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P. v. Quiroz

P. v. Quiroz
10:12:2011

P


P. v. Quiroz





Filed 9/30/11 P. v. Quiroz CA4/1





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ENRIQUE QUIROZ,

Defendant and Appellant.

D057072; D057073; D057074; D057075; D057076; D057078



(Super. Ct. Nos. JCF20731; JCF22780; JCF23522; JCF23524; JCF24218; JCF24576)




APPEAL from a judgment of the Superior Court of Imperial County, Donal B. Donnelly, Judge. Affirmed as modified.

Luis Enrique Quiroz appeals from the judgments in six different criminal cases, which have been consolidated for purposes of appeal. In four of those cases, Quiroz pled no contest,[1] and in two of them, a jury found him guilty.[2] The trial court held a combined sentencing hearing at which it imposed concurrent sentences, placing Quiroz on formal probation for three years with several conditions, including that he serve 364 days in jail.
Quiroz argues that in case No. JCF23524, the trial court prejudicially erred by admitting evidence suggesting that he had victimized other people, and that the trial court should have granted a mistrial based on the admission of that evidence. In all six of the cases, Quiroz challenges the trial court's calculation of the presentence conduct credits that he was entitled to pursuant to section 4019. We conclude that (1) there is no merit to Quiroz's arguments concerning case No. JCF23524; and (2) Quiroz is entitled to additional presentence conduct credits in all six cases.
I
FACTUAL AND PROCEDURAL BACKGROUND
The facts of Quiroz's crimes are relevant only to the appeal concerning case No. JCF23524, and we limit our discussion accordingly.
On May 21, 2007, Quiroz entered into a contract with Jesus Alvarez under which Quiroz agreed to install new kitchen cabinets in Alvarez's home for $3,800. Before the job began, Alvarez paid $1,900 to Quiroz, who was supposed to start work within two weeks. Over the course of the next few weeks, Quiroz gave Alvarez varying excuses for why he had not yet started work.
More than two months later, on August 3, 2007, Quiroz came to Alvarez's house and told him that he had received the materials and was ready to start work, but he needed $300 to treat the wood before he could install it. Alvarez paid $300 to Quiroz. Quiroz again did not show up to begin work, and Alvarez asked for his money back. Quiroz then told Alvarez that he had closed his business and was working out of his home, but he promised to begin work by August 21. Quiroz never began work and never refunded Alvarez's money. At the time that Quiroz received the $1,900 check from Alvarez, Quiroz had a negative balance in his bank account and owed someone else $1,200.
Quiroz admitted to failing to perform on his contract with Alvarez, but claimed that his failure to perform was because of business and personal problems, which caused his business to fail, rather than because he had intended to defraud Alvarez. At a trial during which the jury heard testimony from Alvarez, Quiroz and the police detective who investigated the incident, a jury convicted Quiroz of one count of diversion of construction funds (§ 484b) and one count of grand theft by false pretenses (§ 484, subd. (a)).
As we have described, Quiroz was also found guilty in case No. JCF23522, and he pled no contest in case Nos. JCF20731, JCF22780, JCF24218, and JCF24576. The trial court sentenced the cases together, imposing three years of formal probation, with a condition that Quiroz serve 364 days in jail.
II
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion by Failing to Strike Testimony by Alvarez Stating That He Spoke to Other People About a Pattern of Conduct by Quiroz

We first consider Quiroz's argument that the trial court prejudicially erred by overruling his objections to a portion of Alvarez's testimony.
As counsel discussed with the trial court during motions in limine, the prosecutor wanted to elicit testimony from Alvarez explaining why he waited for over a year after Quiroz failed to return his money to report Quiroz to the police. If permitted to give a full explanation of the delay, Alvarez apparently would have stated that he initially believed he was the victim of a failed business rather than of a fraud, but then he saw fliers and newspaper articles about other crimes in which Quiroz was suspected, including the fact that Quiroz had been charged with 19 counts of fraud in Mexicali. The trial court indicated that it would permit testimony that Alvarez contacted the police because he "learned some other information" about Quiroz, but there should be "no mention of fliers, wanted posters, public notices or other things."
At trial, the prosecutor asked Alvarez why he waited to contact the police about Quiroz. He responded, "Well, I tried to collect my money. I thought it was a random business gone wrong. But after talking to other people, I saw a pattern that it wasn't just one occasion, but rather - -." Defense counsel interposed an objection based on Evidence Code section 352. The trial court overruled the objection, stating, "Let's just allow that answer to stand." The trial court later sustained an objection to the prosecutor's follow-up question about the point at which Alvarez "actually fe[lt] this was a crime." Outside the presence of the jury, the trial court stated that an answer to that question "will open up" "evidentiary prohibitions earlier ruled upon."
During a break in the testimony, a juror submitted the following written question to the trial court, referring to Alvarez's testimony:[3] "The witness said he started to feel it was a crime after he found he wasn't the only 'one.' That ended his statement. [¶] How did he know there were others‌ Speculation, gossip‌ Will this be addressed [at] some point‌ [¶] This causes me to feel there is more to his statement. Not allowed‌" The trial court responded by stating to the full jury, "Your questions will not be answered at this time for a variety of legal reasons. I would ask you to set aside your questions and judge this case solely on the evidence and testimony that's presented in the courtroom. But thank you for your questions."
Quiroz contends that the trial court abused its discretion by not striking Alvarez's statement that "after talking to other people, I saw a pattern that it wasn't just one occasion, but rather ‑ ‑."
Evidence Code section 352 provides that "[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." (Ibid.) " '[T]he "prejudice" referred to in Evidence Code section 352' " is characterized by " 'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.' " (People v. Heard (2003) 31 Cal.4th 946, 976 (Heard).) " 'The prejudice that [Evidence Code] section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' " ' " (People v. Branch (2001) 91 Cal.App.4th 274, 286.) "The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value." (People v. Horning (2004) 34 Cal.4th 871, 900.) "On appeal, the ruling is reviewed for abuse of discretion." (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
Quiroz contends that Alvarez's statement should have been excluded as more prejudicial than probative because evidence that he "engaged in a pattern of wrongdoing uniquely invited the jury to judge [Quiroz] for the type of person the jury perceived him to be, rather than on evidence tending to show his guilt or innocence" and because "it is extremely likely that the jury considered that if [Quiroz] had harmed others, then [Quiroz] committed the current crimes as well." According to Quiroz, the "statement about a pattern was also likely to inflame the emotions of the jury and to make the jury want [to] punish [Quiroz] for acts the jury perceived him to have committed against other members of the community."
Applying the relevant standard for the exclusion of evidence under Evidence Code section 352, we conclude that Alvarez's statement did not constitute " 'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.' " (Heard, supra, 31 Cal.4th at p. 976.) First, the evidence was more than slightly probative because it helped the jury assess whether Alvarez's testimony was credible despite his long delay in reporting Quiroz to the police. Alvarez's credibility was important because his version of events differed from Quiroz's on significant issues, such as whether Quiroz spent several days working on the job before he was unable to finish, and those issues in turn were relevant to whether Quiroz intended to defraud Alvarez or simply ran into business difficulties. Second, Alvarez's statement was not likely to evoke an emotional bias against Quiroz because it was brief and nonspecific. Alvarez vaguely referred to "a pattern," but did not describe what type of conduct had occurred or whether anyone else had actually been harmed by Quiroz. A reasonable juror is not likely to have a strong emotional reaction to a brief statement referring to "a pattern" without any further specific evidence of improper conduct or damaged victims.
The trial court was therefore within its discretion to conclude that because Alvarez's statement was relevant to his credibility and the statement was vague and brief enough that it did not tend to evoke an emotional bias against Quiroz, Evidence Code section 352 did not require that the statement be stricken.
B. The Trial Court Did Not Abuse Its Discretion by Denying a Mistrial
We next examine whether the trial court erred in denying Quiroz's motion for a mistrial, based on both the statement by Alvarez, which we have discussed above, and a statement made during the testimony of Detective Brian Porras.
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard. . . . 'A motion for mistrial is directed to the sound discretion of the trial court.' " (People v. Cox (2003) 30 Cal.4th 916, 953, citations omitted (Cox).)
Detective Porras testified that he attempted to contact Quiroz by telephone after Alvarez reported Quiroz's theft to him. When asked by the prosecutor how he obtained Quiroz's phone number, Detective Porras stated, "It was given to me by other victims." Defense counsel objected to the statement based on Evidence Code section 352, and the trial court sustained the objection and granted a motion to strike it. The trial court admonished the jury: "I'm going to continue to admonish you to disregard the witness's last answer. Do not consider it for any reason whatsoever."
After Detective Porras's testimony, defense counsel moved for a mistrial on the ground that the statements made by Alvarez and Detective Porras unfairly prejudiced Quiroz by suggesting to the jury that he had victimized other people. The trial court denied the motion.
Quiroz argues that the trial court abused its discretion in denying the motion for a mistrial because the jury could not have followed the trial court's instruction to disregard Detective Porras's reference to "other victims" when it also heard testimony from Alvarez about "a pattern" of conduct by Quiroz. According to Quiroz, "[a] reasonable juror, having heard that Alvarez realized there was a 'pattern' to [Quiroz's] acts, could not reasonably have been expected to completely ignore [Detective Porras's] comments . . . ."
" ' "[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction . . . " ' " (Cox, supra, 30 Cal.4th at p. 953), so that "a party's chances of receiving a fair trial have been irreparably damaged" (People v. Bolden (2002) 29 Cal.4th 515, 555). "A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. . . . It is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions.' " (People v. Allen (1978) 77 Cal.App.3d 924, 934-935, citations omitted.) " 'Although most cases involve prosecutorial or juror misconduct as the basis for [a mistrial] motion, a witness's volunteered statement can also provide the basis for a finding of incurable prejudice.' " (People v. Williams (1997) 16 Cal.4th 153, 211.) " ' "Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (Cox, at p. 953.)
Because Detective Porras's testimony was not particularly damaging to Quiroz's defense, even when coupled with Alvarez's statement, the trial court was within its discretion to conclude that its admonition was sufficient to cure any slight prejudice. Significantly, although Detective Porras mentioned "other victims," he did not describe what Quiroz did to harm them or how many other victims existed. Indeed, even without Detective Porras's reference to "other victims," the jury, after hearing Quiroz describe his failed business, most likely would have assumed that there were other customers in the same situation as Alvarez, with kitchens that Quiroz did not finish remodeling because his business failed. Detective Porras's reference to such persons as "other victims" did not establish that they were victims of fraud rather than victims of a failed business. In such a context, a reasonable juror would not have perceived Detective Porras's statement as particularly inconsistent with Quiroz's defense and would have been able to follow the trial court's admonition to disregard Detective Porras's statement.
Further, we do not agree with Quiroz that the trial court's admonition about Detective Porras's statement was ineffective because the jury also heard Alvarez refer to "a pattern" of conduct. As we have explained, Alvarez's testimony was vague and nonspecific as to what type of "pattern" he was referring to and did not describe any criminal conduct or harm to other persons. Therefore, the trial court could reasonably have exercised its discretion to conclude that Detective Porras's reference to "other victims" did not take on special significance in light of Alvarez's statement, and that any prejudice caused by Detective Porras's statement could be cured by an admonition.[4] We thus conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.
C. Quiroz Is Entitled to Additional Presentence Conduct Credits
Finally, we address Quiroz's challenge to the calculation of his presentence conduct credits under section 4019.
A defendant sentenced to prison is entitled to credit against the prison term for all days spent in local custody before sentencing that are attributable to the same conduct. (§§ 2900, subd. (c), 2900.5, subds. (a), (b); People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Such a defendant may also earn so-called "conduct credits" for satisfactory performance of assigned labor and compliance with rules and regulations during local custody. (§ 4019, subds. (b), (c); People v. Cooper (2002) 27 Cal.4th 38, 40.)
The version of section 4019 in effect until January 25, 2010, allowed conduct credits to accrue at the rate of two days for every four days spent in local custody, so that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats. 1982, ch. 1234, § 7, p. 4554.) Effective January 25, 2010, section 4019 was amended to provide qualifying defendants with increased conduct credits of two days for every two days spent in local custody, so that "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, p. 5271.)[5]
Quiroz was sentenced on March 24, 2010, and he spent time in custody both before and after the January 25, 2010 effective date of the amendment to section 4019. Applying a two-tiered approach to section 4019, the trial court applied the previous version of section 4019 to the 45 days that Quiroz spent in custody prior to the statutory amendment, and it applied the amended version of section 4019 to the 59 days that Quiroz spend in custody after the January 25, 2010 amendment. This resulted in an award of 82 days of presentence conduct credits, for a total of 186 days of presentence credits.[6] Quiroz contends that the January 25, 2010 amendment to section 4019 is retroactively applicable to time spent in custody prior to the effective date of the amendment and therefore the trial court should not have applied a two-tiered approach. According to Quiroz, the trial court should have applied the amended version of section 4019 to his total presentence custody period, and that he should therefore receive 104 days of presentence conduct credits.
The issue of whether the January 25, 2010 amendment to section 4019 applies to defendants who earned conduct credits before January 25, 2010, is currently pending before our Supreme Court. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [holding amended § 4019 applies retroactively to judgments not yet final]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 [same]; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [same]; contra, People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
While we await our Supreme Court's decision, we adopt the majority view of the intermediate appellate courts that the January 25, 2010 amendment applies retroactively to conduct credits earned before that date. Accordingly, Quiroz is entitled to a total of 104 days of conduct credits, for a total of 208 days of presentence credits, and the judgment is modified in each of the six cases before us to award these credits.
DISPOSITION
The judgment in each of the six cases in this consolidated appeal are modified to award Quiroz a total of 104 days of presentence conduct credits, for a total of 208 days presentence credits. As so modified, the judgments are affirmed. The trial court is directed to amend the abstracts of judgment in case Nos. JCF20731, JCF22780 JCF24218, JCF24576, JCF23524, and JCF23522 to reflect those modifications and forward a certified copy of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.


IRION, J.

WE CONCUR:



McCONNELL, P. J.



HALLER, J.


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[1] In case No. JCF20731, Quiroz pled no contest to violating his probation. In both case Nos. JCF22780 and JCF24218, Quiroz pled no contest to theft by false pretenses. (Pen. Code, § 484, subd. (a); unless otherwise specified, all further statutory references are to the Penal Code.) In case No. JCF24576, Quiroz pled no contest to theft by false pretenses and making an insufficient funds check. (§§ 484, subd. (a), 476a, subd. (a).)

[2] In both case Nos. JCF23524 and JCF23522, a jury found Quiroz guilty of one count of diversion of construction funds (§ 484b) and one count of grand theft by false pretenses (§ 484, subd. a).

[3] At the beginning of the trial, the trial court had instructed the jurors that during trial they could submit to the court any questions that they believed should be asked.

[4] Quiroz compares this case to People v. Navarrete (2010) 181 Cal.App.4th 828, 834, in which a mistrial was required, despite an admonition to the jury, when a police officer witness intentionally disregarded the trial court's evidentiary ruling and made a statement suggesting that the defendant had confessed. The cases are not analogous because testimony concerning a defendant's confession to the crime for which he is being tried is far more damaging and difficult to cure with an admonition to the jury than the testimony at issue here.

[5] Section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010 amendment took effect; but the September 28, 2010 amended version applies only to local custody served by defendants for crimes committed on or after September 28, 2010. (§ 4019, subd. (g); Stats. 2010, ch. 426, § 2.) That amendment to section 4019 is inapplicable to this case.

[6] We note that in case No. JCF20731, the parties stipulated that Quiroz was entitled to 189 days of presentence credits, rather than 186 days as in the other five cases. Quiroz does not note this distinction in his appellate brief, and the relief he requests is the same for each of the six cases, namely an award of 104 days of presentence conduct credits.




Description Luis Enrique Quiroz appeals from the judgments in six different criminal cases, which have been consolidated for purposes of appeal. In four of those cases, Quiroz pled no contest,[1] and in two of them, a jury found him guilty.[2] The trial court held a combined sentencing hearing at which it imposed concurrent sentences, placing Quiroz on formal probation for three years with several conditions, including that he serve 364 days in jail.
Quiroz argues that in case No. JCF23524, the trial court prejudicially erred by admitting evidence suggesting that he had victimized other people, and that the trial court should have granted a mistrial based on the admission of that evidence. In all six of the cases, Quiroz challenges the trial court's calculation of the presentence conduct credits that he was entitled to pursuant to section 4019. We conclude that (1) there is no merit to Quiroz's arguments concerning case No. JCF23524; and (2) Quiroz is entitled to additional presentence conduct credits in all six cases.
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