In what circumstances of the crime scene evidence will be admitted during the penalty phase of a penalty trial, does the trial court error not to exclude the evidence?

Nor do we find error in the trial courts decision not to exclude the evidence under Evidence Code section 352, which permits the court to exclude otherwise relevant evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. " Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." " ( People v. Eubanks (2011) 53 Cal.4th 110, 144, 134 Cal.Rptr.3d 795, 266 P.3d 301 ; see People v. Booker (2011) 51 Cal.4th 141, 188, 119 Cal.Rptr.3d 722, 245 P.3d 366 [" Prejudice in the context of Evidence Code section 352 is not synonymous with damaging: it refers to evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome"].) Further, as we have noted in connection with the admission of crime scene photographs during the penalty phase, " the trial courts discretion [at the penalty phase] to exclude circumstances-of-the-crime evidence as unduly prejudicial is more circumscribed than at the guilt phase. During the guilt phase, there is a legitimate concern that crime scene photographs ... can produce a visceral response that unfairly tempts jurors to find the defendant guilty of the charged crimes. Such concerns are greatly diminished at the penalty phase because the defendant

[422 P.3d 1002]