What is the test for excluding evidence of a defendant's possession of a loaded firearm under California Evidence Code section 352?

The evidence was not unduly prejudicial under Evidence Code section 352. "'The prejudice 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.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" (People v. Zapien (1993)

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4 Cal.4th 929, 958.) Evidence should be excluded as unduly prejudicial "'when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 439.)

Evidence of defendant's possession of a loaded firearm did not invoke this type of prejudice. It was brief, only one short witness, and not inflammatory. At most, this evidence suggested defendant had a capacity for violence because he had a loaded gun. In contrast, the testimony at trial about defendant's actions in attacking the helpless Sanchez painted a clear picture of a callous and vicious man. Further, the jury was instructed on the limited use of evidence relating to gang participation and was specifically told not to use such evidence to show bad character or a criminal disposition. We presume the jury followed the court's instructions. (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.) Finally, the verdicts show the evidence of defendant's gun possession did not unduly influence the jury. The jury made limited use of this evidence, declining to unanimously convict defendant of the gang enhancement.

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The judgment is affirmed.