Filed 3/7/24 P. v. Rivas CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A167503
v.
ADAN CONTRERAS RIVAS, (Contra Costa County
Defendant and Appellant. Super. Ct. No. 01-198386-5)
A jury convicted Adan Contreras Rivas of several felonies, including
theft by false pretenses. On appeal, Rivas argues 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. We disagree and affirm.
I. BACKGROUND
A. Factual and Procedural 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 (Pen. Code, § 484);
four counts of contracting without a license (Bus. & Prof. Code, § 7028,
subd. (a)); and failure to obtain workers’ compensation insurance coverage
(Lab. Code, § 3700.5). The prosecution also alleged several enhancements,
including a prior theft-related term of imprisonment (Pen. Code, § 666) and
prior convictions for contracting without a license (Bus. & Prof. Code, § 7028,
subd. (d)).
Trial evidence established that Rivas approached several homeowners
and offered to perform various arbor services. On some occasions, Rivas
provided a business card that stated he was licensed, bonded, and insured.
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.
After two of the homeowners filed consumer complaints with the
Contractors State License Board, 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.
B. Relevant Trial Testimony
Before the trial, defense counsel moved to exclude Rivas’s prior
convictions and to bifurcate the prior convictions and special allegations.1
The trial court granted the motion.
1 The motion did not specifically mention arrests but sought to exclude
prior convictions and “ ‘evidence . . . relevant solely to demonstrate criminal
disposition.’ ”
2
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.
After the witness’s testimony was complete, defense counsel moved for
a mistrial on the grounds that mention of a previous arrest violated the trial
court’s in limine order and would “undoubtedly” foster a sense that Rivas had
“a criminal nature.” In response, the prosecutor argued it was unclear if the
witness was referring to an arrest made in this case or another case, and
there were no details that would lead a jury to believe Rivas was arrested for
a prior offense.
The trial court denied the mistrial motion, noting it was uncertain
whether the jury heard the word “arrest” because the prosecutor interrupted
just as the witness made the statement and defense counsel simultaneously
objected. Further, even if the jury heard the word “arrest,” the court
observed there was no reference to the timing of the arrest and, thus, “[f]or
all the jury knows, it was an arrest on this offense.” The court also indicated
that it had stricken the testimony and instructed the jury not to consider it.
Lastly, the court noted it had previously instructed the jury that the fact
Rivas had been arrested, charged with a crime, or brought to trial was not
3
evidence of guilt, an instruction it would repeat in the final jury instructions.
Thus, the court concluded no material prejudice had occurred.
II. 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.2 We disagree.
“The Fourteenth Amendment to the federal Constitution prohibits
states from denying any person due process of law. This guarantee of due
process affords criminal defendants the right to a fair trial, ‘impos[ing] on
States certain duties consistent with their sovereign obligation to ensure
“that ‘justice shall be done.’ ” ’ ” (Association for Los Angeles Deputy Sheriffs
v. Superior Court (2019) 8 Cal.5th 28, 39.) To prove a deprivation of federal
due process rights, an appellant must “satisfy a high constitutional standard”
(People v. Albarran (2007) 149 Cal.App.4th 214, 229 (Albarran)) to
demonstrate that the claimed error rendered the trial “fundamentally unfair”
(Partida, supra, 37 Cal.4th at p. 439). 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.” ’ ”
(Albarran, at p. 229.)
In the case of a deprivation of federal due process, “reversal is required
unless the state can prove beyond a reasonable doubt that the error did not
2 Rivas does not challenge the trial court’s denial of his motion for a
mistrial. As such, we will not discuss it. Additionally, Rivas contends—and
the Attorney General assumes—that Rivas did not forfeit his due process
argument on appeal. We agree. (See People v. Partida (2005) 37 Cal.4th 428,
436–437 (Partida) [narrow due process argument may be asserted on appeal
if it is predicated on an issue that was raised at trial].)
4
contribute to the verdict.” (Albarran, supra, 149 Cal.App.4th at p. 229;
Chapman v. California (1967) 386 U.S. 18, 24.) Absent fundamental
unfairness, however, state law error in admitting evidence is reversible only
when it is “reasonably probable the verdict would have been more favorable
to the defendant absent the error.”3 (Partida, supra, 37 Cal.4th at p. 439;
People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, no error occurred that rendered Rivas’s trial fundamentally
unfair. Notably, the testimony that Rivas had been “previously arrested” was
never admitted into evidence. Instead, 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.” ’ ” (Albarran,
supra, 149 Cal.App.4th at p. 229.) For example, as the trial court pointed
out—and as Rivas himself acknowledges in his opening brief—the reference
to a previous arrest was ambiguous regarding whether the witness was
referring to an arrest for a prior offense or an arrest on the present offenses.
Thus, the jury could have permissibly inferred that the witness was referring
to an arrest on the charged offenses and any argument of fundamental
unfairness would fail on that ground alone. (Ibid.)
No such inference was required, however, because the witness’s
statement was stricken. And, after striking the statement, the trial court
3 Because we find no fundamental unfairness, we also address the
Watson standard, even though Rivas only makes cursory reference to it in his
briefs.
5
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,” and “[i]t is only in the
exceptional case that ‘the improper subject matter is of such a character that
its effect . . . cannot be removed by the court’s admonitions.’ ” (People v. Allen
(1978) 77 Cal.App.3d 924, 934–935 (Allen), italics added.) The finding of an
exceptional circumstance depends on the facts of each case, but courts have
held that “[a]n improper reference to a prior conviction . . . is nonprejudicial
‘in the light of a record which points convincingly to guilt.’ ” (People v. Rolon
(1967) 66 Cal.2d 690, 693.)
The record here contained ample evidence of Rivas’s guilt. The
prosecution presented testimony by multiple homeowners who outlined in
detail how Rivas—in very similar fashion for each—persuaded them to hire
him for various projects, collected payment, and sent workers to perform
discrete tasks before completely abandoning the work. This testimony was
bolstered by documentary evidence of checks the homeowners had written,
and quotes and invoices Rivas had provided for the proposed projects. The
prosecution also proffered evidence by an investigator who testified Rivas did
not have a contractor’s license and did not carry workers’ compensation
insurance when he took on the projects.
Rivas does not direct us to any conflicting evidence. As such, his case is
clearly distinguishable from the ones discussed in his opening brief—People
v. Figuieredo (1955) 130 Cal.App.2d 498, People v. Ozuna (1963)
213 Cal.App.2d 338, and Allen, supra, 77 Cal.App.3d 924—where some
mention was made of the defendant’s prior criminal history but the case for
defendant’s guilt was also much closer. (See Figuieredo, at p. 504; Ozuna, at
6
p. 341; Allen, at p. 935.) Here, in contrast, the evidence of Rivas’s guilt was
overwhelming; thus, the fleeting reference to a previous arrest was
nonprejudicial and did not result in a due process violation. (People v. Bolden
(2002) 29 Cal.4th 515, 555 [fleeting reference to a parole office in connection
with obtaining defendant’s address was “not significant in the context of the
entire guilt trial”].)
We therefore conclude that Rivas was not deprived of his constitutional
right to a fair trial. Further, 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.
III. DISPOSITION
The judgment is affirmed.
7
CASTRO, J.*
WE CONCUR:
HUMES, P. J.
LANGHORNE WILSON, J.
A167503
People v. Rivas
* Judge of the Alameda County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
8