Filed 8/19/24 P. v. Urbina CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

IRVING R. URBINA,

Defendant and Appellant.

 D082879

 (Super. Ct. No. JCF006965)

APPEAL from a judgment of the Superior Court of Imperial County, 

Eran M. Bermudez, Judge. Affirmed.

Thien Huong Tran, under 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 (Health & Saf. Code, § 11351), and Urbina 
2

admitted that he incurred a prior strike conviction. The trial court sentenced 

Urbina to a six-year prison term. 

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 

(Health & Saf. Code, § 11379, subd. (a)) to impeach his credibility as a 

witness; and (2) denying Urbina’s motion to strike his prior strike.

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 County, 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 blue 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.
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Urbina was charged with one count of possessing a controlled 

substance for sale. (Health & Saf. Code, § 11351.)

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 transactions 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 years. 

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.
4

Urbina had three prior felony convictions: (1) a 2009 conviction for 

transporting, importing, selling, furnishing administering, or giving away a 

controlled substance (Health & Saf. Code, § 11379, subd. (a)); (2) a 2011 

conviction for first degree robbery (Pen. Code, § 211) and (3) a 2011 conviction 

for being a felon in possession of a firearm (id., § 12021, subd. (a)(1)). During 

motions in limine, Urbina sought a ruling that, in the event he decided to 

testify, his three prior convictions could not be used to impeach his credibility 

as a witness because that evidence would be unduly prejudicial under 

Evidence Code section 352. The trial court denied the motion. Accordingly, 

during Urbina’s testimony, the jury learned of the existence of the three prior 

convictions.

On appeal, Urbina contends that the trial court abused its discretion in 

allowing evidence of the 2009 conviction for violation of Health and Safety

Code section 11379, subdivision (a). He does not challenge the ruling 

admitting evidence of the other two convictions.

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, Evidence Code section 788 provides, 

with certain exceptions that are not relevant here, that “[f]or the purpose of 

attacking the credibility of a witness, it may be shown by the examination of 

the witness or by the record of the judgment that he has been convicted of a 

felony.” Accordingly, a witness may be impeached with a prior felony 
5

conviction “subject to the trial court’s exercise of discretion under Evidence 

Code section 352.” (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).)

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 adjudicated 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, etc.). 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 [Evidence Code] section 352 allows for exclusion of 

impeachment evidence in individual cases is broad.’ [Citations] When 

determining whether to admit a prior conviction for impeachment purposes, 
6

the court should consider, among other factors, whether it reflects on the 

witness’s honesty or veracity, whether it is near or remote in time, whether it 

is for the same or similar conduct as the charged offense, and what effect its 

admission would have on the defendant’s decision to testify.” (Clark, supra, 

52 Cal.4th at p. 931.)

Evidence Code section 352 provides that “[t]he court in its discretion 

may exclude evidence if its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue consumption of time 

or (b) create substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.” (Evid. Code, § 352.) “When determining whether to 

admit a prior conviction for impeachment purposes, the court should 

consider, among other factors, whether it reflects on the witness’s honesty or 

veracity, whether it is near or remote in time, whether it is for the same or 

similar conduct as the charged offense, and what effect its admission would 

have on the defendant’s decision to testify.” (Clark, supra, 52 Cal.4th at 

p. 931.)

“A trial court’s discretionary ruling under Evidence Code section 352 

will not be disturbed on appeal absent an abuse of discretion.” (People v. 

Lewis (2001) 26 Cal.4th 334, 374.) In particular, “[b]ecause the court’s 

discretion to admit or exclude impeachment evidence ‘is as broad as 

necessary to deal with the great variety of factual situations in which the 

issue arises’ [citation], a reviewing court ordinarily will uphold the trial 

court’s exercise of discretion.” (Clark, supra, 52 Cal.4th at p. 932.)

2. The Trial Court Did Not Abuse Its Discretion

Urbina expressly conceded in the trial 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 
7

our analysis with respect to the 2009 conviction at issue here. (See People v. 

Navarez (1985) 169 Cal.App.3d 936, 949 (Navarez) [a conviction under Health 

& Saf. Code, § 11352, based on either transportation or sale of heroin, entails 

moral turpitude].) As a crime of moral turpitude, Urbina’s 2009 conviction

for transporting, importing, selling, furnishing administering, or giving away

a controlled substance (Health & Saf. Code, § 11379, subd. (a)) was 

admissible to impeach Urbina’s credibility as a witness unless its exclusion 

from evidence was required by Evidence Code section 352.

In applying Evidence Code section 352, we first examine the extent to 

which the 2009 conviction had probative value with respect to Urbina’s 

credibility as a witness. Case law explains that although drug-related 

crimes, such as trafficking, do not directly relate to a character for

dishonesty, they are relevant to a witness’s credibility because they 

demonstrate “a readiness to do evil.” (People v. Gabriel (2012) 

206 Cal.App.4th 450, 459.) This is because “a witness’[s] moral depravity of 

any kind has some ‘tendency in reason’ . . . to shake one’s confidence in his 

honesty.” (Castro, supra, 38 Cal.3d at p 315.)1 Case law establishes that a 

conviction related to trafficking in narcotics falls into the category of crimes 

1 In his reply brief, Urbina cites People v. Holt (1984) 37 Cal.3d 436, 453, 

which stated that a burglary conviction “would only be relevant to credibility 

if it involved an intent to commit theft or some other dishonest act.” (Italics 

added.) Holt is not applicable here because it expressly relied on case law 

decided prior to the adoption of Proposition 8 in 1982. (Holt, at p. 452 

[following People v. Smith (1983) 34 Cal.3d 251, 262, which stated that to 

“avoid doubts as to the constitutionality . . . under the ex post facto clause” it 

would apply “Proposition 8 . . . only to criminal proceedings arising out of 

offenses committed on or after the date it took effect”].) In Castro, supra, 

38 Cal.3d 301, our Supreme Court later concluded that, in light of 

Proposition 8, any crime that involves moral turpitude is relevant to impeach 

a witness’s credibility. (Id. at p. 315.)
8

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 personal 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 Evidence 

Code section 352. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925

[“convictions remote in time are not automatically inadmissible for 

impeachment purposes”]; People v. Burns (1987) 189 Cal.App.3d 734, 738 

[“there may be no conviction that is per se too remote to be used for 

impeachment”].) Remoteness of a prior conviction tends to favor exclusion 

only “if it occurred long before and has been followed by a legally blameless 

life.” (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle), italics added.) 

“Despite its age” a conviction may nonetheless be admitted when the 

2 We note that the existence of Urbina’s prior conviction under Health & 

Safety Code section 11379, subdivision (a) was relevant to his credibility for 

one other reason, although the record contains no indication that the trial 

court was aware of that reason when making its ruling. Specifically, when 

the officers spoke with Urbina while arresting him, they asked whether he 

had ever been arrested in the past. Urbina replied, “Yeah, but nothing 

related to the drugs, you know?” He described his past arrests as “Just minor 

shit, you know?” The existence of the 2009 conviction for violation of Health 

and Safety Code section 11379, subdivision (a) directly contradicts that 

statement and shows that Urbina was untruthful in speaking to the officers.
9

defendant “did not subsequently lead a blameless life.” (People v. Green

(1995) 34 Cal.App.4th 165, 183 (Green).) “[T]he systematic occurrence of 

defendant’s priors . . . creates a pattern that is relevant to defendant’s 

credibility.” (People v. Muldrow (1988) 202 Cal.App.3d 636, 648.)

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 additional 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 

prejudicial for the jury to learn of a similar drug-related offense from 2009. 
10

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.) However, as our 

Supreme Court has explained, “[a]though 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, “ ‘[t]he 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 Proposition 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 

Evidence Code section 352, the trial court acted within its discretion to decide 
11

that the probative value of Urbina’s 2009 conviction warranted its admission 

to impeach Urbina’s credibility despite its similarity to the instant offense.3

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 (§ 211).

Urbina argued that the prior strike should be stricken because (1) he 

was addicted to and under the influence 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 

3 Urbina contends that the trial court’s error in admitting evidence of the 

2009 conviction rendered the trial so fundamentally unfair that it violated 

federal due process. (See People v. Falsetta (1999) 21 Cal.4th 903, 913 [“The 

admission of relevant evidence will not offend due process unless the evidence 

is so prejudicial as to render the defendant’s trial fundamentally unfair.”].)

Based on our conclusion that the trial court was within its discretion to rule 

that admission of the 2009 conviction would not be unduly prejudicial under 

Evidence Code section 352, we reject the argument that admission of the 

evidence rendered the trial fundamentally unfair.

4 The claim of childhood abuse was described as being based on 

“interview[s]” with Urbina’s mother and wife, but no supporting evidence was 

submitted.
12

of the Three Strikes scheme. The conviction is not so old. This is not his first 

offense.” The trial court stated, “I’m sympathetic to his drug addiction and I 

would hope that he gets help,” but it also commented on “the dearth of 

evidence regarding the alleged trauma and victimization by the father.” The 

trial court concluded, “I think taken on balance there’s nothing before me at 

this time that would warrant striking the strike.”

In applying the “Three Strikes” law, a trial court may strike a prior 

strike “in furtherance of justice.” (§ 1385, subd. (a); see also People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497, 529–530.) In deciding whether to do 

so, a court considers “whether, in light of the nature and circumstances of his 

present felonies and prior serious and/or violent felony convictions, and the 

particulars of his background, character, and prospects, the defendant may 

be deemed outside the scheme’s spirit, in whole or in part, and hence should 

be treated as though he had not previously been convicted of one or more 

serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 

161 (Williams).) “[T]he law creates a strong presumption that any sentence 

that conforms to [its] sentencing norms is both rational and proper.” (People 

v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)

We apply 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. . . . [¶] 
13

But ‘[i]t is not enough to show that reasonable people might disagree about 

whether to strike one or more’ prior conviction allegations.” (Id. at p. 378, 

citations omitted.) “[A] trial court does not abuse its discretion unless its 

decision is so irrational or arbitrary that no reasonable person could agree 

with it.” (Id. at p. 377.) Only in “an extraordinary case—where the relevant 

factors . . . manifestly support the striking of a prior conviction and no 

reasonable minds could differ” would “the failure to strike . . . constitute an 

abuse of discretion.” (Id. at p. 378)

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 relatively 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 
14

opioid epidemic it is common knowledge that fentanyl is particularly 

deadly.’ ”]; United States v. Vallez (D.N.M. 2024) __F.Supp.3d __, __ fns. 5 & 

6, 2024 WL 1886575, at *2, 2024 U.S. Dist. LEXIS 78985, at *5 [citing 

sources about the deadly nature of fentanyl, including that “[f]entanyl is the 

number one cause of death among Americans ages 18 to 45”].) The trial court 

observed at the sentencing hearing that Urbina’s criminal conduct was a 

“danger to the community.”

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 

not 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.