People v. Sherman CA2/6

Filed 1/23/14 P. v. Sherman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B247091 (Super. Ct. No. 2011043698) Plaintiff and Respondent, (Ventura County)

v.

ELISA BERTHA SHERMAN,

Defendant and Appellant.

Elisa Bertha Sherman appeals a judgment following her conviction for possession for sale of a controlled substance--methamphetamine (Health & Saf. Code, § 11378) and transportation of methamphetamine (id., § 11379, subd. (a)). We conclude, among other things, that 1) the trial court did not err by admitting evidence of Sherman's prior convictions; 2) the trial court gave proper guidance to jurors about audio recordings of conversations that were admitted into evidence and a written transcript that contained English translations of Spanish language conversations; and 3) the trial court should have given a sua sponte instruction on an uncharged conspiracy, but the error was harmless. We affirm. FACTS On December 13, 2011, Sheriff Detective Peter Frank met with a confidential informant (CI) to conduct an investigation of Sherman who was "suspected

of dealing methamphetamine." The CI had been arrested for selling methamphetamine and was "working off a criminal case" by cooperating with police. Frank had the CI send a text message to Sherman's telephone. The message was, "I need two balls. My truck messed up." The CI and Sherman had prior transactions involving methamphetamine. Frank testified the message meant the CI was requesting two "eight balls" of methamphetamine, each ball would weigh 3.5 grams, and the CI could not travel. Seven minutes later the CI received a text response stating, "I need cash from last time but I have one, and I'll get you the other one afterwards. What should we do?" The CI told Frank that he owed money to Sherman from a prior occasion when he purchased drugs from her. Sherman sent another text message asking the CI, "How much cash do you have right now and I'll go down there real quick." She sent another text asking, "Where are you? At home or shop?" The CI and Sherman agreed to meet at the shop, a "vacuum-repair" business in Simi Valley. Frank had the CI make a telephone call to Sherman's phone number. Francisco Diaz answered. Sherman was speaking in the background, telling Diaz to advise the CI that they had a car. Diaz was Sherman's boyfriend. The CI told Diaz that he wanted "seven" and he had "four." The call ended because the telephone's battery "died." Frank testified "seven" meant "two 3.5-gram eight balls" and "four" meant $400. The CI made a second call. Diaz answered and told the CI that Sherman wanted to know if he had the money. The CI responded, " Yeah . . . I've got at least four hundred." Diaz: "Okay. Yeah, we'll be over there right now." CI: "Well, I can't, I'm with my sister right now. But, um, I'll be at the shop in about 45 minutes." Diaz responded, "All right, for sure." Some of the remaining conversation was in Spanish. Jurors received an English translation of the Spanish portions of this call. In a third telephone call, the CI told Diaz and Sherman that he would be at the shop in 15 minutes. In a fourth call, Sherman told the CI she would be at the shop in 25 minutes. These four telephone calls were played for the jury and jurors received