P. v. Martinez

Filed 3/22/06 P. v. Martinez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Mark C. Kim, Judge. Affirmed with directions.

Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Shawn McGahey Webb, Deputy Attorney General, for Plaintiff and Respondent.

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Santiago Martinez, Jr., appeals from the judgment entered following a jury trial in which he was convicted of first degree murder in the commission of which he personally discharged a firearm and caused death. He was also found to have sustained prior felony convictions. Defendant contends that preliminary hearing testimony of an unavailable witness should not have been admitted at trial, the finding of premeditation was improper based on insufficiency of the evidence and instructional error, the court committed additional error with respect to instructions on provocation and witness credibility, and the abstract of judgment should be corrected because it incorrectly identifies the prosecutor and defense counsel. We affirm and order that the abstract of judgment be corrected to identify properly the prosecutor and defense counsel.

BACKGROUND

As of March 2003, defendant was dating Christina Wilkerson, who was an exotic dancer, and was a friend of Jose Ramirez. On the evening of March 17, defendant, Wilkerson, and Ramirez left Wilkerson's Long Beach apartment in Ramirez's van and drove to the home of defendant's father, Santiago Martinez (Mr. Martinez). Defendant went inside by himself and told Mr. Martinez that he wanted the key to the garage of his uncle (Mr. Martinez's brother) that was about two blocks away. Mr. Martinez gave the key to defendant. Defendant returned to the van, which Ramirez drove to the garage. Defendant and Wilkerson then went into the garage, leaving Ramirez alone in the van.

Ramirez testified that after waiting about 10 minutes he got out of the van and looked inside the garage. He saw defendant and Wilkerson inside defendant's uncle's car. Wilkerson opened the door to get out. Her face was bloody and she asked Ramirez for help. Defendant pulled Wilkerson back into the car, told her to shut up, and shot her in the chest. Ramirez then went back to the van and drove away.

A few days later, defendant, Ramirez, and Mr. Martinez went to the garage. Wilkerson's body, which was on the floor, was put into defendant's uncle's car. Afterward, defendant and Ramirez went to the home of defendant's mother, Sanjuana Alonso Galindo. (Defendant lived with Galindo; Mr. Martinez did not.)

Galindo testified that she was awakened by defendant and Ramirez. They were accompanied by Tina Camarena, who was also dating defendant at the time. Defendant and Ramirez appeared to be on drugs. They had guns and discussed where to put them. The guns were put under a mattress. The three returned later that day and defendant returned by himself two days later. The guns were removed during one of those times. Defendant told Galindo that he had killed his girlfriend, the dancer, explaining that he had acted out of jealously, first stabbing then shooting her. Defendant further stated to Galindo, and to Mr. Martinez, who was also present, that anyone who spoke about what had happened would die.

On March 22, 2003, defendant told Mr. Martinez that they needed to get rid of the car parked in the garage. Defendant contacted a tow truck driver, whom Mr. Martinez and Camarena accompanied to the garage. The driver towed the car to a different location in Long Beach. Afterward, Mr. Martinez and Galindo cleaned bloodstains from the floor of the garage. Later that day, a passerby saw Wilkerson's body in the car and notified the authorities. An autopsy determined that Wilkerson had died from a gunshot wound to the chest and had also sustained multiple stab wounds.

On April 1, 2003, Ramirez was arrested for murder, and Galindo and Mr. Martinez were arrested as accessories after the fact. (Ramirez entered a plea to being an accessory after the fact and Mr. Martinez was granted immunity.) Sawed-off rifles were found at the home of Alicia Sanchez. Defendant's sister identified Sanchez as one of the people who took firearms from under the mattress. One of the firearms matched a projectile recovered from Wilkerson's body.

In defense, Joseph Apodaca testified that while in jail with Ramirez, Ramirez stated that he had murdered a woman in Long Beach over a drug debt and was getting a â€