THE PEOPLE, Plаintiff and Respondent, v. IRVING R. URBINA, Defendant and Appellant.
D082879
(Super. Ct. No. JCF006965)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 8/19/24
Eran M. Bermudez, Judge.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Imperial County, Eran M. Bermudez, Judge. Affirmed.
Thien Huong Tran, undеr appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Anne Spitzberg, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Irving R. Urbina guilty of one count of possessing a controlled substance for sale (
Urbina contends the trial court prejudicially erred by (1) admitting evidence of Urbina‘s 2009 prior conviction for transporting, importing, selling, furnishing administering, or giving away a controlled substance (
We conclude that Urbina‘s contentions lack merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On June 5, 2023, police officers responded to a Jack-in-the-Box restaurant in Calexico after receiving a report that Urbina was hitting the walls inside the restroom. The officers concluded from Urbina‘s behavior and appearance that he was under the influence of drugs. Urbina confirmed for the officers that he had used both methamphetamine and fentanyl, and he explained that he had “an opioid issue.” Urbina stated that he was from Thousand Palms, in Riverside Cоunty, but that he was at the Jack-in-the-Box waiting for a friend, whom he was going to help move. Urbina also stated that he had just crossed over the border from Mexico.
When the officers searched Urbina, they found a pouch containing two packages inside the leg of his pants. The first package contained 1.868 grams of fentanyl. The second package contained 49.918 grams of fentanyl. The fentanyl was in the form of a bluе powder. Urbina told the officers that he had purchased the drugs in Calexico for the price of $500, but that he still owed $200 of that amount.
Urbina was charged with one count of possessing a controlled substance for sale. (
At trial, one of the officers testified that, in her opinion, Urbina intended to sell the fentanyl. She stated that if a single person used the amount of fentanyl possessed by Urbina, that person would have enough drugs for one and a half or two months of constant dosing. She also explained that if the amount of fentanyl found on Urbina was cut with another substance to make pills, the result would be up to 8000 pills, with a value of up to $5,000.
Urbina testified at trial. He stated that he did not intend to sell the fentanyl. Instead, he bought the drugs for his own consumption because it was less expensive to buy in large quantities, and because engaging in fewer purchase transаctions decreased the risk of being arrested. Urbina confirmed that the price of the drugs was $500, but that he paid $300 upfront and would pay the remaining $200 later. Urbina testified that he was unemployed, but his wife worked, and he used his “savings” to buy the drugs.
The jury convicted Urbina as charged, and Urbina separately admitted that he incurred a prior strike. After denying Urbina‘s motion to strike his prior strike, the trial court imposed a prison sentence of six yeаrs.
II.
DISCUSSION
A. Urbina‘s Contention That the Trial Court Erred by Admitting Evidence of Urbina‘s 2009 Conviction for Transporting a Controlled Substance to Impeach Urbina‘s Credibility as a Witness
We first consider Urbina‘s contention that the trial court prejudicially erred in admitting evidence of one of Urbina‘s prior felony convictions to impeach Urbina‘s credibility as a testifying witness.
Urbina had three prior felony convictions: (1) a 2009 conviction for transporting, importing, selling, furnishing administering, or giving away a controlled substance (
On appeal, Urbina contends that the trial court abused its discretion in allowing evidence of the 2009 conviction for violation of
1. Applicable Legal Standards
“Article I, section 28, subdivision (f), of the California Constitution—which was adopted on June 8, 1982, when the voters approved an initiative measure designated on the ballot as Proposition 8 [(Proposition 8)]—declares in pertinent part that ‘Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding.’ ” (People v. Clair (1992) 2 Cal.4th 629, 653–654.) Further,
However, ” ‘the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.’ ” (Clark, supra, 52 Cal.4th at p. 931, italics added; see also People v. Castro (1985) 38 Cal.3d 301, 317 (Castro) [a “prior conviction should only be admissible for impeachment if the least adjudiсated elements of the conviction necessarily involve moral turpitude.“].) Thus, ” ’ “subject to the trial court‘s discretion under [Evidence Code] section 352—[Proposition 8] authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.” ’ ” (People v. Edwards (2013) 57 Cal.4th 658, 723–724.)
“The California Supreme Court has divided crimes of moral turpitude into two groups. [Citation.] The first group includes crimes in which dishonesty is an element (i.e., fraud, perjury, еtc.). The second group includes crimes that indicate a ’ “general readiness to do evil,” ’ from which a readiness to lie can be inferred. [Citation.] Crimes in the latter group are acts of ‘baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ ” (People v. Chavez (2000) 84 Cal.App.4th 25, 28–29.) Certain felonies, such as simple possession of narcotics, do not involve moral turpitude. (Castro, supra, 38 Cal.3d at p. 317.)
Once it is established that the prior conviction involves moral turpitude, “the latitude [
“A trial court‘s discretionary ruling under
2. The Trial Court Did Not Abuse Its Discretion
Urbina expressly conceded in the triаl court that all three of his prior felony convictions were for crimes of moral turpitude. He takes the same position on appeal. We accordingly proceed on that premise for the sake of
In applying
that show readiness to do evil. (Cf. Navarez, supra, 169 Cal.App.3d at p. 949.) In this case, Urbina‘s credibility as a witness was especially relevant because Urbina‘s defense depended on the jury believing his testimony that he bought the fentanyl solely for persоnal consumption rather than to sell it. Accordingly, the trial court was within its discretion to conclude that Urbina‘s 2009 conviction had considerable probative value for impeachment within the context of this case.2
Urbina argues that the 2009 conviction lacked significant probative value to impeach his credibility because it was remote in time. Urbina‘s argument is not persuasive because case law holds that the remoteness of a prior conviction, standing alone, does not require exclusion under
Here, Urbina did not lead a subsequently blameless life after the 2009 conviction, as he incurred two additional convictions in 2011. Further, the remoteness of the 2009 conviction is less significant because Urbina was incarcerated for much of the intervening time between that conviction and the present offense. Specifically, in 2011, Urbina was sentenced to a nine year eight month prison term. (People v. Carpenter (1999) 21 Cal.4th 1016, 1056 [convictions incurred 17 years prior were not too remote in time to use for impeachment because the defendant had been incarcerated for much of the intervening period, which reduced the strength of his argument that he subsequently led a ’ “legally blameless life” ‘].) Accordingly, the trial court was well within its discretion to conclude that the remoteness of the 2009 conviction did not meaningfully reduce its probative value to impeach Urbina‘s credibility.
For similar reasons, although the jury also heard evidence of Urbina‘s two convictions from 2011, both of which also served to impeach his credibility, the trial court could reasonably conclude that the 2009 conviction had аdditional probative value because, as our Supreme Court has observed, “a series of crimes may be more probative of credibility than a single crime.” (Clark, supra, 52 Cal.4th at p. 932.)
Next, turning to the issue of whether evidence of the 2009 conviction gave rise to undue prejudice, Urbina contends that because possession of a controlled substance for the purpose of sale was charged in this case, it was prejudiciаl for the jury to learn of a similar drug-related offense from 2009.
Case law points out that evidence of an identical previous crime may create a risk of prejudice because of ” ‘the inevitable pressure on lay jurors to believe “if he did it before he probably did so this time” ’ ” and to treat the prior conviction as propensity evidence rather than to use it solely to assess the defendant‘s credibility. (Beagle, supra, 6 Cal.3d at p. 453.) Hоwever, as our Supreme Court has explained, “[A]lthough the similarity between the prior convictions and the charged offenses is a factor for the court to consider when balancing probative value against prejudice, it is not dispositive.” (Clark, supra, 52 Cal.4th at p. 932.) Thus, ” ‘the identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.’ ” (Green, supra, 34 Cal.App.4th at p. 183.) ” ‘While before passage of Proрosition 8 [in 1982], past offenses similar or identical to the offense on trial were excluded, now the rule of exclusion on this ground is no longer inflexible.’ ” (People v. Hinton (2006) 37 Cal.4th 839, 888.) Accordingly, the trial court was not required to exclude evidence of the 2009 conviction merely because it was similar to the instant offense.
In sum, given the trial court‘s broad discretion to determine whether prior convictions involving moral turpitude should be excluded under
B. The Trial Court Did Not Abuse Its Discretion by Denying Urbina‘s Motion to Strike His Prior Strike
We next consider Urbina‘s contention that the trial court erred by denying his motion to strike his prior strike arising from his 2011 conviction for first degree robbery (
Urbina argued that the prior strike should be stricken because (1) he was addicted to and under the influеnce of drugs when he committed the instant offense; (2) he had “a history of verbal and mental abuse by his father, who introduced him to drugs“;4 (CT 275)! (3) the current offense did not involve any violence or the use of a firearm, indicating that Urbina‘s crimes were not increasing in seriousness; and (4) the conviction was more than 12 years old.
The trial court denied the motion to strike Urbina‘s prior strike. As the trial court explained, “In this case the first degree robbery conviction is on the older side; however, the age of a conviction is not the only factor that the Court is looking to. I don‘t think Mr. Urbina can be deemed outside the spirit
In applying the “Three Strikes” law, a trial court may strike a prior strike “in furtherance of justice.” (
We аpply an abuse of discretion standard when reviewing the trial court‘s refusal to strike a prior strike. (Carmony, supra, 33 Cal.4th at p. 375.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss . . . or where the court considered impermissible factors in declining to dismiss,” or where ” ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[ ] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. . . . [¶]
Here, the record supports a determination that Urbina was not “outside the . . . spirit, in whole or in part” of the Three Strikes law. (People v. Williams, supra, 17 Cal.4th at p. 161.) The conviction in this case was Urbina‘s fourth felony conviction since 2009, and, as we have described above, one of those offenses was for similar conduct to the instant offense. Although Urbina did not incur any other convictions between the current offense and his 2011 robbery conviction, in the interim period he served a prison term of nine years eight months. That timeline shows that Urbina resumed his criminal conduct relativеly soon after being released back into society. “The circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack.’ ” (Carmony, supra, 33 Cal.4th at p. 378.)
Although Urbina contends that his offense in this case was “not in any way egregious,” and therefore shows that his crimes are “not increasing in seriousness,” he overlooks that his crime in this case involved the sale of fentanyl, which poses a serious harm to public safety. (Commonwealth v. Burton (Pa. Super. Ct. 2020) 234 A.3d 824, 833 [” ‘In the midst of today‘s
Further, the trial court was within its discretion to discount the value of Urbina‘s claim of childhood abuse because it was not supported by any evidence. It is the defendant‘s burden to provide the trial court with evidence to support a motion to strike a prior strike. (People v. Lee (2008) 161 Cal.App.4th 124, 129–131.)
In light of Urbina‘s criminal history, the conclusion that Urbina does nоt lie outside of the spirit of the Three Strikes law is not “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Urbina thus has not established that the trial court abused its discretion in declining to strike his prior strike.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
O‘ROURKE, J.