P. v. Sherman
Filed 1/23/14 P.
v. Sherman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ELISA BERTHA SHERMAN,
Defendant and Appellant.
2d
Crim. No. B247091
(Super.
Ct. No. 2011043698)
(
Elisa
Bertha Sherman appeals a judgment following her conviction for possession for
sale of a controlled substance‑‑methamphetamine (
§ 11378) and transportation of methamphetamine (id., § 11379, subd. (a)). We conclude, among other things, that 1) the
evidence of Sherman's prior convictions; 2) the trial court gave proper
guidance to jurors about audio recordings of conversations that were admitted
into evidence and a written transcript that contained English translations of
Spanish language conversations; and 3) the trial court should have given a sua
sponte instruction on an uncharged conspiracy, but the error was harmless. We affirm.
FACTS
On December 13, 2011, Sheriff Detective Peter Frank met with a confidential informant
(CI) to conduct an investigation of
Sherman who was "suspected of dealing methamphetamine." The CI had been arrested for selling
methamphetamine and was "working off a criminal case" by cooperating
with police.
Frank
had the CI send a text message to Sherman's telephone. The message was,
"I need two balls. My truck messed
up." The CI and Sherman had prior
transactions involving methamphetamine. Frank
testified the message meant the CI was requesting two "eight balls"
of methamphetamine, each ball would weigh 3.5 grams, and the CI could not
travel.
Seven
minutes later the CI received a text response stating, "I need cash from
last time but I have one, and I'll get you the other one afterwards. What should we do?" The CI told Frank that he owed money to Sherman from a
prior occasion when he purchased drugs from her. Sherman sent another text message asking the CI, "How much cash do you
have right now and I'll
go down there real quick." She sent
another text asking, "Where are you? At home or shop?" The CI and Sherman agreed to meet at the shop,
a "vacuum-repair" business in Simi Valley.
Frank
had the CI make a telephone call to Sherman's phone
number. Francisco Diaz answered. Sherman was speaking in the background, telling Diaz to advise the CI that
they had a car. Diaz was Sherman's
boyfriend. The CI told Diaz that he
wanted "seven" and he had "four." The call ended because the telephone's battery
"died." Frank testified "seven"
meant "two 3.5-gram eight balls" and "four" meant $400.
The CI
made a second call. Diaz answered and
told the CI that Sherman wanted to know if he had the money.
The CI responded, " Yeah . . . I've got at least four
hundred." Diaz: "Okay. Yeah, we'll be over there right now." CI: "Well,
I can't, I'm with my sister right now. But, um, I'll be at the shop in about 45
minutes." Diaz responded, "All
right, for sure." Some of the
remaining conversation was in Spanish. Jurors
received an English translation of the Spanish portions of this call.
In a
third telephone call, the CI told Diaz and Sherman that he would be at the shop
in 15 minutes. In a fourth call, Sherman told the CI
she would be at the shop in 25 minutes. These four telephone calls were played for the
jury and jurors received transcripts of these conversations. The first, third and fourth calls were
entirely in English.
Frank
testified that Sherman made the final call. At 9:00 p.m., Sherman arrived at the shop, made a telephone call to the CI, and said, "Hey.
I'm here. I'm at the shop." The CI responded, "Okay. I'll be out in a
few minutes."
Sherman was
arrested at the shop. She was searched
and officers found she possessed 3.4 grams of methamphetamine in a small black "bindle"
which was hidden in her bra. Frank
testified she possessed the amount of methamphetamine the CI ordered. Police found a scale in the car she arrived
in. Frank testified such scales "are
generally used by drug dealers when weighing out amounts to be sold." In the search of the vehicle, officers found Sherman's cell
phone. The "user name" on the
phone was "Elisa Sherman 05." It contained text messages that indicated Sherman had previously
sold illegal drugs.
In the
defense case, Sherman testified she did not sell methamphetamine to the CI. She had known the CI for a year and a half
before she was arrested. The CI sold
narcotics to her. Sherman needed "the
meth" for her "personal use." The police found a glass pipe in her
possession. She used it to smoke methamphetamine. She had a scale to weigh the drugs because the
CI "was always short" on the drugs he agreed to deliver. Sherman said, "[A] lot of people used [her] phone."
On
was convicted of possession for sale of cocaine in 2003. In 2001, she was convicted of assault with a
deadly weapon. In 1996, she was
convicted of possession for sale of marijuana.
DISCUSSION
Admission of Evidence about Prior Convictions
Sherman
contends the trial court erred by admitting evidence that she had a 1996
conviction for possession of marijuana for sale (
a 2001 conviction for assault with a deadly weapon (Pen. Code, § 245,
subd. (a)), and a 2003 conviction for possession of cocaine base for sale
(Health & Saf. Code, § 11351.5). We disagree.
The
prosecution may not introduce evidence of prior convictions to show a defendant's
propensity to commit crimes. But where
defendants elect to testify, they place their credibility in issue. (People
v. Hinton (2006) 37 Cal.4th 839, 888.)
The
trial court ruled that the three convictions would be admissible if Sherman elected to
testify. Sherman made that
election and testified. The court said
the evidence of these prior convictions could be considered for impeachment purposes.
We review the trial court's admission of
this evidence to determine whether the court abused its discretion. (People
v. Green (1995) 34 Cal.App.4th 165, 182.)
Sherman contends
the evidence of these convictions was inadmissible because it was "not
probative of her honesty or veracity."
(Boldface omitted.) Earlier cases
had strictly limited the admissibility of prior convictions for impeachment. But our Supreme Court has held, "'[Proposition
8] authorizes the use of any felony conviction which necessarily involves moral
turpitude, even if the immoral trait is one other than dishonesty.'" (People
v. Hinton, supra, 37 Cal.4th at
p. 888.) Sherman's
conviction for assault with a deadly weapon involves "moral turpitude,"
and it is consequently "admissible for impeachment." (Ibid.)
Sherman's two prior
convictions for possession of drugs for sale involved "a readiness to do
evil" and "the intent to corrupt others." (People
v. Navarez (1985) 169 Cal.App.3d 936, 949.)
They also entail "moral turpitude" and may be considered for
impeachment. (Ibid.) To exclude this
evidence, as Sherman requests, would give her a "false aura of veracity." (People
v. Hinton, supra, 37 Cal.4th at
p. 888.) It would unfairly permit
her to challenge the prosecution's witnesses, but to insulate her testimony
from credibility challenges.
Sherman contends
the three convictions were too remote in time to be admissible. The trial court considered this issue. The prosecution tried to introduce five prior
convictions. But the court ruled that Sherman's 1986 and
1989 convictions were too remote and had to be excluded.
Sherman claims the trial
court should have excluded the three convictions it admitted. The oldest of the three was a 1996 conviction
for violating Health and Safety Code section 11359. Had that been Sherman's only
conviction, her claim about excluding it would have had greater weight. But Sherman did not "lead
a blameless life" after that conviction. (People
v. Green, supra, 34 Cal.App.4th
at p. 183.) She had subsequent
convictions in 2001 and 2003. Consequently,
her crimes created a pattern that was "relevant" to her "credibility."
(Ibid.)
Sherman argues that
admitting the two prior convictions for possession of drugs for sale was error
because they were too similar to her current charged offenses. But "[p]rior convictions for the
identical offense are not automatically excluded." (People
v. Green, supra, 34 Cal.App.4th
at p. 183.) In rejecting a claim
similar to the one Sherman advances, the Green
court said, "Since the admission of multiple identical prior
convictions for impeachment is not precluded as a matter of law [citation], and
a series of crimes may be more probative than a single crime, there was no
abuse of discretion" for admitting the convictions. (Ibid.)
Sherman suggests
admitting this evidence lessens the prosecution's burden. She says it could lead jurors to convict her
because of what she did in the past, and ignore the evidence about the current
charged offenses. But the trial court
instructed jurors that evidence about other crimes could not be used to reduce
the prosecution's burden on the charged offenses. It said, "The People must still prove
every charge beyond a reasonable doubt." It told jurors they could only consider Sherman's prior
convictions "for the purposes of deciding credibility." The jurors could not consider them to
conclude she had "a propensity for selling drugs." We must presume the jury followed these
instructions. (People v. Edwards (2013) 57 Cal.4th 658, 745.) Reasonable jurors would not interpret the
court's instructions to permit them to ignore the evidence on the charged
crimes and find Sherman guilty based on her past conduct.
Sherman has not shown an abuse of discretion.
Transcript Containing Translations
Sherman notes that
the trial court admitted audio tapes of conversations involving her, Diaz and
the CI, and transcripts of those tapes were provided to the jurors. She highlights the remarks by the trial court
relating to the transcript of the first telephone call between the CI and Diaz.
That conversation was entirely in
English. The trial court said, "Transcripts
are prepared in order to assist you with what you're hearing, but they are not
evidence. It's not uncommon for there to
be mistakes on transcripts.
you need to go with what you hear because the actual evidence is going to be the audio, not the transcript."
(Italics added.)
Sherman points out that: 1) the
second conversation was in both English and Spanish, and 2) the transcript
contained English translations of the Spanish portions of that conversation. She argues there may have been bilingual
jurors who heard one thing in Spanish, and nonbilingual jurors who relied on
the written translation which was different. She claims the court's instructions were
confusing and that it should have provided a jury instruction informing jurors
to rely on the written transcript containing the translations of the Spanish
conversations.
The
People contend Sherman forfeited this claim by not raising these objections in the trial
court. We agree. (Cf. People
v. Torres (1985) 164 Cal.App.3d 266, 270 ["Defense counsel had the
opportunity to challenge the accuracy of the translations . . . or
obtain his own expert to translate the recording into the English language but
failed to do so"].) But even on the
merits, the result is the same.
Where a
tape recording containing Spanish is admitted into evidence, the jurors should
have an English language translation of the Spanish language on the tape. (
300, 304.) "Transcripts of
admissible tape recordings are only prejudicial if it is shown they are so
inaccurate that the jury might be misled into convicting an innocent man."
(People
v. Brown (1990) 225 Cal.App.3d 585, 599.)
Here
there is no showing that the jury "might be misled." The People claim the trial court made the
above-quoted general remarks relied on by Sherman only in reference to a telephone
conversation that was entirely in English. They contend it subsequently gave jurors an
additional instruction containing proper and specific guidance regarding the second
tape and transcript containing the translations. We agree.
Before
the trial court played the audio tape containing some Spanish language
conversations, the prosecution and defense entered into a stipulation. The court advised jurors that they "must
accept" the following stipulation: "The
transcription and translation of [telephone call No. 2] is an accurate representation of the events as they occurred
(Italics added.) The court said, "[B]ecause there is no
issue as to the validity of those facts, you
must accept them as true." (Italics added.) Consequently, all jurors were instructed to
rely on the translation of the Spanish words on the audio tape found in the
transcript. We presume the jurors
followed this instruction. (
Sherman has made no showing that there were any bilingual jurors or that
they disobeyed the court's instructions. Moreover, Sherman has made no showing that the
transcripts and translations were inaccurate, inadequate or misleading.
Instructing on an Uncharged Conspiracy and a
Coconspirator's Statements
Sherman
contends the trial court erred by not giving jury instructions on the elements
of an uncharged conspiracy and guidance on how to consider whether a coconspirator's
statements should be considered. She
claims the court should have instructed jurors that Diaz's statements could not
be considered unless there was evidence that he was involved in a conspiracy
with her to sell drugs. The People agree.
Here
the prosecution did not charge Sherman with conspiracy. But the audio tapes reflect that Diaz and
Sherman participated in the telephone conversations initiated to complete a
drug sale. Sherman and the People agree
that the trial court had a duty to give an instruction on how to consider
evidence of an uncharged conspiracy because of these conversations. "The court has a sua sponte duty to give [an
uncharged conspiracy] instruction when the prosecution has not charged the
crime of conspiracy but has introduced evidence of a conspiracy to prove
liability for other offenses or to
introduce hearsay statements of
coconspirators." (Bench Notes
following CALCRIM No. 416 [Evidence of Uncharged Conspiracy], italics added;
447.)
The
People claim the trial court erred because "the statements . . .
made by Diaz to the CI against [Sherman] as statements of a coconspirator" were inadmissible without
proof of several preliminary facts. "'Once
independent proof of a conspiracy has been shown, three preliminary facts must
be established: "(1) that the
declarant was participating in a conspiracy at the time of the declaration; (2)
that the declaration was in furtherance of the objective of that conspiracy;
and (3) that at the time of the declaration the party against whom the evidence
is offered was participating or would later participate in the conspiracy."'"
(People
v. Jeffery (1995) 37 Cal.App.4th 209, 215.) The court also should have told jurors "that
it was not to consider the statement of a coconspirator [Diaz] unless it found,
independent of the statement, that a conspiracy existed at the time the
statement was made." (
court omitted the required instructions.
But the
People argue the error is harmless because there is compelling evidence of
Sherman's guilt on the charged offenses. We agree.
There is no reasonable probability that had the trial court given the
required instructions the result would change. (People
v. Sully (1991) 53 Cal.3d 1195, 1231-1232.) The telephone conversations and other evidence
show that Diaz assisted Sherman in her plan to sell drugs to the CI. Sherman said that she authorized Diaz to
answer her telephone and talk to the CI, that Diaz knew the CI owed Sherman money,
and that Diaz "was very upset about" it. Diaz felt the CI "was taking too long to
pay [Sherman] back." He conveyed
Sherman's message to the CI about whether he had the money for the drug sale and
he went with her to the appointment at the shop.
Moreover,
excluding Diaz's statements would not diminish the strong case the prosecution
presented against Sherman. The text
messages unequivocally show that Sherman had agreed to sell drugs to the CI. She transported the eight ball of
methamphetamine that she agreed to deliver in her text message. It was contained in a bindle. She arrived at the agreed meeting place. She had the type of scale drug dealers use to
weigh narcotics. Her cell phone contained
evidence of her involvement in other illegal drug sales. She testified she was unfamiliar with the drug
sale business. But she was impeached by her prior convictions and her text
messages.
We have
reviewed Sherman's remaining contentions and we conclude she has not shown
reversible error.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN,
J.
PERREN,
J.
>
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
William
Paul Melcher, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney
General, for Plaintiff and Respondent.
