Filed 10/25/17 P. v. Ames CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH LEON AMES,

Defendant and Appellant.

F072086

(Super. Ct. Nos. SF018039A, SF017210A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Marcos R. Camacho, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Joseph Leon Ames of making criminal threats and using a motor vehicle to commit assault with a deadly weapon. The victim was Ames’s on-again, off-again girlfriend, who is also the mother of his child. The charges were based on a minor automobile collision and statements allegedly made during a telephone conversation.
At trial, over the objections of defense counsel, the People introduced evidence of prior domestic violence committed by Ames against the same victim. Admitted pursuant to Evidence Code section 1109, the evidence consisted of testimony by the victim regarding the prior incident, photographs of injuries sustained by the victim during that incident, and a nearly 40-minute video of a police interview in which Ames acknowledges his commission of a violent sexual assault. The video contains graphic descriptions of thoroughly deplorable behavior, which Ames recounts with barely a hint of remorse. The video also makes clear that the incident occurred in front of the couple’s toddler-aged daughter.
Ames contends that admission of the prior domestic violence evidence was an abuse of the trial court’s discretion. He also assigns error to the granting of a motion to amend the original criminal information. We reject the latter argument. However, we agree that the trial court committed reversible error by allowing unlimited evidence of the prior bad acts. As will be explained, the trial judge had a duty to consider less prejudicial alternatives to the admission of every inflammatory detail surrounding the earlier incident. No such efforts were made, and the risk of undue prejudice objectively outweighed the evidence’s probative value by a substantial margin. We therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2014, victim A.Z. (then age 21) was in a romantic relationship with Ames (then age 24), the father of her five-year-old daughter. The couple had been together “on and off” since approximately 2008, and there was a history of discord. In particular, a May 2013 fight over infidelity by both parties had resulted in Ames being convicted of two felonies. He received a jail sentence for those convictions and was granted felony probation. Ames was also subject to a protective order that prohibited him from assaulting, harassing, or threatening A.Z.
On December 23, 2014, A.Z. abandoned plans to meet up with Ames and instead went out drinking with her friends, ignoring Ames’s phone calls throughout the night. It was after midnight when she finally called him back, and by then she had gone home to her parent’s house, where she resided at the time. During their telephone conversation, Ames told A.Z. that he intended to drive to her house to see if she was actually there. She warned him: “[D]on’t do it or I will call the cops if you come.”
After hanging up with Ames, A.Z. called 911 and told the dispatcher that her “ex-boyfriend” had threatened to come to her house and kill her. A.Z. also stated that she had “a restraining order on him.” At approximately three and half minutes into the call, A.Z. advised the dispatcher that Ames had arrived at her house. She then got into her car and drove away, and Ames followed in his own vehicle. Next, while driving in foggy conditions and continuing to talk on the phone, A.Z. veered off the road and got stuck in a patch of mud. A short while later, after maneuvering out of the mud, her car came into contact with Ames’s vehicle. Ames was subsequently pulled over and arrested by sheriff’s deputies.
On March 18, 2015, the Kern County District Attorney filed an information charging Ames with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and a misdemeanor violation of a protective order (id., § 273.6, subd. (a)). He was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)). On May 11, 2015, the People successfully moved to amend the information. We address the propriety of the amendment in our Discussion, post.
As amended, the information contained three counts: assault with a deadly weapon, to wit: an automobile (count 1); making criminal threats (Pen. Code, § 422; count 2); and violation of a protective order (count 3). The amended information contained the same enhancement allegations as before, which were found to be true in a bifurcated bench trial. The substantive charges were tried before a jury in May 2015.
The prosecution’s case-in-chief included A.Z.’s testimony. She was a reluctant witness and tried to downplay the events in question. Although she admitted telling the 911 dispatcher that Ames had threatened to kill her, her testimony was that no threats were ever made. A.Z.’s testimony also suggested that the automobile collision had been accidental or caused by her own actions. She described a “side-by-side” impact, which was consistent with photographic evidence of cosmetic damage to the passenger side of her car.
The prosecution attempted to impeach A.Z.’s testimony with (1) an audio recording of a jail call between her and Ames the day after his arrest; (2) an audio recording of the 911 call; and (3) testimony by one of the investigating sheriff’s deputies. On the recorded jail call, Ames is heard tearfully stating, “I went out there just to see if you were there just so I could trust you ….” A.Z. replies, “Dude you said you were gonna (Inaudible) ... you told me that ....” He interjects, “No, no, stop, stop, stop I hope you didn’t tell them that.” A transcript that was provided to the jury indicates A.Z. responded by saying, “I don’t, just told them that you said ... and about the car.” Later in the conversation, she says, “I told you dude, I told you … next time you threaten me I’m gonna call the cops. And you were like ‘I don’t care call them.’ ”
The 911 call, which lasted about 20 minutes, was played in its entirety. On the recording, shortly after telling the dispatcher that she has left her house, A.Z. screams and says, “My car is stuck.” The dispatcher asks, “Are you off the road?” and A.Z. replies, “Yes. Help me, please.” The dispatcher then asks, “Did he put – did he drive and like make you go off the road?” A.Z. again says, “Yes. Help me, please.”
Subsequent exchanges indicate that A.Z. was stuck for less than one minute before she returned to the road and continued driving. For the next two and a half minutes, she complains of car trouble and repeatedly states that Ames is driving in front of her. This is followed the sound of an impact, at which point she says, “Oh my God he just hit me ….” Less than a minute later, A.Z. informs the dispatcher that she has “pulled over” and that Ames has parked his car. Soon thereafter, she resumes driving until the dispatcher tells her that Ames is in custody.
Another noteworthy exchange occurs toward the end of the call:
Dispatcher: Are you injured at all?
A.Z.: No.
Dispatcher: No?
A.Z.: No.
Dispatcher: Ok.
A.Z.: He just hit my car that’s about it.
Dispatcher: Did he hit your car with his vehicle?
A.Z.: Yes, he did.
Dispatcher: Ok.
A.Z: I think so.
Dispatcher: And that’s what caused you to go off the road?
A.Z: Well, I mean, I was like trying to speed off – yeah, he hit me. There’s like – there’s like a dent right here.
Deputy Patrick Basquez testified to statements made by A.Z. shortly after Ames had been detained. According to his testimony, she described the earlier telephone conversation with Ames and “said that he accused her of being out with someone else and that he was on his way to her house and he was going to … ‘beat her ass.’ ” The deputy further alleged that A.Z. claimed to have been afraid that Ames was going to assault her.
With regard to the collision, Deputy Basquez testified as follows: “She said that Mr. Ames’s vehicle passed her, and then when she was behind him, she started to slow down. Well, then he – Mr. Ames’s vehicle also started to slow down; so then she sped up to try and pass him, and that’s when Mr. Ames’s vehicle struck her vehicle, causing her to – her vehicle to go off the road and get stuck in the mud. … She said she was able to get out [of the mud] and she continued [driving until] she couldn’t see his lights anymore.” During her own testimony, A.Z. explained that while she may have relayed such a story to the deputy, the details were not accurate. She attributed the purported misstatements to her consumption of alcohol that evening and to being “shooken up” by what had just transpired.
The prosecution’s case concluded with evidence of the May 2013 domestic violence incident. (See Discussion, post.) The parties stipulated that, as a result of the incident, Ames was convicted of “a violation of Penal Code section 422, a felony, and a violation of Penal Code section 243.4, a felony.” The prosecutor later informed the jury that these code sections correspond to the crimes of making criminal threats and sexual battery.
The jury deliberated for approximately 3 hours and 45 minutes, during which time it asked to review several pieces of evidence. The jury also requested “a copy of the text of [Penal Code section] 422 [with] the elements.” Ames was ultimately convicted as charged.
The trial court imposed an aggregate prison sentence of 11 years. Using count 1 as the principal offense, it imposed the middle term of three years, which was doubled to six years because of the prior strike. Concurrent sentences were imposed for counts 2 and 3. A consecutive five-year term was added for the prior serious felony conviction. The appeal is timely.
DISCUSSION
Admission of Propensity Evidence
Additional Background
The parties filed competing motions in limine concerning evidence of Ames’s prior felony convictions. The underlying incident was described in the People’s trial brief: “On May 12, 2013 the defendant and [A.Z.] engaged in an argument over infidelity in their relationship. The argument turned violent and the defendant attacked her. The defendant threw [her] to the ground and forcefully removed her shorts and ripped her underwear off. [He] forcefully shoved his fingers inside her vagina causing [A.Z.] extreme pain. … The defendant removed his penis during the assault and [A.Z.] felt the defendant’s penis touch her vagina. … The defendant then began to masturbate over her body and while he did this she was able to break his hold and get away from [him]. [She] grabbed a broomstick and the defendant took it away and threatened to rape her with it. [He] continued to assault [A.Z.] by hitting her and strangling her. He threatened to kill her. The defendant confessed to the assault, the threats, and penetrating [A.Z.] with his fingers….”
The People moved to admit the evidence pursuant to Evidence Code section 1109, arguing “the prior acts of domestic violence [would] not evoke unfair emotional bias against the defendant and [would] instead assist the jury to understand the dynamics associated with domestic violence.” When the motion was heard, the prosecutor argued that “the Legislature did a prior balancing test under [section] 352 when it enacted [section 1109] … by saying courts should and shall let this [evidence] in and [included] a 10-year limit in 1109 itself as being presumptively more prejudicial than probative.” Stated in clearer terms, the prosecutor alleged that the Legislature intended for “courts to allow this evidence to come in except for when it’s more than ten years old because, in that case, it would be more prejudicial than probative.”
Invoking section 352, the defense characterized the evidence as cumulative, “highly prejudicial,” “very inflammatory,” and likely to cause juror confusion. Defense counsel further argued that an astute jury would realize the May 2013 incident and the events in the current case occurred within a span of 19 months, and thus deduce that Ames had evaded due punishment in the earlier matter.
The trial court ruled in favor of the People. Defense counsel sought clarification as to what evidence was being deemed admissible, whereupon the prosecutor represented that he intended to “introduce the actual convictions, as well as the testimony from the victim as to the circumstances as to what happened leading up to those charges ….” The trial court attempted to clarify its ruling: “[I]n terms of … evidence that’s going to be coming in, pursuant to 1109, it’s going to be the evidence as to what actually happened.”
The next day, the prosecutor advised that he intended to present video evidence of a custodial interview given by Ames following his arrest in May 2013. Defense counsel objected on grounds of hearsay, lack of relevance, undue prejudice, and “mislead[ing] the jury.” The objections were overruled and the trial court reiterated its position: “Just so the record is clear … the facts that [are] laid out in [the] People’s Trial Brief … are the facts that I looked at in terms of making my decision whether they were probative and for the 352 analysis that they were probative and outweighed any prejudicial effect that they may have.”
During trial, A.Z. testified that the May 2013 incident occurred after she had confronted Ames about having a “hickey” on his neck. She took responsibility for starting the fight, admitting that she hit him several times, tore his shirt, and antagonized him with comments about having a paramour of her own. Upon being told that she was “sleeping with somebody else,” Ames pinned A.Z. down, removed her shorts and underwear, and digitally penetrated her with two fingers. She testified to fighting against the digital penetration and sustaining rug burns as a result. Ames proceeded to strangle her to the point where she could not breathe, and while doing so threatened to “leave [her] there to die.”
At a subsequent break in the proceedings, there was a discussion about presenting the video footage. Defense counsel lodged objections: “[The] jurors have heard enough … She testified already regarding what happened. … [I]t would be, clearly, prejudicial, clearly, a waste of [court] time, clearly, misleads the jury for them to hear cumulative evidence, for them to hear the 38 minutes or so [of the] Mirandized statement of Mr. Ames. At this point in time it becomes irrelevant. The fact of the matter is I think we did speak about having some sort of stipulation … that Mr. Ames had been convicted of [violating sections 243.4, subdivision (a) and 422]. So, again, there’s no need anymore. It’s – it’s just too cumulative.”
The prosecutor responded by arguing that A.Z.’s testimony did not cover the “extreme details as to what transpired.” After considering the arguments, the trial court overruled the objections: “I don’t think it’s cumulative. We’ve only had one witness testify about this incident at this point. I don’t think it’s cumulative, and it’s not going to be time consuming in terms of evidence. It won’t take a lot of time from the jurors and the court. So I’ll go ahead and allow it in. … At this point, there’s been no showing of any prejudicial effect ….” Defense counsel asked that only the audio portion be played so as to prevent the jury from seeing the numerous tattoos visible on Ames’s arms in the video, but the request was denied.
A police officer who investigated the May 2013 incident authenticated the video recording of her interview with Ames and 14 photographs that were taken the same day. The photos showed a broken cell phone, A.Z.’s torn underwear, and relatively minor abrasions and bruises on various parts of A.Z.’s body. These items were admitted into evidence, and the video was played for the jury.
As mentioned, the video is approximately 40 minutes long. The footage shows Ames speaking with a female police officer inside of an interrogation room. He has a muscular build, and the officer makes a point to contrast his size with that of the victim. Ames claims to weigh 207 pounds and confirms his ability to bench press 315 pounds, which he estimates is almost three times the weight of A.Z.
The interview begins with Ames reading the contents of an emergency protective order and telling the officer, “It says I penetrated with her – with my penis.” The officer asks, “Is that not true?” He replies, “That’s not true.” She responds, “Okay. That’s what we’ll talk about.”
After waiving his right to remain silent, Ames provides a summary of how the events unfolded. He explains that A.Z. showed up at his house unexpectedly with their daughter, whose age at the time was three years, five months. Upon seeing the hickey and learning Ames had slept with another woman the previous evening, A.Z. divulged that she, too, had been seeing someone else and that the other man was a better lover than him. Her revelations, combined with insults about his sexual prowess, sent Ames into a fit of rage. In the video, he describes grabbing A.Z.’s crotch, tearing off her panties, and digitally penetrating her.
Seeking to elicit details, the officer tells Ames that A.Z. said he “jammed” his fingers up her vagina. Ames generally agrees with this statement, but equivocates on the amount of force that was used. He describes his conduct verbally and with hand gestures, admitting that he taunted A.Z. during the attack by saying things like, “Is this what you fuckin’ wanted?” and “You think that this [other] guy’s better?” Ames estimates that he digitally penetrated A.Z. 10 to 15 times. He relented only after she begged him to let her console their daughter, who cried as she witnessed what Ames was doing to her mother.
Either before or soon after the first instance of digital penetration (the sequence is unclear), Ames put his arm around A.Z.’s neck and choked her. He also squeezed her throat with his hand. When he let go, she started “hyperventilating” and complaining that she couldn’t breathe. In response to those complaints, Ames told A.Z. to get down on her knees and said, “I’ll give you a reason why you can’t breathe” (presumably alluding to the act of fellatio). According to the officer, A.Z. alleged that he also threatened to kill her. Ames denied this, claiming to have only said, “I wish I could kill you.”
The initial acts of violence were followed by a second assault in a different part of the house. In the video, Ames admits pulling A.Z. to the ground, removing his own pants, and digitally penetrating her several more times, which also entailed “pulling” and “squeezing” her genitalia. He implies that he would have raped her had he been able to achieve an erection. At one point, in reference to A.Z.’s alleged statements, the officer says, “[S]he thinks you penetrated.” Ames denies the allegation: “[N]ot at any point in time – but if it grazed it, it grazed it, but there was no point in time that there was an insertion, at all.”
There are several instances where the officer relates her personal assessment of the impact of the incident on A.Z.: “She’s having – and so you know – she’s in a lot of pain inside her vagina area. Because she said it – it hurt so bad and it was so forcefully [sic]. … She really thought you were gonna kill her today. She really did. … She’s traumatized. Okay? She’s calmed down a little bit, but she’s – she has a lot of pain inside. … I’m gonna take her to the hospital and get her examined down there because I think – I think there’s some damage in there.”
Ames’s demeanor throughout the interview is matter-of-fact and, at times, cavalier. It seems his only concern is establishing that he did not penetrate A.Z. with his penis. To that end, he insists the officer document that he masturbated just prior to A.Z.’s arrival at his house. Using slang terms, he claims to have ejaculated onto his hands and explains there may have been “residue” on his fingers at the time of the digital penetration. “So if there’s anything in there, that’s how it’s there. … I had [ejaculate] on my hands prior.”
Toward the end of the interview, the officer asks about a particular injury she observed on A.Z.’s body: “She has scratches, like, if this is a chick’s body right here [drawing on a notepad], okay, that’s her vagina. She has, like, major scratches all right here. Is that from a – when you were putting your finger in her?” Ames says no, and then places his fingers on his teeth. The officer says, “From your braces?” and he replies, “Yes.” When asked for a further explanation, Ames uses crude expressions that evoke a puzzled response from the officer. He finally sticks out his tongue and confirms the injuries were caused by “oral sex.” The officer continues: “Um, she says she doesn’t usually – she doesn’t like oral sex, you know that, and you probably did it just to piss her off.” Smirking, Ames nods and says, “Yeah, pretty much.”
Ames passed on several opportunities to express remorse. When asked if he thought A.Z. “deserved it,” he replied, “Oh, … it’s not even – yeah. Yeah.” He later claimed to feel bad for what he had done, but again hinted at feelings of justification: “If you’re gonna antagonize and do all – and do that then y – you know what, then you take what you – you – you make.” The interview ends with the following question: “What have you learned from all this?” His response: “Fuck a bitch.”
Analysis
Evidentiary rulings are reviewed for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1120.) A decision to admit certain evidence “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The burden is difficult to carry, and findings of abuse are uncommon. However, in cases involving the balancing process under section 352, error is found when “the prejudicial effect of the evidence clearly outweighs its probative value.” (People v. Karis (1988) 46 Cal.3d 612, 637; People v. Brown (1993) 17 Cal.App.4th 1389, 1396.)
“Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person’s conduct on a specified occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) This principle is codified at section 1101. An exception is found in sections 1108 and 1109, which supersede section 1101 in cases involving sex crimes and domestic violence. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) Section 1109 provides, in pertinent part: “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” The parties do not dispute that the offenses in this case involved acts of domestic violence. (See § 1109, subd. (d)(3).)
“A defendant is not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim’s relationship was peaceful and friendly.” (People v. Fruits (2016) 247 Cal.App.4th 188, 204.) Section 1109 was enacted in part “ ‘because of the typically repetitive nature of domestic violence crimes, and because of the acute difficulties of proof associated with frequently uncooperative victims ….’ ” (People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown).) The statute was designed “to make admissible a prior incident ‘similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.’ ” (People v. Johnson (2010) 185 Cal.App.4th 520, 532 (Johnson).)
“[S]ections 1108 and 1109 limit the admissibility of evidence of prior misconduct if its probative value is substantially outweighed by its prejudicial effect. (§§ 352, 1108, subd. (a), 1109, subd. (a).) The specific retention of the power to exclude evidence under section 352, found in both sections 1108 and 1109, provides ‘a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts.’ ” (Brown, supra, 77 Cal.App.4th at p. 1334.) In other words, even relevant evidence of prior domestic violence should be excluded if the “probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) In this context, undue prejudice refers to “ ‘evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.’ ” (People v. Scheid (1997) 16 Cal.4th 1, 19; accord, People v. McCurdy (2014) 59 Cal.4th 1063, 1095.)
In Falsetta, supra, the California Supreme Court explained how trial courts should evaluate propensity evidence under section 352. Although Falsetta involved prior sexual misconduct considered under section 1108, the guidelines also apply to the admission of evidence under section 1109. (People v. Disa (2016) 1 Cal.App.5th 654, 671-673 (Disa); see People v. James (2010) 191 Cal.App.4th 478, 482, fn. 2.) “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917, italics added.)
In the recent case of Disa, supra, the First District Court of Appeal determined that a trial court committed reversible error under sections 352 and 1109 by failing to utilize “ ‘less prejudicial alternatives’ ” to the admission of “vivid and inflammatory evidence” of prior domestic violence. (Disa, supra, 1 Cal.App.5th at pp. 658, 672-673.) The Disa defendant had confessed to killing his girlfriend by putting her in a chokehold, but he denied intending to kill her. (Id., at pp. 657, 660-661.) The defendant’s mens rea was a close issue in his murder trial, particularly with regard to premeditation and deliberation. After the trial court ruled to admit testimony regarding a prior assault on an ex-girlfriend, defense counsel sought to “ ‘sanitize’ ” the propensity evidence. The defense argued the prior incident was “ ‘radically different’ ” from the charged offense because the former involved circumstances of lying in wait and the use of a weapon. (Id., at p. 669.) The trial court was receptive to this argument and ruled to limit the section 1109 evidence to basic facts that demonstrated a “ ‘propensity to commit domestic violence,’ ” with exclusion of the lying in wait circumstances and other irrelevant details. (Disa, supra, at pp. 669-670.)
Despite its initial ruling, the trial court in Disa admitted “extensive evidence of defendant’s past act of domestic violence, which involved planning, hours of waiting, and a bloody knife attack on sleeping victims.” (Disa, supra, 1 Cal.App.5th at pp. 657-658, 662-663.) On review, the appellate court emphasized that “it was not an abuse of discretion to admit some evidence of defendant’s prior domestic violence,” and provided examples of where the line could have reasonably been drawn. (Id. at p. 673, fn. 13.) The trial court erred by not filtering the evidence in any way, thus allowing jurors to hear details that were “highly inflammatory and … not specifically relevant to the purpose for which the past incident of domestic violence was admitted, that is, to show a propensity to do violence to a partner or former partner.” (Id., at p. 674.)
As Disa and other cases make clear, the principal factor affecting the probative value of a prior bad act is its similarity to the charged offense. (Johnson, supra, 185 Cal.App.4th at p. 531; People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) Here, the charged offenses involved a vehicular assault and criminal threats made during a telephone call. Beginning with the criminal threats, it was permissible to allow evidence of Ames’s prior conviction for committing the same crime (Pen. Code, § 422) against the same victim. It was also reasonable to admit A.Z.’s testimony regarding the basic facts of the earlier offense, i.e., that while choking her, Ames threatened to “leave [her] there to die.” The probative value of such evidence was high in terms of showing Ames’s propensity to behave as alleged in count 2.
The police interview barely touched upon the issue of criminal threats. Moreover, despite his candid admissions throughout the video, Ames actually denied threatening to kill A.Z. As such, the probative value of the video evidence was low in relation to count 2, especially given the prior admission of A.Z.’s testimony and the parties’ stipulation regarding the earlier conviction. The slight probative value was clearly outweighed by the risk of undue prejudice associated with a play-by-play account of Ames’s deviant behavior. Indeed, the most vivid and inflammatory segments of the video were also the least relevant to the currently charged offenses. (See Disa, supra, 1 Cal.App.5th at pp. 672-673 [“The weighing process of section 352 requires the trial court to consider ‘the availability of less prejudicial alternatives’ such as ‘excluding irrelevant though inflammatory details surrounding the offense.’ ”].)
We reach the same conclusion with regard to count 1, i.e., assault with an automobile. First, the prior bad acts and the charged offense were starkly dissimilar. (See Johnson, supra, 185 Cal.App.4th at p. 534, fn. 11 [“Courts are primarily concerned where the past bad act was ‘more inflammatory’ than the offense for which the defendant is on trial.”].) Second, the evidence of Ames’s prior conviction for sexual battery and A.Z.’s testimony regarding the digital penetration and manual strangulation were enough to dispel any illusion of a harmonious relationship. This evidence also demonstrated Ames’s propensity for aggressive and violent behavior, especially in response to the idea of A.Z. being involved with another man. Admitting photographs of A.Z.’s torn panties and some of the injuries she sustained was arguably cumulative, but within the court’s discretion. At that point, however, there was little to be gained by exposing the jury to the video other than to stoke feelings of disgust and enmity toward Ames as a person.
Several aspects of the video fall into the category of evidence that uniquely tends to evoke an emotional bias against the defendant, yet has little or no probative value. Primary examples include the disclosures that Ames sexually brutalized A.Z. in front of their three-year-old daughter and caused injuries with his dental braces via forcible cunnilingus. To characterize this evidence as “highly inflammatory” might be an understatement.
As in Disa, the trial court had discretion to admit some evidence of the May 2013 incident. The error lies in its failure to limit the propensity evidence in any way. Even if discrete segments of the video could pass a section 352 balancing test, the bulk of the footage was unduly prejudicial, and such prejudice clearly outweighed its probative value.
The improper admission of evidence is reviewed for prejudice under the standard applicable to errors of state law. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76; Disa, supra, 1 Cal.App.5th at p. 675.) The reviewing court determines whether there is a reasonable probability that the defendant would have obtained a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) “The Supreme Court has emphasized ‘that a “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ ” (People v. Soojian (2010) 190 Cal.App.4th 491, 519.) Our district has held that a hung jury is a more favorable result than a guilty verdict. (Id. at pp. 520-521.)
The question of prejudice often turns on the relative strengths and weaknesses of the prosecution and defense cases. “[A]n appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.) Here, the defense succeeded in identifying several weak points in the prosecution’s case.
The crime of making criminal threats has multiple elements, one of which is “that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety.’ ” (People v. Toledo (2001) 26 Cal.4th 221, 228 (Toledo), quoting Pen. Code, § 422.) Although A.Z. testified to the contrary, there was ample evidence that Ames had made some type of threat during their telephone conversation. Rather than fight a losing battle on that front, defense counsel focused on the requirement of subjective fear. Despite repeated questioning by the prosecutor, A.Z. refused to acknowledge that the conversation with Ames had caused her to fear for her safety. She denied being afraid, and maintained her only concern was that her family members would be awakened from sleep, which is why she drove away when Ames arrived at the house.
Cross-examination established that A.Z. was at home with her mother, father, daughter, and two brothers when Ames made the alleged threat. She was the middle sibling, and although she did not provide ages, she testified that her younger brother was approximately six feet tall and weighed about 200 pounds. Defense counsel reasoned that if Ames’s words had caused A.Z. to be afraid, she would have stayed in the house where she had “protection from her father [and] from her two brothers.” She specifically told the 911 dispatcher that Ames did not have access to any weapons, which strengthened this argument.
The defense urged the jury to consider how calm A.Z. had been at the beginning of the 911 call and argued there was no fear in her voice at that time (which is a fair interpretation of the evidence). Counsel also highlighted a particular statement she made to the dispatcher that corroborated her trial testimony. Beginning at approximately two minutes, 17 seconds into the recording, the 911 dispatcher says, “Just be sure you keep your doors and windows locked. If he does come to your home, dial 911, okay?” A.Z.’s response is partially distorted, but she says words to the effect of, “I need to like, go somewhere because I don’t want him to, like, wake up my parents….” The lack-of-fear defense was further supported by the jail call, wherein she reminded Ames: “I told you … next time you threaten me I’m gonna call the cops. And you were like ‘I don’t care call them.’ ” This statement could be interpreted as suggesting that she called 911 not because she feared Ames might carry out a threat, but as a reaction to him essentially daring her to contact the police.
As for count 1, the record does not provide a clear picture of how the automobile collision occurred. It was nighttime, weather conditions were foggy, and the sheriff’s deputies could not determine where the incident took place. Ames and A.Z. were the only percipient witnesses, and A.Z.’s testimony supported the defense. The prosecution advocated for the version of events told by A.Z. to Deputy Basquez, but that story was arguably inconsistent with the 911 call. Based on her testimony and statements made to the dispatcher, defense counsel argued that A.Z. had been unsure of who caused the collision and deflected blame onto Ames to avoid being suspected of driving under the influence of alcohol. The defense also pointed out that if Ames wanted to harm A.Z., he had the perfect opportunity to attack her while she was stuck on the side of the road. Instead, he remained in his car throughout the entire incident.
During almost four hours of deliberations, the jury twice asked to listen to the 911 call and also requested defense exhibits showing maps of the route travelled during the call, photographs of the cars, a playback of the jail call, and “a copy of the text of PC 422 w/ the elements.” It thus appears some jurors were hesitant to convict on one or more charges. Given the extent and severity of the unduly prejudicial material in the May 2013 video, there is a reasonable chance that at least one person’s vote on one of the charges was swayed by the impact of that evidence. Therefore, given all of the circumstances discussed, the error cannot be deemed harmless.
In his briefing, Ames asks for “a new trial free of inflammatory evidence.” Reversal with the possibility of retrial is the appropriate remedy. “[W]here the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.” (Lockhart v. Nelson (1988) 488 U.S. 33, 34.) Because the convictions are otherwise supported by substantial evidence, the district attorney will have the option to retry Ames on all charges. (Ibid; People v. Edwards (1985) 39 Cal.3d 107, 118.)
Amendment of the Information
Ames contends that the trial court erred by allowing amendment of the information to add the charge of making criminal threats. He claims the evidence presented at the preliminary hearing did not support each element of the offense. We are not persuaded.
Penal Code section 1009 provides that a charging document may be amended “at any stage of the proceedings,” but not “so as to charge an offense not shown by the evidence taken at the preliminary examination.” The People’s evidentiary burden in that regard “is exceedingly low.” (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846; see Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 150 [“ ‘Evidence that will justify a prosecution need not be sufficient to support a conviction.’ ”].) The preliminary hearing evidence is sufficient if it demonstrates probable cause, i.e., “ ‘such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ ” (People v. Slaughter (1984) 35 Cal.3d 629, 636.)
The granting of a motion to amend an information is reviewed for abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.) “ ‘[A]lthough there must be some showing as to the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate.’ [Citation.] ‘Every legitimate inference that may be drawn from the evidence [presented at the preliminary hearing] must be drawn in favor of the information.’ ” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)
“In order to prove a violation of [Penal Code] section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat – which may be ‘made verbally, in writing, or by means of an electronic communication device’ – was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (Toledo, supra, 26 Cal.4th at pp. 227-228.)
A.Z. and Deputy Basquez both testified at the preliminary hearing. A.Z. testified to breaking plans with Ames on December 23, 2014 and ignoring his calls and text messages throughout the night. Sometime around 12:30 a.m. or 1:00 a.m. the next morning, she left her home and drove away as Ames was approaching the residence in his own vehicle. Her testimony indicated that she called 911 shortly before or after leaving the house. She also confirmed basic facts about the May 2013 domestic violence incident, including Ames’s conviction for making criminal threats.
Deputy Basquez testified to A.Z.’s alleged statements to him in the early morning hours of December 24, 2014: “[She] said she received a phone call from Mr. Ames because he was upset because he accused her of being out with friends and that he was on his way to her residence and to – she said he was going to, quote, beat her ass.” The deputy further testified that A.Z. told him she left the house upon seeing Ames enter her neighborhood because “she was afraid of Mr. Ames.”
The evidence summarized above allowed reasonable inferences to be drawn in support of each element of Penal Code section 422. As such, the People’s evidentiary burden on the motion to amend was satisfied. There is no merit in Ames’s argument that the People were required to “put forward the 911 call” and/or elicit further details of the May 2013 incident from the witnesses.
DISPOSITION
The judgment is reversed. The People may elect to retry the defendant within the time period specified in Penal Code section 1382.



GOMES, J.
WE CONCUR:



LEVY, Acting P.J.



SMITH, J.