P. v. Zwick
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
v.
LOREN MICHAEL ZWICK,
Defendant and
Appellant.
G047104
(Super. Ct.
No. 11WF1409)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
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.
name="_ftnref1" title="">[1]
We appointed
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 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.
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 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.
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.]â€
(People v.
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.
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.â€
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.
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 evidence counsel spent an inordinate amount of time investigating,
questioning, or arguing Virag’s conduct.
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 . . . .â€
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, 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.
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.]â€
(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.
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
claim on this ground.
The California Supreme
Court has held that “claims of ineffective
because a defendant raising an ineffective
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-
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 witnesses
falls with the range of tactical decisions, and rarely implicates
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
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 use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.â€â€™ [Citations.]â€
(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.
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.
title="">[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 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.â€
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
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.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise stated.
name="_ftn2" title=""> [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.
