P. v. Martinez

 

 

 

 

 

Filed 1/15/14  P. v. Martinez CA2/2

 

 

 

>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

> 

 

 

 

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for 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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 TWO

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   EDWARD JACK MARTINEZ,               Defendant and Appellant.

B246488         (Los Angeles County       Super. Ct. No. YA077857)

 

            APPEAL
from a judgment of the Superior Court of
Los Angeles County.

Steven R. Van Sicklen, Judge.  Affirmed as modified.

 

            David
Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.

 

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Kenneth C. Byrne and Seth P. McCutcheon, Deputy Attorneys
General, for Plaintiff and Respondent.

___________________________________________________

>

            A jury convicted defendant Edward
Jack Martinez of second degree murder.  (Pen.
Code, § 187, subd.(a).)href="#_ftn1"
name="_ftnref1" title="">^[1]  The trial court found true four of
defendant’s prior strike conviction allegations and four prior serious felony
conviction allegations, which resulted from three separate cases.  (§ 1170.12, subds. (a)–(d); 667, subds.
(b)–(i); 667, subd. (a).)

            The trial court sentenced defendant
to state prison for 45 years to life for the murder, consisting of 15 years to
life tripled due to defendant’s prior strike convictions.  In addition, the trial court imposed five
years in each of the three cases in which defendant suffered a conviction for a
serious felony.  (§ 667, subd. (a).)  Defendant’s total sentence was 15 years plus
45 years to life.  Defendant appeals on
the ground that the trial court erred in failing to instruct sua sponte on the
heat of passion theory of voluntary manslaughter. 

FACTS

Prosecution
Evidence

            Daniel Vigil lived at the
Torrance Motel in the City of Torrance.  He was good friends with Timothy Hillis, who
also lived at the Torrance Motel.  Vigil
knew defendant only slightly.  Vigil knew
that Hillis had been married to defendant’s sister at one time.  Hillis walked with a limp and used a walking
stick.  It looked like a branch of a
tree—smaller at the bottom and larger at the top.

            On April 20, 2010, during a conversation at
Hillis’s doorway, Hillis mentioned to Vigil that he had had a fight with
defendant earlier.  As Hillis spoke,
Vigil noticed defendant approaching. 
Defendant said to Vigil, “You better get out of the way.”  Defendant told Hillis, who was not wearing a
shirt, to get dressed and meet him in the alley.  Hillis approached defendant, and the two men
began yelling at each other.  They got
each other into semi-headlocks and began punching each other.  After a few minutes of this tussling, Hillis
went back into his room and came back out carrying his walking stick like a
bat.  He hit defendant with it several
times in the shoulder, neck, and head area. 
Hillis was very angry.  Defendant
backed up a bit and then came back towards Hillis and began throwing jabs at
his mid-section.  At that point, Vigil
noticed a knife in defendant’s hand.  He
saw defendant land at least 10 blows with the knife.  When Vigil saw that defendant had dropped the
knife, he kicked it over to another resident, Joseph De La Cruz.  After dropping the knife, defendant walked
away.  Hillis walked back to his room and
lay down on his bed.  Vigil tried to
render aid to Hillis.

            The testimony of De La Cruz, who was
unavailable, was read into the record. 
On April 20, 2010, De La Cruz
resided at the Torrance Motel on the same hallway as Hillis.  De La Cruz knew that defendant visited Hillis
sometimes and that they were related by marriage.  On that day, at approximately 1:00 p.m., De La Cruz heard an
argument in the hallway between defendant and Hillis.  Later on, at approximately 3:30 p.m., he heard a commotion
outside his door.  He looked out and saw
two people “rumbling” on the floor.  Vigil,
who was looking at the two fighters, kicked a knife over to
De La Cruz.  De La Cruz saw
blood on the men tumbling around. 
De La Cruz kicked the knife inside his room and called
911.  De La Cruz did not leave
his room again until the police arrived. 
He then saw that there was href="http://www.sandiegohealthdirectory.com/">blood all over the walls in
the hallway.

            The parties stipulated that Hillis’s href="http://www.sandiegohealthdirectory.com/">autopsy showed that he died
as a result of multiple sharp instrument wounds.

            Officer Josh Burden of the City of
Torrance Police Department received the report of a stabbing and responded to
the Torrance Motel.  His investigation
led him to look for defendant at the Brighton Motel, which was across the
street.  Officer Burden first spotted
defendant standing in the doorway of a fire escape balcony wearing dark lenses
and a blue robe.  Seeing that defendant
matched the description he had been given of a suspect, he motioned to
defendant to come down and also told him to do so.  Defendant waved his hands and shook his head,
indicating “no” and went back inside. 
Defendant reappeared, and this time he obeyed the officer’s orders to
come out.  Defendant had fresh blood
behind and on his left ear.  Defendant,
who was not clean-shaven, said he had cut himself shaving.  Officer Burden noticed more blood on
defendant’s left ankle and on his feet. 
Defendant did not indicate he had been attacked, nor did he ask for
help.  Defendant was taken into custody
and booked.

            The parties stipulated that a
passing motorist, Launica Samadi, was driving past the Torrance Motel when she
saw an older Hispanic male covered in blood run in front of her car.  He ran across the street and entered the
Brighton Motel.  They also stipulated
that Marcus Droubay was carrying his bicycle up the stairs at the Torrance
Motel when he saw defendant pass by him with blood on his feet.  Defendant did not ask for assistance.

            Donald Stevanus lived at the
Brighton Motel and saw defendant standing near the fire escape on the day of
Hillis’s death.  Defendant was agitated
and had blood on the front of him. 
Defendant asked Stevanus to call his sister for him.  He gave Stevanus a card with a number.  He said something bad had happened and to
tell his sister he had trouble.  Stevanus
believed defendant was mild tempered and knew he had suffered a stroke that
limited movement in one arm.

            Video surveillance recordings were
played for the jury.  Detective Douglas
Hath testified that one of the videos showed defendant wearing the same
clothing that was found in his closet, covered in blood.

>Defense Evidence

            The parties stipulated that,
according to the medical
examiner, Hillis’s blood contained .09 micrograms per milliliter of
amphetamine and 1.3 micrograms per milliliter of methamphetamine.

            Dr. John Treuting, a toxicologist,
testified regarding the uses of methamphetamine, the methods of ingestion, and
its effects on the body.  The levels
detected in Hillis at the autopsy indicate very high levels for use as a
central nervous system stimulant.  The
drug has a very high addiction potential. 
Over time, negative effects increase. 
These include motor restlessness, agitation, poor focus and confusion,
paranoia, and irrational behavior. 
Continued use can lead to aggression and violent acts.  Dr. Treuting believed Hillis had taken
methamphetamine multiple times.

            Michael Heredia testified that in
2007 Hillis chased him with two machetes. 
Hillis was his neighbor at the time. 
Heredia thought Hillis chased him because he was going crazy.

            Duane McClain was a friend of
defendant.  He knew him as a mellow
person and not a violent one.

DISCUSSION

>I.  Lack of Heat
of Passion Instruction

>            A. 
Defendant’s Argument

            Defendant contends that “the overall
evidence in this case was sufficient to have triggered the trial court’s
obligation to instruct on the heat of passion theory of voluntary

manslaughter, and
the court erred in failing to do so.” 
According to defendant, this error was prejudicial and should be
reversed unless it can be shown that the error was harmless beyond a reasonable
doubt.

>            B. 
Proceedings Below

            The trial court instructed the jury
on voluntary manslaughter based on imperfect self-defense over the objections
of defense counsel, who did not want a
manslaughter instruction.  The defense
theory was that defendant was
justified in stabbing Hillis.  The trial
court also gave an instruction on lawful self-defense.

>            C.  Relevant Authority

>            Murder is the
unlawful killing of a human being with malice aforethought.  Manslaughter is “the unlawful killing of a
human being without malice.”  (§ 192.)  A defendant lacks malice and is guilty of
voluntary manslaughter “in limited, explicitly defined circumstances:  either when the defendant acts in a ‘sudden
quarrel or heat of passion’ [citation], or when the defendant kills in ‘unreasonable
self-defense’—the

unreasonable but
good faith [actual] belief in having to act in self-defense [citations].”  (People
v. Barton (1995) 12 Cal.4th 186, 199.) 
Because heat of passion and unreasonable self-defense reduce an intentional,
unlawful killing from murder to voluntary manslaughter by negating the element
of malice, voluntary manslaughter is considered a lesser necessarily included
offense of intentional murder.  (>Ibid.) 


            “‘“Although
section 192, subdivision (a), refers to ‘sudden quarrel or heat of passion,’
the factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter
from murder is provocation.”’”  (>People v. Souza (2012) 54 Cal.4th 90,
116; People v. Lee (1999) 20 Cal.4th
47, 59.)  “The provocation which incites
the defendant to homicidal conduct . . . must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim.”  (>People v. Lee, at p. 59; >People v. Manriquez (2005) 37 Cal.4th 547,
583.)  “‘The victim must taunt the
defendant or otherwise initiate the provocation.’”  (People
v. Avila (2009) 46
Cal.4th 680, 705.)  The victim’s conduct
may have been physical or verbal, but it must have been sufficiently
provocative to cause an ordinary person of average disposition to act rashly or
without due deliberation and reflection. 
(People v. Manriquez, at pp.
583-584.)  Thus, the heat of passion
requirement has both an objective and a subjective component:  “‘The defendant must actually, subjectively,
kill under the heat of passion.  [Citation.]  But the circumstances giving rise to the heat
of passion are also viewed objectively.’” 
(Id. at p. 584.)  Adequate provocation and heat of passion must
be affirmatively demonstrated.  (>People v. Lee, at p. 60; >People v. Johnston (2003) 113 Cal.App.4th
1299, 1312.)

            A trial
court normally must instruct the jury sua sponte on general principles of law
that are closely and openly connected to the facts and that are necessary for
the jury’s understanding of the case.  (>People v. Carter (2003) 30 Cal.4th 1166,
1219.)  Thus, a trial court has a sua
sponte duty to instruct the jury on lesser included offenses when there is
substantial evidence that the offense committed may have been less than the
offense charged.  (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)

>            D. 
No Error

            We
conclude defendant was not entitled to an instruction on sudden quarrel or heat
of passion.href="#_ftn2" name="_ftnref2"
title="">^[2]  Here, the quarrel was not
sudden, but was sought out by defendant. 
Defendant was the initial aggressor in that he went over to the victim’s
residence and challenged him to a fight. 
His challenge was met with shouts, and after he and the victim yelled at
each other, they began fighting, as defendant had planned.  When Hillis went back into his room for his
walking stick, defendant did not retreat, but remained to re-engage in the
fight, wherein he responded with deadly force to Hillis’s blows from his
cane.  Significantly, the jury rejected
the notion that Hillis’s use of the walking stick justified defendant’s use of
lethal force.  Under the circumstances of
this case, a “heat of passion” theory was inapplicable. 

            As
the Court of Appeal explained in People
v. Oropeza (2007) 151 Cal.App.4th 73, “[a] defendant may not provoke a
fight, become the aggressor, and, without first seeking to withdraw from the
conflict, kill an adversary and expect to reduce the crime to manslaughter by
merely asserting that it was accomplished upon a sudden quarrel or in the heat
of passion.  The claim of provocation cannot
be based on events for which the

defendant is culpably responsible.”  (Id.
at p. 83.)  “‘If the defendant causes the
victim to commit an act which the defendant could claim provoked him, he cannot
kill the victim and claim that he was provoked. 
In such case, he is deemed to have acted with malice and would be guilty
of murder.  Thus, a defendant is guilty
of murder when he arms himself and plans to insult the victim and then kill him
if the victim strikes him in resentment over the insult.’”  (People
v. Johnston, supra, 113
Cal.App.4th at p. 1312, quoting 2 Wharton’s Criminal Law (15th ed. 1994) § 157,
p. 352.)  Given that defendant, armed
with a knife, went to challenge Hillis to fight and then began fighting with
him in the hallway, he was “‘culpably responsible’” for the altercation and cannot
be heard to assert that he was provoked by the victim.  (See People
v. Johnston, at p. 1313.) 
Accordingly, the trial court did not err by failing to read sua sponte
the instruction on “heat of passion” voluntary manslaughter.

II.  Custody Credits

            In a footnote, respondent
asserts that the calculation of defendant’s actual custody credits was
incorrect.  The trial court granted
defendant 1,001 actual credit days.  As
respondent points out, defendant was arrested on April 20, 2010, the day of the stabbing,
and he was sentenced on January 15, 2013.  Respondent is correct that defendant is
entitled to 1,002 days of actual days of presentence credits.

DISPOSITION

            The
judgment is modified to award defendant 1,002 days of custody credits.  In all other respects, the judgment is
affirmed.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

                                                                        BOREN,
P.J.

We concur:

 

            ASHMANN-GERST,
J.        

 

            CHAVEZ,
J.