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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Superi or Court of 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 Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

* * *2 Defendant Beatrice Gutierrez and two others were charged with numerous
crimes. The trial court severed defendant’s ca se 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 ju ry 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 issu e 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 furt her 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 dealersh ip. The parcel was represented
to be situated so as to make the dealersh ip’s acquisition of it ne cessary for expansion, consequently eliciting the intere st of foreign developers. Fi ntzi successfully encouraged a former client to provide funds to release the prop erty from bankruptcy.
After Fintzi’s client failed to recei ve repayment, Fintzi investigated and discovered the bankruptcy case had been cl osed 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 th e parcel in January 2004. The same month the bankruptcy proceeding was dismissed b ecause the debtors were not complying with the requirements of their plan.3 Concerned, Fintzi met with defendan t who claimed she owned the property and that the sale to foreign developers woul d take place. She also requested more money to cover late payments, pena lties, and interest from the ba nkruptcy proceeding. Fintzi offered to put up his own money but Eugene Lokhorst, a co-defendant, failed to come up
with sufficient collateral. Fintzi later c ontacted the dealership and learned the entire
transaction was false.

2. Count 2 – Grand Theft from Oscar Vargas In 2007, defendant told Oscar Va rgas she and another person named “Gene” had a business of loaning money secure d 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, co nsisting of his own sa vings plus money from family, friends, and members of his church . Defendant and Varg as even signed a notarized letter and partnership agreement. Despite promises of a 50 percent return on the investment, Vargas only recei ved $16,000 in repayment.

3. Count 3 – Grand Theft from Pamela Steinhoff In 2009, Pamela Steinhoff gave defenda nt $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 de alership she “had to take back from somebody” becau se 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 4. Count 4 – Grand Theft fr om 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 involv ing lots she owned in Buena Park. They never received repayment of thei r money. Although de fendant gave several reasons for her delay in repaying the loan, and even attempted to do so on several occasions, the checks she provi ded them either bounced or were issued on a closed account. A proposal of giving the Nickerso ns title to a vehicle also fell through.

5. Defendant’s Acquisition of the Buena Park Property Over objection, Celedonia Lomeli, de fendant’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, sayi ng 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 En glish, defendant presented her with papers written in English which she signe d. Lomeli continue d 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 a nd Carole Newbill, in which she had no involvement. During closing argument, defe nse counsel argued defendant “was as much
a victim” of Lokhorst’s and Newbill’s fraudul ent schemes as the victims named in each
of the counts.5 DISCUSSION

Before Lomeli testified, the defe nse 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 testim ony relevant to the issues of motive, opportunity, intent, preparation, plan, and kn owledge, and that its “relevance outweighs [its] prejudicial impact . . . .” Subsequently, the court concluded Lomeli’s testimony was
not relevant to “intent or motive” and am ended 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 ‘prope nsity’ for engaging in re al estate fraud with respect to the subject property, or to othe rwise prejudice” her and that its prejudicial effect outweighed its probative value. We consider the admi ssibility of Lomeli’s testimony to be a close question, but concl ude 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 offere d to prove his or her conduct on a specified occasion.” ( Ibid .) Notably, subdivision (b) of secti on 1101 states that nothing in this statute “prohibits the admission of evidence that a person co mmitted a crime, civil wrong,6 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 ot her crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendenc y of the uncharged crimes to prove those facts, and (3) the existence of a ny 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 admissi bility of evidence un der 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 ru ling ‘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 elem ents 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, 42 1, 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 ev idence, the court limited the jury’s use of it to defendant’s kn owledge 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 releva nt to a disputed issue, evidence of prior acts may be admitted to prove a de fendant’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 kn owledge that she had once ow ned 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 trial7 concerned the state of the property’s title a nd 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 unc harged conduct ev idence to show a common plan or scheme to commit the char ged crimes. “[I]n establishing a common design or plan, evidence of uncharged mi sconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common fe atures that the various acts are naturally to be explained as caused by a ge neral plan of which they are the individual manifestations.’ [Citation.]” ( People v. Ewoldt (1994) 7 Cal.4th 380, 402.) “‘[T]he difference between requiring si milarity, 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 sim ilar involves having common features, and to have common features is merely to have a hi gh degree of similar ity.’ [Citations.]” ( Id. at pp. 402-403.) While a close issue, we conclude the uncharged co nduct evidence was admissible for this purpose. “[T]he common fe atures 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 thre e of the charged crimes the
evidence showed defendant made false statements relating to the Buena Park parcel to obtain another’s property. With Lomeli, defe ndant 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 re presentations 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 Buen a Park property as a means of convincing Steinhoff to give her money. But even where “evidence of prior co nduct is sufficiently similar to the charged crimes to be relevant” for some perm issible purpose, “the trial court then must8 consider whether the probative value of the evidence ‘is “substantia lly outweighed by the probability that its admission [woul d] . . . 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, 13 28.) The trial court’s rulin g 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 scheme s 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. De fendant notes she acquired the Buena Park property 15 to 17 years befo re the charged crimes occu rred 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 th e charged crimes is relevant, but “[n]o specific time limits have been established fo r 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 admitti ng 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, disappro ved 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 th e 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 some9 potential for causing the jury to view defendant in an unfavorab le 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 defendan t for the uncharg ed offense[], regardless whether it consider ed h[er] guilty of the char ged offenses . . . .” ( People v.
Ewoldt , supra , 7 Cal.4th at p. 405.) On the other hand, the potential for pr ejudice was ameliorated for a couple of reasons. While Lomeli’s testimony was pot entially 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 infla mmatory’” rejected because “they were less inflammatory than th e evidence in the pres ent case”].) The latte r evidence included defendant’s stealing money from her elderly neighbors, the Nicker sons, 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 cons ider Lomeli’s testimony if it found by a preponderance of the evidence defendant fraudulently acquired
her aunt’s home and that it could “not conc lude 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] impr oper 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 smoki ng 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 defe rence on appeal. [Citation.]” ( People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1001.) Th us, while the use of Lomeli’s testimony concerning defendant’s acquisition of the Bu ena Park property to establish a common10 plan or design presents a cl ose call, we conclude the tr ial 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 th e property’s title does not change the result “because any er ror 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.