PEOPLE v. SANCHEZ (1985)

OPINION

In a seven-count information filed November 18, 1982, by the District Attorney of San Bernardino County, Ruben Barba Sanchez (defendant) was charged in count VI with a violation of Health and Safety Code section 11352 (sale of heroin) and in count VII with a violation of Penal Code section 12021, subdivision (a) (possession of a firearm by an ex-felon).¹  He was also charged with an allegation of a prior felony conviction of Health and Safety Code section 11352, which would make defendant ineligible for probation under Penal Code section 1203.07.

Defendant entered a plea of guilty to count VI and later withdrew it.

Defendant's pretrial motion to dismiss the case because of destruction or loss of the tape recording of the transaction in question was denied.   During trial, the court denied a motion to dismiss for failure to preserve the tape recording made of the drug purchase.   The defendant requested a special instruction concerning the lost or destroyed tape recording which the court refused to give, finding the subject a matter which could be argued to the jury.

The prior conviction was submitted to the trial court and found to be true.   On the same date verdicts were returned finding defendant guilty as charged.

On April 26, 1984, probation was denied and defendant was sentenced to state prison for the upper term of five years on count VI, and an additional eight months consecutive term on count VII, for a total term of five years, eight months.

Timely notice of appeal was filed.

STATEMENT OF FACTS

On June 29, 1982, Ronald Roberts was working as a confidential informant for the San Bernardino County Sheriff's Office.   He was being paid hourly for working as an operative buying controlled substances as part of the sheriff's office program of narcotic enforcement.   Roberts had been a user of heroin for thirty years and was taking methadone at the time he began working with the sheriff's office.

At approximately 12 noon on June 29, 1982, Roberts met with several deputies.   He was personally searched, observed his car being searched, and was given $260 in marked currency.   Roberts, who was wearing a transmitter, drove to defendant's residence, arriving there at approximately 1 p.m.   Defendant answered the door and when Roberts asked if he had a 30-pack of heroin left, defendant responded, “ ‘Yes, I think I have one left.’ ”   Defendant left the house and returned with 30 balloons in a baggie which later was determined to contain heroin.   Roberts gave defendant $260 and received $10 change.

Following the purchase, Roberts drove to the sheriff's meeting place where he handed the heroin, money and tape recording to Deputy Robert Hernandez.   Hernandez listened to the tape, put it in a manila envelope and delivered it to Sheriff's Detective Robert Smith, the individual coordinating the narcotics investigations in San Bernardino County.   The tapes would normally be put in an evidence locker.   This time a different procedure was used and Detective Smith was unable to locate the tape recording of the June 29, 1982, transaction.

Defendant's residence was searched pursuant to a search warrant.   Among the items seized were two .25 caliber handguns and several items indicative of heroin sales.

In the defense case, Louisa Meza, who lives with defendant, testified the guns seized were hers.   Defendant, testifying on his own behalf, admitted selling the heroin to Roberts, whom he had known since 1973.   He testified that he did so only because Roberts had asked him to do so two days before June 29, 1982, and because Roberts looked sick.   Defendant further testified that he made no profit from the sale.

In rebuttal, Roberts testified that earlier in 1982, before working as an informant, he had purchased heroin from defendant.

DISCUSSION

I

Defendant first contends that the trial court erred in failing to impose sanctions due to the prosecution's failure to produce a tape recording of the narcotics transaction involved in the instant case.   Defendant claims that because the court did not either dismiss the case or give his requested jury instruction, the conviction must be reversed.   This contention is without merit.

 The United States Constitution requires the prosecution to deliver exculpatory evidence to the accused.   Even in the absence of a specific request, the prosecution has a constitutional duty to turn over such evidence that would raise a reasonable doubt about defendant's guilt.  (California v. Trombetta (1984) 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413.)   However, the Trombetta court went on to state that whenever potentially exculpatory evidence is permanently lost through prosecutorial neglect or oversight, a constitutional defect will arise only when that evidence might be expected to play a significant role in the accused's defense.  (Id., ––– U.S. ––––, at p. ––––, 104 S.Ct. 2528 at p. 2534, 81 L.Ed.2d 413, at p. 422.)   To meet this standard of constitutional materiality, Trombetta requires that the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.   (Id., at p. ––––, 104 S.Ct. at p. 2534;  81 L.Ed.2d at p. 422.)   Defendant has not met either of these conditions.

 A review of the evidence reveals that the missing tape could not have possessed any exculpatory value.   The tape recorded a sale of narcotics between a police informant, Ronald Roberts, and defendant.   Defendant admitted selling heroin to Roberts and did not testify to any conversation at the time of the sale which would amount to entrapment.   The pressure to sell the heroin, if there was any, took place two days before the sale.   Defendant's testimony destroys this contention.   There is nothing on the tape which could have aided his defense of entrapment.   Defendant failed to demonstrate the first requirement of Trombetta.

Defendant has also failed to meet the second requirement of Trombetta.   In the instant case, there was comparable evidence available to the defense.   The informant was available to testify to the circumstances of the transaction, as was Deputy Hernandez who listened to the conversation while it was being taped.   There clearly was comparable evidence available.

In People v. Hitch (1974) 12 Cal.3d 641, 645, 117 Cal.Rptr. 9, 527 P.2d 361, the court noted that intentional suppression of material evidence favorable to the defendant constitutes a violation of due process.   However, the Hitch court further indicated that the sanction of dismissal is not necessarily appropriate upon the failure of the prosecution to disclose information no longer in its possession due to loss or destruction.  (At p. 650, 117 Cal.Rptr. 9, 527 P.2d 361.)

It is clear after review of the record that the failure to locate the missing tape did not result in a due process violation that would require the sanction of dismissal.

 Just as dismissal was not an appropriate sanction in the instant case, neither was the giving of the proffered jury instruction.²  Both the Hitch and Trombetta cases recognize the authority of the trial court to impose lesser sanctions for loss of evidence requested by the defense.   However, giving the requested instruction would not have served any purpose other than to confuse the jury.   As noted, the testimony of Ronald Roberts was not uncorroborated.   The testimony of Deputy Hernandez, as well as defendant himself, was entirely supportive of Roberts' version of the transaction.   The entrapment defense offered by defendant involved contacts with the informant prior to June 29 which were not tape recorded.   The trial court allowed defense counsel to argue to the jurors that they should distrust the informant's testimony.   However, the requested instruction was not an accurate representation of the evidence at trial and was properly refused.

II

Defendant next contends that the trial court erred by failing to bifurcate the trial on the issue of the validity of his prior felony conviction.   This contention is also without merit.

The information charges defendant with one count of violation of Health and Safety Code section 11352 (sale of heroin) and one count of violation of Penal Code section 12021 (ex-felon in possession of a firearm).   Defendant was also charged with an allegation of a prior felony conviction for the sale of heroin pursuant to Penal Code section 1203.07, subdivision (a)(3).

Defendant moved for a bifurcation of the trial on the issue of guilt and the existence of the prior felony conviction and a look at the record indicates that the trial court did indeed bifurcate these issues.   The trial court relied on People v. Sweeney (1984) 150 Cal.App.3d 553, 198 Cal.Rptr. 182 ³ and People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191 (disagreed with in People v. Trujillo (1984) 154 Cal.App.3d 1077, 1090–1091, 202 Cal.Rptr. 832).

In People v. Bracamonte, supra, the court held that a single trial on both the issue of guilt and the existence of prior felony convictions was a denial of due process.   There is nothing in Proposition 8,⁴ an initiative measure passed by the voters at the primary election on June 8, 1982, to suggest that it overruled Bracamonte on the issue of a bifurcated trial to determine the validity of prior felony convictions.   Proposition 8, in relevant part, provides that “Any prior felony conviction ․ shall subsequently be used without limitation for ․ enhancement of sentence ․” and second, that “When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

The first relevant portion mentioned above involves the situation raised by defendant, that is, the prior convictions being used for enhancement of sentence.   There is nothing in the wording of this portion of Proposition 8 to suggest that the procedural method of enhancing a sentence was changed.   Bracamonte does nothing to limit the use of prior felony convictions.   It merely provides that proving such priors be done at a different time than at the guilt phase of a trial.

In the instant case, while the jury was deliberating on the issue of guilt, defendant waived his rights to a jury on the issue of the prior and submitted the matter of the validity of the prior conviction to the trial court.   The court found the prior felony conviction to be valid beyond a reasonable doubt.

The second portion of Proposition 8 referred to above presents an issue only mentioned in passing by defendant.   This section applies where the prior felony conviction “is an element of any felony offense,” not when the prior felony conviction is used for enhancement.

Defendant in the trial court requested that he be allowed to admit, out of the presence of the jury, the fact that he was an ex-felon and submit to the jury only the question of whether or not he was guilty of possession of a firearm.   The trial court denied the request citing as authority the portion of Proposition 8 referred to above.   The court concluded that this section of Proposition 8 mandated him to submit the fact of the prior conviction to the trier of fact in open court.

 One important principle of statutory construction requires that an interpretation of it not render the statute a nullity.  (People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328.)   It would appear that the voters intended passing this section of Proposition 8, to overrule the principle set forth in People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826, which held that when a prior felony conviction is an element of a charged offense, the defendant must be allowed to stipulate to the existence of the prior out of the presence of the jury.

 Based on the above discussion, it is clear that the purpose of Proposition 8 was to mandate the admissibility of the existence and nature of a prior felony conviction before the trier of fact in open court when such conviction is an element of a charged offense and therefore the trial court did not err by admitting such evidence in the instant case.  (People v. Callegri (1984) 154 Cal.App.3d 856, 866–867, 202 Cal.Rptr. 109;  People v. McGriff (1984) 158 Cal.App.3d 1151, 1156–1157, 205 Cal.Rptr. 232.)

III

Defendant next contends that the trial court erred by denying his motion for mistrial.   This contention lacks merit.

During his direct examination of the informant, the prosecutor asked the following question:  “Now, prior to June 29th when the defendant sold you this thirty-pack of heroin, had you ever bought a thirty-pack of heroin from the defendant before?”   Defense counsel's objection to the question was sustained.   When counsel moved for a mistrial, the trial court denied the motion and admonished the jury to disregard the question.   No answer had been given.

 The trial court has, of course, broad discretion in determining whether a mistrial should be granted.   Where the trial court is satisfied that no injustice has resulted or will result, the motion for mistrial is properly refused.  (People v. Spain (1984) 154 Cal.App.3d 845, 854, 201 Cal.Rptr. 555.)

The trial court properly exercised its discretion by refusing to grant the mistrial.   Not only had there been no answer to the question objected to, defendant later denied making any other sales to the informant.   It is clear that the subject matter of prior sales was made relevant by defendant's testimony and the defense of entrapment.   Once defendant denied any involvement with heroin sales since 1977, the prosecutor was free to rebut the contention.   The objected-to evidence, therefore, became admissible and no prejudice resulted from the earlier question.   The trial court properly refused to grant the mistrial.

IV

Defendant finally contends the trial court erroneously permitted him to be impeached with his prior felony conviction because it was 19 years old.   This contention must also fail.

The California Supreme Court held in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, that, subject to the trial court's discretion under Evidence Code section 352, California Constitution, article I, section 28, subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, that is, a readiness to do evil, even if the moral trait is other than dishonesty.

 Under Castro, the trial court must determine with respect to each felony conviction offered for impeachment whether it does or does not involve moral turpitude.   If it does not, the prior conviction is inadmissible under Castro.   If it does, it is admissible subject to the exercise of trial court discretion under Evidence Code section 352.

Using the analysis mandated by Castro, it must first be determined if the felony conviction involved was one involving moral turpitude.   The Castro court defines moral turpitude as a “ ‘readiness to do evil.’ ”  (People v. Castro, supra, 38 Cal.3d at 314, 211 Cal.Rptr. 719, 696 P.2d 111.)   In Castro, the court found that possession for sale of heroin did involve moral turpitude, though the trait involved was not dishonesty, but rather the intent to corrupt others.   In the instant case, the prior conviction used to impeach defendant was sale of heroin.   Clearly this felony also involved moral turpitude as defined by the Supreme Court.   Therefore, the first requirement of Castro has been met.

 It must next be determined whether or not the trial court abused its discretion by admitting the prior conviction.   The Supreme Court specifically refers to People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, as a guideline to aid judges in the exercise of their discretion when considering the admissibility of prior convictions.   The factors to be considered are:  (1) whether the prior conviction reflects on honesty or integrity;  (2) whether it is near or remote in time;  (3) whether it was suffered for the same or substantially similar conduct for which the accused is on trial;  and (4) finally, what effect admission would have on defendant's decision to testify.

The first factor to be considered as suggested by Beagle should be amended to reflect the opinion in Castro —namely, whether or not the felony conviction involved moral turpitude.   We have already decided that the felony conviction involved herein did involve this character trait.   Further the admission of the prior conviction did not deter defendant from testifying.

The remaining issues to be addressed are whether or not the prior conviction should have been excluded because it was remote and because it was substantially the same offense as that for which defendant was on trial.   Although the Castro court found that the voters, in passing California Constitution article I, section 28, did not intend to do away with the trial court's exercise of discretion when deciding on the admissibility of a prior conviction, it also found that the voters indeed wanted a change.   The Castro court concluded that this change resulted in the elimination of the restrictions placed on trial court discretion imposed by People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, and its progeny.   Antick found an abuse of discretion in the admission of prior convictions because of their remoteness.   In People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, the court found an abuse of discretion in the admission of an identical narcotic prior.   However, the cases no longer appear to be viable after the decision enunciated in Castro.   Further, the trial court, in deciding whether or not to allow defendant to be impeached with his prior felony conviction, considered the effect of admitting the prior on defendant's constitutional rights, both state and federal.   The court concluded that to allow use of the prior conviction for impeachment, based on the facts of the case, would not violate defendant's constitutional rights.

 Applying the precepts of Castro to the facts of the case herein, it is clear that the admissibility of the prior felony conviction for impeachment purposes was proper.   The trial court balanced any possible prejudice to defendant against the probative value of the evidence.   Since there has been no showing of an abuse of the trial court's discretion admitting the prior felony conviction, it is clear that the court acted properly when it allowed defendant to be impeached with his prior felony conviction.

DISPOSITION

Judgment affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Joseph Miguel Perez, whose appeal is not involved here, was charged singularly in counts I through V of the information.

2.   Defendant requested the following instruction as an alternate sanction to dismissal:  “ ‘Evidence was admitted that a tape recording of the conversation between defendant and Ronald Roberts was made by the San Bernardino Sheriff's Deputies on June 29th, 1982, and subsequently was lost by them.   This leaves the testimony of Ronald Roberts as to the substance of that conversation uncorroborated;  because of the lack of corroboration, you are instructed that Ronald Roberts' testimony on this matter should be viewed with distrust.’ ”

3.   Subsequent to the trial court's decision, the California Supreme Court granted a hearing in Sweeney.  (Crim. 23603.)   The case has now been retransferred to this court for reconsideration in light of People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 and People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.   No new opinion has yet been issued.

4.   Reference is to the California Constitution, article I, section 28—“The Victims' Bill of Rights.”

MCINTYRE–POE, Justice.** FN** Assigned by the Chairperson of the Judicial Council.

KAUFMAN, Acting P.J., and RICKLES, J., concur.