Zalma on Insurance
Education • Business
Insurance Claims professional presents articles and videos on insurance, insurance Claims and insurance law for insurance Claims adjusters, insurance professionals and insurance lawyers who wish to improve their skills and knowledge. Presented by an internationally recognized expert and author.
Interested? Want to learn more about the community?
March 18, 2024
Overwhelming Evidence Establishes Guilt

Witness Statement Rejected and Instruction by Court to Ignore not Prejudicial

Barry Zalma
Mar 18, 2024

Read the full article at https://lnkd.in/gQg6ZxTk; see the full video at https://lnkd.in/gCzkD2yx and at https://lnkd.in/g72u5-Sj and https://zalma.com/blog plus more than 4750 posts.

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.

Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.

Subscribe to my substack at https://barryzalma.substack.com/publish/post/107007808

Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01

Go to X @bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg.

Go to the Insurance Claims Library – https://lnkd.in/gwEYk

Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.

Subscribe to my substack at https://lnkd.in/gcZKhG6g;

Go to X @bzalma. Rumble.com at https://lnkd.in/gV9QJYH;

Go to the Insurance Claims Library – https://lnkd.in/gwEYk

00:08:34
Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
2 hours ago
Man Bites Dog Story – Hertz Sues Alleged Fraudsters

Hertz Succesfully Refuses to Pay Alleged Fraudulent Health Care Providers

Post 5222

Read the full article at https://www.linkedin.com/pulse/man-bites-dog-story-hertz-sues-alleged-fraudsters-zalma-esq-cfe-efbgc, see the video at and at and at https://zalma.com/blog plus more than 5200 posts.

Proactive Victim of Fraud Defeats Health Care Providers

In Hertz Vehicles, LLC v. Alignment Chiropractic, P.C., et al, Index No. 157368/2024, 2025 NY Slip Op 33627(U), Motion Seq. No. 001, NYSCEF Doc. No. 46, Supreme Court, New York County (September 30, 2025) Plaintiff alleged it is not obligated to pay no-fault benefits for the medical treatment of defendants for injuries while occupants of a 2023 Hyundai, owned and self-insured by Hertz.

FACTUAL BACKGROUND

Plaintiff moved for a default judgment against defendants Alignment Chiropractic, P.C., and many other alleged health care providers.

Plaintiff also ...

00:06:28
placeholder
3 hours ago
Man Bites Dog Story – Hertz Sues Alleged Fraudsters

Hertz Succesfully Refuses to Pay Alleged Fraudulent Health Care Providers

Post 5222

Read the full article at https://www.linkedin.com/pulse/man-bites-dog-story-hertz-sues-alleged-fraudsters-zalma-esq-cfe-efbgc, see the video at and at and at https://zalma.com/blog plus more than 5200 posts.

Proactive Victim of Fraud Defeats Health Care Providers

In Hertz Vehicles, LLC v. Alignment Chiropractic, P.C., et al, Index No. 157368/2024, 2025 NY Slip Op 33627(U), Motion Seq. No. 001, NYSCEF Doc. No. 46, Supreme Court, New York County (September 30, 2025) Plaintiff alleged it is not obligated to pay no-fault benefits for the medical treatment of defendants for injuries while occupants of a 2023 Hyundai, owned and self-insured by Hertz.

FACTUAL BACKGROUND

Plaintiff moved for a default judgment against defendants Alignment Chiropractic, P.C., and many other alleged health care providers.

Plaintiff also moved...

00:06:28
placeholder
November 05, 2025
Not Nice to Shop the Federal Court to Avoid State Court

Who’s on First? State or Federal Court

Post 5222

Read the full article at https://lnkd.in/gWj97cFs, see the video at https://lnkd.in/gtS6CpUX and at https://lnkd.in/gQEAeyHc,

Conflict Between State & Federal Court Requires Abstention

See the video at https://lnkd.in/gtS6CpUX and at https://lnkd.in/gQEAeyHc,

Conflict Between State & Federal Court Requires Abstention

Hector David Campoverde was injured at a Brooklyn construction site in 2015. Campoverde was an employee of Vazquez Bro Restoration Inc., a subcontractor for C.C.C. Renovation Inc., which was itself a subcontractor for general contractor L&M Builders Group LLC. In Starr Indemnity & Liability Company v. Scottsdale Insurance Company, No. 24-CV-3309 (PKC) (TAM), United States District Court, E.D. New York (September 30, 2025) was asked to determine whether one or more of the involved insurers is obligated to indemnify Campoverde, and in what order Camporverde can receive indemnity, from one or more insurer.

Underlying Incident:

Campoverde sued the ...

00:07:43
October 31, 2025
The Zalma Philosophy of Claims Handling – Part 9

The Professional Claims Handler
Post 5219

Posted on October 31, 2025 by Barry Zalma

An Insurance claims professionals should be a person who:

Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.

How to Create Claims Professionals

To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...

post photo preview
October 20, 2025
The Zalma Philosophy of Claims Handling – Part I

The History Behind the Creation of a Claims Handling Expert

The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster

When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.

I was initially sat at a desk reading a text-book on insurance ...

post photo preview
October 20, 2025
The Zalma Philosophy of Claims Handling – Part I

The History Behind the Creation of a Claims Handling Expert

The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail

Post 5210

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.

My Training to be an Insurance Claims Adjuster

When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.

I was initially sat at a desk reading a text-book on insurance ...

post photo preview
See More
Available on mobile and TV devices
google store google store app store app store
google store google store app tv store app tv store amazon store amazon store roku store roku store
Powered by Locals