Filed 12/17/14 P. v. Torres CA1/3
                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A139734
                   v.
                                                                         (Contra Costa County
MARIO TORRES,
                                                                         Super. Ct. No. 05-131090-3)
         Defendant and Appellant.

         Defendant Mario Torres appeals his conviction and six-year prison sentence for
assault by means of force likely to produce great bodily injury (Pen. Code, § 245,
subd. (a)(4)) with personal infliction of great bodily injury (Pen. Code, § 12022.7,
subd. (a)), and battery causing serious bodily injury (Pen. Code, §§ 242, 243, subd. (d)).
The conviction is based on an altercation in which defendant punched and seriously
injured another man, Rick Hendricks, during a dispute over payment of a debt. Hendricks
claimed defendant struck him without warning and defendant claimed that he acted in
self-defense. No other person witnessed the exchange. Defendant contends the court
erred in admitting evidence of uncharged assaults upon his girlfriend, compounded by the
erroneous refusal to give a limiting instruction or to limit the scope of the inflammatory
evidence the prosecution was permitted to introduce to refute defendant’s denial of the
uncharged misconduct. We conclude that as the result of a series of trial court errors, the
focus of the trial shifted from the exchange between defendant and Hendricks to
defendant’s assaults on his girlfriend and that this evidence was wrongly used to prove a


                                                             1
disposition to commit violent acts. (Evid. Code, § 1101, subd. (a).) As it is reasonably
probable a result more favorable to defendant would have been reached in the absence of
the errors, we must reverse the judgment. (People v. Watson (1956) 46 Cal.2d 818, 836.)
                                    Statement of Facts
Prosecution evidence
       Defendant and Hendricks were acquainted through their girlfriends: defendant’s
girlfriend Betty Zierke is the daughter of Hendricks’s girlfriend. On the day in question,
Hendricks was 56 years of age and defendant was 36 years old. The men are about the
same height and weight.
       Hendricks testified he borrowed $100 from defendant and the men fought when
defendant came to Hendricks’s home to demand payment. Hendricks said he was not
“getting along” with defendant at the time and had previously asked him “not to show
up” at Hendricks’s house because defendant was having “issues” with Zierke. Hendricks
described the “issues” as “Domestic stuff. You know they had arguments and fights and
stuff.” Hendricks was not present during these arguments.
       Prior to the start of trial, defendant made an in limine motion to exclude evidence
of prior uncharged criminal acts as unduly prejudicial and improper character evidence.
(Evid. Code, §§ 352, 1101.) The court denied the motion, holding that defendant’s
“reputation for pummeling people” could be admitted to show Hendricks feared him.
Consequently Hendricks further testified, over an additional hearsay objection, that
defendant “basically assaulted [Zierke].”
       Hendricks further testified that the day before the fight, he was at Zierke’s
apartment to repair a broken bedroom door defendant had “kicked in.” Hendricks said he
repaired two other doors with similar damage in previous weeks. After repairing the
bedroom door, Hendricks said to defendant, referring to the money he borrowed from
defendant, that “It looks like this squares us up.” Defendant replied, “I don’t think so.”
       On the following afternoon of November 28, 2012, Hendricks was at home
playing a video game in his living room when defendant opened the screen door and
walked in without knocking. Defendant had been to the house several times before and


                                              2
often let himself in. Hendricks was alone in the living room; his live-in girlfriend was in a
bedroom, and his roommate Dave Gregory was in the garage. Hendricks testified that he
and defendant engaged in “small talk” before defendant asked “Do you have my
money?” Hendricks continued to play the video game and replied, “No, I don’t have your
money. We’re square.” Defendant walked out of the house.
       Shortly later, Gregory saw defendant standing outside near Hendricks’s truck,
tapping on the window “with some piece of metal or knife.” Gregory testified he did not
see an object in defendant’s hand but heard metal hitting glass. Gregory told defendant
“Don’t break the fuckin’ window in the truck and don’t be doing no fuckin’ stupid shit
out here.” Defendant turned around and walked back in the house. Gregory went in the
garage.
       According to Hendrick’s testimony, defendant reentered the house and again
demanded money. Hendricks refused, saying he did not have any money and, if he did,
he would give it to Zierke because defendant owed her money. Hendricks testified he
stood up, pointed to the door and said, “Get the fuck out of my house,” whereupon
defendant punched him in the face, striking him in the right eye. Hendricks grabbed
defendant and the men “wrestled,” first standing then on the floor. Hendricks said
defendant may have hit him once more while wrestling and he may have hit defendant.
Hendricks called for his roommate to “get this mother fucker off me.” Gregory ran from
the garage to the living room where he saw defendant on top of Hendricks with a raised
fist. Gregory pulled defendant off Hendricks saying, “no more.” Defendant “went out the
front door.” The fight lasted two minutes “at the most.” Hendricks admitted regular
methamphetamine use but denied using drugs on the day of the fight.
       Hendricks was “bleeding profusely.” Gregory drove him to the hospital where he
stayed for a week. Hendricks suffered a broken nose and permanent damage to his right
eye. His eye cannot move within its socket and his vision is blurred and doubled.
       Following Hendricks’s testimony, defense counsel asked the court for a limiting
instruction advising the jury that statements about defendant assaulting Zierke were not
admitted for the truth of the matter asserted. The court denied the request: “There’s no


                                             3
reason why they would use it for its hearsay purpose, for the truth of the matter of what it
asserts. Because the truth of the matter of what it asserts is not an issue. So it’s a
nonissue.” Defense counsel disagreed “that jurors understand that it’s not coming in for
the truth” but the court said “I don’t think [the jury] needs to be told it’s not for the truth.”
       The prosecution’s case continued with the testimony of a police officer who spoke
to Hendricks at the hospital on the night of the fight. The officer testified he saw no signs
that Hendricks was under the influence of methamphetamine. Hendricks told the officer
he may have seen a metal object in defendant’s hand that “possibly resembled brass
knuckles.” Hendricks also told the officer that defendant stole money from Zierke, which
is why he would not repay defendant. The officer reported that Hendricks also mentioned
defendant’s “domestic violence issues.”

Defense evidence

       Defendant testified he punched Hendricks in self-defense. He stated that on the
day in question he knocked on the door of Hendricks’s house. Hendricks’s girlfriend
answered the door and let him in. Defendant thought Hendricks “might have been
drinking” because “[h]e was slurring his words up a little bit.” The men had “small talk”
then defendant asked Hendricks “How about paying back some of that money?”
Defendant said Hendricks had borrowed $2,000 from him. Hendricks refused to pay,
saying he did not have any money. Defendant said “I don’t even care if it’s $20 a month,”
but defendant refused to make any payment. Defendant was “irritated” and went outside,
where he paced around. Defendant testified that Gregory told him “Don’t do anything
stupid,” and defendant replied “Don’t worry about it. I’m not going to do anything
stupid.”
       Defendant returned to the house. His version of what then transpired is as follows.
He again asked Hendricks for payment on the loan. Hendricks refused in a rude manner.
Defendant told Hendricks: “I don’t know who raised you and I don’t know if your father
was man enough to raise you, but where I come from I pay off my debt.” Hendricks
threw down the controller to the video game he had been playing and “started flipping


                                               4
out and acting crazy.” Hendricks yelled “Get the fuck out” and “I’m going to beat your
ass.” Defendant “back-pedal[ed]” to the front door and said “I’m leaving. I just want you
to start paying some of that money back.” Hendricks said “Fuck you” and charged toward
defendant with his “hand cocked to hit” defendant in the face. Defendant testified he hit
Hendricks to prevent being hit. The men then punched each other and defendant fell on
top of Hendricks. Defendant saw Hendricks’s eye was “lacerated” and “in bad shape.” In
shock, defendant left the house.
       On direct examination, defendant was also asked “Did you ever hit Betty
[Zierke]?” and he replied “No, I did not.” Outside the presence of the jury, the prosecutor
told the court “I can prove he hit Betty Zierke and I’d like to do so. I have [Zierke’s] prior
sworn testimony or I can get Betty Zierke here tomorrow morning.” Defense counsel
objected, saying “The court has made several rulings that it’s not coming in for the truth
of the matter.”
       The court acknowledged its prior rulings limiting evidence of assaults upon Zierke
to “the victim’s state of mind” but said defense counsel “opened the door” to proof of the
assaults to impeach defendant’s credibility because he testified he never hit Zierke.
Defense counsel argued that evidence defendant hit Zierke had “come in a million times
and I thought the ruling was that [Hendricks] could say what he wanted to say about it,
but that it wasn’t coming in for the truth. [¶] So they’ve heard it a thousand times and for
[defendant] not to be able to just give his statement on that doesn’t make any sense.” The
court disagreed, finding that defense counsel “created a contested issue” “instead of just
leaving well enough alone.” Defense counsel said “I messed up. I didn’t understand Your
Honor’s ruling.” Counsel said she asked defendant about the Zierke assaults only because
she believed the court’s in limine ruling permitted the prosecutor to examine defendant
on the issue.
       Defense counsel argued that introducing details of the assaults through cross-
examination of defendant or Zierke’s testimony would be more prejudicial than probative
and offered to stipulate that defendant was twice arrested for domestic violence, that
Zierke told the police defendant hit her, and that Hendricks was aware of these facts. The


                                              5
prosecution refused the stipulation and the court ruled the prosecution was entitled to a
full cross-examination of defendant on the subject.1
       The prosecutor’s cross-examination of defendant was extensive and included
lengthy references to the details underlying defendant’s two arrests for domestic violence.
Defendant admitted the arrests but denied hitting Zierke, admitting only verbal
arguments. The testimony continued: “Q. July 4th, 2012, after the fireworks show, isn’t it
true that you slapped Betty [Zierke] in the face? [¶] A. No, it is not. [¶] Q. When the
police came to where you were and asked if you had slapped Betty Zierke, isn’t it true
that the first thing you said to them was, ‘Well, that’s personal’? [¶] A. I never said that.
[¶] . . . [¶] On July 4th, what happened was I had a verbal argument with Betty Zierke.
The police told me I had to let them in. I let them in, I turned my back and they pulled out
their batons and started beating me with them. That is a true story. [¶] So they were going
to uncuff me. And I said, ‘If you uncuff me, I’m going to beat your ass.’ I told the cop
that because I was pissed off because they batoned me. [¶] . . . [¶] Q. You tell the police,
‘If you unhandcuff me, I’m going to beat your ass,’ you say that to the police?
[¶] A. After they beat me with batons for having a verbal argument, yes, I would. I’m
sure anybody else in here would, too. Would you? [¶] [The Prosecutor] No. [¶] . . . [¶] I
would never tell an officer I was going to beat his ass.”
       Over defense objections, seven pages of police photographs depicting Zierke’s
injuries were admitted in evidence. The cross-examination continued: “Q. How does she
look in those photographs? [¶] A. She looks like Betty. [¶] Q. How does her body look?
[¶] A. She looks like she’s drinking too much, blackout drunk like she has about 20 times
before, probably hit every damn stair and every table around; and I believe she’s admitted
that in court. [¶] Q. So you look at those photos of Betty Zierke and say, ‘She looks like a
blackout drunk.’ [¶] A. Exactly. That’s exactly what I’m saying. You’re saying I’m

1
 The prosecution was also granted permission to present Zierke as a witness but she
could not be located. The court refused the prosecution’s request to introduce Zierke’s
preliminary hearing testimony.



                                              6
supposed to see a battered woman, and it is not there. It is just ridiculous. [¶] Q. Does
Betty Zierke have injuries in those pictures. [¶] A. Not that I see, no. She’s got a couple
bruises on her leg, whatever, hand, whatever. I can pull my pants up and you could
probably see a few bruises, too.” Questioning continued. “Q. Do you have any concerns
about what you see on those photographs about Betty? [¶] A. I do. [¶] Q. What concerns
you about those photographs? [¶] A. It looks like . . . Betty’s doing too much drugs, that’s
what it looks like to me. [¶] Q. That’s all. [¶] A. Yeah, that is all I see. . . . [¶] Q. And you
know, Mr. Torres, that Betty, who’s pictured here, was pregnant with your son, right?
[¶] A. No, I did not know that and I still do not know that to this day. [¶] Q. You don’t
know what? [¶] A. If this child is mine . . . .”
       The only other witness for the defense was a psychiatric expert, who testified that
Hendricks tested positive for recent methamphetamine use when admitted to the hospital
following his fight with defendant. The psychiatrist also testified that methamphetamine
use is correlated with aggression and hostility, and chronic use impairs short-term
memory and other cognitive functions.

Rebuttal

       Hendricks’s girlfriend testified, over defense objection, that defendant was not
welcome at the home she shared with Hendricks because defendant had an “abusive
relationship” with her daughter. She said she saw defendant come to the house on the day
of the fight but did not open the door to him.

Closing argument to the jury

       In closing argument to the jury, the prosecutor said defendant admitted punching
Hendricks so the only issue was defendant’s claim of self-defense. The prosecutor told
the jurors: “Your job is to figure out was Rick Hendricks telling the truth or was the
defendant telling the truth.” The prosecutor said defendant was “a liar” and referred the
jurors to the cross-examination of defendant in which defendant called “people all kinds
of horrible names, tweakers and blacked out alcoholics and retarded. . . . I mean that’s
who he is. I’d ask him an unrelated question and he started talking about how he told


                                                7
officers if they [un]handcuffed him he was going to fucking beat their ass. That’s who he
is. And that’s who they’re asking you to rely on when you make your decision.” The
prosecutor held up a police photograph of Zierke taken when defendant was arrested,
pointing to “injuries on her arms, bruises on her legs.” The prosecutor said: “This is his
ex-girlfriend. And I asked him how do you feel about these pictures? And his answer
was, ‘She looks blacked out drunk to me.’ He didn’t care. That’s who he is.”
                                         Discussion
       Defendant raises several issues on appeal. The dispositive issue is defendant’s
claim the court erred in admitting the hearsay evidence of uncharged assaults upon his
girlfriend because the evidence was irrelevant (Evid. Code, §§ 210, 350), inadmissible
character evidence (Evid. Code, § 1101, subd. (a)), and unduly prejudicial (Evid. Code,
§ 352).

1. General principles

       The standard governing admission of the challenged evidence is well-established.
“Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is broadly
defined as that having a ‘tendency in reason to prove or disprove any disputed fact that is
of consequence’ to resolving the case. (Evid. Code, § 210.) Inferences drawn from the
evidence must be logical and reasonable, not merely speculative. [Citations.] All relevant
evidence is admissible, unless a specific statutory or constitutional provision bars its
admission. (Evid. Code, § 351; Cal. Const., art. I, § 24.) If evidence is relevant and
admissible for one purpose, but inadmissible if considered for another purpose, the trial
court must admit it but, upon request, limit its proper scope and so instruct the jury.
(Evid. Code, § 355.)” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.)
       “ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of
evidence of a person’s character, including evidence of character in the form of specific
instances of uncharged misconduct, to prove the conduct of that person on a specified
occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not
prohibit admission of evidence of uncharged misconduct when such evidence is relevant


                                              8
to establish some fact other than the person’s character or disposition.’ [Citation.]
‘Evidence that a defendant committed crimes other than those for which he is on trial is
admissible when it is logically, naturally, and by reasonable inference relevant to prove
some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial
court judge has the discretion to admit such evidence after weighing the probative value
against the prejudicial effect. [Citation.] When reviewing the admission of evidence of
other offenses, a court must consider: (1) the materiality of the fact to be proved or
disproved, (2) the probative value of the other crime evidence to prove or disprove the
fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is
relevant. [Citation.] Because this type of evidence can be so damaging, “[i]f the
connection between the uncharged offense and the ultimate fact in dispute is not clear,
the evidence should be excluded.” [Citation.]’ ” (People v. Fuiava (2012) 53 Cal.4th 622,
667.) A trial court’s rulings on relevance and admission of evidence under Evidence
Code section 352 are reviewed for abuse of discretion. (Fuiava, at pp. 667-668.)

2. The trial court abused its discretion in admitting evidence of uncharged crimes.

       In pretrial proceedings, the prosecutor said he wanted to introduce Hendricks’s
testimony that “defendant was unwelcome in his house because [defendant] beat up Betty
Zierke.” Defendant objected and filed an in limine motion to exclude “evidence of any
alleged prior criminal acts or uncharged misconduct” as irrelevant, hearsay, improper
character evidence, and unduly prejudicial. The trial court found the testimony relevant
and admissible to prove Hendricks’s state of mind: “Why the person was in fear of him is
fair game. I mean, if Justin Bieber is coming to my house to beat me up, I don’t have to
worry about it. If Mike Tyson is coming to my house to beat me up, I’d be scared out of
my shoes. And that’s fair game. Why were you afraid of the person coming into the
house? Because what you know about that person is fair game, other than you can’t cross
any lines and you can’t get anything that’s inappropriate like I knew he had X number of
convictions or things like that, but that he’s got a reputation for pummeling people, that’s
fair game.” Defense counsel observed that “Hendricks is not going to be testifying that he


                                              9
acted in self-defense, [so] I don’t know why [defendant’s] reputation is at play here.” The
court replied, “I think it absolutely is relevant.”
         The court erred. Hendricks’s state of mind was not an issue in the case. There was
no evidence Hendricks feared defendant. When asked to describe his relationship with
defendant, Hendricks testified their relationship was “sort of sketchy” and that they
“weren’t getting along.” He said he asked defendant “not to show up to my house”
because there were “issues with him and my girlfriend’s daughter,” not because
Hendricks feared defendant. When defendant came to the house to demand repayment of
a loan, Hendricks ignored defendant and continued sitting on the couch playing a
videogame in an apparently relaxed manner. He did not testify that he feared defendant
nor did his version of the fight rest on any supposed fear of Hendricks. He testified
simply that defendant struck him when he ordered him to leave the house.
         The trial court believed, based on prosecutorial representations, that defendant
made “an illegal and unlawful entry” and the Attorney General says defendant “barged in
to demand money” and suggests that Hendricks feared that the “ ‘unlawful entry entailed
a threat.’ (People v. Hardin (2000) 85 Cal.App.4th 625, 633-634.)” The record contains
no evidence of an illegal entry. The front door was open and only the screen door was
closed (and unlocked). Defendant entered the living room in full view of Hendricks, who
made no protest. Hendricks testified defendant had been to the house “several times
before” and “often let himself in.” Any claim of illegal entry is refuted by Hendricks’s
admission that the two men “had small-talk” when defendant arrived, and defendant was
asked to leave only after defendant twice demanded repayment of a loan.
         Any fear Hendricks may have had was irrelevant as it had no “tendency in reason
to prove or disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) The prosecutor never claimed that Hendricks feared
defendant and thus made a preemptive strike against him. The prosecutor’s theory of the
case—consistent with Hendricks’s testimony—was that defendant, without prior physical
provocation, punched Hendricks in the face when Hendricks told defendant to leave the
house.


                                               10
       The Attorney General argues that defendant’s assault of Zierke, if not admissible
to show Hendricks’s fear of defendant, “was admissible to establish that [defendant] was
not welcome at the victim’s residence, and that when defendant barged in to demand
money, Hendricks had cause to eject him.” That defendant was unwelcome was irrelevant
or, at most, only marginally relevant to the critical question of who started the fight
between defendant and Hendricks. Moreover, defendant’s lack of welcome was
established by Hendricks’s testimony that he asked defendant to stay away because
defendant had “issues” with Zierke. There was no need for Hendricks’s further testimony
that defendant “assaulted” Zierke.
       Moreover, any relevance of the evidence was outweighed by its prejudicial effect.
(Evid. Code, § 352.) Evidence of uncharged offenses “ ‘is so prejudicial that its
admission requires extremely careful analysis.’ [Citations.] ‘Since “substantial prejudicial
effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they
have substantial probative value.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380,
404.) Not only was the challenged evidence hearsay, but its probative value was slight
and the likelihood of the jury confusing the issues and accepting evidence of the assaults
as proof of defendant’s violent propensity was great. The jury was highly likely to view
defendant’s “reputation for pummeling people,” as the trial court termed it, as proof that
defendant acted in conformity with that reputation and pummeled Hendricks.
       Still further, evidence of the assaults was admitted without a limiting instruction.
Although defense counsel asked the court following Hendricks’s testimony to instruct the
jury that statements about defendant assaulting Zierke were not admitted for the truth of
the matter asserted, the court denied the request: “There’s no reason why they would use
it for its hearsay purpose, for the truth of what it asserts. Because the truth of the matter
of what it asserts is not an issue.” Defense counsel disagreed “that jurors understand that
it’s not coming in for the truth” but the court said “I don’t think [the jury] needs to be told
it’s not for the truth.”
       The court unquestionably should have given the instruction. “When evidence is
admissible . . . for one purpose and is inadmissible . . . for another purpose, the court


                                              11
upon request shall restrict the evidence to its proper scope and instruct the jury
accordingly.” (Evid. Code, § 355.) The Attorney General asserts that defendant forfeited
his right to an instruction when defense counsel failed to renew her request at the close of
evidence. We find no basis for declaring a forfeiture. Defense counsel requested a
limiting instruction when Hendricks testified and the court was adamant in its refusal.
While initially indicating an unwillingness to “interrupt” the trial with an instruction
during a witness’s testimony , the court immediately clarified its position that the jurors
would understood the limited use of the evidence and required no instruction on the
matter. Defense counsel did not forfeit the issue by accepting the court’s ruling. “ ‘ “An
attorney who submits to the authority of an erroneous, adverse ruling after making
appropriate objections or motions, does not waive the error in the ruling by proceeding in
accordance therewith and endeavoring to make the best of a bad situation for which he
[or she] was not responsible.” ’ [Citations.]” (Mary M. v. City of Los Angeles (1991) 54
Cal.3d 202, 212-213.)
       Even if defendant could be said to have forfeited his request for a limiting
instruction, the trial court has a sua sponte duty to provide the instruction in the
“ ‘ “occasional extraordinary case” ’ in which the evidence at issue ‘ “is a dominant part
of the evidence against the accused, and is both highly prejudicial and minimally relevant
to any legitimate purpose.” ’ [Citations.]” (People v. Cowan (2010) 50 Cal.4th 401, 479-
480.) Those conditions are present here. The evidence of defendant’s assaults upon
Zierke was a dominant part of the prosecution’s case, highly prejudicial and minimally
relevant.
       Whether or not the court’s erroneous ruling was responsible for defense counsel’s
misunderstanding of its scope, counsel did elicit from defendant his denial of assaulting
his girlfriend. Absent the fact that Hendricks should not have been permitted to testify
that defendant assaulted Zierke in the first place, the trial court was correct that
defendant’s denial opened the door to impeachment of that denial. (Evid. Code, § 780,
subd. (i).) The prosecutor may have been entitled to impeach defendant’s claim that he
never hit Zierke, but evidence of the assaults was relevant only to demonstrate defendant


                                              12
testified untruthfully and could not be used to prove a propensity for violence. (Evid.
Code, § 787.) However, the prosecutor’s cross-examination of defendant went well
beyond impeaching defendant’s credibility. The prosecutor related defendant’s police
statements, confronted him with photographs of Zierke’s injuries, and introduced the fact
that Zierke was pregnant when defendant assaulted her. In closing argument to the jury,
the prosecutor invited the jury to find that defendant was not only “a liar” but also a bad
man. The prosecutor recalled defendant’s testimony that he told the arresting officers “if
they [un]handcuffed him he was going to fucking beat their ass. That’s who he is. And
that’s who they’re asking you to rely on when you make your decision.” The prosecutor
held up a police photograph of Zierke taken when defendant was arrested, pointing to
“injuries on her arms, bruises on her legs.” The prosecutor said: “This is his ex-girlfriend.
And I asked him how do you feel about these pictures? And his answer was, ‘She looks
blacked out drunk to me.’ He didn’t care. That’s who he is.” The court’s rulings led to
cross-examination of defendant and closing argument to the jury that misdirected the trial
from an inquiry into defendant’s conduct into an analysis of his character.
       We conclude that the cumulative effect of the errors—the admission of
Hendricks’s testimony about the Zierke assaults, the failure to give a limiting instruction,
and permitting cross-examination of defendant that went far beyond impeachment—
requires reversal. The trial was essentially a credibility contest between defendant and
Hendricks, each of whom testified the other was the aggressor. The testimony of
Hendrick’s girlfriend and of his roommate provided only slight corroboration of
Hendrick’s version of events. Evidence that defendant assaulted his pregnant girlfriend
and photographs of her injuries was likely used by the jury to conclude that defendant
was a violent man and acted in conformity with his violent nature by attacking
Hendricks. This likelihood is reinforced by the prosecutor’s argument to the jury that
focused on defendant’s bad character and the court’s failure to instruct the jury not to use
the evidence to infer a propensity for violence. It is reasonably probable a result more
favorable to defendant would have been reached in the absence of the errors. (People v.
Watson, supra, 46 Cal.2d at p. 836.)


                                             13
                                      Disposition
       The judgment is reversed and the case remanded for retrial or other proceedings
consistent with this opinion.




                                           14
                                 _________________________
                                 Pollak, Acting P. J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




                            15
