What is the test for a motion to exclude a graphic novel from the evidence of intent to commit murder, mayhem and torture?

The excerpts from the graphic novel were offered to raise an inference of intent to commit murder, mayhem and torture, as well as motive and premeditation. Defendant contends that the contents of the novel were irrelevant to those issues because fictional works do not necessarily relate to actual events or truly reflect the author's state of mind. "The existence of benign explanations does not stand as a bar to admissibility" of a work of art created by the defendant. (People v. Nelson (2011) 51 Cal.4th 198, 224.) Whether the evidence is admissible as relevant to the defendant's state of mind is a matter within the discretion of the trial court, which "would ordinarily consider alternative explanations in conducting an Evidence Code section 352 analysis." (Ibid.)

Defendant's relevance challenge based on remoteness and similarity are also issues ordinarily raised by an objection

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pursuant to section 352. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 402, 405; People v. Branch (2001) 91 Cal.App.4th 274, 278, 281, 284-285.) Section 352 provides that the trial "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

"If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.) "[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion. [Citation.] Specifically, it scrutinizes a decision on a motion to bar the introduction of evidence as irrelevant for such abuse: it does so because it so examines the underlying determination whether the evidence is indeed irrelevant. [Citation.]" (People v. Alvarez (1996) 14 Cal.4th 155, 201, italics added.)

Here, there is no underlying determination for this court to examine. Defendant never asked the trial court to determine whether contents of the novel were too dissimilar to the charged crimes or whether the publication of the novel was too remote to be relevant, or that for the same reasons, whether the probative value of the evidence was outweighed by the potential for prejudice. Thus, "'we cannot hold the trial court abused its

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discretion in rejecting a claim that was never made.'" (People v. Lightsey (2012) 54 Cal.4th 668, 713.)