In trial for criminal threats (Pen. Code, § 422) and elder abuse (Pen. Code, § 368, subd. (b)(1)), court did not err by permitting prosecution to admit evidence of prior uncharged threats. Fruits swung pruning shears at his 73-year-old mother and later threatened to kill her for calling the police. He was charged with elder abuse, making criminal threats, and a number of other offenses. At trial, Fruits denied swinging the pruning shears or threatening to kill his mom. However, to prove propensity, the prosecution admitted evidence that Fruits had threatened his mother on previous occasions. The jury convicted him and he appealed. Held: Affirmed. Evidence of a person’s character is inadmissible to prove he acted in conformity therewith on a particular occasion except in specified circumstances, such as during a trial for elder abuse, in which case uncharged acts of elder abuse are admissible subject to the balancing test set forth in Evidence Code section 352. (See Evid. Code, §§ 1101, 1109.) Under section 352, evidence is inadmissible if its probative value is substantially outweighed by the danger of undue prejudice. Here, the trial court reasoned that the prior threats evidence was not unduly prejudicial because it could be used to Fruits’ benefit. Specifically, the court reasoned that Fruits could argue that his mother likely understood the threat in this case was hollow because he had made prior threats but never followed through on them. Although Fruits did not make that argument during trial and instead denied making any of the threats, he did not alert the trial court to the fallacy in its reasoning. “A party cannot argue on appeal that the trial court erred in failing to conduct an analysis that it was not asked to conduct.” Regardless of whether Fruits planned to contest the prior bad acts evidence, the trial court did not err in admitting the evidence.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C076324.PDF