Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD199691 Michael T. Smyth, Judge.
IRION, J.
A jury convicted Alexandro Martinez Hernandez and Francisco Garcia Oliveros of possessing methamphetamine for sale and transporting methamphetamine. (Health & Saf. Code, §§ 11378, 11379, subd. (a).) The jury found that Oliveros, but not Hernandez, was also guilty of offering to sell methamphetamine. (Id., § 11379, subd. (a).) The trial court sentenced Hernandez to probation, with the condition that he serve 365 days in county jail. The court sentenced Oliveros to three years in prison.
Hernandez and Oliveros appeal. Hernandez contends that his convictions must be reversed because the trial court abused its discretion in declining to "sanitize" his 1995 conviction for possession of heroin for sale before allowing it to be used as impeachment at trial. Oliveros challenges his sentence, arguing that the trial court abused its discretion in sentencing him to prison as opposed to probation and also violated his constitutional right to equal protection by sentencing him to a middle (rather than a low) term under California's determinate sentencing law. We conclude that Hernandez's claim is meritorious, and reverse his convictions. We reject Oliveros's contentions, and affirm his convictions and sentence.
FACTS
On June 13, 2006, agents of the United States Drug Enforcement Agency arrested Adrianna Lopez, and found a pound of methamphetamine in her vehicle and $11,450 in cash in her home. The agents requested Lopez's cooperation in a further investigation of the source of her drugs.
Between 4:50 p.m. and 9:07 p.m., at the agents' urging, Lopez used her cell phone to communicate 11 times with someone named "Ruli," later identified as Oliveros, asking him if he could "get [her] something," and continually checking in to see "what time" he would "bring it." Oliveros agreed to Lopez's request and during the calls, which were recorded and played for the jury, informed Lopez that his friend was "on his way from Tijuana" and that it was either "gonna go down today" or else "early tomorrow morning."
At 9:48 p.m., a pickup truck parked on the street in front of Lopez's house. The agents surrounded the truck. Oliveros was seated in the driver's seat, Hernandez was in the front passenger seat. A third codefendant, Juan Manuel Castrejon, was in the back seat. On the back seat of the truck, beside Castrejon, was a motorcycle helmet containing approximately one pound of methamphetamine with an estimated street value of $44,840.
After reading him his Miranda rights, Special Agent Michael Eschimi spoke to Oliveros in an effort to obtain Oliveros's cooperation in their investigation. Eschimi testified that Oliveros told him (in Spanish) that he needed to speak to Hernandez first. Eschimi then overheard Oliveros tell Hernandez, "this guy . . . said we can receive consideration if I talk about what happened tonight"; "Is it okay to talk?" Hernandez said "yes" and nodded his head. Oliveros then told the agent that he was planning to deliver the drugs to Lopez and had obtained them from someone named Jose Rodriguez. With respect to Hernandez's complicity, Eschimi testified that it was uncommon for someone to be present at a drug deal who was not aware of what was going on.
Hernandez was the only defendant to put on evidence at trial. He testified that he was not aware that his brother-in-law, Oliveros, was engaged in a drug deal, but had instead obtained a ride from him in order to pick up his truck, which had recently been repossessed. Hernandez and Oliveros arrived at the dealership to find it closed, shortly after 7:00 p.m. Hernandez then accompanied Oliveros to the home of a friend of Oliveros's to "hang[] out." Oliveros then drove to another location, left the car, returned after a short while and drove to Lopez's street. (Hernandez was precluded from testifying as to the reason Oliveros gave for these stops when the trial court sustained the prosecutor's hearsay objections to Hernandez's counsel's questioning as to Oliveros's "explanation[s].")
Although not challenged on appeal, the hearsay objections were not well taken to this line of questioning because the evidence was offered not for the truth of Oliveros's purported explanations (assertions that were, presumably, false), but rather to explain Hernandez's (purportedly) innocent state of mind.
With respect to the arrest, Hernandez testified that Special Agent Eschimi (who was not a native Spanish speaker) did not speak Spanish well and continually shifted between English and Spanish; "What he couldn't finish saying in Spanish, he would say in English." Hernandez stated that after Eschimi spoke to Oliveros in Spanish, Oliveros approached Hernandez (who speaks English and Spanish) expressing confusion about "exactly what [Eschimi] was proposing" in terms of cooperation; Eschimi then asked Oliveros to cooperate. Hernandez translated Eschimi's statements for Oliveros, and Oliveros responded that "was fine."
Nora Oliveros, Hernandez's wife, testified that Hernandez had sought a ride from Oliveros on the day of the arrest so that he could go to the dealership and make a payment on their repossessed vehicle. An employee of Tony Carrasco Motors testified that Hernandez had purchased a truck from them, and the truck had been repossessed on either June 12 or 13 (the day of the arrest) after Hernandez fell behind on his payments. The employee also testified that the dealership generally closed at 7:00 p.m., but sometimes stayed open as late as 8:30 p.m.
DISCUSSION
HERNANDEZ'S APPEAL
I
The Trial Court Abused Its Discretion by Refusing to Sanitize Hernandez's Prior Conviction
Hernandez contends that the trial court abused its discretion by permitting the jury to be informed that he had previously been convicted of possessing heroin for sale. Hernandez contends that in light of the entirely circumstantial case against him, the admission of a prior conviction for essentially the same offense was extremely prejudicial, and the trial court should have ordered the conviction (for purposes of impeachment) be referenced solely as "a prior felony." We analyze this contention after setting forth the applicable legal principles and procedural history.
A. Applicable Legal Principles
Impeachment of the credibility of a witness with prior felony convictions is broadly permitted in California, even when the witness is the criminal defendant, subject to two limitations. (See Cal. Const., art. I, § 28, subd. (f) ["Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment"]; People v. Castro (1985) 38 Cal.3d 301, 310 (Castro); Evid. Code, § 788.) First, only convictions that demonstrate "moral turpitude" are relevant to a defendant's credibility as a witness, and are therefore admissible at trial for impeachment purposes. This is because under the "modern justification" for the practice of impeachment with prior convictions, the relevance of a prior conviction is that the conviction demonstrates a " 'general readiness to do evil,' " i.e., "moral turpitude," that supports an inference that the witness " 'is of bad character and unworthy of credit.' " (Castro, supra, 38 Cal.3d at p. 314.) While all crimes demonstrating "moral turpitude" are, thus, potentially admissible as impeachment, "the more tenuous the court finds the connection between the moral defect shown by the conviction and the only defect directly relevant — dishonesty — the more likely it is to disallow impeachment." (Id. at p. 316.)
All further statutory references are to the Evidence Code unless otherwise specified.
Second, even when a prior crime involves moral turpitude, the trial court retains discretion under section 352 to exclude evidence of the prior offense "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Hinton (2006) 37 Cal.4th 839, 888 (Hinton); Cal. Const., art. I, § 28, subd. (d) [". . . Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Section[] 352"]; Castro, supra, 38 Cal.3d at p. 309.) " '[T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes,' " and " 'in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.' " (Hinton, at p. 887.)
B. Procedural History
Prior to trial, the court held a hearing regarding a prosecution motion seeking an in limine ruling "allowing impeachment of the defendants should they testify, with prior convictions involving moral turpitude." At the hearing, the court first considered the question of whether codefendant Castrejon could be impeached with a felony driving under the influence conviction and a prior drug possession charge. Castrejon's attorney stated that his client did not intend to testify, and the court consequently reserved ruling.
Castrejon did not testify and his convictions were not introduced at trial.
The court next considered the admissibility of Hernandez's 1995 conviction for violating Health and Safety Code section 11351, possession of a controlled substance (heroin) for sale. The court voiced concerns about the propriety of admitting the conviction, asking the prosecution "to address" the conviction's "remoteness in time" as well as the argument that it was "too similar" to the instant charge.
The prosecutor responded by emphasizing the value of prior convictions generally as impeachment, and argued that a felon should not be able to take the witness stand and say "You ought to believe me. I've done no wrong in the past," because this would give the felon a "false aura of veracity." The court noted that the conviction would certainly be admissible if Hernandez stated, "I've done no wrong in the past," but asked whether it should be admitted even if he did not attempt to mislead the jury as to his character. The prosecutor then asserted that "any crime of moral turpitude weighs directly on the testifier's credibility," but suggested that the conviction could "be cleaned up" to eliminate any potential prejudice due to the similarity of the past offense to the charged conduct.
Hernandez's counsel stated that the judge had identified the defense concerns with respect to the admission of the 1995 conviction, and echoed the prosecutor's suggestion that it be "cleaned up," stating that "normally, in my experience, [the conviction] would probably be allowed in but . . . sanitized because it's a similar situation." Counsel requested that the conviction be referred to at trial as a "felony in 1995."
The court explained that the question of sanitizing the conviction was "what I'm talking about when I talk about the undue prejudice." "[T]he undue aspect of it would be the similarity and whether it tells the jury he did it then, so he [did] it now." The court recognized that allowing the impeachment might deter the defendant from testifying, and noted as well that it had "considered th[e] similarity," but stated, on the other hand, that "far more damaging priors" had been admitted "for impeachment purpose" in other cases. The court then ruled that the undue prejudice of the similarity of the conviction did not substantially outweigh its probative value, consequently admitting the conviction without any limitation on how it could be described to the jury.
When Hernandez subsequently testified at trial, he admitted during direct examination that he suffered a 1995 conviction for "a felony related to possession of heroin, possession for sale." Hernandez further stated that he pled guilty in the 1995 case even though he was not guilty. He was then prevented by the trial court from explaining why he had pled guilty, after repeated objections to the line of questioning from the prosecution.
The prosecutor began his cross-examination by asking, "[a]fter you arrived in the United States in 1995, one of the first things you did when in the United States is commit a felony; is that right?" Later, during cross-examination, the prosecutor, over defense objection, suggested that because defendant was "short on money," a "one-pound drug deal would have helped a lot." Hernandez responded, "I don't know." The prosecutor then asked, over objection, "[w]ell, you can sell a pound of methamphetamine for about $10,000. You know that; right?" Hernandez responded that "[f]irst of all" he did not "know that drug" and did not "know the prices." The following colloquy ensued:
"Q: You only know heroin, right?
"A: No.
"Q: Well, in fact, heroin was what you were convicted of back in 1995, isn't it?
"A: That's what they say.
"Q: That's what they said. That's not what you say; right?
"A: Yes.
"Q: In fact, on that day [in 1995] there was a search warrant executed on your home?
"A: That was not my house."
"Q: You opened the door for the police officers to come into that house, didn't you?
"A: No.
"Q. And in that living room was 18 separately wrapped bindles of heroin and a few hundred dollars cash, wasn't there?
"A. They found that I don't know where."
"Q. Your testimony is you didn't know then and you don't know now this time either; isn't that right?
"A. True."
C. Analysis
Hernandez concedes that his prior conviction for possession of heroin for sale is a crime involving moral turpitude and therefore admissible as impeachment, subject to the court's discretion under section 352. (See Castro, supra, 38 Cal.3d at p. 317 [holding that possession for sale of heroin qualifies as a crime of moral turpitude].) He contends that the trial court abused its discretion under section 352 by refusing to "sanitize" the conviction because the prior offense occurred 12 years prior to trial and was for an offense that was "nearly identical" to the charges being considered by the jury.
The Attorney General asserts that because defense counsel elicited Hernandez's prior conviction, the challenge is "technically" barred by the doctrine of invited error. While we recognize that this is the rule in the federal courts, see Ohler v. United States (2000) 529 U.S. 753, we are bound by the contrary pronouncement of our Supreme Court on this precise question (see People v. Turner (1990) 50 Cal.3d 668, 704, fn. 18) — controlling authority that is notably absent from the Attorney General's brief. (See People v. Beagle (2004) 125 Cal.App.4th 415, 419 [highlighting deputy attorney generals' "obligation to cite controlling authority" on issues before the court].)
In evaluating, under section 352, the "probative value" and "risk of undue prejudice" created by evidence of a defendant's prior conviction, a trial court should consider, among other things: "(1) Whether the prior conviction reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions." (People v. Muldrow (1988) 202 Cal.App.3d 636, 644 (Muldrow), citing People v. Beagle (1972) 6 Cal.3d 441, 453 (hereafter Beagle).) While these factors were originally set forth prior to significant changes in California law regarding prior conviction impeachment, they " ' "remain relevant to any application of section 352" ' " in this context. (Muldrow, at p. 644 [noting that "[a]lthough Beagle was decided in 1972, '[t]he Beagle factors "remain relevant to any application of section 352 even after the adoption of [Proposition 8]" ' " in 1982]; People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [stating that in determining admissibility of a defendant's prior convictions as impeachment, "the trial court must consider four factors identified by our Supreme Court in . . . Beagle"].)
Applying the first factor — the degree to which the prior conviction reflected on Hernandez's honesty or veracity — it is clear that the prior drug crime has some indirect impact on these traits as a crime of moral turpitude. Nevertheless, as Hernandez's prior offense does not speak directly to traits of veracity or honesty, this factor is somewhat neutral: more compelling than if the prior offense was for violent crime, but less compelling than if the crime involved theft or fraud. (See Castro, supra, 38 Cal.3d at pp. 316, 317 & fn. 13 [recognizing that possession for sale of heroin does not involve "dishonesty but, rather, the intent to corrupt others" and emphasizing that "the more tenuous the court finds the connection between the moral defect shown by the conviction and the only defect directly relevant — dishonesty — the more likely it is to disallow impeachment"].)
Courts have recognized that, as a general matter, permitting a defendant with a prior record to testify without reference to prior convictions can lead to a " ' "false aura of veracity." ' " (Hinton, supra, 37 Cal.4th at p. 888.) This concern was largely absent in this case, however, because the defense, with the acquiescence of the prosecutor, requested at trial that the trial court admit but sanitize the conviction — permitting it to be referred to as a "felony in 1995."
The second factor, remoteness, indisputably weighs against admission. The prior conviction occurred approximately 12 years prior to trial, and Hernandez — who received probation in the previous case — was not convicted of any subsequent offenses. (See People v. Tamborrino (1989) 215 Cal.App.3d 575, 590 (Tamborrino) ["If a prior felony conviction has been followed by a legally blameless life, remoteness is important"]; People v. Burns (1987) 189 Cal.App.3d 734, 737 ["if the trial court is to exercise discretion over the admissibility of crimes involving moral turpitude, remoteness of the conviction is an obvious subject of consideration"]; cf. Fed. Rules Evid., § 609(b), 28 U.S.C. [requiring that convictions greater than 10 years old be excluded when offered as impeachment "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect"].)
The third factor also counsels against admission. Hernandez's prior offense for possession for sale of heroin was essentially identical to the charges to be determined at trial, with the only difference being the particular narcotic possessed for sale (heroin as opposed to methamphetamine). This minor distinction between the prior conviction and the instant charges was further minimized by the testimony of a prosecution witness (testifying as an expert) that "most drug dealers often deal in different kind[s] of drugs because their client base is addicted [to] or wants a different kind of drug."
While the similarity between a prior conviction and the present charge no longer mandates exclusion as it once did under California law (see Tamborrino, supra, 215 Cal.App.3d at p. 590), it nonetheless remains one of the most important considerations for the trial court, particularly with respect to a request to sanitize a prior conviction. (See People v. Sandoval (1992) 4 Cal.4th 155, 178 [recognizing trial court's discretion to sanitize conviction in light of "similarity of the prior to one of the charged crimes"]; People v. Johnson (1991) 233 Cal.App.3d 425, 459 ["we must, of course, scrutinize with care the impeachment use of prior convictions of crimes identical to a charged offense because of the heightened prejudice"].) This is because the chief danger of introducing a prior conviction as impeachment is that the jury will consider the evidence not solely as impeachment, but also as tending to show a criminal propensity, i.e., that the defendant is the type of person likely to have committed the charged crime. (People v. Barrick (1982) 33 Cal.3d 115, 125, 126 (Barrick) [emphasizing that unfair prejudice is " 'particularly likely where the prior conviction is for the same crime as that which forms the basis of the charges against defendant,' " and in such cases the jury " 'will inevitably feel pressure to conclude that if an accused committed the prior crime he likely committed the crime charged' "].) This danger is at its most palpable when the prior conviction, as here, speaks directly to a relevant, but legally prohibited, inference of criminal propensity (drug dealing) and only indirectly to the legally permitted inference as to witness credibility. (Castro, supra, 38 Cal.3d at p. 316.)
The fourth factor — the effect on the trial if the defendant does not testify out of fear of being prejudiced by the admission of a prior conviction — also favored exclusion of the evidence, as the trial court noted. Hernandez's first-hand account of the disputed events was significant for the jury in evaluating his defense that he was not a participant in the drug transaction.
Our consideration of the four Beagle factors, then, reveals strong considerations in favor of sanitizing or excluding the conviction (e.g., remoteness and similarity) and no clear factors in support of the trial court's rejection of the suggestion (by both parties) that the conviction be sanitized by omitting the nature of the offense. (See People v. Gray (2007) 158 Cal.App.4th 635, 642 [recognizing that "by 'sanitizing' [the defendant's] convictions" the trial court "reduced the potential prejudice of those convictions" by "focus[ing] the jury's attention on how those crimes might affect [the defendant's] credibility rather than on how similar those crimes were to the crime for which he was on trial"].) Indeed, apart from the trial court's comment that more prejudicial prior convictions had been admitted in other unspecified cases (a factor that does not speak at all to the case-specific inquiry required under section 352), neither the trial court in its ruling, the prosecutor at trial, nor the Attorney General on appeal have managed to identify any case-specific consideration that supports the court's refusal to sanitize the conviction. Given this unusual circumstance, where multiple significant factors weighed in favor of the defense request for sanitizing the prior conviction, and no significant factor weighed against it, we believe the trial court's refusal to sanitize the conviction constituted an abuse of discretion.
Our conclusion that the trial court's refusal to sanitize Hernandez's prior conviction constitutes error under state evidentiary law, permits us to avoid difficult constitutional questions that would arise due to the absence of any limiting instruction regarding the jurors' use of the conviction, and the resulting likelihood, on the unique facts of this case, that the prior conviction was utilized by the jurors as criminal propensity evidence. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357 [recognizing " 'prudential rule of judicial restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution exists' "]; cf. Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5 [leaving open the question of "whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime"]; People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta) [holding that "the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 [permitting evidence of criminal sexual propensities] from defendant's due process challenge"].)
D. The Error Was Prejudicial
The Attorney General contends that even if the trial court abused its discretion in refusing to sanitize the conviction, this error does not warrant reversal because Hernandez "was not prejudiced" given the strong case against him. We disagree.
Assuming that the error is only one of state law (and not of federal constitutional dimension), we are required to reverse if there is a "reasonable probability" that absent the error there would have been "a different result." (People v. Marks (2003) 31 Cal.4th 197, 229 [erroneous admission of prior conviction impeachment subject to harmless error analysis].) Here, we believe that this standard for reversal is met.
The admission of Hernandez's unsanitized prior conviction was unusually prejudicial in this case due to three factors: (i) the similarity of the prior offense to the instant charges; (ii) the defendant was cross-examined regarding the details of his prior crime; and (iii) the trial court did not provide the jurors with any limiting instruction regarding the use of the prior conviction evidence. As a result of these factors, there is an unusually strong possibility that the jury interpreted the evidence of Hernandez's prior drug offense as supporting an inference that he was guilty of the instant offense, an inference that is prohibited by law, and particularly damaging in a case, such as this, where the prosecution relies wholly on circumstantial evidence to prove a defendant's guilt.
A " 'nearly three centuries old' " common law tradition (Falsetta, supra, 21 Cal.4th at p. 913) embodied in the Evidence Code, rejects evidence of a "defendant's prior trouble with the law" introduced to show that "he is by propensity a probable perpetrator of the crime" because such evidence tends "to so over persuade [the jury] as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." (Michelson v. United States (1948) 335 U.S. 469, 475-476 (Michelson); § 1101, subd. (a) ["evidence of specific instances" of a defendant's conduct "is inadmissible when offered to prove his or her conduct on a specified occasion"].) Courts usually attempt to dispel the potential that evidence will be used in this manner in two ways: (i) by prohibiting any inquiry into the details of the underlying crime; and (ii) instructing juries that a prior conviction admitted for impeachment purposes is to be considered solely with respect to the defendant's credibility and not as evidence of substantive guilt. Neither of these safeguards were present in the instant case. First, the trial court failed to give the jury the standard instruction, or any instruction, limiting its consideration of Hernandez's prior conviction to its evaluation of "the credibility of the witness's testimony." (CALCRIM No. 316.) Second, the prosecution elicited extensive detail regarding the prior offense during cross-examination, such as that the police found "18 separately wrapped bindles of heroin and a few hundred dollars of cash" in a house alleged to be owned by Hernandez, that served only to reinforce a criminal propensity inference. (See People v. Schader (1969) 71 Cal.2d 761, 773 (Schader) ["impeachment evidence of prior felony convictions must be limited to identification of the conviction, and 'the courts will be zealous to insure that the prosecuting attorney is not permitted to delve into the details and circumstances of the prior crime' "]; People v. Allen (1986) 42 Cal.3d 1222, 1270 ["Evidence of prior felony convictions offered [as impeachment] is restricted to the name or type of crime and the date and place of conviction"].) These details of the underlying crime along with the testimony that drug dealers "often" deal in different types of narcotics, and the prosecutor's final question to Hernandez on cross-examination — "Your testimony is you didn't know [in 1995] and you don't know now this time either; isn't that right?" — would inevitably have led the jurors (in the absence of any limiting instruction) to believe that Hernandez's prior conviction was not only permissible, but intended, as evidence that because he was a heroin dealer in 1995, he was likely a methamphetamine dealer in 2006. (People v. Fries (1979) 24 Cal.3d 222, 227 [" 'Despite limiting instructions, the jury is likely to consider this evidence for the improper purpose of determining whether the accused is the type of person who would engage in criminal activity' " (italics added)].)
Indeed, the absence of a limiting instruction itself raises the specter of reversible error. (Richardson v. Marsh (1987) 481 U.S. 200, 207 [noting that the Court has "held that evidence of the defendant's prior criminal convictions could be introduced . . . so long as the jury was instructed it could not be used for purposes of determining guilt"]; People v. Kaurish (1990) 52 Cal.3d 648, 678 [recognizing "an exception" to the rule that a trial court is not required to sua sponte instruct the jury on the limited purposes of prior conviction impeachment evidence "when the prior crime or misconduct . . . 'is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose' "].)
As a result of the factors identified above, we are obligated to conclude that the trial court's ruling allowing the jury to learn the nature of Hernandez's prior conviction was sufficiently prejudicial to warrant reversal. (Michelson, supra, 335 U.S. at pp. 475-476 [recognizing that criminal propensity evidence tends to "over persuade" the jurors as to the defendant's criminal propensities and thereby "deny him a fair opportunity to defend against a particular charge"]; Muldrow, supra, 202 Cal.App.3d at p. 649, fn. 6 [emphasizing that while the courts are required to "preserve the jury's right to know whether defendant is capable of dishonesty," they are also tasked with the at least equally weighty requirement of "preserv[ing] [the] defendant's right to a fair trial"].) The prior conviction evidence likely predisposed the jurors both to disbelieve Hernandez's facially plausible claim of innocence (which he maintained throughout the proceedings) and gave increased credence to the prosecution's entirely circumstantial case against him. (Ibid.; People v. Harris (1994) 22 Cal.App.4th 1575, 1580 ["There is little doubt exposing a jury to a defendant's prior criminality presents the possibility of prejudicing a defendant's case and rendering suspect the outcome of the trial"]; People v. Gray, supra, 158 Cal.App.4th at p. 641 ["whenever a jury is informed of a defendant's convictions, even for the limited purpose of impeaching his credibility, a danger exists that some jurors also will view that evidence as showing a defendant's propensity to commit crimes despite having been instructed not to do so"]; United States v. Bagley (9th Cir. 1985) 772 F.2d 482, 488 ["where, as here, the prior conviction is sufficiently similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed by a jury's fixation on the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again"].)
The Attorney General attempts to counter this argument by highlighting other evidence of Hernandez's guilt, including: that Hernandez likely overheard Oliveros's phone communications with Lopez regarding the drug deal; the testimony of Special Agent Eschimi that Oliveros "requested . . . Hernandez's permission prior to speaking with police," and that it is " 'extremely common' " for persons involved in a drug deal to bring "others along" and unlikely that they would be unaware of what was happening; and that Hernandez's testimony in his defense strained credibility. We find this argument unpersuasive.
The prosecution had to prove not merely that Hernandez was aware that Oliveros was engaged in a drug transaction, but that Hernandez specifically intended to, and did, in fact, aid or facilitate the commission of the crime. (CALCRIM No. 401.) In the evidence cited by the Attorney General, only the testimony that Oliveros asked Hernandez's permission to speak with police is particularly compelling in this respect, and the jury rejected that testimony and the prosecution's theory based on that testimony (that Hernandez was the mastermind of the operation) when it acquitted Hernandez of attempting to sell the methamphetamine and convicted only Oliveros on that count. The judge similarly found that testimony unpersuasive, stating it was "pretty thin" and sentencing Hernandez to probation (despite his prior felony) and Oliveros (who had no prior record) to three years in prison. In a later sentencing order, the judge then highlighted "Oliveros's . . . statement to the probation officer, to the effect that neither of his codefendants knew what was going on until they were all arrested."
The court specifically noted this fact in a later written order regarding sentencing, commenting that "the jury's verdict, wherein it found Oliveros, and not his codefendants, guilty of selling the controlled substance, is inconsistent with the People's theory of the case," and stating that "it seems clear that the People were erroneous in their belief that Hernandez, and not Oliveros, was primarily responsible for the criminal operation." The court added, "[b]ased on the evidence that came out at trial, it is little wonder that Hernandez declined to go along with the [prosecution's plea] deal."
Thus, while the evidence cited by the prosecution might have convinced the jury of Hernandez's guilt even absent the prior conviction evidence admitted pursuant to the prosecution's in limine motion, it is difficult to conclude with any degree of certainty that the jury's verdict was not significantly influenced by the prior conviction. (Barrick, supra, 33 Cal.3d at p. 125 [noting that " '[t]he probability of . . . misuse' " of a prior conviction " 'increases where the prosecution's case is weak' "].) Consequently, we conclude that the error was sufficiently prejudicial to warrant reversal.
The Attorney General also contends that because Hernandez's "knowledge of the narcotic contents of the drugs and his intent to sell were at issue," the prior conviction "was admissible" pursuant to section 1101, subdivision (b) even if the trial court improperly admitted it as impeachment. (See id., [evidence not prohibited as propensity evidence if "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident) . . . other than his or her disposition to commit such an act"].) The Attorney General fails, however, to explain how this contention operates to save the trial court's impeachment ruling. Section 1101, subdivision (b) requires the trial court to undertake a complex discretionary analysis that is distinct from the analysis required when considering prior conviction evidence as impeachment. (See Schader, supra, 71 Cal.2d at p. 774.) The section 1101 theory of admissibility, however, is cited for the first time on appeal, and consequently was never presented to the trial court, nor considered by that court. There is, therefore, no section 1101 ruling for this court to consider (much less affirm); instead, we would have to undertake the section 1101 inquiry ourselves for the first time on appeal (and then affirm our own ruling), a procedure that ignores the proper role of an appellate court.
OLIVEROS'S APPEAL
Oliveros challenges his sentence contending that it must be reversed on two grounds, each of which we address separately below.
II
The Trial Court Did Not Abuse Its Discretion in Declining Oliveros's Request for Probation
Oliveros contends that the trial court abused its discretion in declining to grant his request for probation. We analyze this contention after setting forth the procedural history and applicable legal principles.
A. Procedural History
In anticipation of Oliveros's sentencing, a probation officer interviewed him and reported that Oliveros conceded his guilt, but claimed he committed the offense "for financial reasons" "to support his family"; Oliveros further stated that Hernandez and Castrejon "did not know what was going on until they were all arrested." The report noted that Oliveros was illegally living in the United States and, as the sole mitigating factor, had no prior convictions. The report listed the following aggravating factors: Oliveros "occupied a position of leadership" in that he coordinated the drug deal through telephone calls and Lopez had suggested that Oliveros was "her source of supply"; the offense involved "planning"; and the crime involved a large quantity of methamphetamine. The probation officer recommended that Oliveros be sentenced to three years in prison because a prison term would "act as a deterrent" to Oliveros's "future involvement in the drug trade."
At the outset of the sentencing hearing, the trial court stated its "tentative decision . . . to follow the recommendation of the probation officer." After entertaining argument from counsel, the court confirmed its tentative ruling. The court noted that it was "clear from the evidence that this is not the first time" Oliveros had transported drugs; the crime involved a group of criminals working together to bring a large amount (one pound) of methamphetamine across an international border "to be distributed in the community" and, thus, was a "serious enough crime" even for a first offense "to justify the commitment to prison." The court considered, but ultimately rejected, Oliveros's counsel's argument that a prison sentence was unfair because Oliveros had been willing to accept the prosecution's pretrial plea offer of 365 days in county jail, but had been prevented from doing so because the plea offer was a "package deal" — i.e., the prosecutor would not allow Oliveros to plead unless Hernandez did as well, and Hernandez had maintained his innocence.
At the conclusion of the hearing, the court denied Oliveros's request for probation, sentenced him to the middle term of three years in prison on the first count for transporting methamphetamine and stayed sentence on the other two counts.
After sentencing, Oliveros's counsel submitted an e-mail request to the court for reconsideration, which the trial court considered under Penal Code section 1170, subdivision (d). In a written order further laying out its reasoning, the trial court again rejected Oliveros's request for probation.
B. Applicable Legal Principles
All defendants are eligible for probation unless a statute provides otherwise. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282; § 1203, subd. (b).) "The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion." (Ibid.) In reviewing a trial court's determination whether to grant or deny probation, "it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order . . . is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) The decision to grant or deny probation requires consideration of "all the facts and circumstances of the case" (People v. Birmingham (1990) 217 Cal.App.3d 180, 185; see Cal. Rules of Court, rule 4.414 [criteria affecting probation]); "[t]he circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence" (People v. Leung (1992) 5 Cal.App.4th 482, 506; see generally People v. Weaver (2007) 149 Cal.App.4th 1301, 1311-1313).
C. The Trial Court Did Not Abuse Its Discretion in Rejecting Oliveros's Request for Probation
Oliveros contends that the trial court abused its discretion in denying his request for probation. To support this contention, Oliveros emphasizes the following factors: (i) he was a " 'middle man' " and "not a major kingpin"; (ii) none of the participants in the offense were armed; (iii) the crime was victimless and without financial, physical or emotional injury to any person; (iv) Oliveros evidenced little sophistication or professionalism in carrying out the offense; (v) the criminal conduct was "clearly an aberration" because Oliveros had no prior record; (vi) he was cooperative with law enforcement after his arrest; (vii) he was willing to comply with conditions of probation; (viii) "[t]here was evidence that Hernandez, not [Oliveros] was the primary figure responsible"; and (ix) a prison commitment would severely impact Oliveros and his family. Finally, Oliveros reiterates that he was offered a plea deal that would have resulted in a sentence of probation plus 365 days in county jail, and Oliveros agreed to the terms of the deal but was prevented from accepting it because the offer was a package deal and Hernandez (who maintained his innocence) refused to plead guilty.
Oliveros's recitation of this one-sided litany of mitigating factors is misplaced on appeal. Each of the factors now cited by Oliveros was squarely before the trial court, which had presided over Oliveros's trial and possessed a unique insight into the suitability of a grant of probation. As an appellate court, it is not our role to reweigh the aggravating and mitigating factors. We are limited to the much narrower question of whether the trial court's determination was so outside the bounds of reason as to constitute an abuse of discretion. There is no abuse of discretion evident here.
The record of the lengthy sentencing proceeding at which the trial court invited discussion of the suitability of a grant of probation from both counsel and the probation officer, issued its ruling, and then reconsidered and confirmed its sentence in a subsequent written order demonstrates the trial court's thoughtful consideration of the aggravating and mitigating factors present in this case. The court's analysis departed from Oliveros's contentions on appeal on two key points. First, the court did not view Oliveros's actions as a "clear aberration," but rather stated that it was "clear from the evidence that this is not the first time they've worked together on this type of thing." Second, the trial court believed that Oliveros's culpability in the offense was greater than that of the codefendants because the evidence, in the form of the recorded phone conversations and the statements by Lopez, demonstrated that Oliveros, not Hernandez, coordinated the drug deal.
In his reply brief, Oliveros contends in a conclusory statement that "[t]here was no substantial evidence to support the court's speculation that the defendants had operated unlawful drug transactions previously." This ignores the testimony that when the agents arrested Lopez with a pound of methamphetamine and requested that she contact her source, she called Oliveros, who shortly thereafter delivered a pound of methamphetamine to her. This evidence, along with the recorded phone conversations of Lopez's request, strongly supports an inference (and certainly constitutes substantial evidence to support the judge's finding by a preponderance of the evidence) that this was not the first time Oliveros supplied Lopez with drugs.
The trial court found that Oliveros was "probably the main guy in this," and emphasized that the evidence was "very strong in that respect." The court acknowledged that the prosecution had argued that Hernandez was the "guy in charge" but found the evidence to support that contention "pretty thin," and noted that the prosecution's contention was belied by the jury verdict that Oliveros, not Hernandez, was guilty of offering to sell methamphetamine.
The trial court also emphasized that it did not place great weight on the fact that Oliveros was prepared to plead to a non-prison term sentence prior to trial. The court stated that in view of the evidence at trial, the prosecution's offer was not "very reasonable," "surpris[ing]" and "hard . . . to understand," and thus, it was "difficult to see how Oliveros's willingness to accept" this "generous offer" supported any argument for posttrial leniency.
In sum, given the trial court's view of Oliveros's role in the case, along with the undisputed fact that Oliveros played an active part in transporting a pound of methamphetamine across an international border "to be distributed in the community," the court reasonably could conclude that the offense was "serious enough" "to justify the commitment to prison." Consequently, there was no abuse of discretion. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 825; cf. People v. Sandoval (2007) 41 Cal.4th 825, 851 (Sandoval) [in making sentencing decisions, the trial court need not address or identify every potentially relevant consideration, but rather is required to " 'state in simple language the primary factor or factors that support [its] exercise of discretion' "].)
III
The Trial Court Did Not Err in Sentencing Oliveros to the Middle Term
Oliveros contends that even if the trial court did not abuse its discretion in declining to grant him probation, the court erred in imposing the middle (as opposed to the low) term for his offenses. Oliveros asserts two grounds for this contention, both based on our Supreme Court's partial reformation of California's determinate sentencing laws in Sandoval, supra, 41 Cal.4th 825.
In Sandoval, our Supreme Court ruled that criminal offenders who had been sentenced to an upper term sentence under California's determinate sentencing law (which previously required any deviation from the presumptive middle term to be supported by an aggravating factor), in violation of their federal constitutional right to a jury trial, would be resentenced under a sentencing framework that provided trial courts with increased discretion to choose between a lower, middle or upper term.
First, Oliveros argues that at the time of his sentencing (pre-Sandoval), an offender could receive a low term only if there was a mitigating factor that justified rejection of the presumptively appropriate middle term. After Sandoval, Oliveros contends, there is no longer a presumption in favor of the middle term, and thus, offenders can now more easily receive a low term. This disparity between pre-Sandoval sentencing and post-Sandoval sentencing, Oliveros argues, violates the constitutional requirement of equal protection under the law. (See In re Gary W. (1971) 5 Cal.3d 296, 303 [" 'The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment' "].) We disagree.
Even accepting Oliveros's premise that pre-Sandoval offenders are subject to a harsher criminal sentencing scheme than post-Sandoval offenders, the courts have recognized that the equal protection principle " 'does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' " (People v. Floyd (2003) 31 Cal.4th 179, 191.) Indeed, any time the Legislature (or a court) alters a statute to lessen a criminal punishment (or creates a sentencing framework that makes lenient punishment more likely), it must decide whether to make the change retroactive or prospective only. (Id. at p. 189.) Our Supreme Court has repeatedly held that "the . . . choice, either way, would be constitutional." (Ibid.; Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 114 ["the Legislature is not compelled to give sentencing changes retroactive effect"].) Consequently, the asserted disparity between pre-Sandoval and post-Sandoval sentencing, at most, merely reflects the fact that the sentencing laws have changed and does not violate any constitutional guarantee of equal protection.
There are a number of flaws in Oliveros's equal protection analysis. As the flaw identified in the text is dispositive, we need not discuss the others. We note as an example, however, that Sandoval in fact did not alter the law applicable to defendants such as Oliveros who were never sentenced to an upper term. To the contrary, Sandoval's reformation of California sentencing law applies only "in cases in which Cunningham requires a reversal of an upper term sentence." (Sandoval, supra, 41 Cal.4th at p. 846 ["conclud[ing] that it is appropriate for resentencing in such cases to proceed under the procedure proposed by the Attorney General and adopted independently by the Legislature" (italics added)].)
Second, Oliveros contends that because the trial court at sentencing was unaware of Sandoval's changes to sentencing law (as Sandoval had not yet been decided), the trial court "did not understand [its] discretion to impose a low term without additional findings." (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 ["Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court"].) We reject this argument, which borders on frivolous, as the record at sentencing does not suggest, in any way, that the trial court was unaware of the proper scope of its discretion under the applicable sentencing law.
Finally, to the extent Oliveros is contending that the trial court abused its discretion in imposing the middle term, we also reject that contention. As noted in the preceding section, the trial court identified and discussed the pertinent sentencing considerations, and identified aggravating factors that were sufficient to support the imposition of the middle term. Consequently, there was no abuse of discretion. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 [finding no abuse of discretion in trial court's imposition of middle term on offender for trafficking methamphetamine despite lack of prior record and acknowledgment of responsibility].)
DISPOSITION
The judgment is affirmed with respect to Oliveros's convictions and sentence. The judgment is reversed as to Hernandez's convictions.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.
It would also be pure speculation to suggest that the error was harmless on the ground that the prosecutor might alternatively have sought admission under section 1101, and the trial court then admitted the evidence under that section. Indeed, if the prosecutor had thought the evidence admissible under section 1101, he presumably would have cited that basis for admission to the trial court. A favorable ruling under section 1101 would have permitted the prosecution to introduce the evidence regardless of whether Hernandez testified, and for substantive, rather than mere impeachment purposes. The suggestion that the prosecutor viewed the evidence as admissible under section 1101 is further belied by his concession that the evidence could be "cleaned up" to avoid reference to the nature of the offense — a concession that is at cross-purposes with admission under section 1101, subdivision (b).