Excluding Evidence Under Section 352

Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its 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." "A trial court is vested with wide discretion in deciding the relevancy of evidence. Further, it is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. On appeal, the court's exercise of such discretion will not be disturbed absent a clear showing of abuse. " (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) In general, "the mere erroneous exercise of discretion under such 'normal' rules does not implicate the federal Constitution." (People v. Cudjo (1993) 6 Cal.4th 585, 611.) The applicable standard of prejudice for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, at page 836, is that the error is harmless if it does not appear reasonably probable the verdict was affected. (Cudjo, at p. 611.) Pursuant to Evidence Code section 352, the trial court has the discretion to exclude evidence "if its 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." A trial court has broad discretion to determine both the relevance of evidence and whether its prejudicial effect outweighs its probative value. (People v. Jones (2011) 51 Cal.4th 346, 373.) "'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' ." (People v. Bolin (1998) 18 Cal.4th 297, 320.) "The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. . Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional People v. Watson (1956) 46 Cal.2d 818, 836 test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. ." (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida)."'The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice ....' (Evid. Code, 352.) 'The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors.' The Court reviews the trial court's ruling under Evidence Code section 352 for abuse of discretion , and a reviewing court will reverse a trial court's exercise of discretion to admit crime scene or autopsy photographs only when 'the probative value of the photographs clearly is outweighed by their prejudicial effect.' " (People v. Watson (2008) 43 Cal.4th 652, 683-684.) "Evidence Code section 352 gives a trial court the discretion to 'exclude evidence if its 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.'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) Factors that a trial court should consider when deciding whether to allow the presentation of prior sexual offense evidence are: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. " (Id. at p. 1117.)