Opinion
G057763
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. RUBEN PRADO, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF2511) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed in part, reversed in part, and remanded with directions. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Ruben Prado of possessing methamphetamine for sale and the court sentenced him to four years in prison. Defendant argues: (1) there was insufficient evidence he possessed the methamphetamine for sale; (2) the court erred by allowing the prosecution to impeach him with prior felony convictions; and (3) the court improperly instructed the jury regarding expert testimony. We disagree and affirm the conviction. Defendant also argues, the Attorney General concedes, and we agree, the two one-year sentence enhancements imposed under Penal Code section 667.5 subdivision (b) (section 667.5(b)) must be stricken. So we reverse the judgment, strike the two section 667.5(b) enhancements, and remand to the trial court with directions to resentence defendant.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
During a parole search, police officers found "one big rock of methamphetamine" weighing approximately 14 grams, a digital scale, and two empty plastic bags in defendant's dresser.
At trial, a police officer testified as an expert on methamphetamine. The officer explained a heavy methamphetamine user typically ingests between .1 and .2 grams per use, and the heaviest methamphetamine users can use up to two grams per day. Many users also sell drugs and some will sell in quantities "as small as 2 or 3 grams." Most methamphetamine users buy one or two grams at a time. Someone who buys in bulk is typically a user who is also selling to support their habit.
The officer opined defendant possessed the methamphetamine for the purpose of sale. He based this opinion on the totality of the circumstances, primarily the amount of methamphetamine, the digital scale, and the plastic bags. He observed one of the plastic bags had pieces torn off, which are commonly used to package small quantities of methamphetamine for sale.
Defendant testified he possessed the methamphetamine for personal use. He used methamphetamine for over 20 years and used about two grams a day. He purchased in bulk because it was cheaper and had a digital scale because he did not want "to get ripped off." He would carry two grams with him to use outside of the house, because he lived with family who did not know he was using drugs. He admitted he was convicted of felony crimes of moral turpitude in 2002, 2005, and 2015.
DISCUSSION
1. Sufficiency of the Evidence
"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.)
"Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.)
Here, substantial evidence supports the possession for sale conviction. Defendant admitted ownership and control of 14 grams of methamphetamine, a digital scale, and packing materials. The expert opined defendant possessed the drugs for sale based on the totality of the circumstances. Taken together and properly considered under the applicable standard of review, this evidence is certainly sufficient to support the jury's determination defendant possessed the methamphetamine for sale.
Defendant argues his testimony provided a plausible basis for finding he possessed the methamphetamine for personal use. But the plausibility of his testimony rests on his credibility, a question of fact left to the jury. More importantly, our sole consideration is whether the evidence reasonably supports the jury's verdict. "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Robillard (1960) 55 Cal.2d 88, 93, overruled on another ground in People v. Morse (1964) 60 Cal.2d 631.)
2. Impeachment with Prior Convictions
Defendant argues the court abused its discretion under Evidence Code section 352 when it allowed the prosecution to impeach him with his three prior felony convictions from 2002, 2005, and 2015. We are not persuaded.
The trial court has "broad" discretion to admit or exclude a prior conviction under Evidence Code section 352. (People v. Clark (2011) 52 Cal.4th 856, 931.) When evaluating admission of a prior conviction for impeachment purposes, the court should consider the following four factors: (1) whether it reflects adversely on the defendant's honesty or veracity; (2) whether it is for the same or similar conduct as the charged offense; (3) whether admitting it will affect the defendant's willingness to testify, and (4) whether it is near or remote in time. (Ibid.) We review the court's decision to admit defendant's prior convictions for an abuse of discretion. (Id. at p. 932.)
Defendant does not dispute any of the first three factors, but instead argues the 2002 and 2005 convictions were too remote in time. However, even "a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. [Citations.]" (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 (Mendoza).) And in this case, the court specifically relied on the fact defendant had numerous prior convictions and had been committing crimes "most of the time that he's been out" since 2002.
Defendant also argues the prosecutor would have been able to sufficiently attack his credibility with only one prior conviction. But "there is no steadfast rule regarding the precise number of prior convictions which may be admitted in a particular case." (People v. Green (1995) 34 Cal.App.4th 165, 183 [allowing admission of six prior convictions]; see Mendoza, supra, 78 Cal.App.4th at p. 927 [allowing admission of 10 prior convictions].) Further, allowing only one prior conviction "would have given him a 'false aura of veracity' because it would suggest that defendant has led a generally legally blameless life." (Green, at p. 183.)
In sum, defendant has not shown the court abused its discretion by allowing the prosecution to impeach him with his three prior convictions.
Because the court did not err in allowing defendant's three prior convictions to be used for impeachment, we need not address defendant's arguments their inclusion deprived him of due process and a fair trial.
3. Expert Witness Jury Instruction
Defendant argues the court improperly instructed the jury using CALCRIM No. 332, which states in part: "You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." (Italics added.) Not so.
If expert testimony is received at trial, the court must instruct the jury on evaluating the expert's testimony. (§ 1127b.) Section 1127b states "the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. . . . The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion if it shall be found by them to be unreasonable." (Italics added.) The language of CALCRIM No. 332 closely mirrors the applicable statute on this point. Therefore, we conclude CALCRIM No. 332 properly instructs the jury on how to evaluate expert testimony.
Defendant argues section 1127b does not require the use of the word "may" and inclusion of "may" in the instruction goes against the "intent or objective" of section 1127b. However, he provides no authority to support this claim, and it is difficult to conceive of how an instruction's use of the exact language found in the statute violates the statute's intent. In any event, we will not "not rewrite the statute to conform to an assumed intention that does not appear in its language. [Citation.]" (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.) The court did not err in giving CALCRIM No. 332. 4. Section 667.5(b) Sentence Enhancements
Because the court did not err in giving CALCRIM No. 332 we need not address defendant's additional argument the claimed instruction error was prejudicial.
Defendant's four-year sentence consists of the middle term of two years, plus two one-year prior conviction sentence enhancements under section 667.5(b). Defendant argues, the Attorney General concedes, and we agree, the section 667.5(b) enhancements no longer apply as a result of the ameliorative provisions of Senate Bill No. 136. (People v. Jennings (2019) 42 Cal.App.5th 664, 682 (Jennings).) Consequently, the section 667.5(b) sentence enhancements must be stricken.
Defendant contends there is no reason to remand the case for resentencing because the court imposed the middle term, after concluding an upper term sentence would be "unjust and unwarranted." However, a remand for resentencing is required when part of a sentence is stricken on review unless the trial court originally imposed the maximum possible sentence. (People v. Buycks (2018) 5 Cal.5th 857, 893; Jennings, supra, 42 Cal.App.5th at p. 682.) Because the court did not impose the maximum sentence in this case, we will remand with directions to resentence defendant. We express no opinion on how the court should exercise its sentencing discretion on remand.
DISPOSITION
The conviction is affirmed. The judgment is reversed, section 667.5(b) enhancements are stricken, and the matter is remanded to the trial court with directions to resentence defendant.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.