocaine
off and on. Her son helped the victim move her things out of the Super 8 Motel on
Sunday, July 6, 2014. She told him her marriage was in doubt, and she was going to
meet defendant to discuss it. The next day at Lugo’s house the victim told him she had
decided to leave defendant and obtain a divorce, though she still loved defendant. Her
son helped her return some clothing she had bought for defendant, and they parted at
approximately 7:00 that night (July 7). After he learned the victim was dead, he found
messages from defendant on a telephone answering machine at Lugo’s house, in which
defendant asks why the victim took his “stuff” and said he loved her.
       Three witnesses saw the victim bleeding on the ground early on July 8, and
testified that when asked who did this to her, she said defendant’s name or that her
husband did it. One of these witnesses, a peace officer, testified that the victim also told
him that she had been stabbed with a “writing pen.” Another testified that he returned
home from work at approximately 6:00 a.m. and saw a van parked by his property, as
well as a white car, saw a man and a woman interacting, and heard music playing. He
woke up at 7:45 a.m. to the sound of his dogs barking, heard screaming, and found the
victim on the sidewalk.
       The victim had a potentially lethal amount of methamphetamine in her system, but
that did not kill her. Death was caused by two stab wounds to the neck. There was a
defensive cut on her left thumb and fresh blunt force injuries on her head, neck, torso,
and extremities.
       The victim’s purse was found in defendant’s van about a mile away.
Methamphetamine pipes and four knives were found in the van. When defendant was

                                              3
arrested on July 29, 2014, he had a Greyhound bus itinerary for Oklahoma City departing
August 1 that had been printed on July 28. When arrested, defendant initially gave the
police a false name.
       A woman testified that in 1991 she lived with her mother (Betty T.) in Oklahoma.
Her sister Becky W. was then married to defendant. The parties stipulated that in 1991,
Becky W. was estranged from defendant and was staying with her mother, (Betty T.).
One night defendant tried to bust in the door and struggled with Becky W., trying to pull
her out of the house. Betty T. told defendant to leave, whereupon defendant shot Betty T.
in the head. She survived.
       The defense did not move to acquit after the People rested.
       Defense Case
       Defendant testified he was convicted of shooting with intent to kill arising from
the 1991 Oklahoma incident, and he had served his time for that crime.
       The victim here had been homeless before she began living with defendant. He
was on medications (including Risperdal) to treat bipolar schizophrenia, for which he had
been treated since about 2005 or 2006, although he had been diagnosed earlier in
Oklahoma where he served a short stint in a locked mental institution in the 1980’s. He
then heard voices telling him to do things, saw shadowy figures, and had trouble holding
a train of thought. The medications stopped these symptoms, although he did not always
take them. When he did not take them, the symptoms would reappear. He was taking his
medications while in jail. The victim, too, took psychiatric medications, but they would
both stop when they were using drugs, such as methamphetamine. They had been
together for three years, and married in 2013, over the disapproval of her family. They
lived in motels or in his van after they were kicked out of a rental house, although for
about six months they lived with the victim’s daughter, Lugo. They were on SSI because
of mental disability, and each received $970 per month.



                                             4
       One day defendant returned to Lugo’s house to find his things packed, and he was
told he was not welcome there anymore. He then stayed in motels when he had money
and in his van when he had none. He and the victim had had many short breakups--a few
days long--over small arguments.
       In 2014, both defendant and the victim were taking their medications about half
the time. They were smoking methamphetamine together a couple of times a week,
spending about $100 to $150 per week on the drug.
       On July 1, 2014, the victim received $10,000 in SSI back-payments. They bought
a larger than usual amount of methamphetamine and began smoking it, using
continuously for the next week. On July 7 the victim went to spend time with Lugo.
Defendant became worried after the victim did not return telephone messages. He
wondered whether they would stay together.
       Defendant stayed in his van that night, and the victim arrived in her car the next
morning while it was still dark. They talked and smoked drugs for about 15 or 20
minutes. At approximately 6:00 a.m. on July 8, the victim left to be with her daughter.
At that point, defendant still loved her, and thought she still loved him, though he had
doubts about their future. He then called and left messages at Lugo’s telling the victim
he was in love with her. After about an hour and a half she returned, they hugged, got in
the van, and they again smoked drugs.
       While in the van, defendant asked the victim if she was going to leave him, who
she was leaving him for, and why she was leaving, and he became increasingly angry
when she did not answer his questions. Defendant held the victim by the shoulders and
asked her more of the same questions, but she just smirked at him, which inflamed him
and he began shaking her. He reached down for a box cutter and put it to her throat to
scare her. They struggled, she got cut, and she began to bleed. They were wrestling and
rolling around inside the van, which caused her to bleed. He did not want to cut her but
was “dead angry,” “wasn’t thinking clearly,” and heard “racing thoughts in [his] mind.”

                                             5
He had no intent to hurt or kill her. He heard voices, one of which said “get her” and he
cut the victim. She then left the van. He thought he would be accused of hurting her and
left because he was scared.
       On cross-examination, defendant explained that the victim was cut once, then she
asked to go to a doctor and then was cut a second time--though he did not remember how
that happened--and then she was cut on the thumb while fighting for her life. He knew he
was a wanted man, and planned to go back to Oklahoma to escape punishment, once his
August SSI money came in. He admitted lying about his name when he was arrested. He
had shaved his head, but claimed he did not do it to evade arrest. When shown a
videotaped interrogation in which he told a detective he did not remember when he last
saw his wife, he claimed he was being truthful, as he did not regain his memory of the
events until after he received his medication in jail. However, he had also told the
detective that the last time he had seen the victim was a month before and he conceded
that had been a lie. He admitted that he had lied through most of the interrogation, to
avoid culpability, but testified he did not intend to stab the victim.
       When confronted by the prosecutor with evidence of a conversation he had
engaged in while in jail, defendant admitted he knew the conversation’s other participant
(Gwen Nance, a friend of his) and had spoken with her on the telephone while in custody.
He admitted telling her he was going to beat the case, via a strategy of saying he was
mentally ill and too high to know what he was doing, but he testified that was a truthful
statement about his condition. Defendant knew the victim had not answered his
questions, but claimed he did not know she was going to leave him when she smirked,
then he became very angry and put the blade to her neck. He told Nance he had “done 15
years in the joint before,” which was “hard,” and he wanted to flee to Oklahoma because
he was guilty; he had also told Nance that he might be facing the death penalty.
       Under continued cross-examination, and contrary to his prior testimony, defendant
admitted that in the van he did know the victim was going to leave him, and that he had

                                              6
worried about that for months. He wanted a firm answer from her in the van, and
responded to the prosecutor’s questions:

              “Q And she said no?

              “A No, she didn’t.

              “Q And she smirked at you?

              “A Yes, she did.

              “Q And you killed her for it?

              “A Yes, I did. (Italics added.)
       Later, defendant again contradicted himself and denied that he had been worried
for months about the victim leaving him. He then admitted that in the months leading to
the killing, he had told his social worker several times that he was worried about the
victim cheating on him. He admitted that on July 6, she took back some clothes she had
bought for him, and some money she had given him. He admitted she was not returning
his calls and then agreed that: “Q You were losing control of Tanganyika; correct? [¶]
A Correct.” She refused to commit to him in the van, and his anger was at a “ten.”
       On redirect defendant testified he did not intend to cut the victim, but said his plan
was “[t]o get back with [his] wife.” He claimed he did not see the injuries inflicted or try
to cut her thumb, but on re-cross testified as follows:

               “Q Now, you said yesterday on cross after you stabbed her the first time
       she tried to get up and get out of the van?

              “A Correct. [¶] . . . [¶]

              “Q And you grabbed her and [kept] her from leaving; correct?

              “A Correct.

              “Q And you sat her back down; correct?



                                                7
              “A That’s correct.

              “Q And you put the knife back to her throat; correct?

              “A Correct.

              “Q And you stabbed her again to get the job done; right?

              “A Correct.

              “Q She wasn’t dead yet; right?

              “A No, she wasn’t.

              “Q And when she fought back she put her hand up to try to block you from
       stabbing her again; correct?

              “A I believe so.

              “Q And that’s when you cut her hand and almost cut her thumb off; right?

              “A Yes.” (Italics added.)
       Dr. Gregory Sokolov, director of psychiatric services for the jail, testified about
schizophrenia, schizoaffective disorder, and bipolar disorder, and the usual medications
therefor. Schizophrenics can present symptoms of psychosis including hallucinations,
paranoid delusions, disorganized thinking, and lack of emotion; persons with
schizoaffective disorder also have a mood disorder, such as major depression or bipolar
disorder. Bipolar disorder is characterized by mood swings from “full-blown mania” to
depressive moods. Some people who experience hallucinations know they are not real.
       Although he had never met defendant, Dr. Sokolov had read his psychiatric
records. As early as 2009, defendant was diagnosed with schizoaffective disorder, with
either bipolar or major depressive disorder, with symptoms including paranoid delusions,
irritability, mood swings, panic attacks, racing thoughts, and depression, with auditory
hallucinations and occasional paranoia. Medications can help control delusions,




                                             8
hallucinations, disorganized speech and behavior, but not “negative symptoms” like flat
affect or lack of emotion.
       Defendant had been prescribed Risperdal to treat his psychotic symptoms
(delusions, hallucinations, disorganized thoughts and behaviors), Depakote to stabilize
his mood swings, and sertraline, an antidepressant also used for panic disorders, as well
as Cogentin to treat the side effects of Risperdal. Stopping such drugs can lead to a
recurrence of the symptoms, and for a longtime user, stopping the drugs puts the person
at an “extremely high risk for redeveloping psychosis and mood disturbances,” which can
manifest in “days to weeks.” Methamphetamine can cause short-term and long-term
psychotic symptoms, including hallucinations.
       On cross-examination, Dr. Sokolov agreed that defendant’s records of a July 2,
2014 meeting with his social worker at a psychiatric clinic reflected he was well-
groomed, had good hygiene, and had denied any homicidal or suicidal ideation.
Schizophrenia encompasses a wide spectrum of severity, and Dr. Sokolov had not
evaluated defendant to assess whether he had schizophrenia or whether he was
malingering, that is, falsifying or exaggerating his symptoms.
       Allen Lee, defendant’s former social worker at the mental health clinic, testified
he met with defendant for 50 minutes on July 2, 2014, and defendant did not report any
suicidal or homicidal thoughts, and said he had been taking his medications. In a
telephone conversation on May 28, 2014, defendant told Lee he wanted to divorce his
wife and he was taking his medication. About a week before, he had told Lee his wife
was cheating on him.
       Monte Chavez, defendant’s friend, testified there was nothing unusual about
defendant’s demeanor the night before the killing. From both defendant and his wife for
the prior few weeks, Chavez understood that they were going to break up, but defendant
did not seem worried about it.



                                             9
       The parties stipulated that Dr. Matthew Pitcher, a jail psychiatrist, would testify
that he had been treating defendant for schizoaffective disorder, and had prescribed
defendant Trazodone, Risperdal, and Depakote.
       There was no rebuttal case by the People.
       Closing Arguments
       The prosecutor began his closing argument by giving two reasons why “this is first
degree murder every single day of the week.” First, because defendant stabbed the victim
twice in the neck and admitted on the stand that he stabbed her the second time because
he wanted to finish her off; second, “we know he premeditated and he deliberated
because he’s been in the same situation before. He’s gone over it in his head for 23 years
what he’s going to do if he’s in the same situation again with another woman that’s going
to leave him.”1 The prosecutor argued that express and implied malice were shown by
defendant’s actions in holding the knife to her throat and stabbing her twice, and
defendant admitted he thought about what he was doing. The fact there were two stab
wounds to the neck, as well as a defensive wound, undermined any claim of an accident,
or mere criminal negligence. Defendant’s motive was that his wife was leaving him, and
he had previously shot his former mother-in-law when his prior wife tried to leave him.
The killing was not an accident or done in the heat of passion because of the nature of the

________________________________________________________________
1  This argument was based on the following cross-examination of defendant: “Q And
you’ve been in the situation before; right? In 1991, [defendant], Becky [W., your former
wife] was leaving you; right? [¶] A Yes. [¶] Q And you went over to her mother’s
house to try to get Becky [W.] back, didn’t you? [¶] A Yes. [¶] Q And when
[Becky’s] mother stepped out of the back of the house and tried to intervene you shot her
in the face, didn’t you? [¶] A That’s correct. [¶] Q And in 1992 you admitted shooting
Betty [T.] in the face with the intent to kill? [¶] A Correct. [¶] Q And since that night
you must have played that over in your head a thousand times? [¶] A Yes. [¶] Q And
thought about what you would have done different if put back in the same situation;
right? [¶] A Correct. [¶] Q And in 2014, when you’re in that van with Tanganyika
facing the same situation of her leaving you, you chose the same path, didn’t you? [¶]
A No, not exactly.”

                                             10
wounds, “coupled with the fact that he has acted with the specific intent to kill back in
1991[,] we know he’s doing it [in] this case.” There was no provocation; “[h]e showed
us that back in 1991. He was trying to get his wife back at that time. And when his
mother-in-law tried to step in and keep him from getting his wife back he shot her in the
face. [¶] Same thing happened here. The same intent is there. The same motive is
there.” “Defendant intended to kill before in the exact same situation. And he actually
was convicted of shooting with the intent to kill. That’s why they’re asking for a
manslaughter. That’s why this is a first degree murder.” “[L]et’s talk about extent of
reflection. Has anybody had more time to reflect on what they’re going to do if this
situation ever arose again than the guy that was actually in this situation back in 1991[?]
[¶] He had more time than anyone to reflect on what’s going to happen when she intends
to leave him. What the consequences might be if he decides to kill her and whether or
not he should go forward with it. [¶] That’s why that evidence is so powerful. It’s been
almost 23 years four months . . . .” “He’s got 1991 going through his head. He’s got her
leaving going through his head. He knows the consequences. He knows what he’s about
to do. And he does it again when he stabbed her again to finish her off. That’s first
degree murder.”
       The prosecutor also argued that when defendant moved the van, changed his
appearance, followed news about the case in the library, and planned to flee to
Oklahoma, his actions reflected his consciousness of guilt.
       The defense argued defendant fled the scene because he was guilty of a crime, but
only voluntary manslaughter because he acted in the heat of passion. This was based on
defendant’s mental illness and drug usage, his dependence on the victim, and growing
stress of the impending break-up that culminated in her smirking defiance when he asked
her directly about divorce. Defendant’s mental illness made him “easy prey” for the
prosecutor, and his inculpatory testimony was adduced via the prosecutor’s skilled
questioning. There was no way to know what happened in the van, except that defendant

                                             11
inflicted the victim’s wounds. Defendant had known the marriage was in doubt for some
time, so it was not something the victim surprised him with the morning of the killing.
There was evidence from a neighbor that suggested the couple had been in the van for
quite some time, listening to music, suggesting an amicable meeting that negated
premeditation. “So if [defendant] was planning on killing his wife why would he wait at
least an hour and 45 minutes before stabbing his wife? [¶] If [defendant] was planning
on killing his wife that morning, why wouldn’t he drive to a much lonelier place?”
Defendant did not lure the victim into his van to kill her; he was simply living in the van
when he invited her inside. And if he wanted to kill her, he would not have used a box
cutter, but one of the deadlier knives found in the van, and would not have left other
knives around that she might have used to defend herself. His schizophrenic
hallucinations, perhaps exacerbated by the methamphetamine, further negated first degree
murder, and defendant did not weigh the pros and cons of his actions. Defendant loved
the victim, in part as shown by the telephone messages he had left for her.
         In reply, the People argued defendant did not show “one drop of emotion” on the
stand nor in his jailhouse calls did he reflect any love for the victim. The fact defendant’s
plan was a bad plan does not mean he did not form a plan to kill the victim. “What this
guy planned was to confront his wife. And he knew what he would do if she did not
comply. And how do we know that? Because he’s been there before. He’s been in
almost this exact situation.” Defendant had replayed his 1991 actions in his head many
times.
         Verdict and Sanity Trial
         After returning its first degree murder verdict, and after a brief sanity trial that is
not at issue, the jury found defendant was sane at the time of the killing.




                                                12
                                      DISCUSSION
                                              I
                       Evidence of Premeditation and Deliberation
       In different ways, defendant contends no substantial evidence supports
premeditation, deliberation, or malice. We disagree.
       In assessing defendant’s claims we will not consider evidence presented in the
defense case (due to defendant’s claim of ineffective assistance based on trial counsel’s
failure to move for acquittal under Pen. Code, § 1118.1) or evidence of the 1991
Oklahoma incident (due to our holding, post, that this evidence was admitted in error).
       Much--but not all--of defendant’s briefing reweighs evidence or chooses between
competing inferences, matters within the province of the jury. “ ‘On appeal we review
the whole record in the light most favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
       A. Deliberation and Premeditation
       “ ‘Deliberation’ refers to careful weighing of considerations in forming a course of
action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of
premeditation and deliberation does not require any extended period of time. “The true
test is not the duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at
quickly. . . .” [Citations.]’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
       Our Supreme Court has established guidelines for our review, as follows:

               “The type of evidence which this court has found sufficient to sustain a
       finding of premeditation and deliberation falls into three basic categories: (1) facts
       about how and what defendant did prior to the actual killing which show that the
       defendant was engaged in activity directed toward, and explicable as intended to
       result in, the killing—what may be characterized as ‘planning’ activity; (2) facts


                                             13
       about the defendant’s prior relationship and/or conduct with the victim from
       which the jury could reasonably infer a ‘motive’ to kill the victim, which inference
       of motive, together with facts of type (1) or (3), would in turn support an inference
       that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and
       weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily
       executed’ [citation]; (3) facts about the nature of the killing from which the jury
       could infer that the manner of killing was so particular and exacting that the
       defendant must have intentionally killed according to a ‘preconceived design’ to
       take his victim’s life in a particular way for a ‘reason’ which the jury can
       reasonably infer from facts of type (1) or (2).

              “Analysis of the cases will show that this court sustains verdicts of first
       degree murder typically when there is evidence of all three types and otherwise
       requires at least extremely strong evidence of (1) or evidence of (2) in conjunction
       with either (1) or (3).” (People v. Anderson (1968) 70 Cal.2d 15, 26-27
       (Anderson), original italics.)
       The above passage did not change the definition of murder or establish elements
that had to be proven in each case; it established “guidelines to aid reviewing courts in
analyzing the sufficiency of the evidence to sustain findings of premeditation and
deliberation.” (People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez).) “The Anderson
factors, while helpful for purposes of review, are not a sine qua non to finding first degree
premeditated murder, nor are they exclusive.” (Ibid.; see 1 Witkin, Cal. Criminal Law
(4th ed. 2012) Crimes Against the Person, § 123, p. 919.) Or as we have phrased it
before, the factors do not impose “a straightjacket on the manner in which premeditation
can be proven adequately at trial.” (People v. Gunder (2007) 151 Cal.App.4th 412, 420.)
       Here, there is evidence of motive: rage at the collapse of the marriage. There is
also evidence of the intentional and deliberate manner of killing: two neck stabs, with an
implied interval to reflect, as well as the infliction of blunt force trauma in different areas
of the victim’s body. (See People v. Stitely (2005) 35 Cal.4th 514, 544 [“defendant had
ample opportunity to consider the deadly consequences of his actions”]; People v. Steele
(2002) 27 Cal.4th 1230, 1250 [use of two methods of inflicting harm, stabbing and
strangling, tended to support premeditation and deliberation] (Steele); see also People v.
Combs (2004) 34 Cal.4th 821, 851 [“use of multiple methods”]; Perez, supra, 2 Cal.4th

                                              14
at p. 1127 [“The manner of killing is also indicative of premeditation and deliberation.
The evidence of blood in the kitchen knife drawer supports an inference that defendant
went to the kitchen in search of another knife after the steak knife broke. This action
bears similarity to reloading a gun or using another gun when the first one has run out of
ammunition”].)
       The jury could have reasonably found that the victim’s injuries reflected an
emotional, berserk, attack, as suggested by defendant’s briefing. But it was permitted to
find otherwise. A case discussing manner evidence, repeatedly cited by defendant’s
briefing, cuts against his position. The case (quoted more fully than reflected in the
briefing) provides as follows:

               “Manner of killing is the least strong of the Anderson categories as the case
       comes to us. The manner of killing here—stabbing two victims more than two
       times each, including around the face, the neck and lungs—is, at least in a
       vacuum, associated with someone losing his mind and going berserk, which is not
       a state of mind we associate with premeditation or deliberation. We note an irony
       here: The more genteel the form of dispatch, the more readily premeditation may
       be inferred. Vicious brutal knifings, particularly when the victim is awake and
       fighting back, tend to fall on the opposite side of the spectrum from, say, the
       administration of arsenic in a guest’s tea. That said, our Supreme Court has, in
       [Perez, supra, 2 Cal.4th 1117], upheld a first degree murder conviction in a
       vicious knife attack no less gruesome than the ones here.

               “To be sure, [the defendant] did not have the element of surprise, as shown
       by the ‘defensive’ wounds sustained by both victims. Even so, the numerous
       blows to the neck and vital organs of both victims, including a blow that
       penetrated [one victim’s] eye, supports the reasonable inference, similar to Lewis,
       that the blows were intended to kill rather than merely wound. (See [People v.
       Lewis (2009) 46 Cal.4th 1255, 1293] [the ‘additional act of slashing her throat “is
       indicative of a reasoned decision to kill” ’].)” (People v. Nazeri (2010) 187
       Cal.App.4th 1101, 1118, first italics added, second in original.)
       Defense counsel repeatedly relies on the italicized sentence of Nazeri, which
muses academically about whether such manner of killing necessarily reflects
deliberation and premeditation. But the holding of the case is that the manner of killing



                                            15
described did manifest those mental states. Read in context, this passage of Nazeri
supports the conclusion that the manner of killing here shows premeditation and
deliberation.
       Although there was not a great deal of evidence of planning by any measure, the
jury could rationally find defendant talked his wife into the van to induce her to remain in
the marriage or--failing that--to kill her. And, as the Attorney General points out, strong
evidence of planning is not always required. (See, e.g., People v. Hernandez (1988) 47
Cal.3d 315, 349-351 [affirming where motive and manner showed deliberate killing,
although evidence of planning was slim and the time for reflection was slight].)2
       Further, the jury did not have to conclude defendant’s consciousness of guilt
pertained only to a lesser offense, but instead could find defendant knew he had killed the
victim and had desired that outcome. Defendant abandoned his van, prepared to flee to
Oklahoma, and gave a false name when arrested weeks later. That postkilling conduct, as
well as the implication from the People’s case-in-chief that defendant did nothing to help
the victim after he stabbed her, speaks volumes as to his mental state. (See People v.
Lasko (2000) 23 Cal.4th 101, 112 [“defendant’s actions after striking the fatal blow were
not those of an unintentional killer: he did not call an ambulance, he tried to obscure
evidence of the killing . . . .”].)
       Defendant relies heavily on People v. Boatman (2013) 221 Cal.App.4th 1253, but
that case is factually dissimilar. Boatman explained: “Defendant’s behavior following
the shooting is of someone horrified and distraught about what he had done, not someone
who had just fulfilled a preconceived plan. Immediately after the fatal shot, defendant
tried to resuscitate [the victim] and directed his brother to ‘call the cops.’ Defendant
could be heard crying in the background during the 911 call.” (Id. at p. 1267.) Here,

________________________________________________________________
2 We recognize, as defendant emphasizes, that Hernandez involved an egregious double
murder. We cite it merely to illustrate that clear planning evidence is not always needed,
a point also made in Anderson, supra, 70 Cal.2d at pages 26-27.

                                             16
there was no evidence that defendant did anything to help the victim. Boatman also
pointed to the paucity of evidence of motive (id. at pp. 1267-1268), whereas here, the
impending break-up of the marriage provided a motive. Boatman found the manner of
the killing--a shot to the face--showed malice, but not premeditation. (Id. at p. 1268.)
Here, the victim was stabbed twice in the neck, had a defensive cut on her thumb, and
had recent blunt force injuries. Boatman is not at all similar to this case.
       Accordingly, substantial evidence shows premeditation and deliberation.
       B. Malice
       In another portion of his brief, faulting trial counsel for not moving to acquit at the
close of the People’s case, defendant contends the People did not introduce substantial
evidence of malice, either express or implied. We disagree.
       From the evidence showing the victim was stabbed twice in the neck, coupled with
a defensive stab and blunt force injuries, the jury could infer that defendant acted with
implied malice, that is, a conscious disregard for a high probability of death. (See
People v. Knoller (2007) 41 Cal.4th 139, 152; People v. Canizalez (2011) 197
Cal.App.4th 832, 842.) Further, the jury could find that by inflicting such injuries
defendant acted with express malice, that is, he knew to a substantial certainty that death
would likely ensue from his actions. (See People v. Smith (2005) 37 Cal.4th 733, 739.)
Although not a compelled inference, the jury could rationally find that two stabs to the
neck is a method of killing that “was so particular and exacting that the defendant must
have intentionally killed according to a ‘preconceived design’ ” to kill. (Anderson, supra,
70 Cal.2d at p. 27.)
       Accordingly, the case-in-chief provided substantial evidence of malice.3

________________________________________________________________
3 Our conclusion that sufficient evidence supports first degree murder based solely on
evidence in the case-in-chief apart from the Oklahoma incident resolves defendant’s
claim that trial counsel provided ineffective assistance of counsel by failing to move to
acquit at the close of the People’s case. Such a motion would have failed. (See People v.

                                             17
                                              II
                      Admission of Evidence of the Oklahoma Incident
        Defendant contends evidence of the Oklahoma incident should not have been
admitted, and in an overlapping claim contends the jury should not have been instructed
that it could use that evidence to determine whether the evidence showed premeditation
and deliberation, intent to kill, motive, or absence of mistake.
        Defendant argues that “[t]he fact that [he] reacted violently to the breakup of his
marriage in 1991 and shot his mother-in-law while struggling with his estranged wife
does not support a reasonable inference that he killed his current wife with premeditation
and deliberation 23 years later.” We are compelled to agree.
        First, the dissimilarity between the two incidents is so great that the evidence of
the uncharged act had no (or very little) “tendency in reason” (Evid. Code, § 210)4 to
speak to defendant’s mental state during the charged act. Second, even assuming the 23-
year-old shooting had some minimal relevance, its probative value was clearly
outweighed by the danger of undue and unfair prejudice resulting from its introduction.
This danger was compounded (and capitalized on) by the prosecutor’s use of this
inflammatory evidence for the impermissible purpose of arguing defendant’s violent
tendencies and propensity to react violently during marital disputes (e.g., “he knew what
he would do if she did not comply. And how do we know that? Because he’s been there
before”). Thus admission of the evidence of the 1991 shooting was error.
        Because the case for first degree murder--while adequate (see part I, ante)--was
not particularly strong and was countered by substantial contrary evidence, and because
the prosecutor relied so heavily on the prior evidence in cross-examination and argument,
we find the error was prejudicial, that is, it is reasonably probable defendant would have

Constancio (1974) 42 Cal.App.3d 533, 546; see also People v. Eckstrom (1974)
43 Cal.App.3d 996, 1000-1003.)
4   Further undesignated section references are to the Evidence Code.

                                              18
achieved a more favorable result had the evidence been excluded. (See Cal. Const., art.
VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) This compels reversal.
       A. Background
       Before trial, defense counsel conceded defendant had been released from an
Oklahoma prison in 2005 and had been convicted of felon in possession of a firearm in
California in 2007. The trial court found the 1992 Oklahoma conviction (based on 1991
conduct) was not stale for impeachment purposes because defendant had not led a
blameless life.5
       The parties then discussed in some detail the People’s motion to admit evidence of
the Oklahoma incident to show premeditation and deliberation, intent, motive, and lack
of mistake or accident. Although section 1101, subdivision (a) generally bars “evidence
of a person’s character or a trait of his or her character . . . when offered to prove his or
her conduct on a specified occasion,” the People relied on subdivision (b) of that statute,
which provides in part:

              “Nothing in this section prohibits the admission of evidence that a person
       committed a crime . . . when relevant to prove some fact (such as motive,
       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
       accident . . . ) other than his or her disposition to commit such an act.” (§ 1101,
       subd. (b), italics added.)
       In his written motion the prosecutor repeatedly likened the two cases by arguing
defendant was trying to preserve the “status quo” of his married life in each one, which
tended to show motive, intent to kill, and deliberation and premeditation. The prosecutor


________________________________________________________________
5  The 1992 conviction (by plea) was for violating a statute that then provided in part:
“Every person who intentionally and wrongfully shoots another with or discharges any
kind of firearm, with intent to kill any person, is punishable by imprisonment in the
penitentiary not exceeding life.” (Former Okla. Stats., tit. 21, ch. 21, § 652; Okla. Laws
1987, ch. 58, § 1, eff. Apr. 30, 1987.) The felon-in-possession conviction was also ruled
admissible for impeachment over the objection that it was a mere “status” crime that had
little impact on credibility, but it does not appear that it was used at trial.

                                              19
represented that “[t]his might be the most important evidence in this case”; and that “[i]t
is also relevant for the doctrine of chances or to negate mistake or accident. . . . The
doctrine of chances is based on a combination of similar events, and it teaches that the
more often one does something, the more likely something was intended and even
premeditated rather than accidental or spontaneous. [¶] Specifically, the more often one
kills, especially under similar circumstances—and that is what is key in this case—
circumstances are very similar—the reasonable inference [is] that the killing was
intended and premeditated. That is what this entire case is going to be about . . . .”
       The prosecutor acknowledged that the 1991 attack was a shooting and the current
offense involved a knife, but argued they were committed “under very similar
circumstances where this defendant is about to lose his wife and his family, his status
quo, this is how he reacts, and this is how he punishes the people that are going to take
that away from him.” He also acknowledged the victim in 1991 did not die, but argued
that minimized the inflammatory nature of the evidence in comparison to this case where
the “victim died under very disgraceful circumstances.”
       Defense counsel argued this was pure propensity-for-violence evidence. The
passage of time and dissimilarity of the two incidents belied any claim that the former
permissibly shed light on the latter.
       After considering the moving papers and oral arguments, the trial court ruled the
evidence was admissible for the purposes sought to be proven under section 1101,
subdivision (b).6 In assessing prejudice under section 352, the trial court ruled the
________________________________________________________________
6 The trial court later ruled the evidence was also admissible under section 1109. This
was incorrect and is not defended by the Attorney General. That statute permits evidence
of prior “ ‘domestic violence’ ” and defines that term by referencing two other statutes.
(§ 1109, subd. (d)(3).) One cross-referenced statute, Penal Code section 13700,
subdivision (b), defines the term so that it would include defendant’s former wife, but not
his former mother-in-law. The other, Family Code section 6211, subdivision (f), would
include the former mother-in-law (a person “related by . . . affinity within the second
degree”), but does not apply to incidents “more than five years before the charged

                                             20
evidence was not unduly prejudicial because although “one could argue shooting
somebody in the face is pretty darn prejudicial,” “in that case that person did not die.”
Whether or not the jury should learn defendant had already been punished was a matter
left to defense counsel’s tactical decision; defense counsel objected to mention of
punishment, believing the jury would infer defendant had been punished. The trial court
did not discuss other factors.
       The testimony about this incident consisted of former victim Betty T.’s daughter’s
testimony, accompanied by an initial limiting instruction. Defendant also testified that he
had served his time for that crime, which was referenced in his telephone call to Nance as
a 15-year sentence. As we noted (see fn. 1, ante), defendant also admitted in his
testimony that he had “played that over” in his head a thousand times and thought about
what he would do differently if placed in the same situation, although he did not agree
with the prosecutor that he had “chos[en] the same path” in committing the instant
offense.
       At the end of the trial, the trial court gave the pattern limiting instruction,
CALCRIM No. 375, to which no objection was interposed.7


offense.” (§ 1109, subd. (d)(3).) Therefore, as defendant correctly notes, section 1109
does not apply herein. Despite this (erroneous) ruling, the trial court did not instruct the
jury that the evidence was admissible for consideration of propensity under section 1109.

7  That instruction reads as follows: “The People presented evidence that the defendant
committed the offense of shooting with intent to kill that was not charged in this case. [¶]
You may consider this evidence only if the People have proved by a preponderance of the
evidence that the defendant in fact committed the offense. Proof by a preponderance of
the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact
is proved by a preponderance of the evidence if you conclude that it is more likely than
not that the fact is true. [¶] If the People have not met this burden, you must disregard
this evidence entirely. [¶] If you decide that the defendant committed the offense, you
may, but are not required to, consider that evidence for the limited purpose of deciding
whether or not: [¶] The defendant acted with the intent to kill in this case or
premeditated and deliberated; or [¶] The defendant had a motive to commit the offense
alleged in this case; or [¶] The defendant’s action was not an accident or a mistake. [¶]

                                              21
       As detailed above, the prosecutor heavily relied on this evidence during argument,
and therein implied that the prior shooting showed defendant’s propensity to act in the
violent and desperate manner alleged toward his current wife.
       B. Analysis
       “We review the trial court’s decision whether to admit evidence, including
evidence of the commission of other crimes, for abuse of discretion. [Citation.]”
(People v. Harris (2013) 57 Cal.4th 804, 841.) But discretion is delimited by the
applicable legal standards, a departure from which constitutes an “abuse” of discretion.
(City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) “The discretion
conferred upon the court ‘is a discretion, governed by legal rules, to do justice according
to law or to the analogies of the law, as near as may be.’ [Citation.] That is to say, the
range of judicial discretion is determined by analogy to the rules contained in the general
law and in the specific body or system of law in which the discretionary authority is
granted.” (County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778.)
       “Except as otherwise provided by statute, no evidence is admissible except
relevant evidence. (Evid. Code, § 350.) Relevant evidence is evidence ‘having any
tendency in reason to prove or disprove any disputed fact . . . .’ (Id., § 210.) The trial
court is vested with wide discretion in determining the relevance of evidence. [Citation.]
The court, however, has no discretion to admit irrelevant evidence. [Citation.]
‘Speculative inferences that are derived from evidence cannot be deemed to be relevant


In evaluating this evidence, consider the similarity or lack of similarity between the
uncharged offense and the charged offense. [¶] Do not consider this evidence for any
other purpose except for the limited purpose of determining the defendant’s credibility.
[¶] Do not conclude from this evidence that the defendant has a bad character or is
disposed to commit crime. [¶] If you conclude that the defendant committed the
uncharged offense, 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 murder or
that the shooting with intent to kill has been proved. The People must still prove the
charge and every allegation beyond a reasonable doubt.” (CALCRIM No. 375.)

                                             22
to establish the speculatively inferred fact in light of Evidence Code section 210, which
requires that evidence offered to prove or disprove a disputed fact must have a tendency
in reason for such purpose.’ [Citation.]” (People v. Babbitt (1988) 45 Cal.3d 660, 681-
682.)
        We have summarized the general rules about prior crimes evidence as follows:

                “As a general rule, evidence of uncharged crimes is inadmissible to prove
        the defendant had the propensity or disposition to commit the charged crime.
        [Citations.] ‘The reason for this rule is not that such evidence is never relevant; to
        the contrary, the evidence is excluded because it has too much probative value.’
        [Citations.] ‘ “The natural and inevitable tendency” ’ is to give excessive weight
        to the prior conduct and either allow it to bear too strongly on the present charge,
        or to take the proof of it as justifying a conviction irrespective of guilt of the
        present charge. [Citations.]

               “Evidence of other crimes is admissible, however, when relevant for a
        noncharacter purpose—that is, when it is relevant to prove some fact other than
        the defendant's criminal disposition, such as ‘motive, opportunity, intent,
        preparation, plan, knowledge, identity, absence of mistake [of fact] or accident.’
        [Citations.]

               “Although a prior criminal act may be relevant for a noncharacter purpose
        to prove some fact other than the defendant’s criminal disposition, the probative
        value of that evidence may nevertheless be counterbalanced by a section 352
        concern. Evidence may be excluded under section 352 if its probative value is
        ‘substantially outweighed by the probability that its admission [would] . . . create
        substantial danger of undue prejudice, of confusing the issues, or of misleading the
        jury.’

                 “Thus, the admissibility of uncharged crimes depends upon three factors:
        (1) the materiality of the facts sought to be proved; (2) the tendency of the
        uncharged crimes to prove or disprove the material fact (i.e., probative value); and
        (3) the existence of any rule or policy requiring the exclusion of relevant evidence
        (i.e., prejudicial effect or other § 352 concern). [Citations.]

                “Courts subject other crimes evidence to ‘ “extremely careful analysis” ’
        [citation] and review the admission of such evidence for abuse of discretion
        [citation]. ‘Action that transgresses the confines of the applicable principles of
        law is outside the scope of discretion and we call such action an “abuse” of
        discretion. [Citation.]’ [Citations.] Thus, ‘[t]o determine if a court abused its


                                              23
       discretion, we must . . . consider “the legal principles and policies that should have
       guided the court’s actions.” [Citation.]’ [Citation.]” (People v. Hendrix (2013)
       214 Cal.App.4th 216, 238-239 (Hendrix).)
       “The reasons for exclusion are: ‘First, character evidence is of slight probative
value and may be very prejudicial. Second, character evidence tends to distract the trier
of fact from the main question of what actually happened on the particular occasion and
permits the trier of fact to reward the good man and to punish the bad man because of
their respective characters. Third, introduction of character evidence may result in
confusion of issues and require extended collateral inquiry.’ [Citations.]” (1 Witkin, Cal.
Evidence (5th ed. 2012) Circumstantial Evidence, § 44, p. 422, original italics.) “ ‘It is
objectionable, not because it has no appreciable probative value, but because it has too
much. The natural and inevitable tendency of the tribunal--whether judge or jury--is to
give excessive weight to the vicious record of crime thus exhibited, and either to allow it
to bear too strongly on the present charge, or to take the proof of it as justifying a
condemnation irrespective of guilt of the present charge.’ ” (Id. at § 76, p. 460, italics
added; see People v. Fitch (1997) 55 Cal.App.4th 172, 179.) “The primary reasoning that
underlies this basic rule of exclusion is not the unreasonable nature of the forbidden chain
of reasoning. [Citation.] Rather, it is the insubstantial nature of the inference as
compared to the ‘grave danger of prejudice’ to an accused when evidence of an
uncharged offense is given to a jury. [Citations.]” (People v. Thompson (1980) 27
Cal.3d 303, 317 (Thompson).)8 “Since ‘substantial prejudicial effect [is] inherent in
[such] evidence,’ uncharged offenses are admissible only if they have substantial
probative value. If there is any doubt, the evidence should be excluded. [Citation.]” (Id.
at p. 318, original italics, fn. omitted.)



________________________________________________________________
8 Thompson was later disapproved to the extent it suggested that something more than a
not guilty plea was necessary to place in issue all elements of an offense. (See People v.
Scott (2011) 52 Cal.4th 452, 470-471.)

                                              24
       We find very little, if any, similarity between the two incidents, and certainly none
that would allow a fact finder to infer anything about defendant’s conduct in the present
case based on his actions in the prior case other than improper reliance on the evidence as
character or propensity evidence.
       In 1991, defendant admittedly shot his former mother-in-law with the intent to kill
her when she intervened as he grabbed at his former wife, who had left him. In 2014,
while defendant and his wife were in his van where they often stayed together, using
drugs and listening to music while they discussed the future of their troubled marriage, he
evidently beat her, causing blunt force injuries, cut her thumb, stabbed her twice in the
neck, and then left, allowing her to bleed to death. He admitted the killing; the dispute
was over his mental state at the time.
       The People’s in limine motion argued the evidence would show that “defendant
had ‘1991’ in mind when [the victim] attempted to take away his status quo in 2014.” In
his briefing, defendant persuasively refutes the prosecutor’s “status quo” argument. “The
People theorized that [defendant] attempted to kill his mother-in-law in 1991 because she
interfered with his effort to preserve the ‘status quo’ of his marriage to Becky. That does
not support a theory that he intended to kill a different wife 23 years later. Killing her
would destroy the status quo of his marriage, not preserve it.” (Italics added.) As for
motive, he did not kill the present victim “with the same motive that compelled him to
shoot his mother-in-law. After all, his motive for shooting her in 1991 stemmed from his
desire to stay married to Becky and to prevent her (a third party) from interfering with his
efforts to take her back. He was not motivated to kill Tanganyika because he wanted to
preserve his marriage and stay married to her, nor was his violence directed at a third
party. Killing her ended his marriage, which is the opposite of what he sought to achieve
in 1991.” (Original italics.)
       As we have set forth ante, at argument in the trial court the prosecutor posited the
shooting was properly admitted under the “doctrine of chances.” The Attorney General

                                             25
does not even attempt to defend the admission on that ground, nor can he. Instead, he
argues that the evidence was relevant to prove defendant’s mental state, i.e., that
defendant acted with premeditation and deliberation, and with the intent and motive to
kill as well as in the absence of mistake or accident.
       The discretion to admit prior acts evidence to show intent is broad, but not
unbounded. “The least degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar
result . . . tends (increasingly with each instance) to negative accident or inadvertence or
self-defense or good faith or other innocent mental state, and tends to establish
(provisionally, at least, though not certainly) the presence of the normal, i.e., criminal,
intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove
intent, the uncharged misconduct must be sufficiently similar to support the inference that
the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’
[Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), italics added.)
       Put another way: “In ascertaining whether evidence of other crimes has a
tendency to prove the material fact, the court must first determine whether or not the
uncharged offense serves ‘ “logically, naturally, and by reasonable inference” ’ to
establish that fact. [Citations.] The court ‘must look behind the label describing the kind
of similarity or relation between the [uncharged] offense and the charged offense; it must
examine the precise elements of similarity between the offenses with respect to the issue
for which the evidence is proffered and satisfy itself that each link of the chain of
inference between the former and the latter is reasonably strong.’ [Citation.] If the
connection between the uncharged offense and the ultimate fact in dispute is not clear,
the evidence should be excluded. [Citations.]” (Thompson, supra, 27 Cal.3d at p. 316,
fns. omitted, italics omitted, italics added; see People v. Cage (2015) 62 Cal.4th 256, 274
[for motive, the prior incident may be dissimilar “provided there is a direct relationship or
nexus between it and the current” offense].) And even to negate accident or mistake (that

                                              26
is, to show criminal intent), although the “least degree of similarity” is required (Ewoldt,
supra, 7 Cal.4th at p. 402), the incidents must be similar enough to support the inference
that the defendant probably bore the same intents each time. (Ibid.; see Hendrix, supra,
214 Cal.App.4th at pp. 242-243; United States v. Miller (9th Cir. 1989) 874 F.2d 1255,
1269 [“when prior crimes are used to establish ‘. . . absence of mistake or accident,’ such
evidence simply lacks probative value unless it is sufficiently similar to the subsequent
offense. [Citation.] This is true because, if the prior act is not similar, it does not tell the
jury anything about what the defendant intended to do in his later action”].)
       The Attorney General argues that the two incidents were sufficiently similar
because both “involved a domestic violence situation,” and any differences in the
circumstances merely go to the weight of the evidence, not its admissibility to show
intent. But there was nothing suggesting premeditation or deliberation about the 1991
incident; there, defendant suddenly shot his former mother-in-law when she intervened
on behalf of her daughter. The People’s theory in the 2014 incident was that defendant
lured the victim into the van in order to kill her, or at least formed the deliberate and
premeditated intent to kill her while conversing inside the van. Apart from the fact that a
troubled marriage was involved in both cases, they are completely different kinds of
incidents. They are not of the kind where the former sheds any probative light on the
latter, as in the three cases relied on by the Attorney General. (Cf. People v. McCurdy
(2014) 59 Cal.4th 1063, 1098 [prior incest against young sister was probative of the
defendant’s lewd intent toward another female child]; Steele, supra, 27 Cal.4th at p. 1244
[both prior and charged victims--who resembled each other “somewhat”--were strangled
and stabbed multiple times in the chest or abdomen, and after each killing the defendant
admitted his actions but each time he claimed intoxication was at least partly
responsible]; People v. Carpenter (1997) 15 Cal.4th 312, 383 [serial sex killer; “the more
often defendant killed or raped, the more likely he (1) intended (and premeditated) the



                                               27
result actually achieved, (2) intended to fulfill his statement of intent to rape [one victim],
and (3) intended to kill [another victim] although [that victim] survived”].)
        This case is nothing like the three cases relied on by the Attorney General.
Application of his broad “domestic violence” theory would allow any prior assault
against any family member to be admitted in a subsequent prosecution for an assault
against another family member. Section 1101, subdivision (b) does not stretch so far.
        Further, contrary to a claim made in the prosecutor’s moving papers, there was no
claim of accident or mistake in the 1991 case. Unlike the instant case, there defendant
admitted by his plea that he shot his former mother-in-law with the intent to kill her. We
fail to see how the fact that defendant admitted harboring an intent to kill during a
shooting in 1991 has any tendency in reason to prove or disprove accident or mistake
during a struggle resulting in multiple (and ultimately fatal) knife wounds in the present
case.
        As for motive, the Attorney General properly cites authority for the proposition
that prior acts are admissible where there is “a direct logical nexus” between them. (See
People v. Demetrulias (2006) 39 Cal.4th 1, 15 [“the probativeness of other-crimes
evidence on the issue of motive does not necessarily depend on similarities between the
charged and uncharged crimes, so long as the offenses have a direct logical nexus,”
italics added].) We see no direct logical nexus in this case, for the reasons explained
above. True, it can be inferred that in both cases defendant was angry at his respective
wives, but he never stood accused of harming his first wife or even intending to do so.
Instead, he lashed out at his mother-in-law. Although that evidence is certainly probative
of defendant’s tendency toward violence when confronted, that is not a proper reason for
admission under the relevant statute here. Admission to prove a penchant for violence or
conduct in conformity is expressly disallowed. (See § 1101, subd. (a).) Further, the
Attorney General cites no case showing that commission of an assault while angry
evidences a motive to commit an assault in the future. Again, the evidence must be

                                              28
relevant for a proper purpose, not merely relevant to a tendency to behave badly. As
defendant’s briefing points out, his motive for the 1991 shooting was generated by his
desire to prevent a third party from interfering with his marriage; here, killing the victim
ended his marriage rather than preserving it.
       Even if we stretched section 1101, subdivision (b) to find a preliminary showing
of relevance, for reasons we discuss in more detail post the evidence was far more
prejudicial than probative. Further, the prosecutor’s closing arguments consistently tied
the current incident to defendant’s purported state of mind in 1991. This raises the real
likelihood that the jury--albeit in derogation of its instructions--would use the prior
incident to improperly shore up the thin case for premeditation and deliberation.
       In People v. Harris (1998) 60 Cal.App.4th 727 (Harris), a case involving section
1108 but also addressing section 1101, we outlined the following factors to be considered
in admitting other act evidence: (1) the comparatively inflammatory nature of the
uncharged act; (2) the probability of jury confusion; (3) remoteness; (4) consumption of
time; and--perhaps most importantly--(5) the probative value of the prior act. (Harris,
supra, at pp. 737-741.)
       As stated, we perceive little permissible probative value in this evidence, because
the dissimilarities between the two cases means there is little to no strength to the chain
of inferences leading one to conclude defendant bore any particular mental state in this
case based on what happened in 1991. It appears both crimes were about equally
heinous, because although only the current victim died, the other case reflected an
admitted intent to kill by means of shooting. Although the direct testimony about the
Oklahoma incident was brief, it occupied a grossly disproportionate part of the People’s
cross-examination and closing arguments. As the prosecutor had represented to the trial
court at the hearing on the motions in limine, it was the “most important evidence” of his
case. This means the jury would very likely be confused, meaning distracted from the
question at hand and instead focused on discerning to what extent defendant really might

                                             29
be inclined to violently attack and kill, with the preplanned intent to do so, any wife who
would leave him or a relative of hers, and whether this inclination would persist despite
the passage of the intervening 23 years, and the very different factual scenarios presented
by the two incidents.
       In this connection, defendant correctly points out that the strength of an inference
from prior act evidence dissipates over time. (See, e.g., People v. Dancer (1996)
45 Cal.App.4th 1677, 1691 [“the remoteness of the prior incident from the current one,
11 years, tends to degrade its probative value”], disapproved on another point, People v.
Hammon (1997) 15 Cal.4th 1117, 1123; see also People v. Johnson (2010)
185 Cal.App.4th 520, 535-536 [what may be remote in a case involving dissimilar acts
may not be too remote in a case involving similar acts].) In our view, 23 years is a very
long time (a length of time we deemed remote in Harris, although there were other
factors in play in that case), and as stated, the fact defendant was in prison for much of
that time does not change this view.9 Given the lack of similarity between the charged
and uncharged acts, it was too remote.

________________________________________________________________
9  Remoteness for purposes of sections 352 and 1101, subdivision (b) is measured
differently than remoteness for purposes of impeachment. For the latter, the question
often turns on whether the person has led a blameless life, demonstrating that the person
no longer has the propensity to lie generally imputed to convicted felons. (See People v.
Burns (1987) 189 Cal.App.3d 734, 737-739.) For the former, the question is whether the
prior conduct is so old that it is not reasonable to conclude it speaks to a person’s current
mental state. (See Harris, supra, 60 Cal.App.4th at p. 739 [23 years deemed remote
where the defendant had evidently led a blameless intervening life, noting that “the issue
is not impeachment, it is the question of predisposition to commit the charged sexual
offenses”]; People v. Whisenhut (2008) 44 Cal.4th 174, 205 [in assessing remoteness of
prior acts, court must consider whether “the passage of time significantly lessened the
probative value of the evidence”].) The Attorney General relies on the test applicable in
impeachment cases. Defendant (wisely, given his 2007 firearm felony offense) does not
argue the ruling admitting the Oklahoma conviction for impeachment was an abuse of
discretion. But that firearm offense does not tighten or create any logical connection
between the 1991 offense and the 2014 offense, it merely shows defendant did not lead a
blameless life upon release from prison.

                                             30
       The Attorney General correctly contends the jury learned defendant was punished
for the prior crime, and that the jury was given a limiting instruction which it is presumed
to have obeyed (see, e.g., People v. Zack (1986) 184 Cal.App.3d 409, 415-416), but then
argues that “[t]he prosecutor did not encourage the jury to consider the evidence for
propensity purposes, either.” We disagree. Although the prosecutor did not use the word
“propensity,” he discussed the 1991 evidence at great length and insinuated that in 2014
defendant was acting in conformity therewith. Indeed, as the prosecutor had predicted
pretrial, his case for first degree murder hinged on the 1991 shooting.
       The prosecutor urged the jury to infer defendant had been planning how he would
react to a wife leaving him for 23 years. He argued the present offense posed the “exact
same situation” to defendant as that posed in 1991. “What this guy planned was to
confront his wife. And he knew what he would do if she did not comply. And how do
we know that? Because he’s been there before. He’s been in almost this exact situation.”
“He’s got 1991 going through his head. He’s got her leaving going through his head. He
knows the consequences. He knows what he’s about to do. And he does it again when
he stabbed her again to finish her off.” This was a conformity argument disguised as
intent, that improperly bolstered the otherwise thin (albeit, sufficient, see part I, ante)
case for first degree murder. Taken as a whole, this equated to a propensity argument, as
the evidence did not significantly speak to any relevant purpose under section 1101,
subdivision (b) to justify its use.
       We hold the trial court should not have permitted the introduction of this evidence.
       C. Prejudice
       We consider whether the error is prejudicial under the Watson standard.10 Our
conclusion is presaged by the preceding discussion, which we will not repeat here.


________________________________________________________________
10 Defendant contends any error in admitting this evidence violated his federal due
process rights, thereby triggering the Chapman standard of prejudice. (See Chapman v.

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       There is no doubt defendant caused the victim’s death. But his mental state at the
relevant time was not clear-cut at all. The jury could easily have inferred that he killed
her in the heat of passion, rather than in a calculating way, particularly given his heavy
drug usage that week, the evidence he was with her in the van, apparently peaceably for
some time, and the lack of an apparent plan--at least a thought out plan--to kill her,
among other facts. By so heavily resting the case for murder--and first degree murder to
boot--on defendant’s 1991 actions, the prosecutor greatly increased the likelihood the
jury would also improperly rest its determination thereon. (See Hendrix, supra,
214 Cal.App.4th at pp. 249-250 [a prosecutor’s emphasis or minimization of uncharged
act evidence at argument is relevant when considering whether introduction of the
evidence was prejudicial].)
       We conclude the error was prejudicial, i.e., that it is reasonably probable defendant
would have obtained a more favorable result in the absence of the error. (See Watson,
supra, 46 Cal.2d at p. 836.)




California (1967) 386 U.S. 18 [17 L.Ed.2d 705].) We need not consider this point
because we find the error prejudicial under the Watson standard.

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                                     DISPOSITION
        The judgment is reversed and the cause remanded for a new trial.


                                                      /s/
                                                Duarte, J.

We concur:


      /s/
Blease, Acting P. J.




       /s/
Hull, J.




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