What is the test for admissible evidence in a criminal case where a defendant has been arrested on 10 separate occasions for the same crime?

Defendant does not dispute that the booking photographs showed a change in his appearance following the incident, nor does he dispute that a change in appearance can show consciousness of guilt. (See People v. Randle (1992) 8 Cal.App.4th 1023, 1036.) Defendant contends that it was unnecessary for the prosecution to introduce so many photographs because the jury thereby learned that he had been arrested on 10 separate occasions.

Under Evidence Code section 352, "[t]he 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." In an Evidence Code section 352 analysis, " 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

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"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 717.) Thus, error in admitting evidence pursuant to Evidence Code section 352 may be found only " 'on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

Generally, "evidence of mere arrests is inadmissible because it is more prejudicial than probative," due to the danger that the jury will find that the defendant "has an untrustworthy and criminal character." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1523.) Thus, booking photographs showing that a defendant has been arrested on previous occasions should not be admitted unless the photographs have strong probative value that is not "substantially outweighed" by their prejudicial effect. (Evid. Code, 352.)