P. v. Martinez

Filed 3/3/08 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Jose R. Martinez appeals the judgment entered after a jury convicted him of kidnapping for ransom (Pen. Code,^[1] 209, subd. (a)); second degree robbery ( 211); torture ( 206); and attempted extortion ( 664/524). The jury also found true the allegations that the kidnapping victim suffered bodily harm and was intentionally confined in a manner that exposed him to a substantial likelihood of death ( 209, subd. (a)); that Martinez was armed with a firearm and personally used a firearm in his commission of the kidnapping, robbery and torture ( 12022, subd. (a)(1), 12022.53, subd. (b)); that Martinez personally inflicted bodily injury in committing the robbery and attempted extortion, thereby rendering those crimes serious felonies ( 12022.7, subd. (a), 1192.7, subd. (c)(8)); and that all of the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(B)). He was sentenced to state prison for life without the possibility of parole, plus 23 years, consisting of life without parole for the kidnapping, plus a consecutive 23-year term for the robbery, consisting of the midterm of three years, plus 10 years for the section 186.22 enhancement allegation, and 10 years for the section 12022.53 enhancement allegation. Sentencing on the remaining counts was stayed pursuant to section 654. He contends (1) the evidence is insufficient to support the gang enhancement allegations; (2) his consecutive sentence on the robbery count was barred by section 654; and (3) the one-year term imposed on the stayed sentence pursuant to section 12022, subdivision (a)(1), must be stricken. We shall order the one-year sentence imposed pursuant to section 12022, subdivision (a)(1), on count 3 stricken. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

At 10:30 p.m. on November 30, 2005, Juan Villasenor was driving his black Mercedes Benz, waiting for a parking space near his residence in Los Angeles near Culver City, when a skateboard hit his door. The rider of the skateboard, who later identified himself as "Alfredito," apologized, and Villasenor responded, "No problem." Villasenor saw a Camaro parked near his house that appeared to be about to leave. As Villasenor was stopped and waiting for the parking space, Alfredito took out a gun, opened the driver's seat door, and hit Villasenor in the head with the gun. While Villasenor was attempting to wrest the gun away, Martinez entered the car through the front passenger door and hit him on the head with another gun. As Villasenor was struggling with both of them, Martinez chambered a round of ammunition into his gun and told Villasenor, "If you move, I'm going to kill you here. Get into the back seat." After Villasenor complied, Martinez got in the back seat and continued hitting him while Alfredito drove the Mercedes to a gas station approximately two-and-a-half blocks away. Martinez told Alfredito to get in back and to shoot Villasenor if he moved. Martinez got in the driver's seat and drove away.

Alfredito removed Villasenor's glasses and took his bracelet, watch, rings and money from his wallet. He told Martinez, "[y]ou keep the ring and I'll keep the bracelet. Don't tell the others, we'll keep these." Alfredito told Villasenor, "[w]e've been following you for three months." Alfredito tied a sweatshirt around Villasenor's head and tied his hands with a belt, then continued beating him. At some point, the car stopped and Villasenor got out. He felt hands on his waist and arm forcing him to walk forward. Villasenor was thrown into the corner of a room, where his feet were tied. As he was lying there, he was hit in the head, stomach, and various other parts of his body.

Martinez and Alfredito told Villasenor that they would "fuck [him] up" and that they knew he was the owner of the "Theater El Rey" and the "La Chavela Discotheque." Villasenor said that he did not know either establishment, but they continued hitting him. After continuing to beat him for approximately 20 minutes, they said, "We're going to get the truth out of you. You're lying to us. We followed you for three months. We know you have money, and we want half a million dollars to let you go." Villasenor responded that they were "crazy" and that he did not "have that kind of money." Villasenor then gave them his aunt's telephone number and said she would give him $10,000 to $15,000. He also told them he was a parking valet, and urged them to look in a compartment in the car because it contained a copy of his job application. The men continued to beat Villasenor with their fists and a gun, and kept demanding a half million dollars.

Someone removed Villasenor's wallet and asked him for the personal identification number for his ATM card. When Villasenor told him the number, one of them said, "[w]e are going to go to see if it's true, and if it's not, we're going to fuck you over all over again." Villasenor heard the men leave. When they returned, he heard them say, "[t]his asshole doesn't have any money." Villasenor eventually managed to pull the sweatshirt above his face and saw Martinez, Alfredito, and another man. One of them told Villasenor not to look at him, then hit Villasenor in the eye with a gun. After the sweatshirt was placed back over his face, the third man said, "[w]e're going to really fuck him over for 40 minutes." One of them said they were going to pull out his toenails. When Villasenor said he had no money, he was told to "shut up." One of the men stuck a gun in Villasenor's mouth and then "chambered a round." The beating continued. Villasenor was also burned on his arm, hand, and foot.

At some point, the captors started talking about the job application they had found in Villasenor's car. One of them told him, "[w]e made a mistake" and that they would release him, but that he should not say anything about it to the police. Villasenor was placed in the trunk of his car and told not to make any noise. The car was driven for approximately 15 minutes and then parked on a street. Villasenor was told to keep quiet.

After waiting for an hour or two, Villasenor removed a taillight, stuck his hand out of the opening, and started yelling. Eventually, someone heard him and pried the trunk open. Villasenor regained his composure, then drove home. After he tried to clean his wounds, he went to the police station and reported the incident.

On December 28, 2005, Los Angeles Police Officer Michael Johnson, who was assigned to the gang unit and primarily focused on the Culver City Boys gang, saw Martinez driving a Camaro. That same day, Officer Johnson was present when one of Villasenor's credit cards was recovered from the residence where David and Cesar Silva lived.

On January 26, 2006, a backpack containing a 9-millimeter semiautomatic handgun loaded with three live rounds was recovered from the apartment where Martinez's mother lived, along with envelopes addressed to Martinez, a pair of red shorts, red sneakers, a Chicago Bulls baseball hat, a red hat with a white "C" on it, and a pullover jacket with the letter "C" on front.

On January 28, 2006, Martinez was interviewed at the Culver City Police Department about a robbery. In the course of that interview, Martinez talked about the incident involving Villasenor. Martinez was transported to a Los Angeles police station, where he admitted that he had participated in the kidnapping of Villasenor along with David and Cesar Silva. He also admitted that David gave him a gun that he put in a backpack and left at his mother's apartment. According to Martinez, it was Cesar and David who had accosted Villasenor at gunpoint, and he merely followed them in a Camaro. Martinez claimed that when they arrived at the freeway entrance, David and Cesar told him to drive the Camaro home and wait until they called him. The next day, they called and told him they had taken Villasenor's credit card and a small amount of cash, the latter of which they gave to him. Martinez acknowledged the Silva brothers were members of the Culver City Boys gang and that he was "associated" with it, but disclaimed that he was also a member.

Officer Johnson testified at trial to his opinion that Martinez was a member of the Culver City Boys gang. The gang, which claimed territory that includes part of Culver City and Los Angeles, had approximately 260 active members and used the letter "C" as its symbol. Members of the gang, who often wore red hats with the letter "C" on them, have committed murders, drive-by shootings, stabbings, and robberies, and were involved in the sale and transport of narcotics. Officer Johnson opined that Martinez was a member of the gang based on numerous contacts with him. When Martinez was the victim of a drive-by shooting, he was "reluctant to be cooperative or tell the truth." The officer explained that this behavior is "typical" for gang members, who "feel they are better able to handle what is wrong on the street, most likely by retaliation."

About a month after the shooting, Martinez was in a car with another member of the gang who was stabbed in the neck. In March 2005, Martinez was seen with another member of the gang at the Mar Vista Projects, which Officer Johnson described as "the heart of the Culver City Boys territory." The officer arrested Martinez on this occasion after he got out of a car with a gun. Martinez had also been observed associating with other members of the gang, including the Silva brothers. Martinez had also admitted on another occasion that he was "from Culver City Boys Gang," and was in a photograph depicting other members of the gang and was flashing the gang's hand sign in another.

Officer Johnson also opined that the crimes against Villasenor were committed for the benefit of the Culver City Boys gang. The officer reasoned that other members of the gang participated in the crimes, which allowed them to "back each other up" and show their allegiance to the gang. The crimes also bolstered the gang's reputation and demonstrated that the gang "runs the show in that neighborhood or any neighborhood that they come upon."

DISCUSSION

I.

Sufficiency of the Evidence to Prove the Gang Enhancements

Martinez contends the evidence is insufficient to support the jury's finding that the crimes were committed for the benefit of his gang, as contemplated by section 186.22, subdivision (b)(1)(B). While he does not dispute the sufficiency of the evidence to prove that these crimes were committed for the gang's benefit, he relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, for the proposition that the prosecution was required to prove that the crimes were committed with the intent to promote other criminal conduct by the gang. (Id., at pp. 1103-1104.) We are not bound by that decision (see People v. Hill (2006) 142 Cal.App.4th 770, 774), and we agree with our colleagues in the Third District and the Fourth Division of this District that the case was incorrectly decided (ibid.; People v. Romero (2006) 140 Cal.App.4th 15, 19). "'. . . By its plain language, the statute requires a showing of specific intent to promote, further, or assist in "any criminal conduct by gang members," rather than othercriminal conduct. ( 186.22, subd. (b)(1), italics added.)'" (Romero, supra, at p. 19; Hill, supra, at p. 774.) "There is no requirement in section 186.22, subdivision (b), that the defendant's intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense defendant commits. To the contrary, the specific intent required by the statute is 'to promote, further, or assist in anycriminal conduct by gang members.' (Pen. Code,

186.22, subd. (b), italics added.)" (Hill, supra, at p. 774.)

In any event, the evidence was sufficient to prove that Martinez's crimes were committed with the specific intent to further other criminal conduct by his gang. In opining that the crimes were committed for the benefit of the Culver City Boys gang as contemplated by section 186.22, subdivision (b), the prosecution's gang expert testified that the crimes bolstered the gang's reputation and demonstrated that the gang "runs the show" in the neighborhood. The jury could infer from this evidence that the crimes against Villasenor were intended to send a message to the community that the gang was in control of the area, thereby inciting fear and facilitating the gang's continued pursuit of its criminal enterprises.

II.

Section 654

Martinez asserts that he was sentenced consecutively on the kidnapping and robbery counts in violation of section 654 because the crimes arose out of an indivisible course of conduct. We disagree.

Section 654, subdivision (a), provides in pertinent part, that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This statute "'"precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" [Citation.]'" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) If, however, the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, he or she "'. . . may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]' [Citations.]" (Ibid.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (Ibid.)

The evidence in this case plainly supports the trial court's conclusion that the kidnapping and robbery offenses were committed with separate intents and objectives. The evidence demonstrated that the victim was kidnapped for the purposes of obtaining ransom for his release that was to be shared with other gang members. By contrast, the robbery was committed when the victim's bracelet, watch, rings, and money were forcibly removed from his person. When Martinez's cohort removed those items, he told Martinez, "[y]ou keep the ring and I'll keep the bracelet. Don't tell the others, we'll keep these." Under the circumstances, section 654 did not bar the imposition of consecutive sentences for the crimes. (See, e.g., People v. Douglas (1995) 39 Cal.App.4th 1385, 1393 [recognized that multiple punishment is warranted "where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives"].)

III.

Sentencing Error

Martinez contends, and the People concede, that the trial court erroneously imposed and stayed a one-year term for the section 12022 firearm allegation on the torture count because Martinez received a 10-year sentence for a section 12022.53 firearm-use enhancement allegation on the same count. (See People v. Wischemann (1979) 94 Cal.App.3d 162, 175.) We shall order the sentence stricken and the abstract of judgment amended accordingly.

DISPOSITION

The one-year term imposed under section 12022 on count three is ordered stricken. The trial court shall forward a corrected abstract of judgment showing the amended sentence to the Department of Corrections and Rehabilitation. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

George G. Lomeli, Judge

Superior Court County of Los Angeles

______________________________

Murray A. Rosenberg, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]All further statutory references are to the Penal Code.