Filed 1/23/14 P. v. Sherman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B247091
(Super. Ct. No. 2011043698)
Plaintiff and Respondent, (Ventura County)
v.
ELISA BERTHA SHERMAN,
Defendant and Appellant.
Elisa Bertha Sherman appeals a judgment following her conviction for
possession for sale of a controlled substance--methamphetamine (Health & Saf. Code,
§ 11378) and transportation of methamphetamine (id., § 11379, subd. (a)). We conclude,
among other things, that 1) the trial court did not err by admitting 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
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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 cross-examination, Sherman said she 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 (Health & Saf. Code, § 11359), a
2001 conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and a
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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.
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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.
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Admitting Audio Tapes and a 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. So if you
hear something different than what you're reading on the paper, 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.
(People v. Cabrera (1991) 230 Cal.App.3d 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.)
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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 and the words as they were spoken." (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. (People v. Edwards, supra, 57 Cal.4th at p. 745.) 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
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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; People v. Ditson (1962) 57
Cal.2d 415, 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." (People v. Herrera (2000) 83 Cal.App.4th
46, 65-66.) Sherman and the People are correct that the 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
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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.
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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.
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