P. v. Martinez

 

 

 

 

 

 

 

Filed 1/22/14  P. v. Martinez CA5

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE
DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   MARIO MENDOZA MARTINEZ, et al.,   Defendants and Appellants.

Consolidated Case Nos. F063992 & F063998   (Super. Ct. No. BF137549A)     >OPINION

 

            APPEAL from judgments of the href="http://www.mcmillanlaw.us/">Superior Court of Kern County.  John W. Lua, Judge.

            John Doyle, under appointment by the Court of Appeal, for
Defendant and Appellant Mario Mendoza Martinez.

Richard Doctoroff, under appointment by the Court of
Appeal, for Defendant and Appellant Fernando Ortiz.

            Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Julie A. Hokans and Eric L.
Christoffersen, for Plaintiff and Respondent.

-ooOoo-

Appellants
Mario Martinez and Fernando Ortiz made a poor choice when they selected their
victim in this case.  J.H. probably
looked like an easy target; a 13-year-old boy riding alone on a scooter in the
early evening.  Martinez and Ortiz, then
ages 20 and 21 respectively, attacked him in the parking lot of a sporting
goods store.

J.H.
fought back.  The men succeeded in
robbing the boy of his scooter, but Ortiz had to be taken to the hospital and
received five staples to close a serious head wound.  J.H. emerged from the incident relatively
unscathed.

A jury
convicted Martinez and Ortiz of second degree robbery (Pen. Code, §§ 211,
212.5, subd. (c))href="#_ftn1"
name="_ftnref1" title="">^[1] and assault with force likely to
produce great bodily injury
(§ 245, subd. (a)(1)).  Ortiz, who was
determined to be the primary instigator, was sentenced to five years in prison.
 Martinez received a shorter prison sentence
of three years.  We have consolidated
their separately filed appeals.

The first of several issues
raised by appellants is a Wheeler/>Batsonhref="#_ftn2" name="_ftnref2" title="">^[2] claim. 
Although the victim was Caucasian, and both Martinez and Ortiz are
Hispanic, defense counsel objected to the prosecutor’s use of a peremptory
challenge to excuse one of the only African-American members of the prospective
jury pool.  Having reviewed the
transcript of the voir dire
proceedings, we agree with the trial court’s ruling that the burden of establishing
a prima facie case of group bias/discrimination was not satisfied.

A separate challenge is made to
the sufficiency of the evidence in support of the convictions for assault with
force likely to result in great bodily injury. 
This claim rests upon the disparity between the injuries sustained by
Ortiz and J.H.  Such circumstances,
however, do not warrant reversal.  The
elements of section 245, subdivision (a)(1), are not negated simply because
Ortiz found himself on the losing end of a fight he started.

Additional grounds for appeal are alleged on the basis of href="http://www.fearnotlaw.com/">instructional error, ineffective
assistance of counsel, and the trial court’s failure to apply section 654 at
the time of sentencing.  We reject each
of these contentions.  Accordingly, the
judgments are affirmed.

FACTUAL
AND PROCEDCURAL BACKGROUND

J.H. was riding a scooter in the
parking lot of a sporting goods store in Bakersfield when he encountered two
men whom he had never met.  Martinez and
Ortiz approached him and said, “Hey, do you want to get jacked?”  As J.H. tried to move away, Ortiz struck him
on his left side.  J.H. responded by
swinging his metal scooter at Ortiz, connecting with the side of his head.  A scuffle ensued between all three
individuals.

J.H. was knocked down at least once.  The men eventually pulled the scooter out of
his hands and used it to hit him as the fighting continued. The incident ended
when a vehicle pulled up to assist Martinez and Ortiz.  Retaining possession of J.H.’s scooter, Martinez
and Ortiz entered the vehicle and drove away.

Part of the incident was captured
on video by a surveillance camera and witnessed by employees of the sporting
goods store.  The store manager called
911 and was able to provide the license plate of the vehicle in which the
assailants had fled.  J.H. also called
911 from his cell phone to report what had happened.  Police arrested Martinez and Ortiz later that
evening and recovered the stolen scooter.

Martinez and Ortiz were charged
by criminal information with second degree robbery (Count 1) and assault with
force likely to produce great bodily injury (Count 2).  At the jury trial held in October 2011, the
prosecution’s witnesses included J.H., two employees from the sporting goods
store, and three officers from the Bakersfield Police Department.  The video surveillance footage and audio
recordings of the 911 calls were also admitted into evidence.  The defense called no witnesses, but argued
Ortiz was the true victim and Martinez simply came to his aid.  It was further argued that the men did not
intend to rob J.H., but were instead trying to disarm him to prevent further
injuries to themselves.

The jury returned guilty verdicts
against both defendants.  Martinez was
sentenced to three years in prison under Court 1 and a concurrent term of two
years under Count 2.  Ortiz was sentenced
to five years in prison under Court 1 and a concurrent term of four years under
Count 2. 

DISCUSSION

Wheeler>/Batson Motion

Jury Selection

Jury selection began with 18
prospective jurors in the jury box. This group was comprised of men and women
from at least three or four different ethnic and racial backgrounds.  As relevant to the appeal, a woman identified
as Juror No. 2 was described by the presiding judge and the trial attorneys as
being black or African-American.

Voir dire of the prospective
jurors was conducted by the trial court with supplemental questioning from
defense counsel and the prosecution, in that order.  During the initial round of challenges, the
prosecutor exercised his second peremptory challenge to excuse Juror No.
2.  Defense counsel objected to the
juror’s dismissal.  The parties agree
that the relevant exchange between the presiding judge and trial counsel on
this issue was as follows:

 

“MR. CARTER [attorney
for Ortiz]:  Yes.  I would like to – I guess this would be the
appropriate time to bring a Batson-Wheeler
motion for the dismissal of Juror No. 2, I believe she was.  As far as I can tell – I don’t know if she is
the only black panel member, or I think there might be one other one out
there.  It is hard for me to tell.  But I bring that motion at this point.

 

“MR. NKWONTA [attorney
for Martinez]:  If I may join, I would
invite [the prosecutor] to articulate a specific reason why she was excused
based on her answers because from my memory, she was answering every question
telling us that she would be a fair and impartial juror.  So what is the real basis for her being
excused?

“THE COURT:  First off, Counsel, insofar as a >Batson-Wheeler motion is concerned, can
you articulate for the record any pattern of conduct posed by the prosecutor to
show that he is arbitrarily discriminating against a particular class, racial
ethnicity, or gender?

 

“MR. CARTER:  Yes.  I
mean, it is a little difficult given the panel that we are presented.  I only – I can only say at this point that he
has picked off 100 percent of the black panel members.  I can also say in answer to the questions
given were not significantly – raise no significant issues for cause; they
raise no significant issues of bias; they raised no issues that would, as far
as I could tell, separate her from any of the other panel members who are still
presently on the panel.  [¶]

Part of the problem, of course, is this is very early on; so a pattern – we’ve
only, I think, had three peremptories altogether.  So a pattern is going to be hard to
determine.  But given that we don’t have
– as I said, my recollection of what I can see from the entire panel present of
– I think there was 80 people that were here – it appears to me there was only,
maybe, as far as I could tell, one other black person or person of color on the
panel.  I don’t know how much of a
pattern you could even get with two people, but she was the only black person
on the panel without obvious reasons for dismissal; and, therefore, I bring a
motion.

 

“THE COURT:  At this time I am going to deny your motion
in that it does not appear to the Court that a prima facie case has been satisfied
for the following reasons:  [¶] On the
one hand, Mr. Carter, you are absolutely correct.  If there is racial discrimination or excusing
of prospective jurors based on race alone, that would support a prima facie
case, so long as it’s eliminating either the entire prospective juror
population or at least a majority of that prospective juror population.  I do not know at this point when looking at
the audience whether there are other African-Americans or other persons of
similar racial ethnicity to Prospective Juror No. 2, who was, I think, the
third peremptory challenge used overall – was used to excuse her.  [¶] I am going to deny your motion at this
time without prejudice subject to, I guess, laying the proper foundation for
that motion upon reviewing the panel in its entirety.

 

“MR. CARTER:  I understand, Your Honor.  I understand. 
But I just have – it seems to me, just maybe to help clarify my
thinking, you just stated the prima facie case in that the only black person up
there – and perhaps [in] the whole [pool] was just dismissed.

 

“THE COURT:  I don’t know. 
All I know is there was one black person, or African-American, in Seats
1 through 18.  I do not know if there are
others in the audience that are part of this jury panel.

 

“MR. CARTER:  All right.

“THE COURT:  Anything further counsel?

 

“MR. CARTER:  “No.” 

Counsel for Martinez renewed his
motion after the jury had been selected, which prompted an additional
discussion:

 

            “MR.
CARTER:  I will renew my >Batson-Wheeler motion given there was,
at best, one other person of color in the audience.

 

“THE COURT:  All right.

 

“MR. NKWONTA:  I join.

 

“THE COURT:  Counsel, as I stated previously, it does not
appear to the Court a prima facie case has been shown in which to grant that in
that the Court does recall the previous statements offered by the
attorneys.  [¶] Mr. Cuper, any comment or
response you would like to make on the record at this time regarding excusing
at that time Prospective Juror No. 2, Ms. [S]?

 

“MR. CUPER [the
prosecutor]: No, thank you, Your Honor.

 

“THE COURT:  All right. 
The record should reflect that as previously represented, the attorneys
– I mean, the defendants in this case are of Hispanic origin; that [Juror No.
2] appeared to be African-American and, at least within Seats 1 through 18, was
the only African-American on the panel. 
[¶] It did not appear to the Court that there was any discrimination to
a particular class of subjects insofar as exercising peremptory challenges to
discriminate or to eliminate one racial origin over another.  For those reasons, as well as the answers
given by Prospective Juror No. 2 at the time, as well as questions asked of the
panel in whole, that a prima facie case has not been shown.” 

Analysis

A Wheeler/Batson motion refers to the rule derived from its namesake
cases that peremptory challenges based on a prospective juror’s race or
membership in a similar cognizable class are prohibited under the state and
federal Constitutions.  (>People v. Avila (2006) 38 Cal.4th 491,
541.)  African-Americans and
African-American women are cognizable groups in this context.  (People
v. Bell (2007) 40 Cal.4th 582, 597 (Bell).)  Although Martinez and Ortiz are Hispanic,
case law holds that a defendant need not be of the same race as a prospective
juror to object to an unlawful peremptory challenge by the prosecutor.  (People
v. Burgener (2003) 29 Cal.4th 833, 863, citing Powers v. Ohio (1991) 499 U.S. 400, 415-416.)

“There is a rebuttable
presumption that a peremptory challenge is being exercised properly, and the
burden is on the opposing party to demonstrate impermissible
discrimination.”  (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).)  To rebut this
presumption, the party making a Wheeler/Batson
motion must successfully complete a three-step procedure.  (Ibid.)  “First, the defendant must make out a prima
facie case ‘by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.’ 
Second, once the defendant has made out a prima facie case, the ‘burden
shifts to the State to explain adequately the racial exclusion’ by offering
permissible race-neutral justifications for the strikes.  Third, ‘[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether the opponent of the
strike has proved purposeful racial discrimination.’”  (Johnson
v. California (2005) 545 U.S. 162, 168, fn. and citations omitted.)

The trial court in this case
found the first step was not satisfied, i.e., that the moving parties failed to
establish a prima facie case of group discrimination.  The applicable standard of review requires us
to consider the jury selection proceedings as a whole to determine whether
substantial evidence supports the ruling. 
(People v. Jenkins (2000) 22
Cal.4th 900, 993-994; People v. Howard
(1992) 1 Cal.4th 1132, 1155.)  The focus
of the prima facie inquiry is on the moving party’s contentions and the record
of voir dire.  (People v. Wimberly (1992) 5 Cal.App.4th 773, 781.)  “Because of the trial judge’s knowledge of
local conditions and local prosecutors, powers of observation, understanding of
trial techniques, and judicial experience, we must give ‘considerable
deference’ to the determination that appellant[s] failed to establish a prima
facie case of improper exclusion.”  (>Id. at p. 782; cf., Uttecht v. Brown (2007) 551 U.S. 1, 9 [“Deference to the trial
court is appropriate because it is in a position to assess the demeanor of the
venire, and of the individuals who compose it, a factor of critical importance
in assessing the attitude and qualifications of potential jurors.”].)

Contrary to the arguments of
Martinez and Ortiz, a prima facie case did not arise simply because the
prosecutor dismissed the only African-American person on the prospective jury
panel (or possibly one of only two “persons of color” in the entire pool).  It is true that even a single race-based
challenge is prohibited.  (>People v. Cleveland (2004) 32 Cal.4th
704, 734.)  However, a reasonable
inference of discrimination requires more than the excused juror’s membership
in a cognizable group that is underrepresented in the jury pool.  In the recent case of People v. Harris (2013) 57 Cal.4th 804 (Harris), where a prosecutor dismissed the only two black women who
had been called to the jury box, it was held that “the small number of
African-Americans in the jury pool makes ‘drawing an inference of discrimination
from this fact alone impossible.’”  (>Id. at p. 835.)

Other cases have rejected
appellants’ proposition in the face of more questionable ratios than those
presented here.  In People v. Streeter (2012) 54 Cal.4th 205, 223, the prosecutor’s use
of three out of five peremptory challenges against African-Americans did not
establish a prima facie case.  The same
was true in People v. Clark (2011) 52
Cal.4th 856, 905, where the prosecutor challenged four out of five
African-American prospective jurors. 
Another example is Bell, >supra, which involved the use of
peremptory challenges to exclude two of three African-American jurors.  (Bell,
supra, 40 Cal.4th at pp. 597-598.)

While the dismissal of some or
all members of a cognizable group is relevant to the Wheeler/Batson analysis, other probative circumstances must
exist.  Commonly considered factors
include the nature of the questioning by the prosecutor, the racial or ethnic
background of the defendant and the victim, and the similarity of challenged jurors
based on characteristics other than group membership.  (Harris,
supra, 57 Cal.4th at pp.
834-835.)  With regard to the first
consideration, evidence that the prosecutor engaged in “desultory voir dire” or
no questioning at all may suggest a discriminatory motive.  (Id.
at p. 835.)

None of these factors supports
the existence of a prima facie case in this matter.  Appellate counsel for Ortiz initially claimed
the prosecutor failed to question Juror No. 2, but admitted the mistake in his
reply brief.  The prosecutor asked
questions of eight individuals in the jury box, one of whom was Juror No. 2.  The prosecutor challenged one of those eight
people for cause (Juror No. 11) and exercised peremptory challenges against two
others (Juror No. 2 and Juror No. 12). 
The prosecutor’s voir dire was brief, but understandably so considering
he went last after three rounds of questioning by the trial court and two
defense attorneys.  (See >People v. Christopher (1991) 1
Cal.App.4th 666, 672 [“Although the prosecutor challenged the sole
African-American prospective juror, his questioning of that juror, while short,
was not perfunctory nor unusually limited when compared with his questioning of
other members of the panel.”].)

The characteristics of the
excused jurors disclose no suspicious patterns. 
Juror No. 11, who was Hispanic (as were several other members of the
pool), was challenged for cause after expressing distrust of police officers
based on a personal experience of racial profiling.  Juror No. 12 differed from Juror No. 2 in
age, race, occupation, and residence (they lived on opposite ends of the
county).  Moreover, the lack of any
racial commonality between Juror No. 2, the victim, and the defendants,
reasonably weighs against the existence of a prima facie case.

The only other grounds offered in
support of the Wheeler/Batson motion
was the opinion of Ortiz’s defense counsel that the voir dire responses of
Juror No. 2 “raise[d] no significant issues for cause[,] no significant issues
of bias [and] no issues that would, as far as I could tell, separate her from
any of the other panel members.” 
Martinez’s trial counsel focused exclusively on the prospective juror’s
stated ability to be fair and impartial.  Both lawyers ignored a basic tenet of the
peremptory challenge procedure.

Prosecutors and defense attorneys
alike have the right to excuse a prospective juror “based upon facial
expressions, gestures, hunches, and even for arbitrary or idiosyncratic
reasons.”  (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)  “On appellate
review, a voir dire answer sits on a page of transcript.  In the trial court, however, advocates and
trial judges watch and listen as the answer is delivered.  Myriad subtle nuances may shape it, including
attitude, attention, interest, body language, facial expression and eye
contact.”  (Id. at p. 622.)

It is hardly a remarkable
occurrence for a prospective juror to be peremptorily challenged despite their
promise to remain fair and impartial. 
Express representations to the contrary would subject the juror to
dismissal for cause.  In >People v. Cornwell, 37 Cal.4th 50 (>Cornwell), a defendant’s >Wheeler/Batson motion “alluded to
nothing more than the circumstance that (1) one of the two African-Americans
among the potential jurors had been challenged, and (2) the juror would not
have been subject to excusal for cause.” 
(Id. at p. 69.)  Our Supreme Court made the following
observation before concluding the defendant had failed to establish a prima
facie case: “The circumstance that the juror was not subject to exclusion for
cause certainly did not support an inference that the exercise of a peremptory
challenge against her was motivated by group bias.”  (Cornwell,
supra, 37 Cal.4th at p. 70.)

Furthermore, a defense attorney’s
favorable opinion of the excused juror’s voir dire responses carries little
weight, if any, in our analysis of the overall circumstances.  (See People
v. Lancaster (2007) 41 Cal.4th 50, 76.) 
One could easily argue that defense 
counsels’ objection to the dismissal of Juror No. 2 evidenced their
preference for her to remain on the jury for some unspoken reason – perhaps the
same reason which motivated the
prosecutor to exercise his peremptory challenge.  Nevertheless, Martinez and Ortiz insist we
must engage in what is known as a “comparative juror analysis” to glean insight
into the prosecutor’s thought process. They are wrong.

“The
rationale for comparative juror analysis is that a side-by-side comparison [of
the characteristics and voir dire responses] of a prospective juror struck by
the prosecutor with a prospective juror accepted by the prosecutor may provide
relevant circumstantial evidence of purposeful discrimination ….”  (People
v. DeHoyos (2013) 57 Cal.4th 79, 109.) 
However, the courts of this state have repeatedly held that such an
undertaking is only required at the third stage of the Wheeler/Batson analysis. 
(See, e.g., People v. Howard
(2008) 42 Cal.4th 1000, 1019-1020.)  The
California Supreme Court reiterated its position during the pendency of this
appeal: “When a trial court has found no prima facie showing, and the
prosecutor has declined to state reasons for the excusals, we have declined to
conduct a comparative juror analysis.”  (>Harris, supra, 57 Cal.4th at p. 836.)

Appellants
rely on U.S. v. Collins (9th Cir.
2009) 551 F.3d 914 (Collins), wherein
the Ninth Circuit described comparative juror analysis as “a tool for
conducting meaningful appellate review of whether a prima facie case has been
established ….”  (Id. at p. 921.)  Our Supreme
Court has acknowledged the Collins
opinion and does not subscribe to the same view.  (Harris,
supra, 57 Cal.4th at p. 836.)  The reason is simple: employing such a
procedure on appeal to the first step of the Wheeler/Batson inquiry is the equivalent of a guessing game. 

Even at
the third stage, comparative juror analysis has inherent limitations.  “A transcript will show that the panelists
gave similar answers; it cannot convey the different ways in which those
answers were given.”  (>Lenix, supra, 44 Cal.4th at p. 623.)  “Two panelists might give a similar answer on
a given point.  Yet the risk posed by one
panelist might be offset by other answers, behavior, attitudes or experiences
that make one juror, on balance, more or less desirable.  These realities, and the complexity of human
nature, make a formulaic comparison of isolated responses an exceptionally poor
medium to overturn a trial court’s factual finding.”  (Id.
at p. 624.)

There
are further limitations when appellate review focuses on the prima facie
grounds for the motion.  “Where, as here,
no reasons for the prosecutor’s challenges were accepted or posited by either
the trial court or this court, there is no fit subject for comparison.”  (Bell,
supra, 40 Cal.4th at p. 601.)  “Whatever use comparative juror analysis
might have in a third-stage case for determining whether a prosecutor’s
proffered justifications for his strikes are pretextual, it has little or no
use where the analysis does not hinge on the prosecution’s actual proffered
rationales ….”  (Bonilla, supra, 41 Cal.4th
at p. 350.) 

Appellants’
reliance upon Miller-El v. Dretke
(2005) 545 U.S. 231 (Miller-El) is
misplaced.  “Miller-El arose at the third stage of a Wheeler-Batson inquiry, [which occurs] ‘after the trial court has
found a prima facie showing of group bias, the burden has shifted to the
prosecution, and the prosecutor has stated his or her reasons for the
challenges in question.’  The high court
did not consider whether appellate comparative juror analysis is required ‘when
the objector has failed to make a prima facie showing of discrimination.’  A fortiori, Miller-El does not mandate comparative juror analysis in a
first-stage Wheeler-Batson case when
neither the trial court nor the reviewing courts have been presented with the
prosecutor’s reasons or have hypothesized any possible reasons.”  (Bell,
supra, 40 Cal.4th at p. 601,
citations omitted.)

As
stated above, a presumption exists that the prosecution has exercised its
peremptory challenges in a constitutional manner.  Martinez and Ortiz do not rebut this
presumption.  Their Wheeler/Batson motion was based on a challenge against one of
possibly two African-American members of the jury pool and their attorneys’
opinion that there was no apparent reason for the prospective juror’s dismissal.  Such a skeletal assertion, without more, does
not establish a prima facie case of discrimination.

In
considering the totality of the circumstances, we note the peremptory challenge
came in the early stages of the selection process at a time when there was a
racially diverse group in the jury box. 
According to defense counsel, at least one other African-American person
remained in the pool.  It is also
significant that neither appellants nor their victim were of the same race as
the excused juror.  These facts, combined
with the absence of countervailing circumstances, constitute substantial
evidence in support of the trial court’s finding that a prima facie case of
racial discrimination was not made.

Sufficiency of the Evidence

Martinez and Ortiz each challenge
the sufficiency of the evidence in support of their convictions for assault by
force likely to produce great bodily injury within the meaning of section 245,
subdivision (a)(1).  To assess their
arguments, we review the entire record to determine whether any rational trier
of fact could have found the elements of the crime beyond a reasonable
doubt.  (People v. Zamudio (2008) 43 Cal.4th 327, 357.)  “The record must disclose substantial
evidence to support the verdict – i.e., evidence that is reasonable, credible,
and of solid value – such that a reasonable trier of fact could find the
defendant[s] guilty beyond a reasonable doubt. 
In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the
evidence.”  (Ibid., citations omitted.)

Criminal assault requires an
attempt to inflict violent injury and the present ability to do so.  (§ 240.) 
For purposes of section 245, “great bodily injury” means significant or
substantial injury.  (>People v. Brown (2012) 210 Cal.App.4th
1, 7 (Brown).)  “One may commit an assault without making
actual physical contact with the person of the victim; because the statute
focuses on use of a deadly weapon or
instrument or, alternatively, on force likely
to produce great bodily injury, whether the victim in fact suffers any harm is
immaterial.”  (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, original
italics.)  If harm does occur, the nature
of the victim’s injuries is a relevant fact to consider in determining whether
the force used was capable of producing, and likely to produce, great bodily
injury.  (Brown, supra, 210
Cal.App.4th at p. 7.)

At trial, defense counsel
repeatedly reminded the jury that Ortiz was seriously injured from being struck
with J.H.’s scooter.  Whatever strategy
was behind this tactic, it cuts directly against the arguments advanced on
appeal.  The testimony of J.H., along
with the video surveillance footage, was more than sufficient to establish that
the same scooter was used to hit J.H. on the head after appellants had wrested
it from his hands.  In addition to
scrapes and bruises on his body, J.H. sustained cuts on his scalp. The severity
of the head injuries sustained by Ortiz from the same “weapon” (as it was
described by defense counsel) supports a reasonable inference that the force
used against J.H. carried the same likelihood of significant or substantial
harm.

The video evidence and testimony
from multiple eyewitnesses also supports the conclusion that Martinez and Ortiz
were both involved in the assault. 
Respondent aptly notes that Martinez and Ortiz are subject to the
doctrine of aider and abettor liability. 
(§ 31.)  Therefore, it does
not matter which man actually swung the scooter at J.H.  The evidence in the record substantially
supports the convictions of both appellants. 


Ineffective
Assistance of Counsel

Ortiz asserts a claim for
ineffective assistance of counsel based on his trial attorney’s disclosure of
certain information during opening statements. 
The remarks were made in the context of explaining why appellants were
at the sporting goods store at the time of the incident.  Counsel’s narrative was as follows: “[Ortiz
was] hanging around with his friends. 
They decide – it’s his grandfather’s birthday.  They decide to go buy – Mr. Ortiz decides to
go buy his grandfather a little present. 
And in this case it was just a little – some bullets, .40 caliber
bullets so he could shoot.  Okay?  They are going into the store to buy a
present.  They go into the store, make
their purchase.  They come out of the
store.  You’ve heard a little description
of that….”

Ortiz believes his attorney
“poisoned the minds of the jurors by deliberately and unnecessarily informing
the jury that [he] had purchased high power .40 caliber bullets as a birthday
present for his grandfather.”  Martinez
joins in the claim under the theory that his own counsel should have moved for
a mistrial because the prejudicial effect of the information was equally
applicable to him.  Both positions are
untenable. 

An
appellant must establish two things to show ineffective assistance of counsel:
(1) the performance of his or her counsel fell below an objective standard of
reasonableness, and (2) prejudice occurred as a result.  (Strickland
v. Washington (1984) 466 U.S. 668, 687 (Strickland);
People v. Hernandez (2012) 53 Cal.4th
1095, 1105; People v. Bradley (2012)
208 Cal.App.4th 64, 86-87.)  These
elements are often difficult to prove. 
“In evaluating defendant’s showing [a court accords] great deference to
the tactical decisions of trial counsel in order to avoid second-guessing
counsel’s tactics and chilling vigorous advocacy by tempting counsel to defend
himself or herself against a claim of ineffective assistance after trial rather
than to defend his or her client against criminal charges at trial.”  (In re
Avena (1996) 12 Cal.4th 694, 722, citations and internal quotation marks
omitted.)

In
accordance with the deferential standard of review, we presume the actions of
defense counsel “might be considered sound trial strategy” under the
circumstances of the case.  (>People v. Mesa (2006) 144 Cal.App.4th
1000, 1007 (Mesa), quoting >Strickland, supra, 466 U.S. at p. 689.) 
Therefore, “a conviction will be reversed for ineffective assistance of
counsel only when the record demonstrates there could have been no rational
tactical purpose for counsel’s challenged act or omission.”  (Mesa,
supra, 144 Cal.App.4th at p.
1007.)  Here, it is fairly obvious
Ortiz’s attorney was trying to humanize his client after the prosecutor had
portrayed him as a bully who randomly attacked a much younger and smaller child
for no apparent reason.  The explanation
also served to emphasize Martinez and Ortiz had a specific purpose for being at
the store and were not simply roaming the streets in search of a victim.

Appellants
argue these goals could have been accomplished without reference to the .40
caliber ammunition.  However, as
suggested by respondent, the rationale may have been that by identifying the
item, the jury was more likely to believe Ortiz had sufficient funds such that
he had no reason to steal J.H.’s inexpensive scooter.href="#_ftn3" name="_ftnref3" title="">^[3]  Respondent also notes counsel
later elicited testimony from one of the store employees that Ortiz had money
to pay for the item.

Under
the circumstances, we are not convinced there could not have been a rational
tactical purpose for counsel’s statements. 
Regardless, even if appellants could clear the first >Strickland hurdle, their claim would
fail under the second test.  “It is not
sufficient to show the alleged errors may have had some conceivable effect on
the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’
that absent the errors the result would have been different.”  (Mesa,
supra, 144 Cal.App.4th at p.
1008.)  Although the error alleged by
Martinez is his attorney’s failure to move for a mistrial, his claim stands or
falls with the viability of Ortiz’s arguments since a mistrial is warranted “only
when a party’s chances of receiving a fair trial have been irreparably
damaged.”  (People v. Ayala (2000) 23 Cal.4th 225, 282, citations and quotation
marks omitted.)

To say
the reference to Ortiz’s purchase of ammunition was fatally prejudicial to his
case is a highly speculative and subjective argument.  No guns were involved in the incident and the
ammunition was said to have been purchased for a relative.  If there was a gun owner on the jury panel,
the information may have had a positive impact. 
In any event, proof of reversible error “‘must be a demonstrable reality
and not a speculative matter.’”  (>People v. Karis (1988) 46 Cal.3d 612,
656.)  In light of the overwhelming
evidence in support of appellants’ guilt, it is not reasonably probable that,
but for counsel’s alleged error, a more favorable verdict would have been
rendered.     

Alleged Instructional Error on
Mutual Combat

Background

Appellants each relied on a claim
of self-defense to justify their actions against J.H.  Although he did not testify at trial,
Martinez told police at the time of his arrest that the incident began when “a
white guy hit [my] homey.”  Both defense
attorneys argued J.H. was the initial aggressor and/or used unreasonable force
against Ortiz.  Martinez was described as
a “Good Samaritan” who saved Ortiz’s life. 
Pursuant to these theories, counsel argued the defendants had a right to
defend themselves and each other.

The trial court instructed the
jury on self-defense using CALCRIM Nos. 3470, 3471, 3472, and 3474. We are
concerned here with CALCRIM No. 3471, a version of which was given as follows:

“A person who engages
in mutual combat or who is the initial aggressor has a right to self-defense
only if:

 

“1. He actually and in
good faith tries to stop fighting;

 

“AND

 

“2. He indicates, by
word or by conduct, to his opponent, in a way that a reasonable person would
understand, that he wants to stop fighting and that he has stopped fighting.

 

“If a person meets
these requirements, he then has a right to self-defense if the opponent
continues to fight. 

 

“If you decide that
the defendant started the fight using non-deadly force and the opponent
responded with such sudden and deadly force that the defendant could not
withdraw from the fight, then the defendant had the right to defend himself
with deadly force and was not required to try to stop fighting.”

Martinez and Ortiz present a
twofold argument with respect to the term “mutual combat” as used in the first
sentence of the instruction.  First,
appellants allege the trial court erred by failing to delete this term because
none of the parties advanced a theory of mutual combat during trial.  Second, they contend the error was
exacerbated by the court’s omission of a bracketed portion of the instruction
which provides the legal definition of “mutual combat.”href="#_ftn4" name="_ftnref4" title="">^[4]

Because mutual combat has a
specific legal meaning, Martinez and Ortiz believe the erroneous inclusion of
the term without an accompanying definition confused the jury.  More specifically, appellants hypothesize that
the jurors interpreted the instruction to mean that the act of exchanging blows
with J.H., regardless of the circumstances, “disqualified the participants from
claiming self-defense, even if the jury determined [that neither of them were]
the initial aggressor.”

Analysis

As a preliminary matter, we
decline to address the parties’ debate over whether this issue was waived or
forfeited.  It appears from the record
that the trial court held an unreported jury instruction conference with the
trial attorneys, the details of which are unknown to us. In any event,
appellants alternatively claim ineffective assistance of counsel on grounds
that their lawyers allowed the alleged instructional error to occur.  The latter contention inevitably requires a
substantive analysis.  As we will
explain, there is no basis for reversal under any theory.

It is evident from the first
sentence of the instruction that CALCRIM No. 3471 applies to a person who
engages in mutual combat or is the
initial aggressor.  Appellants’ heavy
reliance on People v. Ross (2007) 155
Cal.App.4th 1033 (Ross) overlooks the
fact that CALCRIM No. 3471 was not at issue in that case.  Ross
involved juror confusion over a version of CALJIC NO. 5.56, which is an
instruction devoted exclusively to self-defense in a mutual combat scenario and
does not include the disjunctive language of CALCRIM No. 3471.  (Ross,
supra, 155 Cal.App.4th at p. 1042,
fn. 9.)  The instruction in >Ross was given erroneously, without any
evidence that would have made it applicable, and the jury sought clarification
during deliberations.  (>Id. at pp. 1042, 1049-1052.)  Not only is Ross inapposite to the facts of this case, it also does not stand
for the proposition that failure to define “mutual combat” when using CALCRIM
No. 3471 constitutes reversible error.

We agree the evidence adduced at
trial does not support a reasonable inference that the parties engaged in
mutual combat.  We do not agree, however,
that inclusion of those two words in the challenged instruction sent the jury into
a mental tailspin.  Jurors are presumed
to be intelligent persons “‘capable of understanding and correlating all jury
instructions which are given.’”  (>People v. Martin (2000) 78 Cal.App.4th
1107, 1111.)  “‘Instructions should be
interpreted, if possible, so as to support the judgment rather than defeat it
if they are reasonably susceptible to such interpretation.’”  (Id.
at p. 1112, quoting People v. Laskiewicz
(1986) 176 Cal. App. 3d 1254, 1258.)

“[G]iving an irrelevant or
inapplicable instruction is generally “‘“only a technical error which does not
constitute ground for reversal.”’”  (>People v. Cross (2008) 45 Cal.4th
58, 67.)  Such errors are reviewed under
the standard articulated in People v.
Watson (1956) 46 Cal.2d 818, 836.  (>People v. Guiton (1993) 4 Cal.4th 1116,
1129-1130 (Guiton).)href="#_ftn5" name="_ftnref5" title="">^[5]  We “affirm the judgment unless a review of
the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant
guilty solely on the unsupported theory.”  (Guiton,
supra, at p. 1130.)

The record indicates the jury was
advised under CALCRIM No. 200 that some of the instructions might not apply,
depending on their findings about the facts of the case, and the inclusion of a
particular instruction did not mean the court was “suggesting anything about
the facts.”  The jury was also instructed
to first determine what the facts were, then follow the instructions that
applied to the facts as they found them. 
We presume the jury followed these instructions and ignored the inapplicable
instructions.  (People v. Holloway (2004) 33 Cal.4th 96, 152-153; >Guiton, supra, 4 Cal.4th at p. 1131.

Appellants’ theory of juror
confusion depends upon a highly speculative and improbable chain of
contingencies.  The jury first needed to
reach the conclusion that J.H. was the initial aggressor, which itself requires
a great leap of faith to assume.  Next,
instead of ignoring CALCRIM No. 3471 as irrelevant since neither defendant was
the initial aggressor, the jury would have had to fixate on the words “mutual
combat,” assign a counterintuitive meaning to that term, and consequently
disregard all other instructions pertaining to self-defense and defense of
others.  Finally, despite believing J.H.
started the fight (and that Martinez was the Good Samaritan), the jury needed
to somehow still reach a unanimous conclusion that both defendants committed
robbery and aggravated assault while acting with the required mens rea for each
crime.  The last step in this process is
virtually impossible to conceptualize given the elements of those offenses.

In summary, Martinez and Ortiz
fail to satisfy the burden of showing reversible error.  The evidence supporting the verdicts is
strong in comparison to the evidence supporting their claims of self-defense
and defense of others, which was meager. 
There is no reasonable probability that the inclusion of the words
“mutual combat” in the challenged instruction, without an accompanying
definition, affected the outcome of the case. 
The ineffective assistance of counsel claims fail for the same reasons
stated above.

Failure
to Instruct on Necessity

The second allegation of
instructional error is based on the lack of a jury instruction on the defense
of necessity in relation to the robbery charge. 
Martinez and Ortiz argue the trial court had a sua sponte duty to
provide such an instruction.  As a
fall-back position, both claim ineffective assistance of counsel arising from
their attorneys’ failure to make such a request.

We begin our analysis by
examining the elements of the offense in question.  Robbery is “the felonious taking of personal
property in the possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.”  (§ 211.) 
The crime also requires a specific intent to permanently deprive the
victim of their property.  (>People v. Anderson (2011) 51 Cal.4th
989, 994.)

At trial, appellants maintained
that despite driving off with J.H.’s scooter, neither formed the requisite
intent to rob him.  Instead, their sole
purpose in dispossessing J.H. of the scooter was to prevent its further use as
a weapon against them.  Appellants now
claim they were entitled to an instruction on the doctrine of necessity in
conjunction with this argument.

“The necessity defense is very
limited and depends on the lack of a legal alternative to committing the
crime.”  (People v. Beach (1987) 194 Cal.App.3d 955, 971.)  Because of its narrow applicability, trial
courts do not easily allow a defendant to present the defense to a jury.  “To justify an instruction on the defense of
necessity, there must be evidence sufficient to establish that defendant
violated the law (1) to prevent a significant evil, (2) with no adequate
alternative, (3) without creating a greater danger than the one avoided, (4)
with a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he did not
substantially contribute to the emergency.” 
(People v. Pepper (1996) 41
Cal.App.4th 1029, 1035.) 

Proving there was “no adequate
alternative” to the crime is a particularly onerous requirement.  The concept is best illustrated by
contrasting necessity with the similar but distinct defense of duress.  “Unlike duress, the threatened harm is in the
immediate future, which contemplates the defendant having time to balance
alternative courses of conduct.”  (>People v. Heath (1989) 207 Cal.App.3d
892, 901 (Heath).)  Therefore, a person who acts out of necessity
“has the time, however limited, to form the general intent required for the
crime, although under some outside pressure.” 
(Ibid.)

This aspect of the defense
exposes the flaw in appellants’ argument. 
As plainly stated in Heath, >supra, “[t]he situation presented to the
defendant must be of an emergency nature, threatening physical harm, >and lacking an alternative, legal course of
action.”  (Id. at p. 901, italics added.) 
Neither Martinez nor Ortiz showed the absence of an adequate alternative
to breaking the law.  The necessity
doctrine cannot be invoked without admitting there was time to consider and
choose between alternative courses of conduct. 
Here that would mean Martinez and Ortiz could have simply turned and run
away, but instead chose to rob J.H. of his scooter.  The availability of an adequate lawful
alternative precludes the defense.           


A trial court’s duty to instruct
sua sponte arises when there is substantial evidence in support of the proposed
defense.  (People v. Barraza (1979) 23 Cal.3d 675, 691.)  Conversely, no such duty exists if there is
insufficient evidence in the record to support the defense.  (See, e.g., People v. Miceli (2002) 104 Cal.App.4th 256, 267 [no substantial
evidence to support the second and fifth elements of necessity]; >People v. Verlinde (2002) 100
Cal.App.4th 1146, 1165 [insufficient evidence to permit the trier of fact to
find the elements of necessity].)  “The
standard for evaluating the sufficiency of the evidentiary foundation is
whether a reasonable jury, accepting all the evidence as true, could find the
defendant’s actions justified by necessity.” 
(People v. Trippet (1997) 56
Cal.App.4th 1532, 1539.)  As explained,
the record in this case does not permit such a finding.  We thus conclude there was no error by the
trial court or the defense counsel.

Section 654 

Martinez and Ortiz contest the
trial court’s imposition of concurrent sentences under Count 2.  They argue the sentences should have been
stayed pursuant to section 654 because the force used against J.H. during the robbery
and the assault was part of an indivisible course of conduct.  We find no error.

Section
654 prohibits multiple punishments for crimes arising out of a single act or
indivisible course of conduct.  (>People v. Hester (2000) 22 Cal.4th 290,
294.)  The statute provides, in pertinent
part:  “An 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.”  (§ 654, subd.
(a).)  A defendant’s intent and
objective, rather than the “temporal proximity of his offenses,” determines
whether two crimes are part of an indivisible course of conduct.  (People
v. Harrison (1989) 48 Cal.3d 321, 335.)

The
applicability of section 654 “is a question of fact for the trial court, which
is vested with broad latitude in making its determination.  Its findings will not be reversed on appeal
if there is any substantial evidence to support them.  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.”  (People
v. Jones (2002) 103 Cal.App.4th 1139, 1143, citations omitted.) 

“When a
trial court sentences a defendant to separate terms without making an express
finding the defendant entertained separate objectives, the trial court is
deemed to have made an implied finding each offense had a separate objective.”  (People
v. Islas (2012) 210 Cal.App.4th 116, 129.) 
Such findings will also be upheld on appeal if
supported by substantial evidence.  (>Ibid.)

Robbery
and assault by means of force likely to produce great bodily injury can occur
as part of the same incident and still be punished separately.  (See, e.g., In re Chapman (1954) 43 Cal.2d 385, 389-390.)  “‘[A]t some point the means to achieve an
objective may become so extreme they can no longer be termed “incidental” and
must be considered to express a different and more sinister goal than mere
successful commission of the original crime[.] 
Section [654] cannot, and should not, be stretched to cover gratuitous
violence or other criminal acts far beyond those reasonably necessary to
accomplish the original offense.’”  (>People v. Cleveland (2001) 87
Cal.App.4th 263, 272, quoting People v.
Nguyen (1988) 204 Cal. App. 3d 181, 191.)

Appellants
essentially argue they used force against J.H. after gaining possession of his
scooter for the purpose of perfecting the robbery.  The trial court viewed the facts
differently.  If taking and keeping the
scooter was their sole intent, Martinez and Ortiz could have fled as soon as
the item was in their possession. 
Instead, they continued fighting with the boy and used the scooter to
hit him.  Indulging all reasonable
inferences in favor of the trial court’s decision, we have no difficulty
concluding that substantial evidence supports the finding of two separate
objectives behind the use of force: (1) depriving the victim of his
property and (2) inflicting harm upon him. 


>RECOMMENDATIONS

The judgments are affirmed. 

 

 

                                                                                                            _____________________

Gomes,
J.

WE CONCUR:

 

 

_____________________

Cornell, Acting P.J.

 

 

_____________________

Hoff, J.