Phil Spector: Prosecution's Motion to Admit Evidence of Other Crimes

Here it is folks. This motion to admit evidence of other crimes was filed on Monday by the prosecution. It looks like AJ will be arguing to get in not only the latest sixth PBA 1101(b) witness Norma Kemper, but also the incident when he put a gun to Leonard Cohen's head as well as Debra Strand and a few others.

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STEVE COOLEY
District Attorney of Los Angeles County
ALAN JACKSON
Deputy District Attorney
TRUC DO
Deputy District Attorney
Major Crimes Division
Los Angeles County District Attorney's Office
210 W. Temple Street, 17th Floor
Los Angeles, CA 90012

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
THE PEOPLE OF THE STATE OF
CALIFORNIA
Plaintiff,
vs.
PHILLIP SPECTOR,
Defendant.

Case No. BA255233

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO ADMIT EVIDENCE OF OTHER CRIMES

Date: August 14, 2008
Time: 1:30 PM
Court: Department 106

Defendant Phillip Spector has built a history, spanning some 40 odd years,of using gun-related violence when confronted with a situation when he feels a loss of control, or a threat to his control. Pursuant to CAl. Evid. Code § 1101(b), the People seek to admit evidence of the following uncharged crimes.

I. BACKGROUND

On February 3, 2003, Defendant Phillip Spector shot Lana Clarkson to death in the foyer of his Alhambra home. After the shooting, Spector opened the back door to his house, stood in the doorway and told Adriano DeSouza, his driver, "I think I killed somebody." Only Spector

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and Clarkson were in the house at the time. Within minutes, the police were on the scene, and Spector was eventually taken into custody.

Defendant Spector has an on-going pattern of resorting to gun-related violence to exert his will when he does not get his way, or perceives what he believes is either a threat to or the loss of his control over a given situation. This court has already ruled as admissible under Evidence Code section 1101(b) the testimony of five women each of whom testified about Spector's gun-related violence against them occurring between the mid-1970s and 1995. given tha the testimony of these five witnesses (Melvin, Ogen, Jennings, Gosvenor and Robitaille) has already been admitted by this court, and the request for the sixth, Norma Kemper, is filed under separate cover, such witnesses will not be outlined herein. However, they are obviously included in each of the arguments set forth in this motion.

II. OTHER ACTS OF GUN-RELATED VIOLENCE SUBMITTED FOR RECONSIDERATION

On February 17, 2005, the People filed a motion in limine to admit evidence of other acts committed by Spector. Under that separate cover, the facts of the following incidents were set forth in detail and in their entirety. Thus, in an effort towards brevity, only a short recitation of such incidents will be discussed below.

Spector has a long history of resorting to gun-related violence to exert his will when he does not get his way. Int begins in 1972 and continues to the present.

A. The 1992 Posession of a Loaded Handgun
On January 28, 1972, the Beverly Hills Police Department received an anonymous call from a female who said that a man in a maroon jacket with a karate emblem had pointed a gun at her inside the Daisy Club on rodeo Drive. According to the report the man had become enraged when the female had attempted to engage him in conversation. The man had not invited the woman to engage him in conversation, and in response he drew a gun and pointed it at her. The man was Spector. Officers noted a bulge underneath Spector's shirt. The officers searched Spector, found a loaded handgun in his waistband, and arrested him.

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Spector was charged in misdemeanor case number M33439 with carrying a concealed weapon (Pen Code § 12025) and carrying a loaded firearm in a public place (Pen. Code § 12031). Spector pleaded guilty to the violation of section 12031. A condition of his probation was that he not possess any dangerous or deadly weapons.

B. The 1975 Assault at the Beverly Hills Hotel
On November 26, 1975 at about 2:00 am., Kevin Brown, a valet employed by the Beverly Hills Hotel, was at work when he heard a woman scream "Get away from me." Brown looked over and saw Spector arguing with a woman near the front door of the hotel. Brown approached and asked what was happening. Spector turned to face Brown, pointed a revolver at his face, and told Brown, "Get the fuck away from me." Brown began to back away from Spector as Chris Dunn, another valet, approached the group. Spector pointed the gun at Dunn before Spector and another man got into a silver Cadillac and drove away.

Brown reported the incident to the Beverly Hills Police Department. The Los Angeles County District Attorney charged Spector with two felony counts of assault with a firearm and two misdemeanor counts of brandishing a firearm. In Superior Court, Spector pleaded guilty to one count of misdemeanor brandishing of a firearm. The court placed him on two years of formal probation. A condition of his probation was that he not use or possess any dangerous or deadly weapons.

C. The 1977 Brandishing on Leonard Cohen
1977, Spector produced musician Leonard Cohen's record album, "Death of a Ladies man." during production of the record, Cohen and Spector, who were friends, were taking a break in the lobby of the music studio. Spector walked up to Cohen, placed on arm around Cohen's shoulders, and pointed a semi-automatic pistor at Cohen's chest with his other hand. Spector told Cohen, "I love you Leonard." Cohen looked at Spector and said, "I hope so, Phil." Spector then walked away from Cohen.

D. The 1978 Brandishing on Alan Sacks and Cathy Henderson
In 1978, television producer Alan Sacks, and his assistant Cathy Henderson, arranged to meet with Spector at Spector's Hollywood Hills home to discuss the music for Sacks' television

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pilot. Sacks and Henerson arrived on time and were let into Spector's house by Spector's bodyguard. The bodyguard locked a metal security gate behind Sacks and Henderson after letting them in.

After about an hour, Spector came downstairs and asked Sacks what he was doing in his house. sacks reminded Spector about their appointment. Spector then asked if Sacks had touched anything on the coffee table. When Sacks told him no, Spector responded, "Good, because there would have been a problem." Spector then told Sacks, "You're here because you want to go back and say I drink and like to play with guns." Spector took off his jacket and Sacks could see that Spector was wearing a shoulder holster containing a handgun.

Spector pulled the gun in and out of the holster several times and pointed it at Sacks. Sacks had to push the muzzle of the weapon away from him two or three times. Sacks told Spector he wanted to leave. Spector told him not to worry, that he would get out, but did nothing to let him and Henderson out of the house.

Spector then led Sacks and Henderson into another room with a piano. Spector began playing songs on the piano, and again took the gun in and out of the holster several times.

Shortly after midnight, Spector finally allowed Sacks and Henderson to leave his house.

E. The 1999 Assault on Debra Strand
During the 1999 holiday season Debra Strand attended a Christmas party in Bel Air with her then-boyfriend, John Silberman. Spector attended the same party.

Strand and Silberman left the party and returned to Silberman's home. Spector, a friend of Spector's who knew Strand and Silberman, and Spector's bodyguard also went to Silberman's house. Spector appeared to Strand to be intoxicated.

Strand came out of the house's bathroom and saw Spector in the foyer of the house. Spector was flicking cigar ashes on Silberman's golden retriever, Dolly. Strand approached Spector and confronted him. Strand demanded the Spector leave the dog alone. Spector immediately pulled handgun out of his jacket and placed the muzzle of the weapon against Strand's right cheek. Spector told Strand, "how does this make you feel, bitch?" Strand was
terrified that might shoot her. After several seconds, Spector put the gun away.

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Strand did not report the incident to the police. She was told by other people who witnessed the incident that Spector was very powerful in the music industry.

F. Spector's 2003 Terrorist Threats at Starbucks
In November, 2003, nine months after the Clarkson kiling, Spector walked into Starbucks coffee house on Fair Oaks Avenue in South Pasadena. John Borowicz was seated outside Starbucks with his friends Andre and Art. As Spector walked out of Starbucks, Andre stood up and said to Spector, "You're Phil Spector. "

Andre asked Spector to sit down and join them for coffee. Spector told them, "You shit, this interview isn't authorized," and "You fat fuck, I'm gonna go get my gun and blow you fat fucks away."

Spector's driver approached Spector and walked him back to the black Mercedes sedan parked in front of the Starbucks. The driver and Spector argued at the rear door of the Mercedes before Spector got in the back seat. The driver got behind the wheel, backed the Mercedes out of the parking stall and eventually left.
ARGUMENT

I. CALIFORNIA EVIDENCE CODE SECTION 1101(b) PERMITS EVIDENCE OF UNCHARGED CRIMES TO PROVE RELEVANT FACTS OTHER THAN THE DEFENDANT'S CRIMINAL DISPOSITION.

Cal. Evid. Code § 1101 (b) makes clear that evidence of "other crimes" or misconduct is admissible when the relevant to prove some material fact in issue, such as motive, opportunity, intent, preparation, common plan or design, knowledge, identity, or absense of mistake or accident. However, the list contained in § 1101(b) is not exclusive. People v. Early (2004) 122 Cal.App.4th 542, 547. Further, § 1101(b) is not limited to acts committed before the charged offense, but may include both prior and subsequent uncharged crimes when relevant to prove some fact other than disposition. People v. Balcom (1994) 7 Cal.4th 414, 425; People v. Shoemaker (1982) 135 Cal.App.3rd 442, 448 n3. As such "[t]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the

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uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence [i.e. Cal. Evid. Code § 352]." People v. Carpenter (1997) 15 Cal.4th 312, 378-379.

When a defendant pleads not guilty to the charges, he puts in dispute all elements of the offense and allegations. Carpenter 15 Cal.4th at 379; People v. Ewoldt (1994) 7 Cal.4th 38, 400 n. 4; People v. Daniels (1991) 52 Cal.3d 815, 857-858. This is true even if the defendant does not contest any particular element of the charges at trial. "[T]he prosecution's burder to prove every element of the crime is not relieved by a defendant's tactical decisions not to contest an essential element of the offense." People v. McGuire (1991 502 U.S. 62, 69-70.

Finally, if otherwise admissible, evidence of other crimes need only be proved by a preponderance of the evidence, and the trial court's decision to admit evidence of other crimes will not be reversed on appeal absent an abuse of discretion. Carpenter (1997) 16 Cal.4th 312, 380-381.

II. THE DOCTRINE OF CHANCES PROVIDES THAT EVIDENCE OF SPECTOR'S UNCHARGED GUN-RELATED ASSAULTS ARE ADMISSIBLE TO PROVE INTENT.

Of the non-exclusive list of theories for which evidence of uncharged crimes have been deemed admissible under Cal. Evid. Code § 1101(b), courts have been most inclined to admit such evidence to prove intent. Primarily, this is because intent requires "the least degree of similarity between the uncharged at and the charged offense." People v. Ewoldt (1994) 7 Cal.4th 380, 402 (internal brackets removed). In such cases, an actor's prior acts have been introduced as circumstantial evidence of that actor's later intent under the theory of the doctrine of chances. As explained by Dean Wigmore, "the recurrence of a similar result . . . 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 n act." People v. Robins (1998) 45 Cal.3d 867,880, quoting 2 Wigmore, Evidence (Chadbourn ed. 1979) § 302, p.241. The logic underlying the concept of being "the instinctive recognition of that logical process

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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." Id. at 879. See, People v. Erving (1998) 63 Cal.App.4th 652.

In Erving, the defendant was charged with four counts of arson and three counts of attempt to burn. The trial court admitted evidence that, during the defendant's lifetime, 40 uncharged attitional fires occurred in neighborhoods where she had lived. The court reasoned that the defendant "lived in four different, geographically distant neighborhoods. Arson fires regularly occurred either at her home, or within easy walking distance of it. The fires were set during her residency and stopped when she moved." Erving 63 Cal.App.4th at 663. As such, "[t]he doctrine of chances tells us it is extremely unlikely that, through bad luck or coincidence, an innocent person would live so near so many arson fires, occurring so frequently, in so many different neighborhoods." Id.

Similarly, in People v. Kelly (2007 42 Cal.4th 763, the defendant was charged with the murder of a 19-year-old woman that he had met at a fitness center, became a personal trainer for, lured to his home, and stabbed to death with a pair of scissors. The California Supreme Court upheld the death penalty conviction of Kelly, finding no error in the admission of evidence of uncharged misconduct, including evidence of the defendant's financial dealings with other women from the fitness center and evidence of assaults on other women. specifically, the court found that the defendant "continually lied to and manipulated women including, in particular women who, like [the victim], he befriended at the fitness center. As a specific example of the pattern, he continually led them to believe he came from a wealthy family. He did so consistently to obtain their property. The evidence shows he could be very charming and, at first, convincing. He also continually lured women to his home, where he robbed and raped them." Kelly 42 Cal.4th at 785. After having considered this pattern of uncharged crimes the court reasoned "[i]t would have been a remarkable coincidence if, shortly after the defendant violently assaulted two women he befriended at the fitness center, some different person happened to use that same apartment to assault another woman defendant had befriended at the fitness center." Id. at 786.

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Kelly is directly on point with the case at bar. Drawing from the reasoning in Kelly, it would be a "remarkable coincidence" if, after years of the defendant habitually losing his temper and pulling guns on people, the victim, being a complete stranger to the defendant's house, was the one who introduced Spector's gun into the situation. It stretches the limits of credence to believe that, though Spector has on countless occasions threatened, assaulted and terrorized individuals with a handgun when he does not get his way, in this one solitary instance it was Lana Clarkson and not Spector who retrieved the gun from his bureau. Indeed, it goes beyond a "remarkable coincidence" that after 40 odd years of gun-related violence, Spector would haplessly end up alone in the room with Lana Calrkson when she happened to choose to kill herself, as the defense would have the jury believe. The doctrine of chances firmly provides that the prosecution can present evidence to the jury to squarely prove that the defendant intended to introduce the gun into the situation. By extension, such evidence proves that it was he who possessed the gun at the time of discharge. Because of the overwhelmingly compelling and probative nature of such evidence, it is admissible under the doctrine of chances.

III. EVIDENCE OF SPECTOR'S UNCHARGED GUN-RELATED ASSAULTS ARE ADMISSIBLE TO PROVE COMMON DESIGN OR PLAN, OR PUT ANOTHER WAY, TO SHOW MODUS OPERANDI.

Under the rubric of Cal. Evid. Code § 1101(b), evidence of uncharged crimes is also admissible to prove a common plan or design. People v. Dancer (1996) 45 Cal.App.4th 1677, 1688; Ewoldt 7 Cal.4th 380 at 393, 399. Yet, while the words "common plan" or "common design" may suggest a single continuing plot to commit a series of connected crimes, the California Supreme Court has specifically rejected such a restrictive approach. Ewoldt 7 Cal.4th at 399; 401; People v. Castillo (1997) 53 Cal.App.4th 416, 426. Instead, common plan or design is more accurately seen simply as a similar "modus operandi" pursuant to which the defendant commits a series of similar, thought not connected, nor "distinctive or unusual" acts. Ewoldt 7 Cal.4th at 399, 403. Rather, the uncharged acts must show "such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." Kelly 42 Cal.4th at 784.

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In People v. Branch (2001) 81 Cal.App.4th 274, the defendant was charged with committing a lewd and lacivious act upon a child under 14 and using a foreign object to penetrate. The trial court admitted evidence, under Cal. Evid. Code § 1101(b), that the defendant committed similar, but uncharged, offenses against his step-daughter more than 30 year prior to the current charges. Despite the fact that they were separated by a substantial period of time and despite the fact that the acts were dissimilar in manner (touching over the clothes verses digital penetration in the prior act), the court nevertheless found that the prior offense was "highly probative in establishing [the defendant's] use of a common scheme and plan with both victims." Branch 91 Cal.App.4th at 283.

Thus, the Branch court reasoned that the defendant's "plan" to molest the victim was "manifested" some 30 years earlier when he molested his step-daughter. Evidence of that "common plan," or modus operandi, was highly probative on the issue of guilt or innocence of the charged crime. (See also, Dancer Cal.App.4th at 1690 [earlier molestation sufficiently similar to charged child molestation to show common plan or design despite passage of 11 years, difference in age of the victims (13 months, as opposed to kindergarten-aged), access to the victims (living with the victim, as opposed to living in the same apartment building), and location of the molestation (bedroom, as opposed to garage)].)

In the instant case Spector has developed a distinguishable modus operandi, repeated time and time again over a period of decades, under differing environments and against different kinds of victims, whereby he will threaten, assault or terrorize with a handgun and individual who is a perceived threat or challenge to his control. Following the Branch court's reasoning, Spector's "plan" to resort to gunplay when he does not get his way is "individually manifested" by each incident in which he has done exactly that in the past. Logic compels the conclusion that hes "plan" was most recently "manifested in his foyer with Lana Clarkson decided to leave and he perceived a challenge to his control. This pattern of behavior falls squarely within the purview of § 1101(b) and the supporting case law, and should be admissible as such.

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IV. EVIDENCE OF SPECTOR'S UNCHARGED GUN-RELATED ASSAULTS ARE ADMISSIBLE TO SHOW IDENTITY.

When the issue is identification, "the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts." Ewoldt 7 Cal.4th at 403. When Spector plead not guilty to the charge he is now accused of, he put in dispute all elements of the offense murder, including identity. Carpenter 15th Cal.4th at 379; People v. Ewoldt (1994) 7 Cal.4th 380, 400 n. 4; People v. Daniels (1991) 52 Cal.3d 815, 857-858. Additionally, "the prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense." People v. McGuire (1991) 502 U.S. 62, 69-70. Moreover, Spector has put the issue of identity directly in dispute by alleging that he was not holding the gun when Lana Clarkson was shot in the mouth. As such, this entire question before the jury has essentially become who the person was holding the gun at the time of Lana Clarkson's death.

"To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offense." People v. Kipp (1998) 8 Cal.4th 349, 369. However, it has long since been held that even a single "common mark," if sufficiently distinctive, may allow the inference of identity, and admissibility of other crimes evidence is proper. People v. Haston (1968) 69 Cal.3d 233, 244.

In People v. Gordon (1990) 50 Cal.3d 1223, the defendant and his two brothers were charged with the murder of an armored-car courier during a robbery near a K-Mart store. It was the prosecution's theory that the defendant was the getaway driver. This issues in dispute were identity, intent, and degree of the defendant's participation. Id. at 1233-1234. To prove the defendant was the getaway driver, the trial court allowed the prosecution to introduce evidence of an uncharged robbery-murder that occurred 13 months before the charged crimes. In the uncharged robbery-murder, defendant was also the getaway driver for his two brothers who killed another armored-car courier. Id. at 1234-1235. The court found that the uncharged robbery and the charged offense were sufficiently similar in the manner in which they were carried out (two armed assailants and one waiting driver), and similar in the weapons and vehicle used, leading to the conclusion that the "distinctive combination of circumstances between the

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[prior robbery] and [the charged robbery] shows, without resort to disposition, that the perpetrators were the same persons and that they acted with the same intent." Id. at 1240.

In the instant matter, Spector has alleged that of the two people in his foyer on the night of Lana Clarkson's death, he was not the one holding the murder weapon. This would be one instance, amongst more than a dozen, spanning the last 40 plus years, in which Spector would not be the individual brandishing one of his own weapons. In every other instance referred to herein, there is a distinctive combination of circumstances" that ultimately leads to Spector resorting to a gun. Those circumstances manifest themselves when Spector doesn't get his way, perceives a challenge to his control, and decides to exert his control over others. As exhibited in the following:

1) In the Daisy Club incident, Spector was offended that a woman spoke to him without being invited to do so. He immediately exerted his control over the woman and the situation by pulling a gun on her and pointing at her abdomen. 2) In the Beverly Hills Hotel incident, Spector perceived that he lost control over an argument with a woman when a valet interrupted. He was offended that the valet butted into his argument, and he immediately exerted his control over the situation by pulling a gun on the valet. 3) With Leonard Cohen, Spector desired an affirmation of affection or love from Cohen, and in order to immediately exert control over Cohen in order to get his way, Spector pulled a gun on him. 4) In the Sacks and Henderson incident, Spector perceived that they ulterior motives for being at his house and further perceived that he was being deceived by them. In order to gain the upper hand and regain control over the situation, Spector introduced a gun, in his mind subjecting the couple to his will. 5) In the Debra Strand incident, Strand angrily confronted Spector at a party after Spector dropped cigar ash on her dog. Spector immediately turned the table to regain control over the situation by pulling a gun and pointing it at her face. And 6) in the Starbuck's incident, Spector perceived that he had been duped by patrons at the coffee shop into an unauthorized interview, thereby calling into question his status and authority and control. He immediately answered the perceived slight by telling the patrons that he would "go get his gun" and "blow [them] away" again resorting to a firearm in order to maintain control over others.

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In every instance, the "distinctive combination of circumstances," to wit, a perceived loss of control or not getting his way, an attempt to maintain or regain control over others, and an immediate resort to a gun, appears in a predictable patter-like fashion. This evidence of other instances in which Spector, under similar circumstances, either threatened, assaulted and/or terrorized individuals with a handgun, would both meet the test for similarity, and support the inference that it was Spector and not Ms. Clarkson who was holding the murder weapon at the time of her death.
V. THE DOCTRINE OF CORROBORATION PROVIDES INDEPENDENT ADMISSIBLITY OF OTHER CRIMES EVIDENCE

The California Supreme Court has held that "evidence of other crimes that meets the similarity requirement for evidence of a common design or plan is also admissible under Evidence code section 1101 to corroborate the complaining witness." People v. Balcom (1994) 7 Cal.4th 414. Closely akin to the doctrine of chances, discussed above, is the doctrine of corroboration, which was discussed at length in the concurring opinion of Balcom. Balcom was charged with rape, burglary and robbery. After conviction on the robbery count, the defendant was retried on the rape count only. The trial court ruled, and the California Supreme court affirmed, that evidence could be admitted tending to establish that defendant had committed a rape and robbery in another state less than two months after the charged offense. In allowing for the admission of testimony concerning the other rape, the court reasoned "[i]f a person claims the defendant committed rape, and the defendant denies it, the complaining witness might be lying. If, however, two people claim rape, and if their stories are sufficiently similar, the chance that both are lying, or that one is truthful and the other invented a false story that just happens to be similar, is greatly diminished. The jury can reasonably, and quite properly, infer that it is more likely both are truthful." Balcom 7 Cal4th at 428 (italics in original).

In this case, the truthfulness of the 1101(b) witnesses is a central issue to the case. The defense has consistently leveled accusation of lying against each of the witnesses. Those accusations continue even today. (See, Defendant's Opposition to the Prosecution's Motion to Admit the Uncharged Incident Testimony of Norma Kemper, p.6, ln. 27 to p. 7 ln.1, stating,

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"As the prosecution's own evidence and argument made clear, the various uncharged incidents, at most a half dozen occurring over a thirty year period (if they occurred at all) . . .(italics supplied). but here we have not one or two witnesses, but over a dozen entirely independent witnesses going back some four decades, who describe a nearly identical set of circumstances, each cross-corroborating the other, th show a history of gun related violence on Spector's part. As such, the Balcom court reasoned "[t]he more similar, and the more independent, the two accounts are, the greater the strength of the corroboration." Balcom 7 Cal.4th at 428. It also follows that the more numerous the accounts are, the greater the strength of the corroboration. If the court were to limit the cross-corroborating witnesses, each of whom independently describe an incident in which Spector resorts to gunplay in order to maintain control over others, then the People will fall prey to exactly what which Balcom provides protection against--specifically an unfounded argument that the witnesses are lying. Limiting the People's evidence of cross corroboration would effectively deny the People the opportunity to fortify its witnesses' veracity and truthfulness. Such a result would be patently unfair. Thus, the case presently before the court goes above and beyond the requirements required of uncharged crimes under the doctrine of corroboration as explained in Balcom, and should rightly be admitted.

IV. THE PROBATIVE VALUE OF SUCH OTHER CRIMES EVIDENCE IS NOT OUTWEIGHED BY ANY PREJUDICIAL EFFECT.

"Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect. The matter lies within the discretion of the trial court." Carpenter 115 Cal.4th at 380. Pursuant to California Evidence Code section 352, the court may exclude admissible evidence only if "its probative value is substantially outweighed by the probability that its admission . . .will create substantial danger of undue prejudice." People v Karis (1988) 46 Cal.3d 612, 637 (emphasis added). However, a trial court is vested with wide discretion under 352 will not be disturbed on appeal absent clear abuse, i.e. unless the prejudicial effect clearly outweighs its probative value." Id. Any prejudice that might flow from relevant and highly probative evidence is not the kind that requires exclusion under section 352. As stated in Karis:

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[P]rejudice which exclusion of evidence under Evidence code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilty is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' "

Id. at 367. (emphasis added).

In the context of 1101(b) evidence, the California Supreme Court has weighed several factors in determining whether section 352 requires exclusion of evidence of other crimes including, but not limited to: The tendency of the proffered evidence to demonstrate the existence of the material facts in dispute. Where the tendency is strong, it weighs in favor of admission. Edwldt 7 Cal.4th at 404; see also, Kipp 18 Cal.4th at 371. Also, the extend to which evidence of the uncharged rimes is based on a source independent from evidence of the uncharged offense. "The probative value of such evidence would increase further if independent evidence of additional instances of similar misconduct . . . were produced." Ewoldt 7 Cal.4th at 404-405; see also Kipp 18 Cal.4th at 371.

Applying those facts here, it is clear that the probative value of the proffered evidence is not substantially outweighed by undue prejudice. The proffered evidence certainly has a strong tendency to prove the material issues in dispute. Evidence of all 12 incidents (including the 6 additional incidents offered under separate cover) comes from independent sources of witnesses. The evidence sought to be admitted here is not less relevant or more prejudicial that that admitted with the Supreme Court's approval in the cases cited in this motion.

Finally, a jury cannot fairly determine the truth of the charges at bar without considering the entire context of Spector's continuous course of conduct and modus operandi. "Painting a parson faithfully is not, of itself, unfair." People v. Harris (60 Cal.App.4th 727, 737.

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V. CONCLUSION
For the reasons set forth above, the People respectfully request that this Court admit evidence of the other crimes included herein pursuant to Cal. Evid. Code § 1101(b).

Dated: August 11, 2008

Respectfully submitted,

STEVE COOLEY
District Attorney of
Los Angeles Country

By (signature of Alan Jackson)
ALAN JACKSON
TRUC DO
Deputy District Attorney
---------------------------------------

Do you think that the prosecution will be successful in getting these other six PBA incidents admitted into evidence? The argument to admit that has been presented by the prosecution appears solid. It remains to be seen what arguments the defense brings up to keep these other gun incidents out of testimony.

CNN.Crime