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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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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, 

 Plaintiff and Respondent, 

v. 

ELISA BERTHA SHERMAN, 

 Defendant and Appellant. 

2d Crim. No. B247091 

(Super. Ct. No. 2011043698) 

(Ventura County) 

 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 
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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 
3 

transcripts of these conversations. The first, third and fourth calls were entirely in 

English. 

 Frank testified that Sherman made the final call. At 9:00 p.m., Sherman 

arrived at the shop, made a telephone call to the CI, and said, "Hey. I'm here. I'm at the 

shop." The CI responded, "Okay. I'll be out in a few minutes." 

 Sherman was arrested at the shop. She was searched and officers found she 

possessed 3.4 grams of methamphetamine in a small black "bindle" which was hidden in 

her bra. Frank testified she possessed the amount of methamphetamine the CI ordered. 

Police found a scale in the car she arrived in. Frank testified such scales "are generally 

used by drug dealers when weighing out amounts to be sold." In the search of the 

vehicle, officers found Sherman's cell phone. The "user name" on the phone was "Elisa 

Sherman 05." It contained text messages that indicated Sherman had previously sold 

illegal drugs. 

 In the defense case, Sherman testified she did not sell methamphetamine to 

the CI. She had known the CI for a year and a half before she was arrested. The CI sold 

narcotics to her. Sherman needed "the meth" for her "personal use." The police found a 

glass pipe in her possession. She used it to smoke methamphetamine. She had a scale to 

weigh the drugs because the CI "was always short" on the drugs he agreed to deliver. 

Sherman said, "[A] lot of people used [her] phone." 

 On cross-examination, Sherman said she was convicted of possession for 

sale of cocaine in 2003. In 2001, she was convicted of assault with a deadly weapon. In 

1996, she was convicted of possession for sale of marijuana. 

DISCUSSION 

Admission of Evidence about Prior Convictions 

 Sherman contends the trial court erred by admitting evidence that she had a 

1996 conviction for possession of marijuana for sale (Health & Saf. Code, § 11359), a 

2001 conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and a 
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2003 conviction for possession of cocaine base for sale (Health & Saf. Code, § 11351.5). 

We disagree. 

 The prosecution may not introduce evidence of prior convictions to show a 

defendant's propensity to commit crimes. But where defendants elect to testify, they 

place their credibility in issue. (People v. Hinton (2006) 37 Cal.4th 839, 888.) 

 The trial court ruled that the three convictions would be admissible if 

Sherman elected to testify. Sherman made that election and testified. The court said the 

evidence of these prior convictions could be considered for impeachment purposes. We 

review the trial court's admission of this evidence to determine whether the court abused 

its discretion. (People v. Green (1995) 34 Cal.App.4th 165, 182.) 

 Sherman contends the evidence of these convictions was inadmissible 

because it was "not probative of her honesty or veracity." (Boldface omitted.) Earlier 

cases had strictly limited the admissibility of prior convictions for impeachment. But our 

Supreme Court has held, "'[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. Hinton, supra, 37 Cal.4th at p. 888.) Sherman's conviction for 

assault with a deadly weapon involves "moral turpitude," and it is consequently 

"admissible for impeachment." (Ibid.) 

 Sherman's two prior convictions for possession of drugs for sale involved 

"a readiness to do evil" and "the intent to corrupt others." (People v. Navarez (1985) 169 

Cal.App.3d 936, 949.) They also entail "moral turpitude" and may be considered for 

impeachment. (Ibid.) To exclude this evidence, as Sherman requests, would give her a 

"false aura of veracity." (People v. Hinton, supra, 37 Cal.4th at p. 888.) It would 

unfairly permit her to challenge the prosecution's witnesses, but to insulate her testimony 

from credibility challenges. 

 Sherman contends the three convictions were too remote in time to be 

admissible. The trial court considered this issue. The prosecution tried to introduce five 

prior convictions. But the court ruled that Sherman's 1986 and 1989 convictions were too 

remote and had to be excluded. 
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 Sherman claims the trial court should have excluded the three convictions it 

admitted. The oldest of the three was a 1996 conviction for violating Health and Safety 

Code section 11359. Had that been Sherman's only conviction, her claim about 

excluding it would have had greater weight. But Sherman did not "lead a blameless life" 

after that conviction. (People v. Green, supra, 34 Cal.App.4th at p. 183.) She had 

subsequent convictions in 2001 and 2003. Consequently, her crimes created a pattern 

that was "relevant" to her "credibility." (Ibid.) 

 Sherman argues that admitting the two prior convictions for possession of 

drugs for sale was error because they were too similar to her current charged offenses. 

But "[p]rior convictions for the identical offense are not automatically excluded." 

(People v. Green, supra, 34 Cal.App.4th at p. 183.) In rejecting a claim similar to the one 

Sherman advances, the Green court said, "Since the admission of multiple identical prior 

convictions for impeachment is not precluded as a matter of law [citation], and a series of 

crimes may be more probative than a single crime, there was no abuse of discretion" for 

admitting the convictions. (Ibid.) 

 Sherman suggests admitting this evidence lessens the prosecution's burden. 

She says it could lead jurors to convict her because of what she did in the past, and ignore 

the evidence about the current charged offenses. But the trial court instructed jurors that 

evidence about other crimes could not be used to reduce the prosecution's burden on the 

charged offenses. It said, "The People must still prove every charge beyond a reasonable 

doubt." It told jurors they could only consider Sherman's prior convictions "for the 

purposes of deciding credibility." The jurors could not consider them to conclude she 

had "a propensity for selling drugs." We must presume the jury followed these 

instructions. (People v. Edwards (2013) 57 Cal.4th 658, 745.) Reasonable jurors would 

not interpret the court's instructions to permit them to ignore the evidence on the charged 

crimes and find Sherman guilty based on her past conduct. Sherman has not shown an 

abuse of discretion. 
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Admitting Audio Tapes and a Transcript Containing Translations

 Sherman notes that the trial court admitted audio tapes of conversations 

involving her, Diaz and the CI, and transcripts of those tapes were provided to the jurors. 

She highlights the remarks by the trial court relating to the transcript of the first telephone 

call between the CI and Diaz. That conversation was entirely in English. The trial court 

said, "Transcripts are prepared in order to assist you with what you're hearing, but they 

are not evidence. It's not uncommon for there to be mistakes on transcripts. So if you 

hear something different than what you're reading on the paper, you need to go with what 

you hear because the actual evidence is going to be the audio, not the transcript." 

(Italics added.) 

 Sherman points out that: 1) the second conversation was in both English 

and Spanish, and 2) the transcript contained English translations of the Spanish portions 

of that conversation. She argues there may have been bilingual jurors who heard one 

thing in Spanish, and nonbilingual jurors who relied on the written translation which was 

different. She claims the court's instructions were confusing and that it should have 

provided a jury instruction informing jurors to rely on the written transcript containing 

the translations of the Spanish conversations. 

 The People contend Sherman forfeited this claim by not raising these 

objections in the trial court. We agree. (Cf. People v. Torres (1985) 164 Cal.App.3d 

266, 270 ["Defense counsel had the opportunity to challenge the accuracy of the 

translations . . . or obtain his own expert to translate the recording into the English 

language but failed to do so"].) But even on the merits, the result is the same. 

 Where a tape recording containing Spanish is admitted into evidence, the 

jurors should have an English language translation of the Spanish language on the tape. 

(People v. Cabrera (1991) 230 Cal.App.3d 300, 304.) "Transcripts of admissible tape 

recordings are only prejudicial if it is shown they are so inaccurate that the jury might be 

misled into convicting an innocent man." (People v. Brown (1990) 225 Cal.App.3d 585, 

599.) 
7 

 Here there is no showing that the jury "might be misled." The People claim 

the trial court made the above-quoted general remarks relied on by Sherman only in 

reference to a telephone conversation that was entirely in English. They contend it 

subsequently gave jurors an additional instruction containing proper and specific 

guidance regarding the second tape and transcript containing the translations. We agree. 

 Before the trial court played the audio tape containing some Spanish 

language conversations, the prosecution and defense entered into a stipulation. The court 

advised jurors that they "must accept" the following stipulation: "The transcription and 

translation of [telephone call No. 2] is an accurate representation of the events as they 

occurred and the words as they were spoken." (Italics added.) The court said, "[B]ecause 

there is no issue as to the validity of those facts, you must accept them as true." (Italics 

added.) Consequently, all jurors were instructed to rely on the translation of the Spanish 

words on the audio tape found in the transcript. We presume the jurors followed this 

instruction. (People v. Edwards, supra, 57 Cal.4th at p. 745.) Sherman has made no 

showing that there were any bilingual jurors or that they disobeyed the court's 

instructions. Moreover, Sherman has made no showing that the transcripts and 

translations were inaccurate, inadequate or misleading. 

Instructing on an Uncharged Conspiracy and a Coconspirator's Statements 

 Sherman contends the trial court erred by not giving jury instructions on the 

elements of an uncharged conspiracy and guidance on how to consider whether a 

coconspirator's statements should be considered. She claims the court should have 

instructed jurors that Diaz's statements could not be considered unless there was evidence 

that he was involved in a conspiracy with her to sell drugs. The People agree. 

 Here the prosecution did not charge Sherman with conspiracy. But the 

audio tapes reflect that Diaz and Sherman participated in the telephone conversations 

initiated to complete a drug sale. Sherman and the People agree that the trial court had a 

duty to give an instruction on how to consider evidence of an uncharged conspiracy 

because of these conversations. "The court has a sua sponte duty to give [an uncharged 

conspiracy] instruction when the prosecution has not charged the crime of conspiracy but 
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has introduced evidence of a conspiracy to prove liability for other offenses or to 

introduce hearsay statements of coconspirators." (Bench Notes following CALCRIM 

No. 416 [Evidence of Uncharged Conspiracy], italics added; People v. Ditson (1962) 57 

Cal.2d 415, 447.) 

 The People claim the trial court erred because "the statements . . . made by 

Diaz to the CI against [Sherman] as statements of a coconspirator" were inadmissible 

without proof of several preliminary facts. "'Once independent proof of a conspiracy has 

been shown, three preliminary facts must be established: "(1) that the declarant was 

participating in a conspiracy at the time of the declaration; (2) that the declaration was in 

furtherance of the objective of that conspiracy; and (3) that at the time of the declaration 

the party against whom the evidence is offered was participating or would later 

participate in the conspiracy."'" (People v. Jeffery (1995) 37 Cal.App.4th 209, 215.) The 

court also should have told jurors "that it was not to consider the statement of a 

coconspirator [Diaz] unless it found, independent of the statement, that a conspiracy 

existed at the time the statement was made." (People v. Herrera (2000) 83 Cal.App.4th 

46, 65-66.) Sherman and the People are correct that the court omitted the required 

instructions. 

 But the People argue the error is harmless because there is compelling 

evidence of Sherman's guilt on the charged offenses. We agree. There is no reasonable 

probability that had the trial court given the required instructions the result would change. 

(People v. Sully (1991) 53 Cal.3d 1195, 1231-1232.) The telephone conversations and 

other evidence show that Diaz assisted Sherman in her plan to sell drugs to the CI. 

Sherman said that she authorized Diaz to answer her telephone and talk to the CI, that 

Diaz knew the CI owed Sherman money, and that Diaz "was very upset about" it. Diaz 

felt the CI "was taking too long to pay [Sherman] back." He conveyed Sherman's 

message to the CI about whether he had the money for the drug sale and he went with her 

to the appointment at the shop. 

 Moreover, excluding Diaz's statements would not diminish the strong case 

the prosecution presented against Sherman. The text messages unequivocally show that 
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Sherman had agreed to sell drugs to the CI. She transported the eight ball of 

methamphetamine that she agreed to deliver in her text message. It was contained in a 

bindle. She arrived at the agreed meeting place. She had the type of scale drug dealers 

use to weigh narcotics. Her cell phone contained evidence of her involvement in other 

illegal drug sales. She testified she was unfamiliar with the drug sale business. But she 

was impeached by her prior convictions and her text messages. 

 We have reviewed Sherman's remaining contentions and we conclude she 

has not shown reversible error. 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 GILBERT, P.J. 

We concur: 

 YEGAN, J. 

 PERREN, J. 
10 

Ryan J. Wright, Judge 

Superior Court County of Ventura 

______________________________ 

 William Paul Melcher, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney 

General, for Plaintiff and Respondent.