P. v. Martinez

Filed 5/21/08 P. v. Martinez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________________

Raul Damian Martinez was charged with one count of first degree murder and three counts of attempted premeditated murder with allegations that he personally and intentionally discharged a firearm causing great bodily injury and death, and that he committed the crimes for the benefit of a criminal street gang. (Pen. Code, 187, subd. (a), 664, subd. (a), 12022.53, subds. (b)-(e), 186.22, subd. (b)(1)(B).) The jury found that one of the attempted murders was not premeditated but otherwise convicted Martinez as charged, and the trial court sentenced him to state prison for a determinate term of 17 years plus an indeterminate term of 155 years to life. Martinez appeals, challenging the sufficiency of the evidence and contending there were instructional and evidentiary errors. We affirm.

FACTS

On September 3, 2005, Martinez (a long-time member of Mobbing for Life or MFL), armed with a loaded gun, walked with Kane (who Martinez was trying to recruit into MFL) to a Compton mini-mall. At the mall, Martinez approached Jose Hipolito and asked, Where you from because Martinez wanted to know if Jose and his brother, Osiel Hipolito, were members of the rival Chicano Gangsters gang (CG). When Jose answered nowhere, Martinez asked Osiel the same question but he did not respond. Martinez and Kane started to walk away but Martinez stopped, turned around, and hit Osiel in the face.

Osiel fought back but Kane attacked him, and Martinez then pulled out his gun and started shooting. Two bullets struck Osiel in the chest (killing him), one hit Jose in the arm, and one hit Osiels pregnant wife, Lizbeth Valdivia, in the stomach (the same bullet struck her unborn babys leg).[1] Martinez and Kane fled but only after they were seen by a witness (Yessenia Enciso, who saw Martinez and Kane running after the shots were fired) and captured on the malls security videotape. Valdivia, Jose, and Enciso separately identified Martinez from photographic arrays, and a subsequent search of Martinezs residence produced several papers with gang writings, photographs of an armed Martinez throwing gang signs and posing with other gang members, and other items with gang markings.

Martinez was charged as noted at the outset. At trial, the People presented evidence of the facts summarized above (including the surveillance videotape which showed the shootings), plus a gang experts testimony establishing that Martinez is a member of MFL, which has about two dozen members and claims as its territory a part of Compton that includes the mall where the shootings occurred. The expert testified that MFLs primary activities include assault and murder, and documentary evidence established the convictions of two MFL members, one of murder, the other attempted murder. In the experts opinion, the current crimes were committed for the benefit of the MFL gang. The jury rejected Martinezs testimony (he admitted the shooting but claimed it was an accident that occurred while Kane was fighting with Osiel and testified that he did not realize anyone had been shot at the time he left the mall), returned a not true finding on the allegation that one count of attempted murder was premeditated (count 4, the unborn baby) and otherwise convicted Martinez as charged.

DISCUSSION

I.

Martinez contends there is insufficient evidence to support the findings that the count 2 (Valdivia) and count 3 (Jose) attempted murders were willful, deliberate and premeditated. We disagree.

A.

Premeditated means considered beforehand, and deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. (People v. Mayfield (1977) 14 Cal.4th 668, 767.) Thus, the process of premeditation and deliberation does not require any extended period of time, and the true test focuses instead on the extent of reflection, not its duration. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . (Ibid.) Accordingly, the question before us is whether premeditation and deliberation were proved by evidence that is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329; People v. Johnson (1980) 26 Cal.3d 557, 578.)

B.

Martinez went to the mall armed with a loaded gun and for the purpose of persuading Kane to join MFL. Martinez instigated the encounter by asking Jose where he was from, then shot Osiel and the others at close range, presumably to demonstrate the gangs power to Kane and otherwise to intimidate the people in MFLs territory. This constitutes substantial evidence of planning and deliberation and no more was required. (People v. Williams (1997) 16 Cal.4th 153, 194.)

C.

We summarily reject Martinezs related argument that the evidence is insufficient to establish his specific intent to kill the unborn baby. He shot a visibly pregnant woman in the stomach. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946; People v. Smith (2005) 37 Cal.4th 733, 741; People v. Villegas (2001)92 Cal.App.4th 1217, 1224-1225.)

II.

Martinez contends [t]here was simply no reason for the court to give an imperfect self-defense voluntary manslaughter instruction as to count 1, but omit an imperfect self-defense attempted voluntary manslaughter instruction as to counts 2 and 3. We disagree.

The trial courts sua sponte duty to instruct on lesser included offenses arises only where there is substantial evidence from which the jury could conclude the lesser offense, but not the greater, was committed (People v. Breverman (1998) 19 Cal.4th 142, 162), and there is no such evidence here. Martinezs defense -- that the gun went off accidentally while Kane was fighting with Osiel -- explains the trial courts decision to instruct on imperfect self-defense as to count 1 but has nothing whatsoever to do with the attempted murders of Jose and Valdivia (there is no evidence at all to suggest that Jose or Valdivia posed a threat, real or imagined, to anyone). (People v. Anderson (2002) 28 Cal.4th 767, 773 [defense of necessity cannot justify killing an innocent person]; People v. Lee (1999) 20 Cal.4th 47, 59 [provocation must have been caused by the victim].) In any event, the jurys rejection of imperfect self-defense vis--vis Osiels murder necessarily means it would have rejected the same defense for the other victims.

III.

Martinez contends that, because they were more prejudicial than probative, the trial court erred in admitting the photographs of Martinez holding a handgun and throwing gang signs. More specifically, he contends the jurors could have speculated that the handgun shown in the photographs was the one used in these crimes, notwithstanding that the murder weapon was never found. We disagree.

The trial court correctly overruled Martinezs objection to the photographs, finding that they provided independent evidence of Martinezs involvement with the gang and his familiarity with guns and that, in both photographs, the weapon held appear[ed] to be different ones . . . . In light of the gang allegations, the evidence was clearly proper and, in context, hardly prejudicial given the gang experts testimony, Martinezs long-term involvement with the gang, the videotape of Martinez with the gun, and the eyewitness identification testimony. (Evid. Code, 352.) This was not a close case. (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Partida (2005) 37 Cal.4th 428, 439.)

IV.

Because Martinez testified that he gave the gun to Kane after the shooting, the trial court instructed the jury according to CALCRIM No. 371 that [i]f the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. Because Martinezs disposal of the gun immediately after the shooting shows his consciousness of guilt, we reject his contention that this instruction should not have been given. (People v. Wilson(2005) 36 Cal.4th 309, 330; People v. Yeoman (2003) 31 Cal.4th 93, 131.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] Valdivia had to have an emergency Caesarean section and the baby walks with a limp. Osiel, the murder victim, had just returned from a tour of duty in Iraq and was to be redeployed in February 2006.