Witness Statement Rejected and Instruction by Court to Ignore not Prejudicial

Barry Zalma
Mar 18, 2024

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Post 4756

A jury convicted Adan Contreras Rivas of several felonies, including theft by false pretenses. On appeal, Rivas argued he was denied his right to a fair trial under the federal Constitution because a prosecution witness briefly mentioned that Rivas had been previously arrested. In The People v. Adan Contreras Rivas, A167503, California Court of Appeals, First District, First Division (March 7, 2024) the Court of Appeals dealt with the Constitutional issue raised by an fraud perpetrated.

BACKGROUND

Between 2020 and 2022, Rivas agreed to perform landscaping projects for various homeowners but failed to complete the work. The prosecution charged him with five counts of theft by false pretenses; four counts of contracting without a license; and failure to obtain workers’ compensation insurance coverage. The prosecution also alleged several enhancements, including a prior theft-related term of imprisonment and prior convictions for contracting without a license.

After being hired and completing the projects, Rivas would then offer to perform larger projects, including landscaping their yards, building a fence, and constructing patio structures. After the homeowners agreed, Rivas asked for advance payments, which the homeowners paid. For a few days afterwards, Rivas would send workers to perform discrete portions of the projects, such as demolition or digging, before completely abandoning the project. Rivas then ignored later attempts by the homeowners to contact him and failed to provide them with requested refunds.

A special investigator determined that from January 1, 2019 to July 13, 2022, Rivas did not possess a contractor’s license, and from November 29, 2020 through July 2022, he did not carry workers’ compensation insurance.

The jury convicted Rivas of all charges. The trial court then found the enhancements true and sentenced him to state prison.

Relevant Trial Testimony

Before the trial, defense counsel moved to exclude Rivas’s prior convictions and to bifurcate the prior convictions and special allegations. The trial court granted the motion.

At trial, however, one of the homeowners testified that he stopped asking Rivas for a refund when he and his wife “came to know [Rivas’s] real name” and learned that he had been “previously arrested.” At this point, both counsel interrupted and defense counsel objected. The trial court asked if defense counsel would like an order to strike, and when defense counsel indicated he would, the court struck the last portion of the witness’s answer and instructed the jury not to consider it.

The trial court, denying a motion for non-suit noted it had previously instructed the jury that the fact Rivas had been arrested, charged with a crime, or brought to trial was not evidence of guilt, an instruction it would repeat in the final jury instructions. Thus, the trial court concluded no material prejudice had occurred.

DISCUSSION

Rivas’s sole claim on appeal is that the prosecution witness’s fleeting reference to Rivas’s previous arrest was “extremely prejudicial” and denied him his right to a fair trial under the federal Constitution. The Court of Appeals noted that the Fourteenth Amendment to the federal Constitution prohibits states from denying any person due process of law. Where an appellant asserts evidence was erroneously admitted, this standard can only be met where there are no permissible inferences the jury may draw from the evidence and the evidence is of such quality as necessarily prevents a fair trial.

The Court of Appeals concluded that no error occurred that rendered Rivas’s trial fundamentally unfair. Notably, the testimony that Rivas had been “previously arrested” was never admitted into evidence. In fact the moment the witness mentioned an arrest, the prosecutor immediately interjected, defense counsel objected, and the comment was stricken from the record. Under these circumstances, as observed by the trial court, it is unclear if the jury even heard the word “arrest.” But even if the jury had heard the word “arrest” and it had not been stricken, permissible inferences could have been drawn, and the evidence was not of such quality as necessarily prevents a fair trial.

After striking the statement, the trial court immediately admonished-and later re-instructed-the jury to not consider it. It is well established-and Rivas does not dispute-that a jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith.

The Court of Appeals concluded that the evidence of Rivas’s guilt was overwhelming. The fleeting reference to a previous arrest was nonprejudicial and did not result in a due process violation.

Rivas was not deprived of his constitutional right to a fair trial.

Because the evidence of Rivas’s guilt was overwhelming it is not reasonably probable that he would have obtained a better verdict in the absence of the witness’s brief and vague mention of a previous arrest. The judgment was affirmed.

ZALMA OPINION

This is another case where I am amazed that a defendant faced with claims of different types of fraud, including insurance fraud, have the wherewithal and funds to file a spurious appeal over such a minimal fact situation in a hope that the court would ignore the evidence that established the guilt of the defendant. The Court of Appeal took Rivas’s claims seriously and disposed of them when it should have just dismissed the appeal without comment.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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