Filed 10/2/13 P. v. Zwick 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G047104

         v.                                                            (Super. Ct. No. 11WF1409)

LOREN MICHAEL ZWICK,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   James M. Kehoe, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
               Loren Michael Zwick filed a timely appeal from convictions for first degree
burglary and grand theft following a jury trial. The trial court also found him in violation
of probation and sentenced him to the low term of two years for the burglary and a one-
year consecutive term for the violation of probation. Sentence for grand theft was stayed
pursuant to Penal Code section 654.1
               We appointed counsel to represent Zwick on appeal. Counsel filed a brief
that set forth the procedural history and facts of the case with citations to the record in
accordance with Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979)
25 Cal.3d 436. Counsel did not argue against the client, but advised the court no issues
were found to argue on Zwick’s behalf, although counsel identified five potential claims
for our consideration. Zwick was given 30 days to file written argument on his behalf.
He did so, but not within the time period given. In any event, we have considered each of
the points raised and find none persuasive. The judgment is therefore affirmed.


                                           FACTS


               In April 2011, Thai Quan decided to sell his 2009 Harley Davison
motorcycle. He posted an ad on the Orange County Craigslist with all pertinent
information and an asking price of $7,800. During the morning of April 22, he and
Zwick exchanged texts, agreed on a selling price of $7,500, and arranged to meet at
Quan’s house later that morning.
               At around 10:00 a.m., Zwick and his friend John Virag arrived at Quan’s
residence. They found him in the garage with the motorcyle. Zwick asked to test drive
the motorcycle, and Quan agreed after Zwick gave him a $1,000 in $100 bills as a cash
deposit. When Zwick returned, he and Quan started to negotiate a price. Quan


       1   All further statutory references are to the Penal Code unless otherwise stated.

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reaffirmed his $7,500 asking price, but Zwick said he had only $6,800 in cash with him.
Zwick gave Quan a wad of $100 bills that he said totaled $6,800. But when Quan
counted the $100 bills, he discovered Zwick had handed him only $6,700.
              Zwick accused Quan of stealing one of the $100 bills, and a search for the
missing bill ensued. Quan, Zwick, and Virag searched the garage, and Quan emptied his
pockets and allowed Zwick to conduct a patdown search. Notwithstanding what had just
occurred, Quan ultimately lowered his price and agreed to sell Zwick the motorcycle for
$7,000. Zwick asked Virag for the difference between $6,700 and $7,000. Virag came
up with $200, handed it to Zwick, who in turned passed the money to Quan. Quan told
Zwick there was a bank nearby, and Zwick drove away on the motorcycle with Virag
following him in his car. Quan kept the $6,900.
              After about 45 minutes, Zwick and Virag returned to Quan’s home. Zwick
asked to use Quan’s bathroom. While he was in the house, Zwick found a helmet and
asked to try it on. After Zwick tried on the helmet, all three men went inside the garage.
Virag asked if he could relieve himself in Quan’s backyard, and Quan said yes. Virag
walked through the garage and into Quan’s backyard, but he quickly returned to the
garage.
              With everyone back in the garage, Quan filled in the title information on
the motorcycle’s pink slip, and he handed the pink slip to Zwick. Zwick then asked if he
could video the transaction, and he handed his cell phone to Virag. With Virag recording
the event, Zwick counted the money for the camera and put it in an envelope. He then
displayed the sealed envelope and the pink slip for the camera. Unsolicited, Zwick told
Quan about some motorcycle parts vendors he knew, and he offered to write the
information on the envelope. Meanwhile, Virag struck up a conversation with Quan
about martial arts. Virag’s position partially blocked Quan’s view of Zwick, and his
small talk distracted him. After three or four minutes, Zwick handed Quan the envelope.
Virag and Zwick drove away with Zwick on the motorcycle and Virag in his car.

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              Quan took the envelope to his bank to make a deposit. But when he got to
the bank’s ATM, Quan discovered it contained a stack of $1 bills. Quan attempted to
contact Zwick, but to no avail. Believing Zwick had switched envelopes, Quan drove to
the Huntington Beach Police Department to report a crime. Police officers found
Zwick’s fingerprint on Quan’s helmet. Quan later identified Zwick from a photographic
lineup.
              While he was waiting inside the police department, Quan received a call
from an unknown number. He did not answer the call, but later discovered the number
was registered to Zwick’s father’s law office. After some further internet research, Quan
also discovered that Zwick was a magician.
              One of the police officers testified Zwick initially agreed to come to the
Huntington Beach Police Department and make a statement. But on the day he was to
appear, Zwick said he had a medical emergency and did not want to give his statement
over the telephone. The next day, Zwick’s attorney contacted the police.
              When Zwick was arrested at his probation officer’s office, he gave the
arresting officer an address and claimed he lived over the garage at this address. Zwick
did not tell the officer he had also signed a lease agreement for an apartment he planned
to move to on April 23, 2011. The landlord for the apartment complex testified Zwick
filed an addendum to his lease on April 23, 2011 to add a motorcycle for purposes of
storing it in the apartment complex. While a search of the residence Zwick claimed to
live in produced nothing, officers did locate Quan’s motorcycle at Zwick’s new
apartment complex. Zwick also had a set of keys for this apartment, and Virag admitted
he was Zwick’s roommate. Police were never able to find the pink slip or the keys to the
motorcycle.
              Zwick’s mother confirmed her son’s medical emergency on the same day
the police initially contacted him. Virag denied doing anything to help Zwick switch



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envelopes, although both he and Zwick’s mother acknowledged Zwick was a proficient
magician who could make envelopes disappear without anyone noticing.


                                       DISCUSSION


              Counsel listed five potential issues to assist the court in conducting its
independent review of the record. (1) Did the trial court correctly deny Zwick’s section
1181.1 motion for acquittal of all charges? (2) Was this a residential burglary as charged
or mere fraud of a business? (3) Did defense counsel spend too much time on the
incriminating conduct of his accomplice? (4) Did the prosecutor make improper use of
Zwick’s pre-arrest silence? (5) Did Zwick receive ineffective assistance of counsel?
              Zwick’s supplemental brief claims (6) a mistrial should have been granted
on the grounds of prosecutorial misconduct, (7) there were 18 instances of attorney
incompetence, and (8) the trial court made six prejudicial evidentiary rulings.


1. Section 1118.1 Motion
              Zwick moved for an acquittal on grounds of insufficiency of the evidence at
the conclusion of the prosecution’s case. He argues the trial court erroneously denied this
motion. We disagree.
              “A trial court should deny a motion for acquittal under section 1118.1 when
there is any substantial evidence, including all reasonable inferences to be drawn from the
evidence, of the existence of each element of the offense charged. [Citations.]” (People
v. Mendoza (2000) 24 Cal.4th 130, 175.)
              Before the presentation of Zwick’s case, the evidence demonstrated that
while in Quan’s garage, Zwick exchanged an envelope full of $1 bills for one containing
$7,000 and removed Quan’s motorcycle under the auspices of a legitimate sale. Thus,
the trial court correctly denied Zwick’s motion for acquittal.

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2. Residential Burglary
              Zwick questions whether he committed residential burglary or some other
crime “where the garage was open for business and Zwick committed a fraud.” We
conclude the jury’s verdict is proper.
              Burglary of the first degree is burglary of “an inhabited dwelling house,”
and all other burglaries are of the second degree. (§ 460, subds.(a), (b).) As the jury
instruction given here explained, “First degree burglary is the burglary of an inhabited
house, or of a room within an inhabited house. [¶] A house is inhabited if someone uses
it as a dwelling, whether or not someone is inside at the time of the alleged entry. [¶] A
house includes any garage that is attached to the house, and is functionally connected
with it.” (CALCRIM No. 1701.)
              The term “inhabited dwelling house” has been given a broad, inclusive
definition in prior California case law for purposes of first degree burglary. (People v.
Cruz (1996) 13 Cal.4th 764, 779; see also People v. Woods (1998) 65 Cal.App.4th 345,
350; People v. Coutu (1985) 171 Cal.App.3d 192, 193-194.)
              Here, Zwick stole Quan’s motorcycle from the garage attached to Quan’s
home. This is sufficient evidence to sustain the first degree burglary conviction.
Furthermore, there is no evidence Quan used his garage to conduct some type of garage-
based business. Thus, under the facts presented at trial, Zwick was properly convicted of
first degree residential burglary.


3. Virag
              Zwick questions “whether it was proper to spend so much time on the
incriminating conduct of Zwick’s accomplice, Virag[.]” He does not specify who spent
too much time on Virag’s conduct, nor does he specify whether the purported error
occurred during Virag’s testimony or closing arguments. Assuming the complaint is
directed at trial counsel and intended to encompass all aspects of the case, we find no

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evidence counsel spent an inordinate amount of time investigating, questioning, or
arguing Virag’s conduct.


4. Pre-Arrest Silence and Motion for Mistrial
              During opening statement, the prosecutor made references to Zwick’s
failure to give a statement to police after he knew they suspected him of stealing Quan’s
motorcycle. Defense counsel objected and moved for a mistrial. After an in chambers
discussion between the trial court and counsel, the court denied the defense mistrial
motion and struck the prosecutor’s reference to Zwick’s pre-arrest silence. The court also
gave the following admonishment to the jury: “the prosecutor pointed out that when the
defendant was arrested and the officer said he had an arrest warrant for [a] stolen
motorcycle, the defendant didn’t say anything. I’m going to strike that and ask you not to
consider that or tell you not to consider that for any reason. The reason being, that a
person has a right to remain silent when they are arrested. And that cannot be used
against them in any way. So, that whole thing of what he didn’t say is – should not be
considered in any way . . . .”
              A motion for mistrial is directed to the sound discretion of the trial court.
(People v. Jenkins (2000) 22 Cal.4th 900, 985.) A mistrial should be granted if the court
is apprised of prejudice that it judges incurable by admonition or instruction. (People v.
Haskett (1982) 30 Cal.3d 841, 854.) 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. (Ibid.) In reviewing ruling on
motions for mistrial, we apply the deferential abuse of discretion standard. (People v.
Wallace (2008) 44 Cal.4th 1032, 1068.) Here, the trial court considered inconsequential
the prosecutor’s brief references to Zwick’s failure to give a statement after he knew he
was suspected of stealing Quan’s motorcycle. Under the circumstances presented here,



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the trial court’s decision to deny the mistrial motion and admonish the jury to cure the
error was not beyond the bounds of reason, nor was it arbitrary or capricious.


5. Ineffective Assistance of Counsel
               Both appellate counsel and Zwick suggest the incompetency of counsel as a
potential reason to reverse the judgment. “[A] defendant seeking relief on the basis of
ineffective assistance must show both that trial counsel failed to act in a manner to be
expected of reasonably competent attorneys acting as diligent advocates, and that it is
reasonably probable a more favorable determination would have resulted in the absence
of counsel’s failings. [Citations.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
               While Zwick’s counsel makes a generalized assertion of incompetence,
Zwick cites 18 specific instances of incompetent representation in the reporter’s
transcript.2 We have categorized each of Zwick’s claims and provide citation to
pertinent authority for our conclusion Zwick fails to demonstrate error or prejudice.
               (a) Item number 2 claims prior counsel failed to provide trial counsel with
Zwick’s medical records, which would have proved the seriousness of Zwick’s medical
procedure and explained why he did not return the police investigator’s call as Zwick
promised to do. We reject Zwick’s putative ineffective assistance of counsel claim on
this ground.




       2  We have numbered Zwick’s claims 1 through 18 as follows: (1) page 44 of the
reporter’s transcript, volume 1 of 4, line 16; (2) page 253, volume 2 of 4, line 10; (3) page
90, volume 1 of 2; (4) page 43, volume 1 of 2, line 26; (5) page 70, volume 1 of 2, line
14; (6) page 112, volume 1 of 2, line 4; (7) page 549, volume 4 of 4, line 22; (8) page
403, volume 2 of 4, line 9; (9) page 481, volume 2 of 4, line 1; (10) page 499, volume 3
of 4, line 9; (11) page 512, volume 3 of 4, line 10; (12) page 700, volume 3 of 4, line 25;
(13) page 721, volume 3 of 4, line 4; (14) page 237, volume 1 of 1, line 22; (15) page 68,
volume 1 of 2, line 19, (16) page 71, volume 1 of 2; (17) page 67, volume 1 of 2, line 2;
and, (18) page 201, line 18.

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              The California Supreme Court has held that “claims of ineffective
assistance are often more appropriately litigated in a habeas corpus proceeding” (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 267) because a defendant raising an ineffective
assistance of counsel on appeal “must establish deficient performance based upon the
four corners of the record” (People v. Cunningham (2001) 25 Cal.4th 926, 1003).
Where, as here, “‘the record on appeal fails to show why counsel acted or failed to act in
the instance asserted to be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation, the
claim must be rejected on appeal.’” (Ibid., quoting People v. Kraft (2000) 23 Cal.4th
978, 1068-1069.)
              Neither Zwick’s prior attorney, nor his trial counsel, was asked for an
explanation for either cited instance of allegedly deficient representation, and the
appellate record provides no answers to these questions. But this is not the type of
actions for which no satisfactory explanation is possible. Thus, Zwick’s claim must be
rejected.
              (b) Items number 3, 4, 14, 16, and 17 address prior counsel’s cross-
examination of witnesses or handling of evidence at the preliminary examination. Trial
counsel’s limited cross-examination at a preliminary hearing may be a tactic to defer the
real effort to the trial itself. (People v. Gibbs (1967) 255 Cal.App.2d 739, 744.) The
reason for this deference is trial counsel may have had a rational tactical reason for his
cross-examination technique at the preliminary hearing.
              With respect to the introduction of the “motorcycle transaction” video, this
particular item of evidence was relevant and not unduly prejudicial to Zwick’s case.
Consequently, we find no error in counsel’s handling of witnesses at the preliminary
hearing, or the introduction of the videotape at trial.
              (c) Items number 8, 15, and 18 address counsel’s cross-examination of
witnesses at trial. A trial counsel’s decisions regarding the cross-examination of

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witnesses falls with the range of tactical decisions, and rarely implicates ineffective
assistance of counsel. (People v. McDermott (2002) 28 Cal.4th 946, 993.) This is not
one of those rare cases where counsel’s tactical decisions caused reversible error.
              (d) Items number 1, 5, 9, 10, 11, 12, and 13 address trial counsel’s failure to
object to evidence adduced at trial. Whether to object to evidence introduced at trial is a
tactical decision, and we grant substantial deference to counsel’s decisions. (People v.
Williams (1997) 16 Cal.4th 153, 215; see also People v. Mayfield (1993) 5 Cal.4th 142,
188 [rejecting the defendant’s assertions on direct appeal of numerous errors on part of
his counsel, including failure to object to hearsay evidence].) We have reviewed each
item listed and counsel’s performance was in keeping with the standard expected of
competent criminal defense attorneys.
              (e) Item number 6 claims one of Zwick’s prior attorneys failed to maintain
proper contact with the investigating officers. This claim is more properly raised by a
petition for habeas corpus because the appellate record is inadequate for review of the
issue. (See People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
              (f) Item number 7 addresses trial counsel’s failure to object to the
prosecutor’s questioning Zwick’s mother about whether she had been present during the
trial. As Zwick notes, the trial court ruled Zwick’s mother could remain in the courtroom
and be discretely excused for certain testimony, notwithstanding her later appearance as a
defense witness.
              Assuming Zwick believes prosecutorial misconduct occurred and the issue
was properly preserved on appeal, for prosecutorial misconduct to constitute a violation
of the federal Constitution, the misconduct must so infect the trial with unfairness as to
make the resulting conviction a denial of due process. (Darden v. Wainwright (1986) 477
U.S. 168, 181.) “Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the



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use of deceptive or reprehensible methods to attempt to persuade either the court or the
jury.”’ [Citations.]” (People v. Benavides (2005) 35 Cal.4th 69, 108.)
              Zwick fails to establish either a denial of due process, or the use of
deceptive or reprehensible methods by the prosecutor. It is not reasonably probable
Zwick would have received a more favorable result in the absence of the prosecutor’s
single question to his mother about whether she had been present during the trial.
(People v. Haskett, supra, 30 Cal.3d at p. 866.)
              (g) With respect to the motion for mistrial, Zwick’s trial attorney did the
appropriate thing by objecting to the prosecutor’s references to his client’s pre-arrest
silence and moving for a mistrial. The trial court denied the motion and we have found
no basis to reverse its decision. Furthermore, the record does not support a generalized
assertion of attorney incompetence because Zwick fails to establish prejudice as a result
of counsel’s performance.


6. Trial Court’s “Unjust” Rulings
              Zwick asserts six of the trial court’s evidentiary rulings so prejudiced his
case as to require reversal of the judgment.3 We disagree.
              Under California Constitution, article 6, section 13, “ No judgment shall be
set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or
of the improper admission or rejection of evidence, or for any error as to any matter of
pleading, or for any error as to any matter of procedure, unless, after an examination of




       3  We have numbered Zwick’s contentions 1 through 6 as follows: (1) Page 165
of the reporter’s transcript, volume 1 of 4, line 13; (2) page 192 of the reporter’s
transcript, volume 1 of 4, line 19; (3) page 75 of the reporter’s transcript, volume 1 of 4;
(4) page 246 of the reporter’s transcript, volume 2 of 4, line 14; (5) page 49 of the
reporters transcript, volume 1 of 2, line 46; and (6) page 23 of the reporter’s transcript,
volume 1 of 2, line 27.

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the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.”
              In keeping with this constitutional provision, the Evidence Code precludes
setting aside a verdict or finding or reversing a judgment based thereon, because of the
erroneous admission of evidence (Evid. Code, § 353) or the erroneous exclusion of
evidence (Evid. Code, § 354) unless the error complained of has resulted in a miscarriage
of justice.
              We have reviewed each instance of alleged error and found either no error,
or insufficient evidence to demonstrate the trial court violated Zwick’s right to due
process of law and a fair trial.
              In conclusion, we have examined the record and found no arguably
meritorious issues. (People v. Wende, supra, 25 Cal.3d at p. 436.)


                                       DISPOSITION


              The judgment is affirmed.




                                                  THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.




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