People v. Waters CA6

Filed 11/9/26 P. v. Waters CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIXTH APPELLATE DISTRICT THE PEOPLE, H052466 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2215862) v. MARK HENRY WATERS, Defendant and Appellant. Mark Henry Waters confronted E.B. at gunpoint, mistakenly believing that E.B. was an armed thief crossing the street to burglarize Waters’s home. Waters shot E.B. in the leg, although Waters would testify that the gun discharged accidentally, and the shooting was captured by a neighbor’s surveillance camera. Convicted by jury of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), with enhancements for personal firearm use and infliction of great bodily injury, Waters was sentenced to serve 15 years in prison.1 On appeal, Waters argues that the trial court prejudicially erred by admitting evidence of an uncharged prior assault, the prosecutor committed misconduct by arguing that the crime was racially motivated, and the trial court erred by instructing the jury that it could draw adverse inferences from Waters’s failure to explain or deny incriminating evidence (CALCRIM No. 361). Waters also argues that the trial court erred at sentencing 1 Unspecified statutory references are to the Penal Code. by failing to consider whether striking an enhancement would result in a future risk of danger to public safety and by imposing the aggravated term. Finding no prejudicial trial error and no sentencing error, we will affirm the judgment. I. BACKGROUND A. The Operative Information The Santa Clara County District Attorney charged Waters by information with a count of assault with a semiautomatic firearm (§ 245, subd. (b)). As to this single count of assault, it was alleged that Waters personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged several aggravating factors for sentencing purposes. B. The Trial 1. The Prosecution’s Case Waters’s house is across the street from an Airbnb rental home. Before E.B.’s shooting, Waters had experienced several theft-related incidents at his home. In June 2021, someone stole a catalytic converter from one of his cars. And on the evening of September 30, 2022—two days before E.B. was shot—Waters’s truck was burglarized while parked outside his home. Waters told San Jose Police Department Officer Jorge Eslava that a toolbox set and garage door openers had been taken from his truck, and Waters expressed concern about wanting to disable his garage door, which the perpetrators had opened. At the time, Waters told Eslava that he would have “wasted” the burglars if they had gone inside his house. Waters also said he wanted to drive around to look for the suspects. On October 2, 2022, E.B. was renting a room at the Airbnb across the street from Waters’s house in San Jose. That evening, E.B. decided to go to a nearby grocery store; he wore a sweatshirt with the hood up and a bonnet to cover his hair, along with his headphones. His headphones were white and silver, and his phone was gold. It was dark at the time, though there were streetlights. E.B. diagonally cut through the street to get to 2 the grocery store, and he saw Waters emerge from the “extreme darkness” when he set foot on the sidewalk across the street. E.B. did not believe he was holding anything in his hands at the time. E.B. saw that Waters was holding a gun. Waters lifted the weapon when he got closer to E.B. E.B.’s headphones had a “transparency” setting permitting him to hear ambient sounds, but he did not recall hearing Waters say anything to him. E.B. thought that Waters was going to rob him based on his demeanor and his clothing, as Waters was wearing a hoodie. E.B. ran back towards the Airbnb and heard Waters say, “ ‘You think you can run?’ ” E.B. heard a gunshot and immediately felt pain in his leg, falling to the ground. Waters approached E.B. with the gun still pointed at him. E.B. thought Waters had a “slight smirk” on his face. E.B. screamed that he was staying at the nearby Airbnb, that he was walking to the store, and that he had nothing on him. Waters appeared to toss something while walking toward his house then returned to where E.B. was sitting on the ground. Waters said nothing to E.B. but called the police. Waters then tossed E.B.’s phone towards him, and E.B. called the police himself. During E.B.’s 911 call, Waters is heard in the background saying that he shot E.B. because he thought E.B. was breaking into his house. E.B. had tied his jacket and shirt around his wound. Eventually, Waters threw E.B. his jacket as well. Officer Eslava responded to the shooting. Waters told Eslava that he believed that the thieves who had been at his house several days ago had returned. Waters showed Eslava a video clip from his home’s surveillance cameras taken that evening, which recorded someone in a black mask looking into cars parked on Waters’s driveway. Shortly after the masked man appears on the surveillance video, Waters is seen running onto the driveway, holding a gun. The clip from Waters’s home surveillance video was taken around 10:24 p.m., and the 911 call about the shooting was logged at 11:08 p.m., about 44 minutes later. 3  Although Waters first told police that he fired his weapon from his porch, a neighbor’s surveillance video captured the shooting and contradicted this account. The surveillance video shows E.B. walking down the driveway of the vacation rental and crossing the street. As E.B. nears the sidewalk, Waters appears near the front of his house and quickly enters his yard toward the sidewalk, his arm extended before him. As E.B. steps onto the sidewalk, he turns away from Waters and starts to run. E.B. takes a few steps along the sidewalk, his back to Waters, when a gunshot is heard, and E.B. stumbles, soon falling into the street. No conversation is audible between E.B. and Waters, but the gunshot is. An expert in forensic video analysis, created an enhanced video from the neighbor’s surveillance video. The expert testified that the blurring in the surveillance video was consistent with video compression and that the absence of discernible sound other than the gunshot was consistent with audio compression and the lack of a high quality microphone. He also opined that the surveillance video provided by Waters’s neighbor had been brightened. A forensic firearm expert testified that a Glock firearm like Waters’s has both a firing pin safety—to prevent the gun from firing unless the trigger is fully pulled back— and a trigger safety that prevents the trigger from being pulled unless the trigger safety is simultaneously depressed. The average force needed to pull the trigger of this type of Glock is around 6.3 pounds. Test-firing Waters’s Glock revealed nothing abnormal about its trigger weight or trigger travel distance. 2. The Defense Testifying on his own behalf, Waters denied intentionally shooting E.B. or intentionally pulling the trigger, characterizing the shooting as accidental. Waters purchased his Glock around 1992 or 1994 to use for self-defense when he left home to fish or camp. He visited a shooting range about 10 times a year and was familiar with firearm safety protocols. Waters felt ashamed about what happened to E.B.—Waters 4 considered himself a “gun expert,” but he “screwed up and pulled the trigger accidentally” that night. The theft of his garage door opener two days before the shooting had concerned Waters, who feared the thieves would use it to enter his house. One of the officers who responded to the truck burglary led Waters to believe that the perpetrators might be in a gang. After the burglary, Waters adjusted the security camera in front of the house to have a better focus on the street. He also kept his Glock and a second handgun, both loaded, on his bedside table. At around 10:24 the night of October 2, Waters was alerted by his cell phone that someone was in his driveway. Watching the surveillance video in real time, Waters saw a man in the driveway and thought the man might have a gun. Waters grabbed his closest gun and ran out to scare off the would-be thief. He believed that there may have been more than one person because the earlier truck burglary had involved multiple suspects. Seeing no one outside, Waters went back inside, picked up his Glock, racked a bullet in its chamber, and went outside again. Again seeing nobody in the street, he sat on his porch and waited. About 44 minutes later, Waters saw a person he later learned was E.B. “come out from the bushes” near a house he knew to be an Airbnb across the street. Believing E.B. was the person seen earlier on his surveillance video, Waters surmised that E.B. had been hiding until he thought Waters was gone. E.B. was halfway across the street walking towards Waters’s house when Waters shouted, “ ‘Where the fuck do you think you’re going?’ ” In the dark, Waters thought E.B. was wearing what looked like a “bank robber’s mask.” When E.B. did not stop moving, Waters shouted at E.B. again, asking if E.B. was thinking of robbing him. When E.B. stepped onto the sidewalk, Waters thought he saw that E.B. had a gun. Waters said something to E.B. about him having a gun, and E.B. “darted.” Waters was about to say “stop” or “drop it,” when his own gun went off. Not having intended to fire, Waters was shocked by the gunshot. 5  While E.B. was sitting on the ground, Waters approached him, saying “so you think you can rob me,” and “you think you’re gonna shoot me.” Waters did not deliberately point the gun at E.B. again but “just held [the gun] out in front of [him].” Nearing E.B., Waters saw a pair of headphones and a phone on the ground that made Waters realize that E.B. had no gun. Waters still thought E.B. might be one of the thieves from earlier, and E.B. said he was “sorry” and was “just staying in the Airbnb across the street.” Waters called for an ambulance and then knelt to help E.B. The 911 operator asked Waters if he knew where the shooter was, and Waters admitted he was the shooter. Waters explained to the operator that someone had tried to break into his house, that he thought E.B. was the perpetrator, and that E.B. started to run after Waters told him to stop. Waters did not say the gunfire was accidental. A retired police officer testified as a firearms expert. According to the firearms expert, Glocks do not have an “external safety.” The only external safety mechanism is the trigger safety. And with the trigger safety, if a finger or anything else inadvertently gets onto the trigger and pulls the trigger with sufficient pressure, the safety is automatically overcome. 3. The Uncharged Act In limine, the prosecution had argued that if Waters claimed self-defense, mistake, or a lack of intent, the trial court should admit evidence of Waters’s assault on a man (S.Q.) at a 2012 festival in Santa Clara. On the second day of Waters’s testimony, when defense counsel renewed the objection to admission of the uncharged act, the trial court then ruled the evidence admissible, finding the probative value of the evidence outweighed the prejudicial effect. So on direct examination, Waters testified about the incident at the festival. Waters said the man he struck, S.Q., had accused Waters of being in the “KKK.” Even though Waters started to walk away, S.Q. followed, challenging Waters to hit him. Waters backed away, but S.Q. persisted and, with his fists raised, again challenged 6 Waters to hit him. Waters struck him in the face, feeling “threatened.” An officer restrained him and took him away in a patrol car. But Waters was never charged with a crime in connection with this incident. In rebuttal, the prosecutor presented testimony from eyewitnesses to the incident. Retired police officer Tina Boales recalled that Waters made racially derogatory comments about people from the Middle East and people of color, in an argument with men staffing a booth for the Islamic Circle of North America. Waters said something like, “[W]hy do you bomb us” and “[Y]ou’re nothing but terrorists.” S.Q. testified that Waters had approached and started arguing with him, calling him a terrorist and telling him to “go back to where you came from.” When S.Q. told Waters it would be as ridiculous to assume he was a terrorist as to assume that Waters was a member of the KKK, Waters threatened to punch him. When S.Q. said, “[G]o ahead,” Waters punched him across the table. In surrebuttal, the defense called two officers who testified that Boales had told them at least one member of the Islamic Circle of North America booth was being confrontational with passersby. Boales told the officers that one of the booth members confronted Waters in the walkway and started to recite verses from the Koran and say that Mohamed was better than any god, which seemed to spark a heated argument. Boales also told the officers that Waters then went to confront another man in the booth and that one of the men challenged Waters to hit him. C. The Verdict and Sentencing In March 2024, the jury found Waters guilty of assault with a semiautomatic firearm, further finding true the enhancements for firearm use and the personal infliction of great bodily injury. That same day, Waters waived his right to a jury trial on the aggravating factors. After a court trial on the aggravating factors, the trial court found two aggravating factors true: the crime involved great violence or other acts disclosing a 7 high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)), and the victim was particularly vulnerable (id., rule 4.421(a)(3)). At sentencing in July 2024, the trial court imposed the upper term of nine years for the assault. The trial court declined to dismiss any of the enhancements under section 1385. The trial court imposed an additional term of three years for the firearm enhancement and another three years for the great bodily injury enhancement. In total, Waters was sentenced to a term of 15 years. Waters timely appealed. II. DISCUSSION A. Admission of the Uncharged Act Waters argues that the trial court abused its discretion by admitting evidence of the 2012 incident at the Santa Clara County festival under Evidence Code section 1101, subdivision (b), and, assuming the evidence was relevant, its probative value was substantially outweighed by its prejudicial impact under Evidence Code section 352. We agree that the evidence was improperly admitted but find the admission of the evidence harmless based on the strength of the prosecution’s case. 1. Legal Principles Under Evidence Code section 1101, subdivision (a), except as provided in certain specified circumstances, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” But subdivision (b) of Evidence Code section 1101 specifies that “[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than his or her disposition to commit such an act.” The degree of similarity of criminal acts is a key factor in the admission of other crimes evidence— “ ‘ “ ‘there exists a continuum concerning the degree of similarity required for 8 cross-admissibility, depending upon the purpose for which introduction of the evidence is sought ….’ ” ’ ” (People v. Scully (2021) 11 Cal.5th 542, 586.) The least degree of similarity between the uncharged act and the instant offense is required for an uncharged act to be admissible to prove intent or an absence of mistake. (People v. Chhoun (2021) 11 Cal.5th 1, 25 (Chhoun); People v. Phillips (2022) 75 Cal.App.5th 643, 672; People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) “ ‘[T]he uncharged misconduct must be sufficiently similar to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” ’ ” (Chhoun, at p. 25.) Likewise, “to be admissible to negate a defense of accident or mistake, the uncharged misconduct must be similar to the charged conduct to negate a claim of accident or mistake.” (People v. Burnett (2003) 110 Cal.App.4th 868, 881 (Burnett).) But even if other crimes evidence is otherwise admissible under Evidence Code section 1101, subdivision (b), the evidence is subject to exclusion under Evidence Code 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.” (Evid. Code, § 352; Chhoun, supra, 11 Cal.5th at pp. 26, 33.) “[E]vidence of other crimes is ‘inherently prejudicial.’ ” (People v. Foster (2010) 50 Cal.4th 1301, 1331 (Foster).) So uncharged offenses “ ‘are admissible only if they have substantial probative value.’ ” (Ibid.) We review the trial court’s admission of evidence under Evidence Code sections 1101 and 352 for an abuse of discretion. (Chhoun, supra, 11 Cal.5th at p. 26.) Error is shown only if “ ‘ “ ‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (Ibid.) 2. Evidence Code section 1101, subdivision (b) The prosecutor proffered evidence of the uncharged act as probative as to Waters’s intent or absence of mistake in shooting E.B. But to be admissible to prove intent or absence of mistake, the uncharged offense must be sufficiently similar to the charged 9 offense that the jury can infer either that Waters likely had the same intent for both or that the charged offense was not an accident or mistake. (Chhoun, supra, 11 Cal.5th at p. 25; Burnett, supra, 110 Cal.App.4th at p. 881.) And here, the uncharged offense lacks sufficient similarity to support such inferences. In the Santa Clara festival incident, witnesses reported that Waters struck S.Q. after engaging in a heated exchange with him. There were discrepancies between Waters’s account and the witnesses’ accounts about who instigated the arguments, but it appears that Waters may have used derogatory language toward S.Q. and that a different volunteer who was manning the booth may have been confrontational to festivalgoers in general. Indeed, Boales testified in her conditional examination that she thought that some of the actions taken by those at the booth might provoke someone. And ultimately, Waters punched S.Q.—no weapons were involved in the incident. The incident also happened during the late afternoon hours, in a public space. In contrast, the circumstances of the instant offense differ in that it was undisputed that Waters had been the victim of a recent theft and, on the night of the shooting, had seen a masked man looking into his cars in his driveway. There was no evidence of any prolonged exchange between E.B. and Waters. Nor is there evidence that Waters used any racial epithets or derogatory language toward E.B. And E.B.’s shooting took place in the evening, when visibility was poor.2 To the extent that one might reasonably infer from the 2012 incident that Waters was racist and prone to instigate violence against people of color, this would be precisely the propensity evidence prohibited by Evidence Code section 1101, subdivision (a). To be sure, there were bare similarities between the two assaults—both victims were people of color and Waters claimed to have acted in self-defense both times. But 2 At trial, E.B. identified himself as half Native American, and it is not apparent that his race or ethnicity would have been discernible in the dark. 10 the self-defense claims differ markedly in their context: The 2012 incident followed a heated argument or exchange, and the 2022 incident involved Waters’s mistaking E.B. for a thief. And given the dissimilarities between the two events, we strain to find any logical inferences from which a trier of fact could infer that Waters had the same intent in both cases. (Chhoun, supra, 11 Cal.5th at p. 25; see People v. Dryden (2021) 60 Cal.App.5th 1007, 1020–1021 (Dryden) [abuse of discretion to permit admission of prior uncharged assault that was similar “only in that defendant committed an assault and initially claimed self-defense”]; but see People v. Jones (2011) 51 Cal.4th 346, 371 [even though robberies were not “particularly similar” … “they contained one crucial point of similarity—the intent to steal from victims whom defendant selected”].) People v. Spector (2011) 194 Cal.App.4th 1335, upon which the Attorney General relies, is distinguishable. In Spector, the defendant claimed that the victim committed suicide or shot herself accidentally with a gun. (Id. at p. 1342.) On appeal, he argued that the trial court erroneously admitted testimony from five women who testified that over a 20-year period, they had been the victims of armed assaults by the defendant. (Ibid.) Rejecting this argument, the Court of Appeal in part found the other crimes evidence admissible under the doctrine of chances—“the other crimes evidence consisted of seven separate incidents in which [the defendant] committed armed assaults against women in very specific circumstances”; thus, “[t]o the extent the circumstances of [the victim’s] death were similar to those prior armed assaults, the latter evidence, without any improper reliance on [the defendant’s] bad character or propensities, tended to prove the objective improbability that [the victim] had either committed suicide or killed herself accidentally.” (Id. at p. 1380.) But this case is unlike Spector—there was no evidence that Waters, for example, was aggressive towards those of racial or religious minorities over a period of years aside from this discrete incident from 10 years earlier. There is therefore no occasion to apply the doctrine of chances in this case—evidence of one 11 decade-old assault does not tend to show that it was unlikely that Waters’s actions were intentional and not accidental. Likewise, the Attorney General’s reliance on Burnett, supra, 110 Cal.App.4th 868, is similarly unavailing. In Burnett, when the defendant suggested in his trial for animal cruelty that he had injured the dog only accidentally, the trial court tentatively ruled admissible evidence that the defendant had once beaten a stray dog. (Id. at pp. 871, 879, 881.) But unlike Burnett, where both the charged crime and the prior act involved animal cruelty, this case does not involve a prior incident from which one could infer the same requisite intent. Burnett is therefore unhelpful to the Attorney General’s position that here, the uncharged 2012 offense was similar enough to warrant admission. For these reasons, we find that the trial court abused its discretion when admitting the evidence under Evidence Code section 1101, subdivision (b). (See Chhoun, supra, 11 Cal.5th at p. 26.) 3. Evidence Code section 352 Even if we were to find the uncharged act relevant and admissible under Evidence Code section 1101, subdivision (b), the probative value of the evidence is substantially outweighed by its prejudicial impact under Evidence Code section 352. The trial court therefore abused its discretion in admitting it under Evidence Code section 352, as evidence of other crimes must be substantially probative to be admissible. (Foster, supra, 50 Cal.4th at p. 1331.) First, the probative value of the uncharged act was minimal, given the lack of similarities between the uncharged offense and the charged offense. “Even though the lowest degree of similarity is required to show intent, the more substantive similarities there are from which one can infer that defendant probably harbored the same intent in each instance, the higher the probative value.” (People v. Winkler (2020) 56 Cal.App.5th 1102, 1155.) And the remoteness of the prior offense—as it occurred 10 years before E.B.’s shooting—further diminished whatever probative value it had. “[T]he strength of 12 an inference from prior act evidence dissipates over time.” (People v. Williams (2018) 23 Cal.App.5th 396, 422.) Second, the evidence was highly prejudicial. “ ‘Evidence is prejudicial within the meaning of Evidence Code section 352 if it “ ‘uniquely tends to evoke an emotional bias against a party as an individual’ ” [citation] or if it would cause the jury to “ ‘ “prejudg[e]” a person or cause on the basis of extraneous factors.’ ” ’ ” (Foster, supra, 50 Cal.4th at p. 1331.) We recognize that the 2012 incident was less violent than the assault here—the festival incident involved a single punch, whereas the instant offense involved Waters’s shooting an unarmed man. (See Foster, supra, 50 Cal.4th 1301 [prior crimes were less inflammatory and violent].) And here, the jury was properly instructed not to consider the uncharged crime as evidence of Waters’s propensity to commit bad acts, minimizing the potential for misuse of the evidence. (Id. at p. 1332.) But the circumstances of the 2012 incident were nonetheless highly prejudicial to Waters. Evidence of other uncharged crimes is already inherently prejudicial, as uncharged acts “ ‘produces an “over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts.” ’ ” (Foster, supra, 50 Cal.4th at p. 1331; Ewoldt, supra, 7 Cal.4th at p. 404.) Compounding the prejudice here, the incident at the festival suggested that Waters may have harbored either racial animus or implicit bias against people of color. Introduction of the 2012 incident resulted in multiple witnesses—including Boales and S.Q.—attributing racist comments to Waters. S.Q. testified that Waters told the men at the booth to “ ‘go back to where you came from’ ” and that they were “ ‘terrorists.’ ” Meanwhile, Boales testified that Waters made multiple racially derogatory statements about Middle Eastern people and people of color, which she found offensive—and like S.Q., she recalled that Waters said that the men at the booth were “ ‘nothing but terrorists.’ ” There was a high risk that the suggestive nature of Waters’s comments may have “inflame[d] the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it 13 is relevant, but to reward or punish one side because of the jurors’ emotional reaction” to Waters’s comments. (People v. Doolin (2009) 45 Cal.4th 390, 439.)3 The prejudicial impact of the evidence was further increased because Waters was never charged with any crimes stemming from the 2012 incident. This “increased the danger that the jury might have been inclined to punish [Waters] for the uncharged offenses, regardless [of] whether it considered him guilty of the charged offenses, and increased the likelihood of ‘confusing the issues’ [citation], because the jury had to determine whether the uncharged offenses had occurred.” (Ewoldt, supra, 7 Cal.4th a p. 405.) In fact, the prosecutor himself seemingly urged the jury to use the prior act evidence as propensity evidence. During closing argument, the prosecutor argued that the 2012 incident was evidence of either Waters’s intent or absence of mistake. But then the prosecutor went on to argue that in both the 2012 incident and E.B.’s shooting, Waters “immediately assumes there’s something criminal about the person”—that “ ‘all Muslims are terrorists’ ” in the 2012 incident and that E.B. was a burglar. The prosecutor also specifically argued that the jury could use the 2012 incident as evidence of “racial animus,” suggesting that Waters was either hostile towards or had an implicit bias against people of color. The prosecutor argued, “[m]aybe, if instead of [E.B.] crossing the street 3 To be sure, a defendant’s racist beliefs may in some cases be admissible evidence despite its prejudicial impact. “Evidence is not unduly prejudicial ‘merely because it strongly implicates a defendant and casts him or her in a bad light.’ ” (People v. Lindberg (2008) 45 Cal.4th 1, 50 [probative value of evidence that defendant was a White supremacist not outweighed by potential of prejudicial effect in trial where defendant was charged with a hate-murder special circumstance]; see, e.g., People v. Quartermain (1997) 16 Cal.4th 600, 629 [admission of racial epithets may be permissible].) But even assuming the jury may properly infer from the 2012 incident that Waters harbored bias against members of racial or ethnic minorities, the probative value of the evidence as to this instant offense would still be low. It is undisputed that the offense took place at night, impairing Waters’s ability to discern anything about E.B.’s racial identity. 14 that night, if it was a White woman, we wouldn’t be here.” Although the prosecutor referenced permissible inferences for the jury to make about Waters’s intent or absence of mistake, the argument was essentially that Waters was acting in conformity with his past acts—that he had previously assumed that the men at the Islamic booth were “terrorists” based on their ethnicity and religion, assaulting one of the men, and thus must have assumed that E.B. was a criminal based on his race, assaulting him as well. “This was a conformity argument disguised as intent.” (People v. Williams, supra, 23 Cal.App.5th at p. 423.) The time spent on proving the incident at the festival also increased the potential for prejudice. (Evid. Code, § 352.) Because the events at the festival were disputed, presentation of evidence of the 2012 incident became a mini-trial within the trial of the 2022 shooting charge, with testimony from Waters and four other witnesses on disputed facts relating to whether provocation or self-defense mitigated Waters’s alleged assault of S.Q. All this evidence was presented to litigate the circumstances surrounding a 10-year- old incident that had little to do with the largely undisputed facts of the charged offense. For these reasons, we conclude that the trial court abused its discretion under Evidence Code section 352 when it admitted evidence of the 2012 incident, as it was substantially more prejudicial than probative. (Chhoun, supra, 11 Cal.5th at p. 26.) 4. Deprivation of Constitutional Rights Waters next argues that admission of the uncharged act had the additional consequence of violating his due process rights by rendering his trial fundamentally unfair and of violating his First Amendment rights by putting racial animus at issue despite its irrelevance to the case. We find no violation of Waters’s due process rights, and his First Amendment claim, even if it had merit, is forfeited. Under Evidence Code section 353, “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a 15 motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” Even though failure to make a timely and specific objection to evidence on the grounds asserted on appeal typically forfeits the issue, Waters may for the first time on appeal make a “very narrow due process argument” that a duly preserved “error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence” of denying him due process of law. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).) But this argument lacks merit. “ ‘The dispositive issue is … whether the trial court committed an error which rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due process.” ’ ” (People v. Albarran (2007) 149 Cal.App.4th 214, 229–230.) “ ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.’ ” (Id. at p. 229.) And “the evidence must have been ‘ “sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” ’ ” (Dryden, supra, 60 Cal.App.5th at pp. 1025–1026; People v. Stammers (2026) 122 Cal.App.5th 1314, 1321 [erroneous admission of evidence violated due process when there were “no permissible inferences” to be drawn from many exhibits that were emphasized during cross-examination and closing argument].) Applying this standard, we do not find that the introduction of evidence of the 2012 uncharged act violated due process. Even assuming the jury could not have drawn any permissible inferences from the evidence, the admission of the uncharged act did not render the trial fundamentally unfair. Although the time spent on Waters’s uncharged act was significant, this was largely because the facts of that prior act were hotly disputed, not because the incident itself was the crux of the prosecution’s case. To the contrary, the prosecution’s case largely rested on the surveillance videos that captured the shooting. (Cf. Stammers, at p. 1323 [prosecutor “focus[ed] extensively” on irrelevant evidence].) 16  Waters’s First Amendment claim, however, is not preserved by the purely evidentiary claims he raised in the trial court under Evidence Code sections 352 and 1101. “Under Evidence Code section 352, a court determines whether evidence (including evidence of a defendant’s racist beliefs) is relevant and its probative value is not substantially outweighed by the probability of prejudice, undue consumption of time, confusing the issues, or misleading the jury.” (People v. Schultz (2020) 10 Cal.5th 623, 667 (Schultz).) Likewise, a claim that evidence is not admissible under Evidence Code section 1101 requires a trial court to examine whether there is sufficient similarity between an uncharged act and a charged offense to permit a jury to draw permissible inferences about, for example, a defendant’s intent. (Chhoun, supra, 11 Cal.5th at p. 25.) But “[a] First Amendment claim, on the other hand, asks a court to exclude evidence not only because it is irrelevant, but because it is irrelevant and therefore its only possible purpose is to invite the jury to convict the defendant based on protected speech or associational activity.” (Schultz, at p. 668.) Because Waters’s First Amendment claim differs from the grounds he sought exclusion of the evidence below, it has been forfeited. (Ibid.)4 5. Harmlessness The erroneous admission of evidence does not require reversal unless “it is reasonably probable that a result more favorable to the [defendant] would have been reached” in the absence of error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); 4 Waters raises a perfunctory claim in his opening brief that trial counsel was ineffective for failing to raise a First Amendment objection below. But as this contention is unsupported by reasoned analysis or argument, we find it forfeited on appeal. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) Waters also argues that his counsel’s objection to the evidence as a “racial dog whistle” preserves his First Amendment claim. But counsel’s argument below was the evidence amounted to “a racial dog whistle that … is highly prejudicial,” not that any tacitly signaled racist belief was within Waters’s First Amendment rights and therefore inadmissible. 17 Dryden, supra, 60 Cal.App.5th at pp. 1024–1025 [applying Watson standard of harmless error to erroneous admission of uncharged acts].)5 Although the prior act evidence had sufficient prejudicial potential that it should have been excluded, Waters has shown no reasonable probability of a more favorable verdict without that evidence. Evidence of the uncharged act was admitted here for the limited purpose of proving intent or absence of mistake in firing the gun. But assault with a semiautomatic firearm (§ 245, subd. (b)) does not require discharge of a firearm, intentional or not. Section 245, subdivision (b) requires commission of an assault and use of a semiautomatic firearm in that assault. Pointing a gun at a person within shooting range, even without firing, constitutes assault. (See People v. Rivera (2019) 7 Cal.5th 306, 333.) And the evidence that Waters committed an assault with a semiautomatic firearm is beyond dispute: Waters admitted to 911, police, and the jury that he pointed the gun at E.B.; E.B. confirmed this; and the surveillance video documented it. Nor is intentional discharge of the firearm necessary to the firearms enhancements. Application of the personal use enhancement under section 12022.5, subdivision (a) requires “ ‘something more than a bare potential of use’ ” but “ ‘not …conduct which actually produces harm … only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies.’ ” (People v. Wardell (2008) 162 Cal.App.4th 1484, 1492.) A defendant may thus 5 On appeal, Waters argues that the error is of federal constitutional dimension and thus warrants reversal unless we find it harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.) But courts routinely apply the Watson standard of harmless error when other crimes evidence was erroneously admitted. (See, e.g., People v. Johnson (2022) 12 Cal.5th 544, 611; People v. Winkler, supra, 56 Cal.App.5th at p. 1164.) “Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test.” (Partida, supra, 37 Cal.4th at p. 439.) As we have found no fundamental unfairness in the admission of the evidence nor any preservation of Waters’s First Amendment claim, we apply the Watson standard of harmless error to the claims.