P. v. Martinez

Filed 2/5/09 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. T.K. Herman, Judge. Affirmed as modified.

Lenore De Vita, 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, Susan D. Martynec and Robert C. Scheider, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

A jury convicted Luis M. Martinez of firearm and ammunition possession by a felon and carrying a loaded unregistered firearm in public and found the gang enhancement allegations were true. The court erred in conducting a portion of the sentencing hearing in the absence of the defendant, his counsel, and the prosecutor; but the error does not require reversal. We modify the sentence to stay punishment on the ammunition possession count pursuant to Penal Code section 654.[1]

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged Martinez with one count of firearm possession by a felon ( 12021, subd. (a)(1)), one count of ammunition possession by a felon (12316, subd. (b)(1)), and one count of carrying a loaded firearm in a public place (12031, subd. (a)(1)), and alleged that he committed all three crimes for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members ( 186.22, subd. (b)(1)). The prosecution further alleged Martinez had a previous juvenile delinquency adjudication that qualified as a strike under the Three Strikes Law ( 1170, subds. (a)-(d), 667, subds. (b)-(i)) and had served a prior prison term for another offense committed as an adult (Cal. Rules of Court, rule 4.421(b)(3)).

The prosecution presented the following evidence: As the result of several shootings in Langdon Street gang territory, Los Angeles Police Sergeant Mark Wilbur was assigned to monitor the activities of the gang. Before beginning his patrol duties on December 26, 2006, Wilbur was advised by colleagues that three Langdon Street gang members were seen driving around in a blue P.T. Cruiser. Shortly thereafter, Wilbur, in a marked police car, saw the P.T. Cruiser on westbound Nordhoff Street, preparing to make a left turn onto southbound Sepulveda.

Wilbur recognized the driver, Martinez. He knew Martinez was a member of Langdon Street gang. Langdon Street gang members use the St. Louis Cardinals logo as their gang symbol, and Martinez was wearing a black St. Louis Cardinals baseball cap and black bandana. He recognized the two passengers as Langdon Street gang members as well. Wilbur made a U-turn and started to follow Martinez vehicle. At that point he noticed the P.T. Cruisers license plates appeared to be expired. Wilbur activated his lights and directed Martinez to pull over. Martinez initially slowed down, but then accelerated. He approached an intersection at approximately 45 miles per hour, entered against a red light, nearly struck a pedestrian, collided with a pickup truck, and crashed into the center median and a lamp post.

After apprehending Martinez and the passengers after the crash, officers searched the vehicle and found a nine-millimeter semiautomatic handgun on the drivers floorboard. Using latex gloves, an officer removed the handgun from the drivers floorboard and then removed the fully loaded magazine (12 rounds) and ejected a thirteenth round from the chamber. According to Wilbur, the cars front center console completely separated the drivers and passengers floorboard. The vehicle was not registered to Martinez or either of the passengers.

Although a partial fingerprint was retrieved from the handgun, it was not identifiable. The gun was not registered. A member of the Los Angeles Police Departments scientific investigation unit testified it would be very easy for an officer to erase any fingerprints on the weapon when he used gloved hands to pull the slide and eject the bullet.

Los Angeles Police Officer Shawna Green testified as the prosecutions gang expert. At the time of trial, Green had worked seven years in the gang impact unit that investigated and gathered intelligence on the Langdon Street gang and its members.

She confirmed that Martinez and his passengers were active members of Langdon Street gang. At the time of defendants arrest, Langdon Street gang was the subject of an injunction. Defendant and the passengers had each been served with the injunction

which, among other things, prohibited the three men from openly associating with each other, driving, gathering, sitting, standing anywhere within the target area. Per Green, Langdon Street gangs primary activities included numerous crimes such as: sales of narcotics, assaults, robberies, assault with deadly weapons, assaults on police officers, murders, and attempted murders.

Langdon Street gang has had a rivalry with Columbus Street gang since the 1980s. The two gang territories abut one another at the intersection of Nordhoff and Sepulveda. When Sergeant Wilbur first saw Martinez, defendant was driving westbound on Nordhoff approaching Sepulveda. At that point, Martinez was at the border of territory claimed by rival Columbus Street. Not until Martinez turned southbound onto Sepulveda was he in Langdon Street territory. Green explained that a gang member in rival territory, wearing gang indicia with a loaded weapon, is likely to provoke a violent confrontation.

Green also testified that having more than one gang member in a car with a loaded gun makes it easier to commit a crime. Each occupant of the vehicle has a responsibility, e.g., driver, shooter, lookout. In response to a leading question, Green agreed the shooter in a drive-by [might] change depending on which side of the car the rival is on and which occupant might be more easily identified than another.

The defense presented the testimony of a forensic expert who concluded the partial print on the handgun did not match the fingerprints of Martinez or the other two occupants in the car. This expert also agreed the partial print was of pretty poor quality and the officer wearing latex gloves could have inadvertently wiped off additional prints when he secured the firearm at the scene of the accident.

The parties stipulated that at the time of this arrest, Martinez was a convicted felon. The jury found Martinez guilty of all three charges and found the allegations supporting the gang enhancement to be true.

Martinez waived his right to a jury trial on the strike and prior prison term allegations, and the court found them to be true. The trial court sentenced Martinez to 12 years and 4 months, computed as follows: (1) ten years for unlawful possession of a firearm (upper term of three years, doubled to six years based on the strike finding, with an additional four years for the gang enhancement); (2) a consecutive term of one year and four months (one-third the middle term) for unlawful possession of ammunition, with an additional one year (one-third the middle term) for the gang enhancement; and (3) a consecutive, but stayed, term of one year and four months (one-third the middle term) for carrying a loaded firearm in a public place, with an additional one year (one third the middle term) for the gang enhancement.

DISCUSSION

1. Knowing Possession of the Firearm and Ammunition

Martinez first challenges the sufficiency of the evidence to support the element of knowing possession of the firearm and ammunition. While he concedes knowing possession may be established by joint or constructive possession (see, e.g., People v. Spirlin (2000) 81 Cal.App.4th 119, 130), he contends the guns presence in the vehicle and his apparent ability to access it fell short of establishing both his knowledge of the weapons existence and his control over it. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) However, a defendants knowledge of, and right to control, a firearm may be shown by circumstantial evidence and may be inferred by his conduct. (People v. Rushing (1989) 209 Cal.App.3d 618, 621-622; People v. Taylor (1984) 151 Cal.App.3d 432, 436 (Taylor).)

In Taylor, as here, defendant driver led police on a car chase. There was a passenger in the vehicle and, during the chase, a gun was thrown from the passengers window. Defendant challenged the sufficiency of the evidence to support his conviction of possessing a loaded firearm in a public place (Pen. Code, 12031, subd. (a)(1)). On evidence similar to that presented here, the Court of Appeal affirmed: [T]he gun was thrown soon after the chase began and Taylors driving represented an unequivocal attempt to avoid capture. A conviction may be supported by circumstantial evidence of constructive possession. The mere fact the evidence supports an inference Taylor did not personally possess the gun does not require reversal. (People v. Nieto (1966) 247 Cal.App.2d 364, 368.) There was sufficient evidence Taylor had constructive possession of the firearm. (Taylor, supra, 151 Cal.App.3d at p. 436.) The same analysis applies here. Martinez recklessly drove the P.T. Cruiser in an attempt to avoid the police. After he crashed the car, police found the firearm on the floorboard under his feet, where it could not easily be accessed by the passengers. This evidence is sufficient to support defendants conviction of knowingly possessing the firearm and ammunition. (Ibid.)

2. Section 186.22 gang enhancement

Martinez next argues substantial evidence does not support the jurys finding that he possessed the loaded handgun for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).) We disagree.

The prosecutions gang expert testified that Langdon Street gang controls the behavior of community members and rival gang members through fear and intimidation, and it garners more respect by committing violent crimes against its rivals. Accordingly, Langdon Street gang benefits when members carry loaded firearms as that increases the likelihood they will commit violent crimes that will enhance the gangs reputation. The expert testified that shootings were among the primary activities of Langdon Street gang. She also testified that gang members like Martinez will wear gang clothing, including a bandana (a potential facial disguise), into a rival gangs territory while carrying a loaded weapon in order to commit violent crimes. The jury could reasonably infer from this testimony that Martinez, who was first observed by Wilbur wearing his gang baseball cap and a bandana in a car with two other gang members at the border of a rival gangs territory, possessed the loaded firearm for the purpose of engaging in conduct for the benefit of, at the direction of, or in association with the Langdon Street gang.

3. Bifurcation

Martinez next challenges the trial courts denial of his motion to bifurcate the trial of the gang enhancement. But as the Supreme Court noted in People v. Hernandez (2004) 33 Cal.4th 1040, 1049, evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliation including evidence of the gangs territory . . . symbols . . . rivalries, and the like can help prove . . . specific intent . . . or other issues pertinent to guilt of the charged crime. So it was here. Evidence of Martinez membership in Langdon Street gang provided context for his wearing the baseball cap and bandana, driving a car with a loaded firearm, and evading the police. This evidence was, by definition, inextricably intertwined with the charged offenses. (Id.at p. 1048.) We find no abuse of discretion.

4. Jury instructions

The trial court gave CALJIC No. 2.02,^[2] which was requested by both parties. The Use Note for CALJIC No. 2.02 explains the instruction is appropriate when the defendants specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. (People v. Honig (1996) 48 Cal.App.4th 289, 341.) Martinez contends the trial court erred by refusing the defense request to also give CALJIC No. 2.01.^[3] He argues the prosecutor relied almost exclusively on circumstantial evidence to prove most elements of the crimes charged, including simple possession. Based upon where the gun was found, [Martinez] reaction to being stopped by the police, and the fact [defendant] and his passengers were gang members allegedly driving out of rival gang territory, the jury was asked to infer [defendant] had constructive possession of the gun.

Although the circumstances were several, they all related to a single element of the charged crimes, Martinez mental state, i.e., whether he knowingly possessed the loaded firearm. (See People v. Jeffers, supra, 41 Cal.App.4th at p. 922.) The remainder of the prosecution case that Martinez had a prior felony conviction and the loaded firearm was found on the drivers floorboard of the vehicle he was driving was proven by direct evidence. Accordingly, the trial court properly instructed the jury on CALJIC 2.02.

In any event, Martinez has not explained how failing to give CALJIC No. 2.01 was prejudicial. As the appellant, defendant has the burden to demonstrate prejudice resulting in a miscarriage of justice that requires reversal. (City of Oakland v. Public Employees Retirement System (2002) 95 Cal.App.4th 29, 51-52.) He did not meet this burden.

5. Closing argument

During closing argument, the prosecutor gave the jury examples of actual and constructive possession and recited a portion of CALJIC No. 12.44 (one person may have possession alone or two or more persons together can share actual or constructive possession). She then added: So just one person doesnt have to have possession, you can share it. [] A gun in a carload full of gangsters, every single one of them possesses that gun because every single one of them . . . has the right to control that either directly or through another person. What does that mean? You can see a rival on the passengers side, you can pass it to a gang member and say you take care of it, its on your side. Its on my side, they can pass it back to me. So every gangster within that car under these circumstances has constructive possession over the loaded weapon inside.

Martinez contends the prosecutors statement constitutes reversible error for two reasons: (1) It presented the jury with an incorrect theory of guilt, namely that the mere presence in the car with the gun constituted constructive possession, and (2) it was unsupported by the evidence.^[4] Not so.

The prosecutor did not argue that defendants mere presence in the vehicle established his constructive possession of the loaded firearm. Rather, the record amply demonstrates the prosecutor consistently advised the jury that in order to convict on any count she had to prove defendant knew of the presence of the firearm or the ammunition: In terms of each of the three counts, youll notice that the last element is the same, that basically the defendant knew something, knew of the presence of the gun, knew of the presence of the ammunition. . . . [U]nder the law, how we do that is through circumstantial evidence. [] . . . What that means is that you look at the circumstances surrounding a crime, and you let those circumstances tell you what the defendant was thinking. And thats how you prove the knowledge element as to each of the crimes.

A prosecuting attorney has a wide range in which to state her views as to what the evidence shows and the conclusions to be drawn therefrom. (People v. Mason (1960) 184 Cal.App.2d 317, 364; People v. Williams (1997) 16 Cal.4th 153, 221 [a prosecutor may vigorously argue his case].) Here, the prosecutor presented a scenario based on each occupants willingness to use the gun to further the gangs agenda and argued that each gang member in the P.T. Cruiser shared constructive possession of the firearm. This argument was supported by the gang expert, who testified that gang members rarely venture into rival territory clad in gang attire unless they intend to commit a crime against rival gang members. Wilbur testified there had been recent shootings in Langdon Street territory. This evidence, and the reasonable inferences a fact finder could draw from it, supported the prosecutors argument.

6. Sentencing

The trial court conducted the sentencing hearing during a morning session on September 24, 2007. The prosecutor sought the upper term for count 1, felon in possession of a firearm, noting the [one-year] prison term prior was alleged as a factor in aggravation . . . [and] has the same effect here which is to add one year; the high term being three years rather than the mid-term of two. She asked to double that upper term based on a juvenile adjudication that qualified as a strike. She sought the upper term for the gang enhancement as well, arguing defendants convictions as an adult were numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)). The prosecutor asked for a consecutive sentence for count 2, felon in possession of ammunition, and requested that the sentence for count 3, carrying a loaded unregistered firearm, be stayed.

Defense counsel asked for the low term for count 1 and the gang enhancement. He argued the juvenile adjudication should not qualify as a strike and his clients three adult convictions for violating the gang injunction did not demonstrate a history of violence that would justify imposition of the upper term. He sought a concurrent sentence of a stay pursuant to section 654 for possession of ammunition.

After the arguments, the judge made the following observations: (1) Martinez deliberately created a very dangerous situation by causing a serious vehicle accident involving innocent bystanders; (2) Martinez and the other two occupants in the car were looking for somebody to shoot before the police apprehended them; and (3) Martinez was committed to belonging to a gang and chose to spend the rest of his life in custody as a gang member. Based on these observations, the court noted, I dont have any hesitation at all about imposing the top term as requested by the prosecution in this case.

The court then sentenced defendant to the upper term of three years on count 1, felon in possession of a firearm. ( 20201, subd. (a)(1)). That term was doubled to six years as a result of defendants prior strike ( 667, subds. (b) (i); 1170.70.12, subds. (a)(d)). An additional four-year, upper term for the gang enhancement was also imposed. A consecutive two-year, four-month consecutive term was imposed for count 2, felon in possession of ammunition (16 months, one-third the midterm for the substantive offense; plus one year for the gang enhancement). The same sentence was imposed for count 3, carrying a loaded firearm in public, but was stayed per section 654.

Court minutes for the sentencing hearing indicate the upper term was imposed on count 1, felon in possession of a firearm, based on rule 4.421(b)(3) of the California Rules of Court (defendant had served a prior prison term). The minutes reflect the aggravated term for the gang enhancement was based on rule 4.421(b)(2) of the California Rules of Court (defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness).

The court went back on the record in the matter that same afternoon, but in the absence of the prosecutor, defense counsel, and Martinez. The judge announced the striked prior . . . [was] a serious felony and, therefore, the defendant is entitled to 50 percent credit until date of sentence. He calculated 458 days of custody credits. The judge then added: In addition, on reflection, although I pronounced sentence . . . earlier this morning, I believe I neglected to state the following: that I adopted the findings in aggravation set forth by the prosecutor having heard those arguments and while I did not repeat those arguments, I had those arrest reports in mind and adopted those as my findings in terms of justification for imposing the top term in this case. [] In addition, I added several of my own, which are on the record, and also I feel in addition justifies the sentence that I have imposed.

The court expanded on its earlier statement that Martinez was committed to lifelong gang membership by explaining that defendant is and has shown himself to be a concerned gang member unlikely at this time to try and change his lifestyle and get out of gang membership. The court also observed that Martinez had tattoos reflecting membership in the Mexican mafia prison gang. Additionally, the court identified as a mitigating factor the fact that the gun itself had not been used.

Court minutes for the afternoon session indicate the court also imposed fines which were listed on the sentencing sheet, prepared by the judge [and] filed and placed in the legal court file this date.

A.     The Parties Absence During the Afternoon Session

The court erred by conducting the afternoon hearing in the absence of defendant, his counsel, and the prosecutor. Accordingly, nothing the court said in the afternoon can be used to justify its sentencing choices. The question then becomes whether Martinez and his counsel were excluded during a crucial stage of the criminal proceeding, requiring automatic reversal. (In Ex Parte Levi (1952) 39 Cal.2d 41, 45 [judgment and sentence in felony cases may be imposed only in the presence of the accused]; Hays v. Arave (9th Cir 1992) 977 F.2d 475, 479 disapproved on another ground by Rice v. Wood (1996) 77 F.3d 1138, 1144 [California sentenced him in absentia and thereby deprived him of his constitutional liberty interest in being present at a crucial stage of his criminal proceeding].)^[5]

Martinez sentence and judgment were pronounced during the morning session. The court gave adequate reasons for its sentencing choices at that time, and they are reflected in the court minutes for that session. The court did not alter the sentence when it reconvened in the parties absence that afternoon. Accordingly, Martinez and his counsel were not excluded during a crucial stage of the criminal proceeding and their absence does not require reversal.[6]

B.    No Dual Use of Facts

Martinez contends the trial court improperly used his membership in a gang, a fact that supported the gang enhancement on the underlying offenses, as an aggravating factor in imposing the upper term on the firearm possession count. We disagree.

A sentencing court may not use the same fact to impose an enhancement and an upper term sentence. ( 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d).) Here, the trial court expressly identified the dangerous situation created by Martinez when he fled the police and crashed in an intersection as an aggravating factor supporting the upper term on the felon-in-possession-of-a-firearm count. This factor was independent of Martinezs gang membership and sufficient to render him eligible for the upper term as a felon in possession of a firearm.

The court minutes also reflect the aggravated term for this charge was based on Martinez prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).) As the prosecutor noted, the prior prison term was alleged in the complaint as a factor in aggravation and could be used either to add one year to defendants sentence on its own or to impose the upper term, also an additional one year, on the substantive count. This factor, too, is independent of Martinez gang membership.

Additionally, Martinez concedes the trial court adopted the prosecutors aggravating factors for imposing the upper term on the gang enhancement. Those included the fact that defendants prior convictions as an adult and prior juvenile adjudications were numerous and increasingly serious. As an adult, defendant was convicted on a variety of occasions for violating the Langdon Street gang injunction. His rap sheet was 29 pages long.

True, most of the trial courts on-the-record remarks were directed to defendants gang lifestyle. In context, however, they appeared to be in response to defense counsels argument that defendant has a wife and children and does want to change his life.

In any event, trial counsel did not object to the alleged dual use of facts. Defendant has accordingly forfeited any claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-352; People v. Steele (2000) 83 Cal.App.4th 212, 226.) Appellate counsel suggests such forfeiture constitutes ineffective assistance of counsel. But counsel is not ineffective for failing to make objections that he reasonably concludes would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.) And such a conclusion was reasonable here. On this record, we cannot find a reasonable probability that a defense objection would have resulted in imposition of less than the upper terms for count 1 and the gang enhancement. (See, e.g., People v. Osband (1996) 13 Cal.4th 622, 728-729.)

C.    Alleged Federal Constitutional Violations

Citing Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, defendant next contends that the courts use of factors other than defendants gang lifestyle violated his constitutional rights to a jury trial and due process. Martinez recognizes his sentencing comports with the California Supreme Courts decisions in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825, but maintains those opinions were wrongly decided. As we find no impermissible use of aggravating factors, we do not address defendants contentions in this regard, noting only that we would reject them in any event. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

D.    Section 654 Bars a Consecutive Sentence on Count 2

Martinez argues the trial court should have stayed punishment on his conviction for ammunition possession pursuant to section 654. We agree. People v. Lopez (2004) 119 Cal.App.4th 132 is precisely on point: Where a felon is convicted of possession of a firearm and ammunition, but all the ammunition is loaded in the weapon, there is an indivisible course of conduct, precluding multiple punishment for both offenses. (Id. at p. 138.) We decline the Attorney Generals suggestion that we depart from the rationale and conclusion in Lopez.

E.     Juvenile Adjudication as a Strike

Martinez contends his juvenile delinquency adjudication for a violation of section 245 cannot qualify as a prior strike under federal constitutional law because he had no right to a jury trial in the juvenile court. This issue has been considered and rejected by numerous appellate courts in California, including courts in the Second District. (People v. Buchanan (2006) 143 Cal.App.4th 139, 141; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1311, 1313-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075, 1077-1078; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394.) We agree with the reasoning of these cases, which we need not repeat, and reject Martinez contention.[7]

7. Cumulative error

Martinez argues that the errors raised in the present appeal cumulatively resulted in a miscarriage of justice. We have identified two errors. The error in conducting a portion of the sentencing hearing in the parties absence does not require reversal for the reasons stated. The sentencing error pursuant to section 654 is corrected by modifying the judgment. Accordingly, we necessarily reject the claim of cumulative error requiring reversal.

DISPOSITION

The two-year, four- month consecutive sentence for count 2, unlawful possession of ammunition, is stayed pending finality of the judgment and service of sentence on count 1. Such stay is to become permanent upon completion of sentence as to count 1. The superior court is ordered to prepare an amended abstract of judgment reflecting this modification and forward it to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

DUNNING, J.*

We concur:

MALLANO, P. J.

ROTHSCHILD, J.

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[1] All statutory references are to the Penal Code unless otherwise specified.

[2] The court instructed the jurors as follows: The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged in Counts 1, 2, or 3, or find the allegation that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang to be true, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent or mental state but (2) cannot be reconciled with any other rational conclusion. [] Also, if the evidence as to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.

[3] CALJIC 2.01 provides: However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendants guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to [his] [her] guilt. [] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.

[4] Defendant recognizes his counsel failed to object to the prosecutors statement at the time she made it and thus his claim of prosecutorial misconduct is arguably waived. Defendant, however, raises an ineffective assistance of counsel claim. Although we need not reach this issue because we conclude there was no prosecutorial misconduct, we note [a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. (People v. Williams, supra, 16 Cal.4th 153, 221 quoting People v. Kelly (1992) 1 Cal.4th 495, 540.)

[5] The third case cited by Martinez on this point, Arizona v. Fulminante (1991) 499 U.S. 279, 309-310, pertains to involuntary confessions and is not applicable.

[6] Of course, a criminal defendant also has the right to be present when the sentencing court calculates custody credits, strikes a prior prison term, and imposes fines. Martinez has not challenged these components of the sentencing process, however.

[7] The same issue is currently pending before the California Supreme Court in People v. Nguyen (S154847), review granted October 10, 2007, where the majority conclude that using a juvenile delinquency adjudication as a strike violated Apprendi v. New Jersey(2000) 530 U.S. 466.

*Judge of the Orange County Superior Court assigned by the Chief Justice pursuant to article, section 6 of the California Constitution.