Filed 8/7/13 P. v. Ochoa CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
FREDDY N. OCHOA,
Defendant and Appellant. 2d Crim. No. B241804 (Super. Ct. No. BA393480-01) (Los Angeles County)

Freddy N. Ochoa appeals from the ju dgment following his conviction by jury of misdemeanor battery, a lesser included offense of battery resulting in serious bodily injury. (Pen. Code , §§ 242, 243, subd. (d).) 1 The jury also acquitted him of assault by means of force likely to produce gr eat bodily injury. (§ 245, subd. (a)(4).) The trial court sentenced him to 180 days in county jail. Appellant's sole contention on appeal is that the trial court erred by adm itting prior crime evidence. We affirm.
FACTUAL AND PROCEDUR AL BACKGROUND
Prosecution Evidence The Ochoa family owned a five-bedroom house in Los Angeles. In 2012, appellant lived there with his brothers, Bo bby Ochoa, and Danny Ochoa, their 89-year-

1 All statutory references are to the Penal Code unless otherwise stated.2 old father, Joe Ochoa, Danny's "common-law" wife, Yvonne Reyes, and several younger family members. On the evening of January 31, 2012, Reyes, Danny, Bobb y and Joe were in the living room. Reyes and Danny were dr inking beer. Sometime after 9:00 p.m., appellant entered the living room. He and Danny started arguing about money. Reyes went into the kitchen. Danny joined her th ere and asked for money. She gave him $20. Danny gave the money to appe llant, and continued arguing with him about money. Reyes approached Danny and appella nt and yelled that she wanted her money back. Appellant punche d Reyes in the face. She fe ll backward and hit her head
on a cabinet. Her mouth and nose were bleedi ng. Reyes yelled at appellant to stop, and tried to put a chair between them. Appellant again punched Reyes in the face. She called 911. Reyes went to the emergency room. He r injuries included a cu t lip, a swollen nose,
and a broken tooth. Reyes and Danny each had a prior felony conviction of petty theft with a prior conviction. Their respective weights are 160 and 145 pounds. Appellant weighs between 450 and 500 pounds.
Prior crimes Evidence In 2001, Reyes's adult son, Rudy, b ought milk at the market. Appellant drank some of that milk. Reyes confronted hi m because he drank it without paying for it. Appellant went to another room, returned w ith a screwdriver, and started stabbing Rudy's legs. When Reyes tried to pull him away from Rudy, appellant scratched her with the screwdriver. Rudy's legs were bleeding. Someone called the police, who arrived and arrested appellant. In 2005, appellant asked Bobby to le nd him money. Bobby refused. The next day, Bobby was in the kitchen when appe llant entered and started to fight. Thinking that appellant was "playing," Bobby fought b ack. After the fight, Bobby realized that appellant had poked his neck eight times with "an ice pick," or "an electrical cord as sharp as an ice pick." Bobby we ighed about 145 pounds in 2005.3 In 2009, appellant and Danny were fi ghting in the driveway. While Danny was on his knees, trying to sta nd, appellant kicked his ribs several times. Reyes managed to pull appellant away briefly. Danny's rib in juries made it impossible for him to stand. An ambulance transported him to the emergency room. Defense Evidence Appellant testified that Danny barged into his room at about 8:30 p.m. on January 31, 2012. Danny wa s drunk and claimed that appellant owed him money. Appellant tried to hide in the bathroom, wher e he found Reyes trying to "catch a vein" with a syringe and inject hero in. She stabbed appellant's hand with the syringe needle, which angered him because she had Hepatitits C. Appellant tr ied to leave the house, but Reyes locked the front door and said, "You' re not going nowhere until you pay Danny his money." Reyes pulled a knife from her purse and stuck the knuckle of his left index finger. Appellant went to the kitchen to leav e through the back door. While trying to get through the kitchen, appellant "hit Da nny[,] and he fell on the floor." Danny was screaming, and appellant picked him up. Wh ile Danny was punching appellant, Joe (their elderly father) tried to pull Danny away. Bobby also entered the kitchen. During the struggle, Reyes jumped on appellant's back and "fractured it." He "pushed her hard,"
with his arm. He "wanted her off." She tu rned around, slipped, and her mouth hit the counter. Reyes then stood, knife in hand, charged appellant, and said, "You mother fucker. I'm going to kill you." Appellant pu shed her away with his hand. He was worried about his father, not himsel f. He did not punch Reyes. Appellant admitted he was convic ted of assaulting Danny in 2009, "joyriding" in 2003, and receiving stolen prop erty in 1999. During cross examination he testified that in 2009, he ha d to defend himself be cause Danny attacked him; that Bobby attacked him 2005, and Reyes attacked him in 2012. Joe Ochoa testified that on the nigh t of appellant's arrest, Danny was cussing and wanted to fight appellant "over $ 20 or something." Jo e tried to hold Danny to stop his fighting. Danny fell down. As a ppellant bent over to pick Danny up, Reyes4 pushed or hit appellant "[r]ight in the back." Danny and Reyes were both "pretty drunk." Appellant hit Reyes with his elbow. Reyes "was stumbling down and hit herself on the counter." When the police a rrived, Joe told them that "Danny started the fight."
DISCUSSION Appellant contends that the trial c ourt abused its discretion by failing to exclude the prior crimes eviden ce pursuant to Evidence Code sections 1101, subdivision (b), and 352. We disagree.
"We review for abuse of discretion a trial court's rulings on relevance and
admission or exclusion of evidence under Ev idence Code sections 1101 and 352. [Citations.]" ( People v. Cole (2004) 33 Cal.4th 1158, 1195 .) Evidence that a defendant
committed crimes other than th ose currently charged is not admissible to prove criminal disposition or bad character. (E vid. Code, § 1101, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 14.) Evidence Code section 1101, subdivision ( b), however, provides that prior crimes evidence may be received to prove defendant's motive, identity, intent, the existence of a common plan or design, or the absence of mistake or accident. ( People v. Ewoldt (1994) 7 Cal.4th 380, 393 & fn. 1 .) "Other crimes evidence is admissible "'"where the proof of defendant's intent is ambiguous, as when he admits the acts and denies the necessary intent becaus e of mistake or accident."' [Citation.]" ( People v. Miller (2000) 81 Cal.App.4th 1427, 1447-1448.)
Even if evidence of an uncharged crime is admissib le under Evidence Code section 1101, subdivision (b ), the evidence may be excl uded under Evidence Code section 352 if its probative value is subs tantially outweighed by the probability its admission would unfairly prejudi ce the defendant, mislead the jury, or confuse the issues. ( People v. Balcom (1994) 7 Cal.4th 4 14, 426-427.) While hearing the motion to exclude the prior crimes evidence, the trial
court determined that the defense intended to show that appellant did not hit Reyes, and
that she attacked him. The co urt then ruled that the prior cr imes were "relevant," having impliedly found that the defense would argue th e charged crimes were accidental or that
defendant acted in self defense. It also concluded that the prio r crimes evidence was5 admissible, because its prob ative value outweighed its prejudicial impact. While discussing jury instructions, the court indi cated it would use CALCRIM No. 375 to allow the jury to consider whether defendant acted as "the result of a mistake, accident or [to assess] the reasonableness of . . . a self-defen se theory." Defense counsel conceded that the prior crimes evidence might be relevant to show a "lack of accident." During closing argument, counsel repeatedly ar gued that the prosecution had to prove that appellant "did
not act in his own self-defense or defense of his father." The trial court correctly ruled that the prior crimes evidence was relevant to determine whether appellant acted with the re quisite intent, or hit Reyes by accident or while defending himself or another. "Sel dom will evidence of a defendant's prior
criminal conduct be ruled inadmissible when it is the primary basis for establishing a
crucial element of the charged offense." ( People v. Garrett (1994) 30 Cal.App.4th 962, 967.) We also reject appellant's related claim that the trial court abused its discretion by admitting the prior crimes evidence because its prejudicial impact outweighed its probative value. (Evid. Code, § 352.) As we have already explained, the prior crimes evidence was releva nt to intent. That evidence was not unduly prejudicial, when compared with the charge d crimes. In each instance, appellant attacked and injured a family member. While the record does not disclose Rudy's weight, it shows that appellant far outweighed Reyes and prior cr ime victims Bobby and Danny. Moreover, "[t]he prejudice which exclusion of eviden ce under Evidence Code section 352 is designed to avoid is not the prejudice or da mage to a defense that naturally flows from relevant, highly probative evidence." ( People v. Karis (1988) 46 Cal.3d 612, 638.) Further, the court instructed the jury that it could consider the prior crimes evidence for the limited purpos es of "deciding whether or not the defendant's alleged
actions were the result of a mistake or accide nt[,] or as to the reasonableness of any defense relating to defense of others that the defendant acted with the requisite intent to commit the charged offenses." During closing arguments, the prosecutor and defense counsel reminded jurors that th e prior crimes evidence could be considered only for such6 limited purposes. The court also instructed the jury that it was not to "conclude from [the prior crimes] evidence that the defendant ha s a bad character or is disposed to commit crime." We presume that the jury understo od and followed the co urt's instructions. ( People v. Gray (2005) 37 Cal.4th 168, 231.)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.7 John S. Fisher, Judge
Superior Court County of Los Angeles

________________ ______________

Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II, Supervising Depu ty Attorney General, Steven E. Mercer, Deputy Attorney General, for Plain tiff and Respondent.