P. v.
Filed 9/4/12 P. v. Martinez CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO MARTINEZ,
Defendant and Appellant.
G046034
(Super. Ct. No. 10CF2579)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Carla Singer, Judge.
Affirmed.
Suzanne G. Wrubel, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
*
* *
One evening, Orange
County Sheriff deputies Steve Hortz and Maury Rauch, both in uniform and on
duty at the Theo Lacy jail facility, were conducting an hourly security check
of a barrack. To ensure all of the
inmates were accounted for, jail rules required each inmate to be on his
assigned bunk. Hortz saw an inmate named
Jacob Munoz in the wrong area. Munoz
approached Hortz and when Hortz ordered him to go to a specific location, Munoz
took an aggressive stance and began to remove his T-shirt. Expecting a fight, Hortz wrestled Munoz to
the ground
Immediately, several
other inmates surrounded Hortz and began to punch and kick him. Rauch came to Hortz’s aid, dispersing the
inmates with pepper spray. As a result
of the attack, Hortz suffered bruises on his face and back of his head, plus a
swollen knee.
Rauch was assigned to
investigate the incident. He spent
several hours reviewing videotapes from surveillance cameras that recorded the
attack from four different angles. Rauch
identified nine inmates who participated in the assault on Hortz. One of these inmates was defendant Francisco
Martinez.
Defendant was charged
with a single count of assault on a peace officer by means likely to produce
great bodily injury. (Pen. Code, § 245, subd. (c).) At trial, the prosecution introduced a
photograph of defendant as he appeared on the day of the assault and also
played a digital video disc containing a copy of the surveillance
videotapes. Rauch pointed to the
segments of the videotapes he claimed showed defendant approach Hortz, punch
him on the back of the head, and then return to his bunk. The jury found defendant guilty as charged.
The information also
alleged defendant committed this offense in association with, for the benefit
of, or at the direction of a criminal street gang. To support the latter allegation, the
prosecution called two witnesses who testified as experts on criminal street
gangs. One, Anaheim Police Department
Investigator Jonathan Yepes, described a group named Barrio
Small Town
as a criminal street gang that
claimed an area of the city and testified defendant was an active participant
in the gang. The second expert witness,
Los Angeles Deputy Sheriff Francis Hardiman, testified concerning prison
gangs. He described a prison gang named
Southside consisting of all incarcerated persons who belong to Hispanic
street gangs in the southern part of the state, and
claimed Southside required the inmates to obey its rules. One rule is that if one member fights, all
other gang members are expected to fight as well. Asked a hypothetical question based on the
facts of this case, the expert opined the group assaulting Hortz consisted of
Southside associates and the attack benefitted and promoted the gang. The jury returned a not true finding on the
criminal street gang enhancement.
The court sentenced
defendant to the middle term of four years in state prison. Defendant timely filed an appeal from the
judgment.
We appointed counsel to
represent him. Pursuant to
v. Wende (1979) 25 Cal.3d 436, appellate counsel filed a brief setting
forth the facts of the case and, while not arguing against her client, advised
us that she found no issues to argue on defendant’s behalf. Defendant was given 30 days to file written
argument on his own behalf. That period
has passed, and we have received no communication from him. However, counsel’s brief mentions five issues
for us to consider in conducting our independent review of the appeal: 1) sufficiency of the evidence for the
conviction, 2) three matters relating to jury instructions, 3) plus one
evidentiary ruling. (
738, 744 [87 S.Ct. 1396, 18 L.Ed.2d 493].)
Having independently
examined the appellate record, we find no arguable issue. The evidence supports a finding defendant and
several other prisoners simultaneously attacked a uniformed deputy sheriff who
was at the time attempting to subdue an uncooperative and aggressive
inmate. A deputy sheriff is a peace
officer. (Pen. Code, § 830.1, subd.
(a).) Neither Hortz nor Rauch testified
they saw defendant participate in the assault.
But Rauch identified him as one of the perpetrators after reviewing
videotapes from surveillance cameras and pointed out for the jury the portion
that depicted defendant punching Hortz.
“The use of [a] . . . fist alone has been held
sufficient to support a conviction of assault by means of force likely to
produce great bodily injury.
[Citations.]” (
Cal.3d 169, 176.)
Over defendant’s
objection, the court instructed the jury on aiding and abetting liability. (Pen. Code, § 31; CALCRIM Nos. 400 &
401.) The court reasoned that the copy
of the videotape played for the jury “is quite blurry” and while “Rauch
testified that he was able to pinpoint a punch from defendant on Deputy
Hortz[,] . . . it is conceivable that the jury could come to the
conclusion that the defendant did not
connect . . . . That being the case, then the
defendant becomes an aider and abettor to anyone who did connect
. . . .” The court did
not err. The prosecution introduced
uncontradicted evidence that Hortz suffered injuries from the attack. “One who aids or abets the crime may be found
guilty of an assault by means of force likely to produce great bodily
injury. [Citations.]” (People
v. Brown (1980) 110 Cal.App.3d 24, 34.) Given the quality of the videotape shown to
the jury, plus the fact nine inmates concurrently participated in the attack,
it was proper to instruct the jury on aider and abettor liability.
Since defendant’s
conviction was based primarily on photographic and videotape evidence, a jury
instruction on eyewitness identification, even if requested, would not have
been proper. (People v. Wright (1988) 45 Cal.3d 1126, 1144 [eyewitness
“instruction should be given when requested in a case in which identification
is a crucial issue and there is no substantial corroborative evidence”].)
The trial court
instructed the jury on the lesser included offense of assault on a peace
officer (Pen. Code, § 241, subd. (c).
Because the uncontradicted evidence established Hortz is a deputy
sheriff, was in uniform and performing his duties when the assault occurred, no
basis existed for giving a lesser offense instruction on assault by means for
force likely to produce great bodily injury.
“[A] trial court errs in failing to instruct on a lesser included
offense only if the lesser offense is supported by substantial evidence in the
record. [Citation.]
‘[T]he court is
not obliged to instruct on theories that have no such evidentiary
support.’ [Citation.]” (People
v. Golde (2008) 163 Cal.App.4th 101, 115-116.)
Anaheim Investigator
Yepes, who identified defendant as a member of Barrio Small Town, testified
over a defense hearsay objection that one basis for his opinion was a deputy
sheriff’s report defendant had said he associated with the gang. At the time, the court instructed the jury the
statement could be considered “not for the truth of its content, but
. . . because officer Yepes factored it into his
opinion. . . .” The court
also read CALCRIM No. 360, informing the jury that a statement relied on by an
expert in reaching a conclusion could be “consider[ed]
. . . only to evaluate the expert’s opinion” and “not
. . . as proof that the information contained in the statement
is true.”
Again, there was no
error.
in California that experts may testify as to their opinions on relevant matters
and, if questioned, may relate the information and sources on which they relied
in forming those opinions. Such sources
may include hearsay. [Citations.]” (People
v. Thomas (2005) 130 Cal.App.4th 1202, 1209; see also
Cal.4th 605, 618.) “Hearsay relied
upon by experts in formulating their opinions is not testimonial because it is
not offered for the truth of the facts stated but merely as the basis for the
expert’s opinion. [Citations.]” (People
v. Cooper (2007) 148 Cal.App.4th 731, 747.) “Most often, hearsay problems will be cured
by an instruction that matters admitted through an expert go only to the basis
of his opinion and should not be considered for their truth. [Citation.]”
(People v. Montiel (1993) 5
Cal.4th 877, 919.)
That is the case
here. Yepes was allowed to specify the
bases for his opinion that defendant was an active participant in Barrio Small
Town, including his consideration of a statement defendant purportedly made to
a third person. However, the trial court
instructed the jury, both at the time this testimony came in and at the end of
trial, the statement could not be used as proof of the statement’s truth. Furthermore, since Yepes’s testimony went
solely to the gang enhancement allegation, which the jury rejected, any
possible error was harmless.
The judgment is
affirmed.
RYLAARSDAM,
J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
