P. v. Gutierrez



















Filed 4/17/13 P. v. Gutierrez CA4/3















NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. BEATRICE GUTIERREZ, Defendant and Appellant.

G046515 (Super. Ct. No. 09HF1539) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Richard F. Toohey, Judge. Affirmed.

Gerald J. Miller, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale,
Deputy Attorneys General, for Plaintiff and Respondent.



*
* *

Defendant
Beatrice Gutierrez and two others were charged with numerous crimes. The trial court severed defendant’s case from
that of her co-defendants and, after trial, a jury found her guilty of one
count of attempted grand theft and
two counts of grand theft, each based on a theory of theft by false pretenses,
plus one count of grand theft from an elder.
The jury also found the crimes resulted in losses exceeding
$100,000. The court sentenced defendant
to a five-year, eight-month prison term and ordered her to pay
restitution. The sole issue on appeal is
whether the trial court erred by admitting evidence defendant had previously
acquired her elderly aunt’s home, property used in the investment schemes
underlying some of the charged crimes, by fraudulent means. (Evid. Code, §§ 1101 & 352; all
further statutory references are to this code.)
We find no error and affirm the judgment.



FACTS



1. Count 1 – Attempted Grand Theft from Eric
Fintzi

In
2009, Eric Fintzi learned about an investment opportunity involving property in
Buena Park located adjacent to a car dealership. The parcel was represented to be situated so
as to make the dealership’s acquisition of it necessary for expansion,
consequently eliciting the interest of foreign developers. Fintzi successfully encouraged a former
client to provide funds to release the property from bankruptcy.

After
Fintzi’s client failed to receive repayment, Fintzi investigated and discovered
the bankruptcy case had been closed for five years. Other evidence established defendant and her
husband had filed bankruptcy in the 1990’s.
Defendant’s husband quitclaimed his interest in the Buena Park property in 2003 and defendant gave the
lender a deed in lieu of foreclosure on the parcel in January 2004. The same month the href="http://www.fearnotlaw.com/">bankruptcy proceeding was dismissed
because the debtors were not complying with the requirements of their
plan.

Concerned,
Fintzi met with defendant who claimed she owned the property and that the sale
to foreign developers would take place.
She also requested more money to cover late payments, penalties, and
interest from the bankruptcy proceeding.
Fintzi offered to put up his own money but Eugene Lokhorst, a
co-defendant, failed to come up with sufficient collateral. Fintzi later contacted the dealership and
learned the entire transaction was false.




2. Count 2 – Grand Theft from Oscar Vargas

In
2007, defendant told Oscar Vargas she and another person named “Gene” had a
business of loaning money secured by real property. Defendant said there was a property in Buena Park on which the owner owed money and if they
could raise the funds they could acquire the property and then sell it to an
interested foreign investor for a large profit.
Vargas raised $135,000, consisting of his own savings plus money from
family, friends, and members of his church.
Defendant and Vargas even signed a notarized letter and href="http://www.mcmillanlaw.com/">partnership agreement. Despite promises of a 50 percent return on
the investment, Vargas only received $16,000 in repayment.



3. Count 3 – Grand Theft from Pamela Steinhoff

In
2009, Pamela Steinhoff gave defendant $15,000 as part of a transaction where
defendant promised to match this sum and loan the money to an investor for a
short time after which Steinhoff would receive a large profit. To explain her work as an investor, defendant
mentioned a house in Buena Park next to a car dealership she “had to take back from somebody” because
the dealership wanted to acquire it. But
as Steinhoff understood it, her investment did not involve that property. After defendant gave numerous excuses for the
delay in repaying the loan, Steinhoff sued defendant. Steinhoff obtained a judgment, not a penny of
which she has received.



4. Count 4 – Grand Theft from an Elder; The
Nickersons

In 2009,
Ben and Sheila Nickerson, defendant’s elderly long-time neighbors, loaned her
$8,000 for a real estate deal involving lots she owned in Buena Park. They
never received repayment of their money.
Although defendant gave several reasons for her delay in repaying the
loan, and even attempted to do so on several occasions, the checks she provided
them either bounced or were issued on a closed account. A proposal of giving the Nickersons title to
a vehicle also fell through.



5. Defendant’s Acquisition of the Buena Park
Property

Over
objection, Celedonia Lomeli, defendant’s 78-year-old aunt, testified she and
her husband owned a home on Arizona Street in Buena Park. In July 1992, Lomeli’s husband died. She asked defendant to help maintain the
property. Defendant claimed she had
revelations from God, saying Lomeli had to put the property in defendant’s
name. In early August, despite the fact
Lomeli’s primary language was Spanish and she did not read or write in English,
defendant presented her with papers written in English which she signed. Lomeli continued to pay the parcel’s property
taxes, but eventually left her home because defendant claimed God said she had
to leave.



6. >The Defense

The
defense presented evidence of fraudulent transactions carried out by
defendant’s co-defendants, Lokhorst and Carole Newbill, in which she had no
involvement. During closing argument,
defense counsel argued defendant “was as much a victim” of Lokhorst’s and
Newbill’s fraudulent schemes as the victims named in each of the counts.







DISCUSSION



Before
Lomeli testified, the defense objected, arguing her testimony violated sections
1101 and 352. The trial court overruled
the objection, finding “the facts and circumstances regarding the property,”
including defendant’s “knowledge of its ownership and how she came into
possession of it and how that would relate to her own interaction with others
regarding that property is certainly relevant to this proceeding.” After Lomeli’s testimony, defendant moved to
strike it on the same grounds. The trial
court denied the motion, finding the testimony relevant to the issues of
motive, opportunity, intent, preparation, plan, and knowledge, and that its
“relevance outweighs [its] prejudicial impact . . . .” Subsequently, the court concluded Lomeli’s
testimony was not relevant to “intent or motive” and amended CALCRIM No. 375 to
limit the jury’s consideration of this evidence to “whether . . . defendant
knew of the property’s title when she acted in this case or
. . . [if] defendant had a plan or scheme to commit the offenses
alleged in this case.”

On
appeal, defendant again argues the trial court erred in admitting Lomeli’s
testimony on defendant’s acquisition of the Buena Park property. She claims it was used to “establish that
[she] had a ‘propensity’ for engaging in real estate fraud with respect to the
subject property, or to otherwise prejudice” her and that its prejudicial
effect outweighed its probative value.
We consider the admissibility of Lomeli’s testimony to be a close
question, but conclude the court did not err in admitting the evidence.

Section
1101, subdivision (a) provides that evidence of a person’s character or character
trait is “inadmissible when offered to prove his or her conduct on a specified
occasion.” (Ibid.) Notably, subdivision (b) of section 1101
states that nothing in this statute “prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . .) other than his or her
disposition to commit such an act.” (§
1101, subd. (b).)

In
general, “‘[t]he admissibility of other crimes evidence depends on (1) the
materiality of the facts sought to be proved, (2) the tendency of the uncharged
crimes to prove those facts, and (3) the existence of any rule or policy
requiring exclusion of the evidence.’
[Citation.]” (People v.
Lindberg (2008) 45 Cal.4th
1, 22.) On appeal, the trial court’s
determination as to the admissibility of evidence under section 1101 is
reviewed for an abuse of discretion. (>People v. Kipp (1998) 18 Cal.4th 349, 371) A trial court abuses its discretion when “its
ruling ‘falls outside the bounds of reason.’
[Citation.]” (>Ibid.)

The materiality
requirement was met by defendant entering a not guilty plea to the charges,
thereby placing all elements of the crimes in dispute. (People
v. Lindberg, supra, 45
Cal.4th at p. 23; People v. Roldan
(2005) 35 Cal.4th 646, 705-706, disapproved on another point in >People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) Prior acts evidence is also material where
the fact to be proved is “an intermediate fact from which a [disputed] ultimate
fact can be inferred . . . .
[Citation.]” (>People v. Gillard (1997) 57
Cal.App.4th 136, 160; see also People
v. Tran (2011) 51 Cal.4th 1040, 1048.)


As
for the probative value of the uncharged conduct evidence, the court limited
the jury’s use of it to defendant’s knowledge of the Buena Park property’s
title when she engaged in the acts underlying the charged crimes and to show a
common plan or scheme for the charged crimes.
Where relevant to a disputed issue, evidence of prior acts may be
admitted to prove a defendant’s guilty knowledge. (People
v. Hendrix (2013) 214 Cal.App.4th 216, 241; >People
v. Moore (2010) 187 Cal.App.4th 937, 942-943.) But here, defendant’s knowledge that she had
once owned the Buena Park property and how she acquired it neither established
an element of the charged crimes nor supported an inference from which a
material fact could be inferred. The
issues at trial concerned the state of the property’s title and defendant’s
knowledge she no longer held an interest in it during the 2007 to 2009 time
period when the charged crimes occurred.


Alternatively,
the court admitted uncharged conduct evidence to show a common plan or scheme
to commit the charged crimes. “[I]n
establishing a common design or plan, evidence of uncharged misconduct must
demonstrate ‘not merely a similarity in the results, but such a concurrence of
common features that the various acts are naturally to be explained as caused
by a general plan of which they are the individual manifestations.’ [Citation.]”
(People v. Ewoldt
(1994) 7 Cal.4th 380, 402.) “‘[T]he difference between requiring
similarity, for acts negativing innocent intent, and requiring common features
indicating common design, for acts showing design, is a difference of degree
rather than of kind; for to be similar involves having common features, and to
have common features is merely to have a high degree of similarity.’ [Citations.]”
(Id. at
pp. 402-403.)

While
a close issue, we conclude the uncharged conduct evidence was admissible for
this purpose. “[T]he common features
must indicate the existence of a plan rather than a series of similar
spontaneous acts, but the plan thus revealed need not be distinctive or
unusual.” (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) In both defendant’s acquisition of the Buena
Park property and three of the charged crimes the evidence showed defendant
made false statements relating to the Buena Park parcel to obtain another’s property.
With Lomeli, defendant claimed God had
said she should give defendant title to the property. On both the attempted theft from Fintzi and
the theft from Vargas, defendant made false representations about the status of
the Buena Park lot’s title to convince the victims to give her money. On count 3, defendant also falsely suggested
she held an ownership interest in the Buena Park property as a means of
convincing Steinhoff to give her money.

But
even where “evidence of prior conduct is sufficiently similar to the charged
crimes to be relevant” for some permissible purpose, “the trial court then must
consider whether the probative value of the evidence ‘is “substantially
outweighed by the probability that its admission [would]
. . . create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.”
([]§ 352.)’
[Citation.]” (>People v. Foster (2010) 50
Cal.4th 1301, 1328.) The trial
court’s ruling on this issue is also reviewed for abuse of discretion. (Ibid.)

Lomeli was only one of
over 20 witnesses who testified in a trial that lasted five days. While her testimony concerned defendant’s
acquisition of the Buena Park property, not its use in real estate fraud
schemes to take the victims’ money, it was related to the charges in that it
involved the same property and defendant’s purported use of a false
representation to obtain its title. Defendant notes she acquired the Buena Park
property 15 to 17 years before the charged crimes occurred and thus the
uncharged conduct was too remote in time to have any probative value. The length of time between a defendant’s
commission of that act and the charged crimes is relevant, but “[n]o specific
time limits have been established for determining when an uncharged offense is
so remote as to be inadmissible.
[Citations.]” (>People v. Branch (2001) 91
Cal.App.4th 274, 284; see also People
v. Steele (2002) 27 Cal.4th 1230, 1245 [killings 17 years apart; no
error in admitting prior homicide].)
Thus, “[t]he remoteness of
evidence goes to its weight and not to its reliability. [Citations.]”
(People v. Douglas
(1990) 50 Cal.3d 468, 511, disapproved on other grounds in >People v. Marshall (1990) 50
Cal.3d 907, 932, fn. 4.) The trial
court did not abuse its discretion in rejecting defendant’s claim her
acquisition of the property’s title was too remote.

On the question of undue
prejudice “‘[e]vidence is prejudicial . . . if it “‘uniquely
tends to evoke an emotional bias against a party as an individual’” [citation]
or if it would cause the jury to “‘“prejudg[e]” a person or cause on the basis
of extraneous factors’” [citation].’
[Citation.]” (>People
v. Foster, supra, 50 Cal.4th at p. 1331.) Lomeli was defendant’s elderly aunt and she
claimed defendant convinced her to give away her home only weeks after her
husband died. Clearly, this evidence
presented some potential for causing the jury to view defendant in an
unfavorable light. Also defendant’s uncharged conduct did not result
in a criminal conviction, thus “increase[ing] the danger that the jury might
have been inclined to punish defendant for the uncharged offense[], regardless
whether it considered h[er] guilty of the charged offenses
. . . .” (>People v. Ewoldt, supra, 7 Cal.4th at p. 405.)


On the other hand, the
potential for prejudice was ameliorated for a couple of reasons. While Lomeli’s testimony was potentially
inflammatory, it “was no stronger and no more inflammatory than the testimony
concerning the charged offenses.” (>People
v. Ewoldt, supra, 7 Cal.4th at p. 405; see also People
v. Foster, supra, 50 Cal.4th at p. 1332 [claim prior acts
“‘highly inflammatory’” rejected because “they were less inflammatory than the
evidence in the present case”].) The
latter evidence included defendant’s stealing money from her elderly neighbors,
the Nickersons, and convincing Vargas to obtain money from others, including
his family, friends, and fellow church members.
The court’s limiting instruction also told the jury to only consider
Lomeli’s testimony if it found by a preponderance
of the evidence defendant fraudulently acquired her aunt’s home and that it
could “not conclude from this evidence . . . defendant has a bad
character or is disposed to commit crime,”
“thereby ‘minimizing the potential [the jury would use it] for [an]
improper use.’ [Citation.]” (People v. Foster, supra, 50
Cal.4th at p. 1332; People
v. Lindberg, supra, 45
Cal.4th at p. 26 [“We presume the jury followed the[]
instruction[]”].) Finally, contrary to
defendant’s argument the prosecutor’s closing argument did not focus on the
uncharged conduct. He only briefly
mentioned Lomeli’s testimony, telling the jury there was “no smoking gun” and
asking them “to focus on . . . the totality of the evidence
presented.”

The trial court’s
exercise of its discretion in admitting evidence of uncharged acts “is entitled
to deference on appeal.
[Citation.]” (>People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1001.) Thus, while the use of Lomeli’s testimony
concerning defendant’s acquisition of the Buena Park property to establish a
common plan or design presents a close call, we conclude the trial court did
not abuse its discretion in admitting it for this purpose. In light of this conclusion, the fact such
evidence was not admissible on defendant’s knowledge of the property’s title
does not change the result “because any error in the court’s instruction was
harmless. [Citation.]” (People v. Foster, supra, 50
Cal.4th at p. 1333; see also People
v. Demetrulias (2006) 39 Cal.4th 1, 18.)





DISPOSITION



The
judgment is affirmed.











RYLAARSDAM,
J.



WE CONCUR:







O’LEARY, P.
J.







MOORE, J.