Filed 7/10/17 P. v. Hussain 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

REDFAN ABDULLAH HUSSAIN,

Defendant and Appellant.

F071347

(Fresno Super. Ct. No. F14904011)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge.
Anne V. Moore, 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, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


INTRODUCTION
Appellant/defendant Redfan Abdullah Hussain, a taxi driver, was charged and convicted of count I, battery with serious bodily injury on his dispatcher (Pen. Code, § 243, subd. (d)), and count II, assault with a deadly weapon, a vehicle, after a fare dispute with the victim’s uncle (Pen. Code, § 245, subd. (a)(1)). He was sentenced to four years in prison.
On appeal, defendant argues the court erroneously introduced evidence of a prior and unrelated incident, where he argued with his brother and then drove his car at him, as relevant to his intent and absence of mistake for count II, pursuant to Evidence Code section 1101, subdivision (b). Defendant further argues the court should have admitted evidence about his family’s alleged negotiations with the taxi dispatcher for a financial settlement. We affirm.
FACTS
Battery on Neomi Ortega (Count I)
Neomi Ortega worked as a dispatcher at Scrip Taxi Company on North Blackstone Avenue in Fresno. The company had about 16 taxi drivers. Defendant was one of the drivers and used a van. Defendant was known as “A.J.” and his van was identified as “car 64.”
Starting at 10:00 p.m. on April 21, 2014, and continuing to 6:00 a.m. on April 22, 2014, Ortega worked as the only dispatcher on the night shift. Defendant was also working that shift. Ortega testified that calls were light that night.
Ortega testified that defendant called her and complained that he was not getting enough calls. Ortega told defendant that she did not have time to argue with him. Ortega also told defendant to talk to his boss about the situation, and hung up on him. Defendant tried to call back, but Ortega ignored his calls.
Defendant throws an object at Ortega
Sometime around 6:00 a.m. on April 22, 2014, Ernest Brock, another taxi driver, was driving to the company’s office to begin his shift. While he was on Highway 41, he recognized defendant’s van, and noticed defendant “was flying” and “hitting the gas getting to the office.” Brock arrived at the office and parked. Defendant also arrived and blocked the driveway with his van. Defendant said, “ ‘F**k that bitch,’ ” and ran into the office.
Ortega testified she was standing in front of her desk, getting ready to leave at the end of her shift, when defendant entered the office. Defendant stood in front of Ortega’s desk. He was yelling and cursing that she had disrespected him. Ortega told defendant that she was going to call the police if he did not leave. Defendant replied, “ ‘Go ahead and call them. I don’t care.’ ”
Ortega testified that she was on the telephone and calling 911. Defendant picked up something from the desk and threw it at Ortega. Ortega thought defendant threw a stapler at her. Ortega testified the object hit her forehead, and there was blood dripping down her face. Defendant left the office.
Brock was still in his car but heard yelling and cursing in the office. He saw defendant run out of the office. Desiree, another dispatcher, arrived to begin her shift.
Brock and Desiree went into the office. Brock testified there was blood everywhere, and it was “pouring down” Ortega’s face. Ortega was pale and she appeared to be in shock.
Brock asked Ortega what happened. Ortega said that A.J. came in and “hit her with that,” and gestured to an object on the floor. Brock found a tape dispenser on the floor behind Ortega’s desk.
Brock went outside and told defendant, “ ‘Dude, you f**ked up,’ ” and “ ‘You hurt her.’ ” Defendant replied, “ ‘F**k that bitch.’ ” Defendant also said, “ ‘I don’t give a f**k. I could have killed her,’ ” and “ ‘I’ll kill the f**kin’ bitch,’ ” and he drove away.
The 911 call
Ortega testified she stayed on the telephone and spoke to the 911 dispatcher. The call was received at 6:04 a.m., and the tape recording was introduced at trial.
Ortega told the dispatcher that she needed a police officer and an ambulance because “[t]he guy hit me with a stapler,” and “I got blood coming out of my face right now.” In response to the dispatcher’s questions, Ortega said one of the taxi drivers hit her because she hung up on him, he was yelling at her, and he ran out. Ortega again asked for an ambulance and said her head was cut open. Ortega described the man and his van, he was known as A.J., but she did not know his name.
Ortega told the dispatcher that the man had been “crazy all night long, yelling at me on the phone about things, and I told him I didn’t want to hear it anymore. I hung up on him and he kept calling and calling. I wouldn’t answer the phone no more so he came in here, threw a stapler in my … right at my head and told me not to ever hang up on him again.” Ortega told the man she was going to call the police. The man said he did not care who she called, and threw the stapler at her. Ortega said there was blood on her face and the floor.
Defendant calls the office again
At approximately 6:10 a.m., Officer Marvin Whittle arrived at the office. Ortega was holding a paper towel over her right eye and appeared in shock. There was blood on her blouse, the right side of her face, and on the floor under her desk chair. There was a cut above her right eye that was a quarter-inch wide, and an inch and a half long.
Ortega told Officer Whittle that defendant had repeatedly called her because he was upset about not getting enough fares. Ortega said she had hung up on him. Defendant arrived in the office and said she had disrespected him. Ortega said that she thought defendant threw a stapler at her.
Officer Whittle noticed the stapler was still on the desk and intact. Whittle found the tape dispenser on the floor behind Ortega’s desk. The tape dispenser was broken into several pieces, and the tape roll was out of its place and had rolled under the desk. The tape dispenser was plastic with a metallic blade, and there was some weight to it. Whittle thought it weighed about one pound. There were other items on the desk that appeared to have been knocked over.
Officer Whittle briefly walked out of the office. Desiree answered the office telephone and defendant was on the line. Desiree put the call on the speaker so Brock and Ortega could hear. Ortega testified that defendant said she was “lucky that he didn’t drag me out to the street and leave me there like a dog.” Brock testified that defendant said he “didn’t give a shit, that she was a bitch, and she got what she deserved.”
Brock found Officer Whittle in the hallway and told him that defendant was on the telephone. Whittle went into the office and heard defendant say over the speaker, “ ‘Call the police. I don’t care. I didn’t do anything wrong. She’s lucky all I did was hit her with a stapler. I was going to – she’s lucky I didn’t scratch her up.’ ”
Officer Whittle picked up the telephone and asked if he was talking to A.J. Defendant said yes. Whittle asked defendant to come back to the office to give his side of the story. Defendant agreed, but he never showed up.
Officer Whittle later determined defendant’s full name and tried to locate him, but could not find defendant or his vehicle.
Ortega’s injuries
Ortega was taken to the hospital by ambulance. She received more than 16 stitches to her eye. She was left with a scar above her eyebrow, blurred vision, and nerve pain in her head.
Assault with a deadly weapon on Valerie Yanis (Count II)
Defendant picks up Martinez and Janas
Early on the morning of April 29, 2014, Luis Martinez and George Janas were at Aldo’s Nightclub. They had been drinking and decided to call for a taxi.
Defendant was still working for Scrip Taxi and had not been arrested for attacking Ortega. Defendant responded to the dispatch at the nightclub in his van. Martinez and Janas got into the van. A man and a woman, who were also passengers, were already in the van. Janas gave the address for apartment of his niece, Valerie Yanis. Martinez and Janas did not know defendant or the other passengers.
Dispute over the fare – Janas’s testimony
Around 2:30 a.m., defendant arrived at Yanis’s apartment. Yanis testified that Janas and Martinez knocked at her door, and Janas said he was going to get some money to pay the taxi drier. The male passenger entered and said he needed to use the restroom.
Yanis testified Janas retrieved a backpack which contained his money. Janas, Martinez, and the other man went outside. Yanis testified the taxi was a dark-colored van, and it had stopped in the driveway of the apartment building’s parking lot. One door on the van was open so the vehicle’s inside lights were on. The man who had used the restroom got into the van’s front passenger seat. A woman was sitting in the van’s middle row of seats. Yanis saw a man sitting in the driver’s seat; she later identified defendant as the driver. Yanis went back into her apartment.
Martinez testified that there was a single $100 bill in Janas’s backpack. Martinez saw Janas give the $100 bill to defendant. Defendant did not want to make change, and Janas and defendant started to argue.
Yanis testified that Martinez returned to her apartment, and said Janas and the taxi driver were fighting. Yanis ran outside and saw the driver’s side door was open. The van’s interior light was still on, and she could see inside the vehicle. Janas was arguing with defendant to either give him change or return “his hundred dollars back.”
Yanis testified defendant refused to give the change to Janas. Defendant got out of the van. Defendant opened the van’s rear hatch door and seemed to be looking for something. Yanis testified Janas leaned into the driver’s side door as if he was going to get something. The female passenger hit him. Janas threw a can at the woman.
Yanis and Martinez testified the male passenger got out of the front passenger door, walked around to Janas, and punched him so hard that Janas fell on the ground and dropped his backpack.
Yanis testified that defendant left the rear hatchback area, and returned to the driver’s door. Janas got up, and it looked like they were going to fight. Janas was bleeding and appeared dazed. Defendant grabbed Janas’s backpack from the ground and put it into the van. Defendant got into the driver’s seat, and the male passenger also got into the van. Yanis believed defendant was going to drive away.
Defendant drives toward Yanis
Yanis and Martinez testified that defendant started to back out of the parking lot. Yanis ran out from her apartment with her phone, and she called the police. Yanis ran into the driveway to get the van’s license plate number.
Yanis and Martinez testified defendant stopped backing out, then drove forward and toward her at a fast rate of speed. While Yanis could not see inside the van, she believed defendant saw her run in front of the van, because he stopped backing up and drove “towards me. He, instead of going out, he stopped and came at me.”
Martinez testified that Yanis was trying to get the van’s license plate number while the vehicle was going in reverse. Martinez testified he could see the driver looking in Yanis’s direction in front of the van, and “they tried to run her over.”
Yanis testified that she believed defendant was going to hit her. Yanis testified the van came at her “[f]ast, really fast.” “I just had barely the chance to react and run.” “It was coming pretty fast … it got close to me pretty fast. I was scared. I ran.” Yanis testified that she “wasn’t like going to sit there and wait. I just moved.”
Yanis testified that when the van was within 12 feet of her position, she ran from the van’s path and hid behind the apartment building. “If I wouldn’t have moved, I believe he would have hit me.” Defendant stopped the van, put it in reverse, and “peeled” out of the parking lot and left the area. Yanis was not able to get the van’s license plate number because of what happened.
Apprehension and identification of defendant
Yanis and Martinez testified that later that morning, the police escorted them to another location and asked them to look at two people. They separately identified defendant as the taxi driver. Yanis identified the second man as the male passenger.
Officer Whittle was on patrol that morning and heard dispatches about an investigation involving a taxi cab; defendant was identified as the driver. Whittle contacted the investigating officers and advised them of defendant’s involvement in the attack on Ortega. Later that day, Whittle arranged for Ortega to attend an infield showup with defendant. Ortega immediately identified defendant as the person who attacked her at the taxi office.
Evidence about the 2008 incident
At defendant’s trial, the prosecution introduced evidence about an incident that occurred on August 8, 2008, involving an argument between defendant and his brother, Fisal Altam. As we will discuss in issue I, post, the court instructed the jury that this evidence was only relevant to count II, assault with a deadly weapon, his vehicle, on Yanis.
At trial, Altam testified that on August 8, 2008, he was working at a mini mart when defendant arrived. They argued because Altam owed defendant about $1,000 and had not paid him back.
Altam pushed defendant and told him to get out of the store. Defendant went outside. Altam testified he went after defendant with a stick, tried to hit him, and missed. Defendant grabbed the stick and hit Altam with it, inflicting bruises on his arm. Altam picked up a milk crate but did not throw it at defendant.
Altam testified defendant got into his white car that was parked in front of the store. Altam stood between the front of defendant’s car and the store. Altam testified that defendant “backed up and came towards me.” Altam moved away, and defendant hit the building with his car. Defendant again backed up, hit Altam’s vehicle, and damaged it. Defendant then drove away from the area without talking to Altam about damaging his car.
Officer Damon Kurtz responded to the scene after the store’s customers called the police. Kurtz interviewed Altam, who said that he argued with his brother and it got heated. Altam said he threw a stick at defendant, and defendant used the stick to hit Altam. Altam said he threw a milk carton at defendant’s car, defendant rammed the building, and then backed into Altam’s car.
Defendant was subsequently detained by police officers at another location. Officer Kurtz responded to that location and advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant agreed to answer questions, and initially said he was not involved in any altercation. Kurtz told defendant there were witnesses. Defendant changed his story and said he had an altercation with his brother. Defendant “talked about the argument, getting in his vehicle, being upset, driving … it at his brother, hitting the business, and then looking over and seeing his brother’s car, and ramming it before taking off.” Kurtz asked defendant if he had tried to hit Altam, and defendant said yes.
DEFENDANT’S TRIAL TESTIMONY
Attack on Ortega
Defendant testified at trial about both charged offenses. Regarding the incident at the taxi office, defendant testified he had received eight calls that night, either on his cell phone or from people who flagged him down. He did not receive any calls from dispatch, which had happened on other nights. Defendant called Ortega and complained. Defendant and Ortega argued, and she hung up on him. He tried to call her approximately 20 times, but she either hung up or did not answer the telephone.
Defendant drove to the office, and he was speeding. He was angry with Ortega because she “kept on just disrespecting me.” He bumped into Brock as he went into the office.
Defendant testified that he did a “little yelling” at Ortega. Defendant told her, “ ‘It’s wrong what you’re doing. I’m not getting no calls from you. You’re not picking up the phone. You don’t want to talk to me.’ ” Ortega replied, “ ‘Oh, I don’t got time for you right now.’ ” She used a “mean voice” and said, “ ‘Get out and shut the door.’ ”
Defendant testified he grabbed the tape dispenser from the desk, backed toward the door, and “tossed” it at Ortega. Defendant was about five to six feet away from her, and “threw it in anger … it was kind of a little hard ….” Ortega was looking to her left when he threw it. The court stated that defendant demonstrated a motion with his left hand, extending it at chest level in a backhanded toss.
Defendant testified that he was not trying to hit or hurt her. Defendant saw her bleeding and heard her call 911. Defendant admitted that he knew he hit her and did something wrong, but he ran out of the office and did not try to help.
As defendant left the office, he saw Brock and said, “ ‘She’s lucky I didn’t hurt her. She keeps on disrespecting me.’ ” (RT 382-383)
Defendant drove away. He later called the office and spoke to Desiree, the other dispatcher. Defendant said Ortega was lucky that he “didn’t scratch her up. I could have hurt her.” Defendant told Desiree that Ortega kept hanging up on him, he was being disrespected, and “life is all about respect.”
Defendant testified that Officer Whittle came on the line and asked him to return to the office. Defendant agreed, but he never went back because he knew the police were going to arrest him.
Assault on Yanis
Defendant also testified about the circumstances leading to the altercation with his passengers. Early on the morning of April 29, 2014, defendant picked up some regular customers, Odom and his girlfriend. They had been drinking.
Defendant then received a dispatch to pick up customers at Aldo’s Nightclub. He picked up the two men, later identified as Martinez and Janas. They were drunk and had trouble giving defendant their destination, but eventually told him where they wanted to go. Defendant asked the men for a deposit. The two men said they would pay defendant when they got money at the house, and defendant agreed.
Around 2:30 a.m., defendant arrived at their requested location. The men said they would get money from the house. Defendant said one of the men had to stay in the taxi. Janas waited in the taxi and Martinez went into the apartment. Martinez returned with a backpack. Defendant testified Martinez and Janas looked in the backpack.
Defendant testified he got out of the van while the men were looking for the money. He went to the back of the van and got his jacket because he was cold. The two men were still looking for the money. They told him that they only had a $100 bill but did not show or give it to him.
Defendant testified that Janas leaned into the van and started talking to Odom’s girlfriend. They argued and she pushed him. Janas hit the woman with something. Odom got out of the van and knocked down Janas. Martinez came over, and Odom also knocked him down.
Defendant testified he got back into the van with Odom. Defendant backed up, and argued with Odom about hitting the two men. Defendant stopped the van, pulled forward, and told Odom to get out. Odom refused. Defendant testified he drove away, and never saw anyone standing in front of the van.
Defendant testified he was scared because Odom had punched his customers. He drove slowly while he continued to argue with Odom. He reached a stoplight and put the van in park. Odom said he felt disrespected, took the van’s keys, and left.
Defendant testified that when the police arrived, they told him there was a warrant for his arrest based on the incident with Ortega. He only had $18 because Martinez and Janas never paid him.
Convictions and sentence
Defendant was convicted of count I, battery with serious bodily injury on Ortega, and count II, assault with a deadly weapon, a vehicle, on Yanis. A great bodily injury enhancement had been alleged as to Ortega in count I; the jury found it was not true.
Defendant was sentenced to an aggregate term of four years, based on three years for count II, and a consecutive term of one year (one-third the midterm) for count I.
DISCUSSION
I. Admission of the 2008 Prior Incident
Defendant contends the court erroneously admitted evidence of the 2008 incident where he argued with his brother, drove his car at his brother, and rammed the store and his brother’s car, as relevant to count II, assault with a deadly weapon, his taxi van, on Yanis. Defendant contends the prior incident constituted inadmissible propensity evidence and was unduly prejudicial.
A. Pretrial motions
Prior to trial, defendant filed a motion in limine to exclude evidence of the 2008 incident with his brother and the car.
The People’s trial brief moved to admit the 2008 incident. According to the People, the 2008 incident was charged as a felony, and later dismissed because defendant completed an anger management course. The People argued evidence about the prior incident was admissible in this case as to count II, the assault on Yanis with his taxi van, to show defendant’s intent, absence of mistake or accident, and presence of a common scheme.
B. The Court’s Ruling
At a hearing on the motion, defense counsel argued the 2008 incident was inadmissible under section 1101, subdivision (b), the prior incident and the charged offense in count II were not sufficiently similar, and the prior incident involved “some sort of domestic disturbance” with his brother, while the charged offense in count II occurred while he working as a taxi driver. Counsel argued there was no evidence that defendant intended to use the car to harm his brother. The 2008 incident constituted inadmissible propensity evidence, and would be prejudicial because the jury would “automatically assume that this is [defendant’s] motive, common scheme,” and the evidence would “only serve to try the case on the defendant’s character and his actions on the prior instance.”
The court stated: “Well, I understood the intent issue to be the intent to use the vehicle as a deadly weapon. I mean, the motive to the events could be entirely unrelated, but it’s the intent to use the vehicle as a weapon. That’s what I understood.”
The court found:
“You know, these things all, quite frankly, tend to blend together when you look at them and I know that the case law makes the distinction as to each one of the levels of similarity, the … levels of similarity that attach to each type of specific offer of proof, but … in my first read of this I certainly analyze the intent issue … in that very basic way. I mean, I understand there could be different reasons for wanting to use the vehicle as a weapon. That’s being an intent.
“Now, as far as absence of mistake or accident, you know, I believe that the case law supports the use of that prior incident juxtaposed to the current incident in that way.
“Now, common scheme, you know, this is something that I’m just not quite as clear on. Is there some kind of premeditated intent to use a car any time he has a disagreement with somebody? I don’t know if that’s really the applicable theory, but absence of mistake, intent, I don’t have a problem with those. Those seem to me to be exactly what’s intended by [section] 1101(b).”
The court asked for clarification on how the prosecutor intended to introduce evidence about the 2008 incident. The prosecutor stated that Officer Kurtz, who wrote the police report about the incident, would testify about his interviews with defendant and his brother, Fisal Altam. Defense counsel objected to any hearsay testimony from Kurtz.
The court overruled defendant’s objections and held the People could introduce evidence about the 2008 incident based on the “theories that I’ve already talked about, and I’m making that ruling on the basis that it can be established through an independent witness who is identified and through the officer who authored the report.” The court would address any hearsay issues at the time of the testimony.
C. CALCRIM No. 375
When the court reviewed the instructions with the parties, it stated that it would give CALCRIM No. 375 about the 2008 incident, and it had edited the instruction to reflect that the evidence was admissible only as to count II regarding defendant’s intent, and the absence of mistake or accident. Defense counsel objected to the instruction based on his earlier argument that the 2008 incident should not be used to prove defendant’s intent.
Just prior to the prosecution’s introduction of evidence about the 2008 incident, the court read the entirety of CALCRIM No. 375 to the jury, as set forth below, with the following preface: “… I’m advised that the next phase of evidence by the People is going to be on a particular topic, and I want to read this instruction to you before you hear this evidence so you understand why it is being presented and the more limited purposes for which you may consider this evidence. This will be part of the instructions that I give you at the close of the evidence as well.” After the court read CALCRIM No. 375, it advised the jury that it should understand the limited admissibility of the evidence before it heard the testimony.
As set forth above, the prosecution introduced evidence of the 2008 incident at trial through the testimony of defendant’s brother, Fisal Altam, and Officer Kurtz, who investigated the incident.
During the instructional phase, the court again read the entirety of CALCRIM No. 375:
“The People presented evidence of other behavior by the defendant, involving his brother, Fisal Altam. That was not charged as a crime 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 those acts.
“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 the defendant committed the acts, 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 use a vehicle as a deadly weapon or the defendant’s alleged acts were not the result of mistake or accident.
“In evaluating this evidence[,] consider the similarity or lack of similarity between the uncharged acts and the charged offenses. 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 a crime. If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all of the other evidence in this case. It is not sufficient by itself to prove the defendant is guilty of Count Two, assault with a deadly weapon, to wit, a vehicle. The People must still prove each charge and allegation beyond a reasonable doubt.”
D. Closing Argument
In his closing argument, the prosecutor reviewed Altam’s trial testimony about the 2008 incident, and his account that defendant used his vehicle to try and hit him. The prosecutor cited the language from CALCRIM No. 375, and argued the jury could “look at the prior 2008 incident” for the limited purpose of deciding whether defendant acted with the intent to use a vehicle as a deadly weapon, and whether defendant’s actions were not the result of mistake or accident, when he drove his van toward Valerie Yanis. The prosecutor argued both offenses were “almost identical” because defendant had an altercation with someone, he had access to a vehicle, and he took out his anger “by using that vehicle as a weapon.”
The prosecutor urged the jury to consider the 2008 incident because defendant “not only was angry and he took a tape dispenser and hit Neomi Ortega in the head ….” The incident with Valerie Yanis happened a week later, and the defendant was again “in anger used his vehicle, this time in a manner that was intended to harm Valerie Yanis….” The prosecutor concluded:
“You have the 2008 incident which you can consider for those limited purposes. You can infer from the 2008 incident that when defendant drove his vehicle at Valerie Yanis in 2014 he intended to use it as a weapon and you can infer that it was no mistake or accident.”
Defense counsel did not object to this argument.
Defense counsel also addressed the 2008 incident, reviewed the instructional definition of preponderance of the evidence, and reminded the jury that it had been instructed not to conclude from the prior incident that defendant had bad character or was disposed to commit a crime. Counsel argued the events were not similar because the 2008 incident occurred during the daytime, defendant was in his own car, and it involved a family dispute.
E. Motion for New Trial
Defendant filed a motion for new trial on several grounds, including the claim that the court erroneously admitted evidence of the 2008 incident, and failed to balance the prejudicial impact of the evidence. The People filed opposition.
The court denied the entirety of the motion. As to the 2008 incident, the court stated it had previously addressed the admissibility of the evidence under both section 1101, subdivision (b) and section 352, and while it “may not have made specific findings at a particular point in time, I think that everything was clearly and fully discussed there and that there is no error in the record ….”
F. Sections 1101 and 352
Section 1101, subdivision (a) prohibits the admission of evidence of uncharged offenses to prove propensity or disposition to commit the charged crime. (People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Hendrix (2013) 214 Cal.App.4th 216, 238 (Hendrix).) “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.]” (Hendrix, supra, 214 Cal.App.4th at p. 238; § 1101, subd. (b).)
“Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 369.)
“The least degree of similarity is required to prove intent or mental state. A higher degree is required to prove common plan, and the highest degree to prove identity. [Citations.]” (People v. Thomas (2011) 52 Cal.4th 336, 355; People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
“Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially. [Citations.]” (People v. Thomas, supra, 52 Cal.4th at p. 355.) “ ‘Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. “In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.” [Citation.]’ (People v. Ewoldt, supra, ante, p. 394, fn. 2, italics in original.)” (People v. Balcom (1994) 7 Cal.4th 414, 422.)
Such evidence is also relevant “when a defendant admits committing an act but denies the necessary intent for the charged crime because of mistake or accident, [and] other-crimes evidence is admissible to show absence of accident.” (People v. Whisenhunt (2008) 44 Cal.4th 174, 204.) “Intent” and “absence of accident” are “two ways of describing the same relevant issue,” that defendant performed the alleged acts “intentionally rather than accidentally.” (Ibid.)
“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.’ ” (Hendrix, supra, 214 Cal.App.4th at p. 238; People v. Walker (2006) 139 Cal.App.4th 782, 796.)
“On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. [Citation.] A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Kipp, supra, 18 Cal.4th at p. 371.)
G. Analysis
Defendant argues the court should have excluded the 2008 incident because it involved a family dispute with his brother, the charged offense arose from a financial dispute while driving his cab, and the two incidents were not sufficiently similar.
The court did not abuse its discretion, and the evidence was admissible, relevant, and probative for both intent and absence of mistake. Defendant pleaded not guilty, and thus placed all issues in dispute as to count II, including his intent. (See, e.g., People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 407; People v. Walker, supra, 139 Cal.App.4th at p. 796.)
In addition, defendant’s trial testimony further established that evidence of intent and absence of mistake were relevant. Defendant testified that he initially backed out of the apartment’s driveway, he stopped and then pulled forward, ostensibly for Odom to get out of the van, and he never saw Yanis or intended to hit her.
While defendant claims the charged offense against Yanis was not similar to the 2008 incident, the least degree of similarity is required to establish intent. In both the 2008 incident and count II, defendant was engaged in disputes with people who owed him money, he had the opportunity to leave on both occasions, and instead he drove his vehicle in a manner intended to harm another party. In the 2008 incident, he admitted to Officer Kurtz that he tried to hit his brother with his car, after arguing with his brother about the unpaid debt. As to count II, both Yanis and Martinez testified defendant suddenly drove his van forward and tried to hit Yanis, as Yanis was calling the police and trying to get his license plate, after the dispute where her uncle allegedly failed to pay the taxi fare.
While there were certain differences between the 2008 incident and the charged offense in count II, those dissimilarities went to the weight and not the admissibility of the evidence. “The question … is not the number of points of similarity but their logical relevance to establish the mental element of the charged offense.” (People v. Rocha (2013) 221 Cal.App.4th 1385, 1394.) The probative value of the prior incident was not substantially outweighed by the risk of undue prejudice, and the evidence was no more inflammatory than the charged offense. (§ 352; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211; People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.)
1. Robbins
Defendant asserts that a single prior act is not relevant or probative of a party’s intent, based on language in People v. Robbins (1988) 45 Cal.3d 867 (Robbins), (superseded by statute on another ground as recognized in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13). (AOB 32-34) In Robbins, the defendant admitted the act of killing a minor, but denied that he intended to commit a sexual act or kill the victim. The court granted the People’s motion to admit evidence of the defendant’s prior conduct in Texas, where he admitted that he committed a lewd act and then murdered a minor. (Id. at pp. 873–874, 879.)
Robbins held the trial court did not abuse its discretion when it admitted evidence of the Texas crime as circumstantial evidence of the defendant’s intent, and addressed the reasoning that supported the admission of such evidence:
“The reasoning underlying use of an actor’s prior acts as circumstantial evidence of that actor’s later intent is well explained by Wigmore. It is based on ‘the doctrine of chances – the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. [¶] ... In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) 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; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent.’ [Citations.]” (Robbins, supra, 45 Cal.3d at pp. 879–880.)
Robbins held the Texas crime evidence was substantially similar to the charged offenses “and hence sufficient to raise an inference that the recent offense was committed with the charged intent(s). [Citation.]” (Robbins, supra, 45 Cal.3d at p. 880.) Robbins further held the court did not abuse its discretion to admit the evidence under section 352 “or under any other similar rule or policy.” (Robbins, supra, at p. 880.) Robbins added this footnote:
“There has been debate whether, as here, a single incident of uncharged misconduct is sufficient to justify admission to prove intent as to the charged crime under the ‘chances’ theory. We agree with the Oregon Supreme Court that ‘no categorical statement can be made one way or the other. Depending upon the circumstances of the case, sometimes one prior similar act will be sufficient .... A simple, unremarkable single instance of prior conduct probably will not qualify, but a complex act requiring several steps, particularly premeditated, may well qualify. These decisions must be made case-by-case ....’ [Citation.]” (Id. at p. 880, fn. 5, italics added, citing State v. Johns (Or. 1986) 725 P.2d 312, 324.)
Defendant relies on the Robbins footnote and asserts that in this case, evidence of the 2008 incident was not admissible to prove his intent and had no probative value since it was based on a single prior act that was not premeditated or complex. Instead, he asserts the 2008 incident was a spontaneous and emotional act that happened on one occasion.
Robbins did not hold that a single prior act would never be relevant or probative as to intent. Section 1101, subdivision (b) provides for the admission of evidence of a prior “crime, civil wrong, or other act,” in the singular, under the appropriate circumstances. (§ 1101, subd. (b), italics added.) Robbins qualified its discussion by stating that “[a] simple, unremarkable single instance of prior conduct probably will not qualify,” but did not offer any examples aside from complex, premeditated acts that are obviously on the other side of the spectrum. (Robbins, supra, 45 Cal.3d at p. 880, fn. 5.) In any event, it cannot be said as to the 2008 incident that defendant’s act of breaking away from an argument, getting into his vehicle, and using it as a battering ram against his brother and his car was a “simple” or “unremarkable” prior act that lacked probative value as to his intent in count II. “[E]ven one such entry is more than a ‘typical person’ would be likely to make in a lifetime.” (People v. Rocha, supra, 221 Cal.App.4th at p. 1396.)
2. Closing Argument and Instruction
Next, defendant points to the final section of the prosecutor’s closing argument, where he addressed the 2008 incident, and asserts that the prosecutor improperly relied on it to prove the elements of count I, whereas the court admitted the prior incident only as to count II. Defendant essentially argues the prosecutor committed misconduct in that portion of argument. However, defense counsel did not object to the prosecutor’s brief reference to count I in that section of closing argument, and an admonition would have cured any alleged harm. (See, e.g., People v. Carter (2005) 36 Cal.4th at 1114, 1204.)
Moreover, the jury was twice instructed with CALCRIM No. 375, which correctly stated that the 2008 incident was relevant for the limited purpose of defendant’s intent and/or absence of mistake to commit count II. We presume the jury understood and followed the instruction. (People v. Davidson (2013) 221 Cal.App.4th 966, 973.)
Finally, defendant argues the court violated his due process rights by admitting evidence of the 2008 incident. The admission of evidence, even if erroneous under state law, must make the trial fundamentally unfair as to result in a violation of due process. (People v. Partida (2005) 37 Cal.4th 428, 439.) We have already found the court did not abuse its discretion when it admitted this evidence. Defendant has failed to demonstrate the evidence of the 2008 incident was so unfair as to deprive him of due process. Accordingly, defendant’s due process challenge fails.
II. The Alleged Negotiations Between Defendant’s Family and Ortega
As we will explain, the People moved to exclude evidence about alleged negotiations between defendant’s family and Ortega, where Ortega purportedly agreed to drop charges in exchange for $5,000. The court granted the motion and excluded the evidence.
Defendant contends this evidence was admissible to impeach Ortega’s credibility. However, defendant never moved to admit this evidence into trial and has thus forfeited appellate review.
A. The People’s Trial Brief
The People’s trial brief moved to exclude evidence about various pretrial contacts between Ortega, and defendant and his family, and their alleged negotiations to settle the case. The People’s trial brief consisted of the only offer of proof regarding this evidence, as follows:
“On June 4, 2014, DA Investigator Kevin Fite met with Ortega in reference to a contract entered into by Ortega, Defendant and the owner of the cab company, Shaddad Sifyan. Ortega informed Fite that shortly after the defendant was arrested for assaulting her, she received a telephone call from defendant’s sister, ‘Negla.’ Negla told Neomi that the defendant’s family wanted to do whatever they could to keep the case from going to court. Ortega stated that they spoke by telephone two to three times regarding some type of settlement. Ortega was having difficulty paying her medical bills so she suggested a monetary settlement. Later on, defendant’s brother, Fisal Altam (also known as ‘Vice’) contacted her asking her what needed to be done to drop the charges and she told him the same thing, that she was having trouble making ends meet. Ortega approached her boss, Shaddad Sifyan, to obtain information to file a worker’s comp claim as she was experiencing headaches and blurred vision. Sifyan asked her to get treatment through her own physician. Her physician, however, could not treat her because her injury was work related. When she relayed this to Sifyan, he fired her….
“A few days later, Sifyan called Ortega and told her to draft an agreement stating that defendant would pay her $5,000, in addition to covering her medical bills in exchange for her dropping the charges. Ortega drafted the agreement and met with defendant and Sifyan at a Starbucks. Huss[a]in gave Sifyan $1,000 cash and agreed to pay Ortega $1,000 per month. All three signed the agreement. The agreement also stated that Sifyan would not fire Ortega because of the situation and that she and defendant would not work together. Sifyan told her he was going to hold onto the money until the charges were actually dropped. Ortega informed him that she could not control what the DA’s office would do and that this was not the agreement. Ortega then took the contract and left.
“A few days later, Sifyan called Ortega back and asked to meet with her regarding the agreement. He then gave her the money defendant had given him and told her she could come back to work the next day. When Ortega arrived back on the job, she learned defendant was working the same shift. Ortega called Sifyan and told him she could not work with the defendant in light of the battery. Sifyan arrived at the location and fired Ortega again.
“Investigator Fite met with Shaddad Sifyan, the owner of Scrip Taxi on June 5, 2014, in regards to the contract. Sifyan informed Fite that he felt Ortega and the defendant were good employees and so he wanted to keep them. When he learned that Ortega had been talking to the defendant’s family about a potential settlement he wanted to become involved to assist in the resolution. He confirmed that he called Ortega and told her to put the contract together. He then met with her and defendant at a local Starbucks where they all signed the contract. He recalled that defendant was going to make $1,000 payments each month until $5,000 was reached. Sifyan then took the first installment in cash from the defendant and told Ortega he was going to hang on to the money until the charges were dropped. Ortega told him she could not guarantee that the DA’s office would drop the charges and so he held onto the money. The next day he decided to give Ortega the money and told her she could come back to work. When Ortega started back to work, she called Sifyan numerous times regarding the fact that defendant was working the same shift. Sifyan told her it wasn’t going to ‘work’ if she and defendant didn’t get a long so he fired both Ortega and defendant. Sifyan denied firing Ortega for wanting to make a worker’s comp claim and stated that reason he fired her was that she was missing a lot of work.
“On June 17, 2014, DA Investigator Fite had contact with Fisal Altam (aka ‘Vice’), defendant’s brother. Altam informed him that he never called Ortega, that she called him wanting to know if they could work out a deal and she would drop the charges. She informed him that she would accept $5,000 to ask the DA to drop the charges. Altam stated that Ortega called him several times offering this deal and he informed her it was up to his brother to decide. Altam then stated that informed Ortega that he did not want to get involved so Ortega started calling his sister instead.
“On June 17, 2014, Fite had contact with Negla Hussein. Negla told Fite that it was the victim, Ortega, who contacted her asking for $5,000 in exchange for dropping the charges and that she called her almost every day. Then, on June 23, 2014, Negla informed Fite that she wanted to ‘clear some things up.’ She told him that she [italics in original] was the one who initiated contact with Ortega by calling her at her place of employment, Scrip Taxi. She stated that she called her because her brother, the defendant, called her from jail and asked her to contact Ortega to see if they could work out a deal to get the charges dropped. As a result, she called Ortega and asked if they could work out a deal for her to drop the charges. Ortega stated that she had been out of work and had bills to pay so they agreed that something could probably be worked out. When Ortega asked for a meeting regarding this settlement, Negla told her to call her brother, Fisal about a meeting…. She then gave Ortega Altam’s number and encouraged her to call him. Negla told Fite that she knew that calling Ortega and asking to work out a deal was wrong but she was getting pressure from her parents to help her brother. Negla admitted that Ortega told her that even if she received money, she could not guarantee that the DA would drop the charges.” (Italics added.)
The People moved to exclude this evidence as irrelevant and prejudicial.
Defendant filed pretrial motions in limine, but did not oppose the People’s motion to exclude evidence of negotiations, or make his own motion to introduce the evidence at trial.
B. The Court’s Ruling
At the court’s pretrial hearing on this evidence, defense counsel said he had not subpoenaed defendant’s brother or sister for the purpose of introducing evidence about the alleged negotiations.
The court addressed the admissibility of this evidence and held:
“[A]s far as that contract is concerned, you know, I took a look at that issue and, quite frankly, I think there’s … two aspects to it. It seems to me that if it were to be offered solely by the defense for purposes of attacking credibility, impeaching the credibility of the complaining witness here then, quite frankly, I’m inclined to agree with what the People’s analysis is in their trial brief, that it’s improper character evidence and that it really might reflect more upon an unrelated civil settlement attempt that has nothing to do with the open facts of the criminal Complaint. So if it were to be offered by the defense for that purpose I would be inclined to decline that offer of proof and not allow it.
“If the People were to offer that, however, as evidence of an attempt by the defendant to influence a witness, then that appears to be to be justified on the basis of what I’ve read here. If you were to do that, however, then it would necessarily follow that all of the circumstances attendant to it would be addressable through the defense.” (Italics added.)
Defense counsel stated that Negla Hussain, defendant’s sister, might need an attorney because evidence of the negotiations could implicate her Fifth Amendment privilege against self-incrimination, since she might testify that “she assisted in dissuading a witness per se or assisting as an accessory.” The court agreed, and instructed the prosecutor to give the appropriate notice so that it could appoint counsel for Negla Hussain. The prosecutor said she would let the court know if she was going to introduce this evidence so that counsel could be appointed.
Defense counsel did not object to the court’s ruling or move to introduce this evidence to impeach Ortega.
C. Appointment of Counsel
After the jury was selected, the parties again discussed whether attorneys should be appointed to represent defendant’s siblings about the potential admissibility of the negotiation evidence. The court clarified its prior ruling:
“My ruling was that [if] the People wished to bring up the issue of these … contract negotiations, then that will be allowed because it is relevant to a specific issue as to a consciousness of guilt by the defendant. If the defense were to want to do that independently, that is introduce evidence of the contract negotiations, it would not be allowed because it would be impermissible impeachment and encroachment on the privilege relating to negotiations for settlement of a civil claim. However, if the People do bring the issue into play, then all of the factors of it would be admissible, in other words, the door would be open and the defense could go into all aspects of it.
“So if the brother, Mr. Altam, even if he weren’t to be called by the People, if the issue is raised the defense would be allowed to call him as a witness if he’s involved. And if there’s something there that he might need to be consulted about, then it’s appropriate that he have that opportunity.
“Now, the impact of all that is yet to be determined. But just based on what I understood of the issue and implicit in the understanding that leads to my specific rulings on this issue, it seems to the court that it is appropriate to at least afford these potential witnesses the opportunity to consult with counsel. Whatever they decide to do in light of that, then I have other decisions to make.”
Thereafter, the court appointed separate attorneys to consult with Fisal Altam and Negla Hussain.
Later during the trial, the court held a hearing outside the jury’s presence. After conferring with their attorneys, both Negla Hussain and Fisal Altram were sworn and advised the court that they intended to claim their Fifth Amendment privilege against self-incrimination if the prosecutor asked them questions about whether they had negotiated with Ortega.
At trial, the jury did not hear any evidence about any alleged negotiations between Ortega, and defendant and his family. Fisal Altram was called as a prosecution witness, but his testimony was limited to the 2008 incident with defendant, as set forth above, and he did not claim any privileges regarding that prior incident.
When Ortega testified, defense counsel asked whether she was still employed by the taxi company. The court sustained the prosecutor’s objection, and defense counsel did not raise any additional issues.
D. Analysis
Defendant contends the court erroneously granted the People’s motion to exclude evidence about the negotiations and relied on a “faulty rationale” when it found the evidence was simply “marginal.” Defendant asserts the impeachment evidence would have revealed Ortega’s purported character for dishonesty “by accepting a substantial money bribe and agreeing to persuade the district attorney’s office to dismiss the charges” against defendant.
However, defendant never moved to introduce this evidence in either his case-in-chief or as impeachment, and did not oppose the People’s motion to exclude it. Instead, defendant agreed that both his siblings should consult with counsel before they could be called to testify about the negotiations.
Defendant’s failure to object or to move to introduce the evidence necessarily waives review of his claim. (See, e.g., People v. Alexander (2010) 49 Cal.4th 846, 912.) Defendant has not raised an ineffective assistance claim. Even if he had, “[g]enerally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] ‘When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation” [citation], the contention must be rejected. [Citation.] A reviewing court will not second-guess trial counsel’s reasonable tactical decisions. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.)
The record in this case strongly suggests a reasonable explanation for counsel’s failure to object to the court’s exclusion of the evidence, and also his failure to move to introduce the evidence. Defense counsel may well have concluded such evidence was highly prejudicial. The People’s trial brief contained the only offer of proof made to the trial court. While it constituted hearsay, defense counsel did not object or claim that it was inaccurate for purposes of the court’s consideration of the People’s motion.
According to the People, the district attorney’s investigator determined that defendant’s brother and sister initiated contacts with Ortega and asked her to dismiss the charges in exchange for $5,000. While Ortega may have welcomed the offer because of her employer’s alleged rejection of her worker’s compensation claim and decision to fire her, the investigator ultimately discovered that Ortega told defendant’s siblings that she could not guarantee that the district attorney’s office would drop the charges.
Even more damaging were the statements attributed to defendant’s sister, where she admitted to the investigator that she initiated the calls to Ortega because defendant had called her from jail and asked her to work out a deal with Ortega to drop the charges. The court was not presented with any indication that Ortega had offered to commit perjury at trial in exchange for the proposed settlement.
Defense counsel likely decided that it would have been prejudicial for the jury to learn the defendant wanted his family to pay Ortega so she would drop the charges against him, particularly since he was also facing the assault charge against Yanis. In addition, both of defendant’s siblings decided to invoke their Fifth Amendment privilege after consulting with their appointed attorneys, raising the inference that there may have been more prejudicial evidence about this “negotiation” than already discovered by the district attorney’s investigator. Finally, defense counsel would not have been able to introduce this evidence by calling defendant’s siblings to testify since they claimed their constitutional privileges against self-incrimination. The only other witnesses to the alleged negotiations would have been Ortega and her employer. Ortega would have likely testified that defendant’s family approached her and made the offer in exchange for dropping the charges; her employer might have offered a different story, but he would have been impeached with Ortega’s probable testimony that he refused to file her worker’s compensation claim and fired her.
III. There Was No Cumulative Error
Having rejected defendant’s contentions, we similarly find there was no cumulative error.
DISPOSITION
The judgment is affirmed.


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POOCHIGIAN, Acting P.J.


WE CONCUR


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PEÑA, J.


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SMITH, J.