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




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046515

                        v.                                             (Super. Ct. No. 09HF1539)

BEATRICE GUTIERREZ,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior 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 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 bankruptcy proceeding was dismissed because the debtors were not complying with
the requirements of their plan.

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              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 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.



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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.




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                                       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,


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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

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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

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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

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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

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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.




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