Opinion
D072761
08-07-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ERIC BLACKMAN, Defendant and Appellant.
Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN362542) APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed in part; reversed in part and remanded for resentencing. Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
The People charged Steven Eric Blackman with four counts of the sale of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) As to each of the four counts, the People alleged Blackman had two prior convictions for possession of methamphetamine for sale. (§§ 11378, 11370.2, subd. (b).)
Further unspecified statutory references are to the Health and Safety Code.
At trial, Blackman admitted he sold methamphetamine on four occasions to his friend, J.T., who was working with law enforcement as a paid informant. In his defense, Blackman claimed he was entrapped by J.T.'s repeated entreaties to him to obtain methamphetamine for her to sell to a friend. The jury convicted Blackman on two counts (counts 3 and 4) and acquitted him on two counts (counts 1 and 2) of selling methamphetamine.
At a bifurcated proceeding, the trial court made true findings on the two prior felony conviction allegations on counts 3 and 4. The court sentenced Blackman to three-year terms on the substantive counts, and imposed a three-year penalty enhancement under section 11370.2 for each prior, for a total term of nine years on each count, to run concurrently. The court ordered Blackman to serve five years in local custody, followed by four years of mandatory supervision. The court also found that Blackman was required to surrender his driver's license under Vehicle Code section 13202, subdivision (b).
Blackman contends the trial court erred by excluding impeachment evidence against J.T. and by admitting evidence of his 1995 conviction for possession of methamphetamine for sale. Blackman asserts the errors are cumulative and prejudicial, and violated his right to a fair trial. He also asks this court to strike the sentence enhancement imposed under amended Health and Safety Code section 11370.2 and the order to surrender his driver's license under Vehicle Code section 13202, subdivision (b).
The People argue the trial court did not abuse its discretion in excluding purported impeachment evidence against J.T. and by admitting evidence of Blackman's prior felony convictions. The People concede the sentence enhancements must be stricken because Blackman is entitled to the retroactive benefit of amended Health and Safety Code section 11370.2. They further acknowledge that the court misapplied Vehicle Code section 13202, subdivision (b) in requiring Blackman to surrender his driver's license and ask this court to allow the trial court on remand to exercise its discretionary authority under Vehicle Code section 13202, subdivision (a) to determine whether to revoke Blackman's driver's license.
We agree the amendments to Health and Safety Code section 11370.2 apply retroactively to cases not yet final on appeal, including this case, and therefore remand the matter for resentencing. We also agree the court erred in finding that Blackman was required to surrender his driver's license under Vehicle Code section 13202, subdivision (b) and remand the matter to allow the trial court to exercise its discretionary authority under Vehicle Code section 13202, subdivision (a). Otherwise we find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
J.T. worked with the San Diego County Sheriff's Department (SDCSD) as a paid informant. On February 24, February 26, March 9, and March 16, 2016, at the direction of SDCSD Detective Timothy Clark, J.T. purchased methamphetamine from Blackman. In total, J.T. paid Blackman $980 for approximately four and a half ounces of methamphetamine.
Prior to trial, the prosecution asked the court to admit evidence of Blackman's 1995 and 2011 felony convictions to show moral turpitude. The court excluded the 1995 conviction and allowed the 2011 conviction. The prosecution asked the court to exclude evidence of J.T.'s purported uncharged misconduct involving credit card fraud. The trial court deferred its ruling.
Additional factual background is set forth in Discussion, part I. --------
At trial, Detective Clark testified J.T. was working for several government agencies as a confidential informant helping law enforcement because she was struggling financially. She was paid $1,000 for four controlled drug buys from Blackman. Detective Robin Bassett said J.T. would initiate the requests for methamphetamine from Blackman. The drug buys were monitored by detectives.
J.T. testified she met Blackman in 2007 or 2008. He was attentive and helpful and they became close friends. J.T. said they never had a sexual relationship. She saw Blackman several times a week. He helped her when she had problems with her house and he picked up her children from school. J.T. and Blackman had used methamphetamine together in the past but not in the last two or three years. She knew that Blackman was an addict. J.T. said she was motivated to help the police because Blackman was dealing drugs and she wanted to make her community safer for her children.
J.T. testified when she asked Blackman to provide methamphetamine for a friend, Blackman never refused her requests. To set up the buys, J.T. texted Blackman using coded language. He usually responded, "no problem." During the buys, J.T. would walk over to Blackman's vehicle and lean inside his truck. He would motion to a backpack and she would grab it, give the money to him, and return to her vehicle.
Blackman testified he used methamphetamine on and off for approximately 20 years. He said he "got in a lot of trouble behind drugs." Blackman pleaded guilty to possession of methamphetamine for sale in 2011 and completed a drug rehabilitation program as part of his sentencing for that offense. He had quit selling methamphetamine but still used it on occasion.
Blackman said he met J.T. in 2007 through a friend who purchased drugs from her. He and J.T. used methamphetamine together. They were "best friends" and had an ongoing intimate relationship. J.T. was a single woman with four children. Her financial situation was difficult. Blackman would help her by working on her house and by picking up her children from school but he did not have any money to give to her.
Blackman testified when J.T. asked him to provide drugs to her, he refused. She asked him 10 times and he refused each time. J.T. said she needed money. She did not have any food in her refrigerator for her children. Blackman said J.T. "badgered me to do it." Blackman recently was released from probation. He was getting his life back together. He did not want to go back to selling methamphetamine. When asked why he agreed to help J.T. obtain drugs, Blackman said, "Besides being stupid, I loved her, man. . . . She needed help. I was willing to help her."
Blackman said J.T. convincingly told him she could not contact the suppliers. Blackman testified J.T. never held a gun to his head, but she kept asking him to sell her drugs and he did it. The third and fourth times J.T. asked him to obtain methamphetamine "just this one last time," Blackman "gave in" to her requests.
During Blackman's testimony, at sidebar, the prosecution asked the court to allow impeachment evidence of Blackman's 1995 conviction for selling methamphetamine, arguing the defense was claiming entrapment and the evidence was necessary to allow the jury to determine whether the defendant was induced to do something he otherwise would not have done. The defense objected on the grounds the prosecution was trying to introduce propensity evidence. The court noted that Blackman had admitted to drug offenses and allowed the prosecution to ask Blackman whether he had ever sold methamphetamine to persons other than J.T. The court excluded evidence of the 1995 conviction itself.
The prosecution asked Blackman whether he had been convicted of possession of methamphetamine for sale in 2011. Blackman said yes and added that he had been convicted of "the same thing" in 1995. He acknowledged that he still knew where to obtain methamphetamine and that he was able to obtain the drugs without first paying for them.
DISCUSSION
I
Impeachment Evidence
Blackman contends his conviction should be reversed because the trial court excluded critical defense evidence showing that J.T. had made a fraudulent credit card purchase for $13,000. He argues the exclusion of impeachment evidence violated his right to a fair trial and to confront and cross-examine the witnesses against him.
"The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), 'and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)' " (People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352." (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).) To be admissible, there must be a threshold showing of relevant evidence of moral turpitude. Even if the threshold requirement is met, the trial court has broad discretion under Evidence Code section 352 to exclude impeachment evidence in individual cases. (Clark, at p. 931.)
"When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. [Citations.] Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] As we have advised, 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' " (Clark, supra, 52 Cal.4th at pp. 931-932.)
The trial court's discretion to admit or exclude impeachment evidence "is as broad as necessary to deal with the great variety of factual situations in which the issue arises . . . ." (People v. Collins (1986) 42 Cal.3d 378, 389.) The trial court is in the best position to decide whether probative value of evidence is outweighed by confusion, misleading nature, or prejudice. (Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1348.) We review a trial court's ruling on the admissibility of evidence for abuse of discretion, and ordinarily will uphold the trial court's exercise of discretion. (Harris, supra, 37 Cal.4th at p. 337; Clark, supra, 52 Cal.4th at p. 932.) If we find error, we "must also decide the consequences of that error, including, if the defendant makes the argument, whether the error was so serious as to violate due process." (People v. Partida (2005) 37 Cal.4th 428, 437.) The issue whether the evidentiary error violated due process is a question of law for the reviewing court, which we review de novo. (Ibid.)
Here, the trial court tentatively ruled that defense counsel could ask J.T. about the fraudulent credit card charge. If she denied it, the court would allow the defense to present limited testimony showing the fraud occurred. The prosecutor objected, stating she would present evidence to show the credit card was in J.T.'s name and that Blackman may have been involved in any alleged fraud. The court asked defense counsel for an offer of proof.
Defense counsel said J.T. used an American Express card to purchase more than $13,000 in merchandise from an audio supply store. She had an authorization code. It was not clear if the card was in her name. American Express initially approved the charges but later determined they were fraudulent and charged $13,000, plus interest, back to the store. The store manager repeatedly tried to contact J.T. When she did not respond, he filed a police report with the Oceanside Police Department. The report was not investigated and no charges were filed.
The trial court excluded the credit card evidence under Evidence Code section 352, stating the probative value as to J.T.'s credibility was very low, while the prejudicial effect was high. The court said it did not see how the jury could conclude she intended to commit fraud by using her own credit card. The problem sounded more like an inability to pay the account when the bill was due.
We conclude that the trial court did not abuse its discretion in excluding evidence of the uncharged misconduct. To be admissible, there must be a threshold showing of relevant evidence of moral turpitude. (Clark, supra, 52 Cal.4th at p. 931.) The offer of proof from the defense indicated J.T. had an authorization code from American Express to purchase $13,000 in merchandise, American Express later revoked the charges to the seller's detriment, the seller filed a police report after J.T. did not respond, and the police did not investigate the matter. The prosecution said it would present evidence to show J.T. had used her own credit card. The trial court could reasonably conclude the police viewed the complaint as a civil matter, and the admission of such contested evidence would involve undue time, confusion, or prejudice, outweighing its probative value. (Id. at pp. 931-932.)
In addition, even were we to assume evidentiary error, any error would be harmless whether assessed under the federal constitutional or state standard of review. (People v. Doolin (2009) 45 Cal.4th 390, 439.) Here, the jury acquitted Blackman of two counts of selling methamphetamine. From this we conclude the jury believed Blackman's testimony that J.T. initially badgered him into providing methamphetamine to her and disbelieved J.T.'s testimony that Blackman never refused her requests. Blackman admitted he "gave in" the third and fourth times J.T. asked him to obtain drugs for her. Thus, Blackman's own testimony corroborated a portion of J.T.'s testimony and allowed the jury to conclude beyond a reasonable doubt he was not entrapped into selling methamphetamine to J.T. on March 9, and 16, 2016 (counts 3 and 4). In view of Blackman's admission, the exclusion of impeachment evidence was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [error presumed prejudicial unless state can show the error was harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [there must be a reasonable probability that a more favorable outcome would have resulted absent the error].)
II
Prior Convictions
Blackman contends the trial court erred when it allowed the prosecutor to present evidence of his two prior convictions for possession of methamphetamine for sale to rebut the entrapment defense. He argues the admission of his prior convictions requires reversal because a defendant's predisposition to commit an offense is not relevant to rebut an entrapment defense. (People v. Barraza (1979) 23 Cal.3d 675, 686.)
The People claim the trial court did not abuse its discretion by allowing evidence of Blackman's prior convictions because his credibility was at issue and he opened the door by suggesting he had only one prior conviction for possession of methamphetamine for sale. The People assert any possible error was harmless because Blackman offered the evidence relating to his prior convictions without prompting from the prosecutor, the prosecutor did not argue Blackman had a predisposition to sell drugs, and the trial court properly instructed the jury not to consider whether the defendant had a predisposition to commit the crime.
Relevant Law and Standard of Review
Subject to limitations imposed by Evidence Code section 352, a witness in a criminal trial may be impeached with "any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty." (People v. Castro (1985) 38 Cal.3d 301, 306.) Drug offenses involving sales are crimes of moral turpitude. (People v. Vera (1999) 69 Cal.App.4th 1100, 1103.) Evidence Code section 352 permits the trial court to exclude otherwise admissible evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, or confusing the issues, or misleading the jury.
We review the trial court's evidentiary rulings for abuse of discretion. (People v. Clark (2016) 63 Cal.4th 522, 572, 597.)
Additional Factual Information
The record shows that the trial court allowed the prosecution to present evidence of Blackman's 2011 felony conviction for sale of methamphetamine to show moral turpitude but excluded his 1995 felony conviction. During Blackman's direct examination, the defense elicited testimony of his 2011 felony drug sale conviction.
At the beginning of Blackman's cross-examination, the prosecution asked the court to allow evidence of the 1995 felony conviction to rebut the entrapment defense, particularly, that Blackman was induced to commit a crime he otherwise would not have committed. The defense objected to the admission of the 1995 felony conviction as propensity evidence. The trial court excluded evidence of the 1995 conviction but permitted the prosecution to ask Blackman whether he had ever sold methamphetamine to persons other than J.T. Defense counsel said she would prefer if the court allowed the prosecution to ask Blackman whether he was convicted of selling methamphetamine in 1995, rather than permit any broad questioning into the facts underlying that case. The court said its ruling was "purposely opaque." Defense counsel responded, "I will submit that [the prosecutor] can ask him about the 1995 [notwithstanding] my objection."
During cross-examination, Blackman admitted he sold methamphetamine to J.T. on February 24, and 26, and March 9, and 16, 2016. He admitted it was not the first time he had sold drugs and in the past, he had sold methamphetamine to people other than J.T. The prosecutor asked, "You were convicted of possession of meth for sale in 2011?" Blackman answered, "And way—yeah, then in I think back in '90—in the '90's I had a conviction for the same thing."
The prosecutor clarified Blackman was referring to his 1995 felony drug sale conviction. Blackman said, "I've been in a lot—I've been in trouble. That's how I know. That's why I know the dangers of it. So I know that I didn't want to do it." Blackman said he quit selling methamphetamine after he was convicted in 2011.
The trial court instructed the jury the defendant has the burden of proving the defense of entrapment by a preponderance of the evidence. A person is entrapped if a law enforcement officer or her agent engaged in conduct that would cause a normally law-abiding person to commit the crime. Some examples of entrapment may include badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy. When deciding whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation. The trial court told the jury not to consider the defendant's particular intention or character, or whether the defendant had a predisposition to commit the crime.
In closing argument, the prosecution argued Blackman was not a law-abiding person, characterizing him as "somebody who is involved in criminal activity, somebody who knows how to get the meth. That's what the [d]efendant is. He knows how to get the meth." The prosecutor argued a law-abiding person with a close friend who needed money would not be persuaded to sell drugs, and therefore Blackman was not entrapped.
Analysis
We are not persuaded by Blackman's argument. The record belies his factual premise that the trial court allowed evidence of his two prior convictions for possession of methamphetamine for sale to rebut the entrapment defense. The record clearly shows that the trial court allowed the prosecutor to present evidence of the 2011 conviction to show moral turpitude, and excluded evidence of the 1995 conviction in view of the length of time since that offense. The trial court acted within its discretion when it allowed evidence of a relatively recent prior conviction to show moral turpitude, which was relevant to Blackman's credibility. (People v. Castro (1985) 38 Cal.3d 301, 306, 317.)
Contrary to Blackman's assertion the trial court allowed evidence of his 1995 conviction, the record shows that the court denied the prosecutor's requests to allow that conviction, in a pretrial request, as we have noted, and immediately prior to cross-examination. Instead, the trial court allowed the prosecution to ask only if Blackman had sold methamphetamine to persons other than J.T. Defense counsel then withdrew her objection to the admission of the 1995 conviction, stating it was her preference to allow evidence of the conviction itself rather than open the door to the facts underlying that conviction. On cross-examination, Blackman volunteered that he had been convicted of possession of methamphetamine for sale in the 1990's.
On this record, we cannot find that the trial court abused its discretion in allowing the 2011 conviction in evidence, twice denying the prosecution's requests to allow evidence of the 1995 conviction, and allowing the prosecution to ask whether Blackman had sold drugs to persons other than J.T. Further, were we to find error, which we do not, we would also conclude the error is harmless. Blackman admitted selling methamphetamine to J.T. on four occasions. He admitted he "gave in" to J.T.'s last two requests for more drugs and was not badgered or cajoled into providing them to her. Blackman testified about his 2011 conviction on direct examination and used that evidence to argue he had learned his lesson and had stopped selling drugs after that conviction, only to succumb to relentless pressure from J.T. to resume sales. He also noted he had been in a lot of trouble because of his prior involvement with drugs. Blackman's attorney submitted on the admission of the 1995 conviction. Blackman, on cross-examination, volunteered the information that he also had a 1995 conviction for "the same thing." The trial court properly instructed the jury on the entrapment defense and the use of propensity evidence. We presume the jury followed the court's instructions. (People v. Edwards (2013) 57 Cal.4th 658, 764.) In view of the evidence, we conclude that it is not reasonably probable that Blackman would have received a more favorable result had the trial court excluded the 2011 conviction and disallowed any questions pertaining to Blackman's prior methamphetamine sales. (Watson, supra, 46 Cal.2d at pp. 836-837.)
III
Prior Felony Conviction Enhancement
Blackman argues that his sentence must be reversed because his prior convictions for violations of section 11378 are no longer qualifying convictions under amended section 11370.2, subdivision (c), effective January 1, 2018. The People acknowledge that amended section 11370.2, effective January 1, 2018, retroactively applies to Blackman under In re Estrada (1965) 63 Cal.2d 740 (Estrada), and his current sentence is unauthorized as of that date.
At the time of Blackman's trial and sentencing, section 11370.2, subdivision (c) required the trial court to impose on any person convicted of a violation of section 11379 "a full, separate, and consecutive three-year term for each prior felony conviction" of enumerated drug offenses, including, as relevant here, section 11378. (§ 11370.2, subd. (c).) Because Blackman's two prior convictions fell within this statute, the court imposed two three-year sentence enhancements on each substantive count, for a total term of nine years on each count.
During the pendency of this appeal, the Legislature, effective January 1, 2018, removed a number of prior convictions from the list of prior convictions that qualify a defendant for the imposition of an enhancement under section 11370.2, subdivision (c). Violations of section 11378 are among the convictions that no longer serve to qualify a defendant for an enhancement under section 11370.2, subdivision (c). (See Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.)
In People v. Millan (2018) 20 Cal.App.5th 450, 455-456 (Millan), this court held that "the amendment to . . . section 11370.2, subdivision (c) lessens punishment for a person such as Millan whose prior convictions no longer qualify for the three-year . . . section 11370.2, subdivision (c) enhancement. Rather than being subjected to a three-year enhancement for each prior conviction, such persons are no longer subject to any enhanced punishment pursuant to the amended statute." This court applied the limited exception to the ordinary rule that statutes apply prospectively set forth by the California Supreme Court in Estrada, supra, 63 Cal.2d at page 745, and reversed the defendant's sentence. (Millan, at pp. 455-456.)
It is undisputed that the amendment to section 11370, subdivision (c) lessens punishment for a person such as Blackman whose case is not yet final on appeal and whose prior convictions no longer qualify for the three-year sentence enhancement. "[S]uch persons are no longer subject to any enhanced punishment pursuant to the amended statute." (Millan, supra, 20 Cal.App.5th at p. 456.) Accordingly, Estrada and Millan apply, and require reversal of Blackman's sentence. On remand, the trial court is directed to strike the section 11370.2, subdivision (c) enhancements and to resentence Blackman.
IV
Driver's License Revocation
Blackman was convicted of violating Health and Safety Code section 11379, subdivision (a). The trial court revoked his driver's license pursuant to Vehicle Code section 13202, subdivision (b), which mandates the revocation of "the privilege of any person to operate a motor vehicle upon conviction of a violation of Section 11350, 11351, 11352, 11353, 11357, 11359, 11360, or 11361 of the Health and Safety Code when a motor vehicle was involved in, or incidental to, the commission of such offense." Health and Safety Code section 11379 is not included in the enumerated offenses requiring revocation in Vehicle Code section 13202, subdivision (b); thus, the court erred when it proceeded under this subdivision.
The parties state the matter should be remanded to the trial court to exercise its discretionary authority under Vehicle Code section 13202, subdivision (a), to consider whether to revoke Blackman's privilege to operate a motor vehicle. (Ibid. [applies upon conviction of any offense related to controlled substances as defined in Division 10 (commencing with § 11000) of the Health & Saf. Code when the use of a motor vehicle was involved in, or incidental to, the commission of the offense].) We agree and remand the matter to the trial court.
DISPOSITION
The sentencing orders under Health and Safety Code section 11370.2 and Vehicle Code section 13202 are reversed. The matter is remanded to the trial court for resentencing consistent with this opinion. The court is directed to send a certified copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NARES, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.