P. v. Elder
Mark Elder appeals from a judgment convicting him of first degree murder. He argues the trial court erred in: (1) denying his request for a continuance following its ruling admitting uncharged offense evidence; (2) admitting the uncharged offense evidence under Evidence Code sections 1108 and 1101, subdivision (b); and (3) denying his request for a mistrial based on the prosecutor's comment on his silence after being given Miranda[2]warnings. With one exception, we reject his contentions of error. We hold the court erred in admitting the uncharged offense evidence under section 1108, but find the error harmless because the evidence was admissible under section 1101, subdivision (b). Elder also argues the trial court's imposition of a restitution fine under Penal Code section 1202.45 violated the constitutional prohibition against ex post facto laws. The Attorney General properly concedes this error. Accordingly, Court modify the judgment to strike this restitution fine. As so modified, Court affirm the judgment.
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