P. v. Martin
Filed 2/6/13
P. v. Martin CA2/2
NOT TO BE PUBLISHED IN THE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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOEL MARTIN,
Defendant and Appellant.
B232642
(Los Angeles
County
Super. Ct.
No. KA089862)
APPEAL from a judgment of the Superior
Court of
County. Charles E.
Horan, Judge. Affirmed.
John A.
Colucci, 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, Assistant Attorney General, Steven D. Matthews and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Joel Martin (defendant) appeals from the judgment entered after a
jury convicted him of murder in the second degree and a second jury found true
the allegation that he had personally and intentionally used a firearm to
commit the murder. Defendant contends
that the trial court erred in the first trial by refusing to give a jury instruction
on voluntary manslaughter based upon
heat of passion, and by denying a jury request for a readback of defense
counsel’s closing argument. Defendant
contends that the trial court erred in the second trial by precluding the jury
from reconsidering defendant’s guilt on the underlying murder charge. Finding no merit to defendant’s contentions
or that any error was harmless, we affirm the judgment.
1. Procedural history
Defendant was charged with
the murder of Carlos Espinoza (Espinoza) in violation of Penal Code section
187, subdivision (a).
name="_ftnref1" title="">[1] The information also alleged pursuant to
section 12022.53, subdivisions (b), (c), and (d), that defendant personally
used a firearm in the commission of the crime and that he personally and
intentionally discharged the firearm, causing the victim’s death. A jury found defendant guilty of second
degree murder, but deadlocked on the firearm allegations, and after declaring a
mistrial, the trial court scheduled a second trial solely as to those
allegations. The second jury found them
true.
On April 26, 2011, the trial court sentenced
defendant to a total of 40 years to life in prison, comprised of 15 years to
life for the murder, plus 25 years to life under section 12022.53, subdivision
(d). As to the remaining two firearm
enhancements, the trial court imposed terms of 20 years and 10 years
respectively and stayed them pursuant to section 654. The court imposed mandatory fines and fees,
ordered victim restitution, and awarded defendant 407 presentence custody
credits.
Defendant filed a timely
First trial
On February 4, 2009, Hazar Escamilla
Parra (Parra), visited her friend Espinoza.
Parra testified that Espinoza introduced her to a friend of his they met
near the restaurant where they ate lunch but she did not see Espinoza argue
with him or anyone else that day. After
their visit Espinoza accompanied Parra to the bus stop near his home and waited
with her for the bus. Parra was seated
on Espinoza’s lap on the bench when an older-model gray Astro van pulled up to
the curb very close to them. Parra
testified there were two people in the van, both in the front. The passenger pulled out a gun, said with a
thick accent, “You Carlos?†When
Espinoza acknowledged he was, the passenger fired his weapon. Espinoza pushed Parra out of the way, stood
up and the shooter continued to fire, more than five times in all. Parra was not able to identify either the
driver or the shooter.
The
police arrived quickly, and Espinoza was able to answer their questions as they
waited for medical assistance. Pomona
Police Officers James Gibson and Dennis Cooper both testified that Espinoza
said the shooter fired from the passenger seat of the van after saying, “Fuck
you, Carlos.†Espinoza also said that he
knew the shooter from the neighborhood as “Huero†and that one of Huero’s
brothers had been shot and killed a month or two earlier at the nearby
Guadalajara Market. Officer Cooper asked
Espinoza about his quarrel with Huero.
Espinoza said there had been no quarrel, but he had been a friend of the
man who killed Huero’s brother. Espinoza
died later at the hospital from multiple gunshot wounds.
Crime
scene investigator Sheri Orellana recovered a bullet and some bullet fragments
at the scene. Firearms expert, Los
Angeles Deputy Sheriff Edmund Anderson testified that the bullet was consistent
with a nine-millimeter bullet, which was almost always fired from a semiautomatic
pistol, and only rarely from a .38-caliber revolver. Anderson explained that among the differences
between a semiautomatic pistol and a revolver, a semiautomatic could hold seven
or more rounds of ammunition depending on the size of the magazine, and ejected
shell casings when fired, whereas a revolver held six bullets and did not eject
casings.
Pomona
Police Detective Mark McCann was one of the lead investigators in the December
2008 murder case of defendant’s brother at the Guadalajara Market. He was also assigned to investigate this
case. After a two-year search, Detective
McCann found defendant living in New Mexico.
Detectives McCann and Aguirre interviewed defendant in jail there after
having him detained. A recording of the
interview was played for the jury.
Defendant admitted his nickname was “Huero.†After many denials, defendant eventually
admitted he shot Espinoza. Defendant had
previously heard that Espinoza had spoken badly of his brother. Defendant claimed he was alone in the van
driving to the carwash, when he happened to see Espinoza at the bus stop.
seat belt and I changed seats. And I
Defendant did not know
how many rounds he fired, but that it was more than three. He told detectives that he bought the gun a
few hours earlier from someone on the street.
He did not remember what kind of gun it was, but later said it was a
“3-8†that held 10 rounds in a clip, and that the casings were ejected into the
van when he fired. Defendant later threw
the gun away and abandoned the van. He
told the detectives he “wasn’t wanting to kill himâ€; he was “just . . . feeling
something here.â€
Defendant presented no
witnesses and did not testify at the first trial.
3. Second trial
a. Prosecution evidence
The
prosecution presented the same evidence of defendant’s guilt as was presented
in the first trial. Parra testified that
before the shooting she and Espinoza went to lunch at a restaurant and nothing
unusual occurred during their visit until the old gray Astro van pulled up to
the bus stop. Parra and Officers Gibson
and Cooper gave essentially the same testimony regarding Espinoza’s statements that
the shooter was Huero, who lived a few blocks away, and whose brother had been
shot at the Guadalajara Market by a friend of Espinoza’s. The prosecution again presented testimony
regarding the nine-millimeter bullet found at the scene, and the medical
examiner again testified that the cause of death was multiple gunshot
wounds. Defendant’s recorded interview
was played for the jury.
b. Defense evidence
After
the defense rested without presenting evidence, the parties stipulated that a
drug screen conducted by the coroner showed that Espinoza had .09 micrograms
per milliliter of methamphetamine in his system, but it could not be determined
when the victim consumed the drug or whether it had any intoxicating effect on
him. After the jury began deliberating,
the defense was permitted to reopen its case to present the testimony of two
witness, Andrea Torres (Torres)
name="_ftnref3" title="">[3] and defendant’s sister Lorena Vacquz (Vacquz).
Torres
testified that she lived near the scene of the shooting and although she did
not know Espinoza, she knew his family and his sister. Torres was outside her trailer park at the
time of the shooting, about 35 feet from the bus stop. She heard what she thought were firecrackers
and then screams, looked in the direction of the noise, and saw the shooter and
a van. There were seven or more shots in
the space of five seconds, and before the gunfire stopped, she turned away to
go inside to be with her baby. Torres
saw two men in the van, dressed alike. The
driver was the shooter. Torres described
him as bald, hatless, wearing a white tank top, with many tattoos, one of which
was a shark. Torres testified that five
or 10 minutes earlier, she had seen defendant near a neighborhood fast food
restaurant, arguing with a light-skinned Hispanic man in a black or gray van.
Vacquz
testified that defendant had no tattoos on his face or neck, that as far as she
knew he had not removed any tattoos, and had no scars from tattoo removal. Defendant pulled down his collar to show his
neck to the jury.
Detective McCann testified that in
his 2009 interview with him, defendant was thinner and wore his hair much
shorter than during trial. Within a week
after the shooting, Espinoza’s sister telephoned Detective McCann, told him she
knew Torres, and that Torres had contacted her and said she witnessed the
shooting. Detective McCann called the
number Espinoza’s sister gave him, left a message, and located Torres at the
trailer park after she did not return his call.
Detective McCann estimated the distance from Torres’s trailer to the bus
stop to be 50 or 60 yards.
I. Heat of passion
Defendant
contends that the trial court erred in refusing to instruct the jury that
voluntary manslaughter is a lesser included offense of murder when the
defendant kills in a heat of passion upon adequate provocation.
Malice is negated, and
murder reduced to voluntary manslaughter, when the defendant kills “upon a
sudden quarrel or heat of passion.†(§
192, subd. (a).) “Heat of passion arises
when ‘at the time of the killing, the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the ordinarily reasonable
person of average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.’ [Citations.]â€
(People v. Barton (1995) 12
Cal.4th 186, 201.) The facts and
circumstances that would arouse the passions of an ordinarily reasonable person
of average disposition must be viewed objectively. (People
v. Gutierrez (2002) 28 Cal.4th 1083, 1143.)
To be legally sufficient, provocation must be conduct of the victim,
measured under an objective standard. (
549-550.) Heat of passion also has a subjective component which
looks to the defendant’s state of mind to determine whether, in fact, he acted
in the heat of passion. (People
v. Steele (2002) 27 Cal.4th 1230, 1252.)
The
trial court is not required to instruct the jury on this theory unless the
instruction is supported by substantial evidence. (People
v. Breverman (1998) 19 Cal.4th
142, 156, 162 (Breverman).) Here the trial court found insufficient
evidence of provocation by the victim and no evidence that defendant acted in a
heat of passion. Defendant acknowledges
that the only evidence of provocation was defendant’s belief that Espinoza had
said at some unspecified time that defendant’s “brother was a piece of shit and
it was good. It was good to him to they
killed [sic].†The only evidence of defendant’s state of
mind was his statement to detectives that he “was so pissed off†because of
Espinoza’s statement, and “things happened when I seen him. . . . I couldn’t hold (inaudible).†He “wasn’t
wanting to kill himâ€; he was “just . . . feeling something here.â€
Defendant compares these facts with those of
687 (Brooks), where the defendant
learned from witnesses at the crime scene that his brother had been stabbed to
death; the defendant immediately searched out the suspect, and then shot him
two hours later. (Id. at pp. 691-692.) The
appellate court held that the sudden disclosure of such an event would be
sufficient so long as the defendant’s belief in the disclosure was
reasonable. (Id. at p. 694.)
Defendant’s comparison is too strained to have any
application here. The rumor here was not
that the victim had killed defendant’s brother, as in Brooks, but merely that Espinoza had insulted defendant’s
brother. Words may be sufficiently
provocative if they “would cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection. [Citations.]â€
(People v. Lee (1999) 20 Cal.4th 47, 59.) Obscenities, taunts, and epithets do not
ordinarily drive a reasonable person to act rashly or without due deliberation
or reflection. (People v. Najera (2006) 138 Cal.App.4th 212, 226.) It is thus doubtful that a rumor that
the victim had insulted a murdered brother’s memory would incite the homicidal
passion of the ordinary reasonable person.
Further, there was no evidence in this case that the
disclosure of the insult was sudden or that defendant’s belief in the rumor was
reasonable. In Brooks, the defendant saw the suspect detained in a police car and
spoke to witnesses within a short time after his brother’s murder. (Brooks,
supra, 185 Cal.App.3d at pp.
691-692.) As respondent observes,
defendant did not say when he first heard the rumor, but admitted to deputies
that he did not go looking for Espinoza at that time. Defendant became angry when he saw Espinoza
at the bus stop at some unknown amount of time later. As defendant’s brother was killed two months
earlier, defendant could have heard the rumor two months before he killed
Espinoza or two days before, as Detective McCann surmised. Provocation is not legally sufficient under circumstances
that would give the ordinarily reasonable person time to ‘“cool[] off.â€â€™ (People
v. Moye, supra, 47 Cal.4th at p.
551, quoting People v. Dixon (1995)
32 Cal.App.4th 1547, 1551-1552.)
There was simply no evidence to suggest that defendant
acted suddenly or even soon after hearing the rumor. Defendant contends that this
period supported giving the instruction because the prosecution bore the burden
of negating heat of passion. On the
contrary, a heat of passion instruction is not warranted without evidence of a
“temporal relationship between the alleged provocation and killing . . .
.†(People v.
Dixon,
3.)
In
any event, as respondent also notes, there was insufficient evidence of defendant’s
state of mind to determine whether he was in fact moved by his feelings to
act. We are mindful, as defendant
cautions, that the evidence should be viewed in a light most favorable to
defendant to determine whether the instruction was warranted. (See People
v. Stewart (2000) 77 Cal.App.4th 785, 795-796.) However, it must appear that the defendant’s
reason was “‘disturbed or obsessed by some passion’†and that this passion
caused him to act. (People v. Berry (1976) 18 Cal.3d 509, 515, quoting
48-49.) The passion must be a
“‘[v]iolent, intense, high-wrought or enthusiastic emotion.’ [Citations.]â€
(People v. Borchers (1958) 50
Cal.2d 321, 329.) Defendant’s claim that
he was “pissed off†and “feeling something†-- without more -- does not
describe intense emotions. Also, “things
happened†is not an expression of cause and effect.
We
conclude that the trial court did not err in refusing the instruction. Moreover, we would find no prejudice even if
the court had erred. Error in omitting
an instruction is assessed for prejudice under the standard of
(Breverman,
unless the defendant demonstrates that a more favorable result was probable
absent the error. (Watson, supra, at p.
836.) As respondent points out, there
was no evidence that Espinoza made the rumored statements, no basis for
defendant to reasonably believe that he made the statements, no evidence of a
temporal relationship between defendant’s hearing the rumor and the shooting,
and no basis to conclude that an ordinarily reasonable person would act as
defendant. Due to the insubstantial nature
of the evidence, giving the instruction was not reasonably likely to produce a
more favorable result.
II. Readback
Defendant
contends that the trial court erred in the first trial when it ruled that it
lacked authority to grant the jury’s request to have defense counsel’s closing
argument read back to them.
In
refusing the requested readback the trial court stated: “I can’t do that. The law does not allow that.†Respondent agrees that the court erred, but
contends that the error was harmless. We
agree. A trial court is not required to
permit a readback of counsel’s argument, but may do so in its discretion. (People
v. Sims (1993) 5 Cal.4th 405, 452-453 (Sims),
disapproved on another ground by People
v. Storm (2002) 28 Cal.4th 1007, 1031-1032.) The trial court’s refusal to exercise its
discretion, based upon an erroneous belief that it lacked authority, is error
reviewed for prejudice under the test of Watson. (Sims,
supra, at p. 453.) Under the Watson
test, it is defendant’s burden to demonstrate prejudice by establishing “a reasonable
probability that error affected the trial’s result.†(People
v. Hernandez (2011) 51 Cal.4th 733, 746.)
Defendant contends that with a repetition of defense
counsel’s argument it is reasonably probable that the jury would have found the
firearm allegations not true. He
contends that this point is demonstrated by the jury’s question: “Can defendant be convicted of murder if he
did not do the shooting?â€
No prejudice results from the trial court’s omission
when “[t]he theory argued by the defense . . . was not of such complexity that
its repetition was necessary in order for defendant to receive the full benefit
of the adversarial process†and the disputed issue was covered by jury
instructions which were available to the jury in written from. (Sims,
supra, 5 Cal.4th at p. 453.) The trial court instructed the jury regarding
liability as an aider and abettor and made the instructions available in
written form. Further, the court answered
the jury’s question, as follows:
“The answer is yes, but if and only if the
jury finds beyond a reasonable doubt that he is a principal in the crime as
defined in those instructions, and all of the court’s instructions,
obviously. I would add this proviso,
though. If a defendant in a case is
found guilty of murder as an aider and abettor, as opposed to the actual
shooter, the firearm allegations cannot be found true as well. The firearm allegations -- the personal use,
the personal discharge, and the personal discharge causing death -- requires
that the defendant himself personally discharge. Okay?â€
The jury foreman replied, “Understood.â€
Later, when the foreman reported that the jury was deadlocked, with a
vote of 10 to 2 in favor of finding the gun allegations true, the trial court
asked the jurors individually whether anything such as additional argument by
counsel, instruction by the court, rereading of testimony, or anything else
might help to resolve the deadlock. Each
juror answered no.
In sum, the court’s instructions to the jury, coupled
with their indication that they understood, demonstrated that their concern was
not of such complexity that repetition of the defense argument was
necessary. Moreover, there was no
specific argument on this point. Defense
counsel’s summation was devoted to avoiding a first degree murder verdict with
the argument that defendant did not intend to kill Espinoza and thus did not
harbor the mental state required for first degree murder. Counsel’s strategy proved to be effective as
the jury found defendant guilty of second degree murder. There was nothing in the closing argument
that would have compelled the jury to find the firearm enhancement not to be
true. Thus defendant has not demonstrated prejudice under
the Watson standard. (See Sims, supra, 5 Cal.4th at
p. 453.)
Without analysis,
defendant contends that the trial court’s error resulted in the denial of his
under the United States Constitution, and that defense counsel rendered
ineffective assistance by failing to provide the court with authority on the
issue. We do not reach undeveloped
claims. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.) And we would not reach any claim of
ineffective assistance of counsel due to defendant’s failure to demonstrate
prejudice. (See Strickland v. Washington
(1984) 466 U.S. 668, 687; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.)
In any event, if we
reached the constitutional claims, we would conclude, beyond a reasonable
doubt, that the absence of a readback of counsel’s argument did not contribute
to the verdict. (See
18, 24.) Defense counsel did not argue
in the first trial that defendant was not the shooter, and we find nothing in
the his summation that might have answered the jury’s question or assisted the
jury in any manner with regard to the gun allegations.
III. Collateral estoppel
Defendant contends that
the Fifth and Sixth Amendments to the United States Constitution prohibited
retrial of the gun allegations alone, without permitting the jury to consider
defendant’s guilt on the underlying charge.
Defendant argues that
this amounted to an offensive use by the prosecution of collateral estoppel or
issue preclusion. Collateral estoppel
and issue preclusion are synonymous concepts which mean “‘that when an issue of
ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future
lawsuit.’ [Citation.]†(People
v. Santamaria (1994) 8 Cal.4th 903, 911-912 & fn. 2, quoting
443.)
Defendant contends that
the trial court’s following instruction to the jury amounted to a prohibited
offensive use of collateral estoppel:
“This case is somewhat unique . . . in the
sense that the defendant has been charged with the commission of the crime of
murder. . . . The defendant is also
charged in count 1 with having personally and intentionally discharged a firearm
during the commission of that murder which caused the death of the decedent
alleged in count 1. The guilt or
innocence of the defendant for the crime of murder is not before you. It has already been addressed. You will be asked, however, to decide whether
the evidence in this trial proves that the defendant personally and
intentionally discharged a firearm during the commission of the crime which
caused the death.â€
title="">[4]
In an attempt to make
this contention clear, defendant explains:
“In making this argument [defendant] does not suggest that an
enhancement upon which a jury had hung may not be retried to another jury. Nor does [defendant] suggest that a second
jury may overturn the previous murder conviction. [Defendant] contends, rather, that a jury may
not be precluded from independently considering guilt of the qualifying murder
in deciding its verdict on the section 12022.53 enhancements where the
conviction on the murder is not yet final.â€
As respondent correctly
notes, it is settled that when a jury convicts the defendant on the underlying
crime but deadlocks as to the facts alleged for purposes of a sentence
enhancement allegation, retrial of the sentencing facts before a new jury is
proper without a retrial of the underlying crime. (People v. Anderson (2009) 47 Cal.4th
92, 104-105, 123-124 (Anderson).) The rule extends to enhancements such as the
personal use of a firearm alleged pursuant to section 12022.53. (See Anderson,
at pp. 101-102 [listing examples of sentencing facts].) This procedure results in no violation of the
double jeopardy or due process clause of the Fifth Amendment or the jury trial
guarantee of the Sixth Amendment. (
Defendant contends that
reach the issue presented in this case.
We disagree and find defendant’s authorities inapposite. For example, defendant relies in part on
Cal.App.4th 153 (Gutierrez), where a
defendant who had previously been convicted of attempted murder, was later
tried for the murder of the same victim and erroneously precluded from
relitigating the issue of identity. (
has no application here, as it did not involve a deadlocked jury or a sentence
enhancement allegation, as did this case and Anderson. (See
Defendant also believes
that the issue to be decided is illustrated in People v. Burns (2011) 198 Cal.App.4th 726 (Burns), which expressly distinguished Anderson. Like
sentence enhancement. In
five crimes; the jury convicted him of two counts, including aggravated
trespass, acquitted him of two counts, and deadlocked on one felony count. (Burns,
supra, at p. 728.) Upon retrial of the deadlocked charge, the
trial court instructed the jury that the defendant had committed aggravated
trespassing, which the appellate court found to be an erroneous offensive use
of the collateral estoppel doctrine, as the conviction of aggravated
trespassing was still open to direct attack on appeal. (Id.
at p. 733.) In distinguishing
in our decision prevents the trial court from retrying an enhancement provision
and instructing the jury that the defendant has already been convicted of the
substantive offense.†(
this case.
We find no error, nor do
we perceive any prejudice from the instruction.
The prejudice which results from an erroneous application of collateral
estoppel is the preclusion of defenses and evidence that may not have been
presented at the prior trial. (See
Although defendant’s prejudice argument is unclear, we construe it as
follows: because the instruction implied
that defendant had been convicted of murder and there was no formal instruction
regarding aiding and abetting, the jury was irresistibly drawn to finding that
defendant personally shot the victim.
First, we do not agree
that the trial court’s instruction regarding aiding and abetting was
unclear. Before the evidence was
presented, the court explained aider and abettor liability by giving a lengthy
hypothetical example in which one person wishes to destroy a large window,
enlists the help of a young man who can throw a ball well, hands him a rock,
and encourages him to throw it into the window, which the young man does,
breaking the window. The court explained
that although the young man actually committed the crime, the other person
would be an aider and abettor and both would be held responsible under the
law. The court then told the jury that
determining whether defendant intentionally and personally fired a weapon was
comparable to determining which person actually threw the rock in the court’s
example. The court’s explanation clearly
informed the jury that regardless of whether defendant had been convicted of
murder, he may or may not have been the shooter, which was the jury’s task to
determine.
Second, defendant was not
precluded from raising the issue of a second person who may have been the
shooter or from presenting evidence on the issue. The same evidence of guilt presented in the
first trial, including Parra’s testimony that there were two men in the van,
was presented in the second trial, and the defense presented two additional
witnesses to cast doubt on defendant’s admission that he was the shooter. Defense counsel was permitted to argue this
theory twice in the second trial, before and after presenting his
witnesses. In its final instructions,
the trial court admonished the jury not to speculate about whether the second
person had been or would be prosecuted, thereby making clear that it was the
jury’s task to determine which person was the shooter.
We conclude that there
was no issue preclusion, defendant was not prevented from furthering a defense
or presenting evidence, and that defendant thus cannot have suffered prejudice
from the procedure followed by the trial court.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________,
J.
CHAVEZ
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
further statutory references are to the Penal Code, unless otherwise indicated.
said, “I saw him ‘cause he was (inaudible)
saying that my brother was -- my brother was a piece of shit and it was
good. It was good to him to they killed [
And I was -- I was so pissed off, sir. . . . I was really, really . . . I wasn’t -- where
he living, I wasn’t know where he used to live [sic].†“But things happened
when I seen him. . . . I couldn’t hold
