P. v.
Filed 10/9/13 P. v. Martinez CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW R. MARTINEZ,
Defendant and Appellant.
B241311
(Los Angeles
County
Super. Ct.
No. MA054117)
APPEAL from
a judgment of the Superior Court
of
County.
Carol Koppel, Judge.
Affirmed.
Janet J.
Gray, 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, Susan Sullivan Pithey and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
>
Defendant
Matthew R. Martinez (Martinez)
appeals his convictions for attempted
murder (Pen. Code, §§ 664, 187)
name="_ftnref1" title="">[1]
and assault with a deadly weapon (§ 245, subd. (a)). He contends:
(1) the trial court erred when it gave an incomplete and/or erroneous
instruction regarding when a mutual combatant or initial aggressor can reclaim
the right of self-defense; and (2) the People failed to prove malice in the
attempted murder count because there was insufficient
evidence that he did not act in imperfect self-defense or heat of
passion. We find no error and affirm.
FACTS
The People’s Case
At one time
in his life, Eric Jones (Jones) was homeless.
When he sees homeless people, he encourages them to improve their lives.
Jones first
saw Martinez at a 99 Cent
Store. While his wife and son went into
the store, Jones got out of his car, approached a homeless man named Kenny and
spoke to him. Then Jones spoke to Martinez,
who was nearby, and tried to give him encouragement by commiserating about his
situation. After Jones walked away, Martinez
took off his shirt and went around the parking lot yelling, “Whoop, whoop,
whoop, whoop.†Martinez
was angry at Jones and kicked his car.
Eventually, Martinez calmed
down and joined a group of people that included his girlfriend, Brittany
Christine Martinez (Brittany). He had a pit bull. When Jones left, his wife drove. At no time did Jones try to drive his car
into Martinez.
The second
time Jones saw Martinez was at a
gas station where Martinez and
Kenny were begging for money. The pit
bull was with Martinez, and it
looked full grown. It scared Jones. Martinez
kicked Jones’s car three times. Jones
did not threaten Martinez, try to
run him over, rev his car engine, or stick his fingers at Martinez
and pretend to have a gun.
On September 18, 2011, Jones was
barbecuing at home with his family. At
about 2:00 p.m. he had two
beers. Sometime between 4:00 p.m. and 6:00 p.m.,
he went to buy beer at Stater Bros. Supermarket (Stater Bros.).
After Jones left Stater Bros. and
got back into his car, he saw Martinez
and Brittany walking the pit
bull. There was an ensuing altercation,
which was witnessed in part by two Stater Bros. employees, Daniel Curtis
(Curtis) and Darren Blackwood. At the
time, Jones was about 50 years old. Martinez
was younger.
Curtis testified that he was 100
yards away. He saw Jones pull up to a
stop sign near where Martinez was
located. They argued. Martinez pounded on the driver’s side window
and shouted something that sounded like, “Get out of that car[,] I’ll kick your
ass.†Jones yelled back. Then Martinez moved to the front of the car
and pounded on the hood. Curtis did not
see Martinez kick the car. Jones
testified that Martinez gave him a mean look but said nothing. Then Martinez kicked the front fender.
Jones
jumped out of his car to see if there was any damage. Because he was scared of the pit bull, he got
a baseball bat from the trunk. While
holding the bat in the middle, he walked to the front of the car to confront
Martinez. Jones did not raise the
bat. He intended to use the bat to
protect himself in case the pit bull attacked.
According to Curtis, the two men argued back and forth. When asked at trial, Jones said he could not
remember if he said anything to Martinez.
However, Jones specifically denied making threats. Curtis testified that Martinez “sicked†the
dog on Jones and it charged him. To protect
himself, Jones hit the dog with the bat.
The dog yelped and ran away.
Martinez
charged Jones. He swung the bat
defensively while backing up. As
Martinez tried to take the bat, he got hit a couple of times. Jones backed all the way around his car.
Curtis
testified that Martinez and Brittany rushed Jones and took the bat away. But according to Jones, he simply dropped the
bat. At that point, Martinez took
possession of the bat and started swinging it, which caused Jones to dodge and
back up against a wall. Martinez hit
Jones with the bat at least three times as he tried to get away. To Curtis, the hits sounded like someone
hitting a watermelon with a bat. He
testified that Martinez was “zealous†and “mad.†One of the blows hit Jones above the right
eye. Another blow hit him on the left
side of the head. After the first time
he was hit in the head, Jones said he could not have posed a threat to
Martinez. Jones testified that “[h]e hit
me so hard my eye could have popped out.â€
In fact, the blow pushed blood through his retina and he ended up
needing eye surgery as a result. One arm
was broken in three places, and he later had pins put in his hand, wrist and
forearm. His other arm was also
injured. Blackwell testified that Jones
did not do anything aggressive toward Martinez.
According to Blackwell, the blows sounded like wooden thumps. Jones slumped over in a falling down motion
and barely moved. He ended up with
bruises “all over.†Martinez stopped
hitting Jones after hearing sirens approach.
When Curtis shouted at Martinez, he dropped the bat, kicked Jones and
fled the scene.
Jones went
to the hospital for three or four weeks.
For the first week, he was unconscious.
Due to the fight, Jones had a broken nose and multiple cuts on his head
that had to be closed with staples. He
ended up with a scar on the back of his head, the side of his head and over his
eye. Because of his broken hand, he
could no longer close his fist. During
surgery on his arm, he was given blood and plasma. His blood started to clot in his leg, so the
doctors had to put a filter inside of him.
Doctors also operated on Jones’s eye.
There was a 20 percent chance he could go blind. He has long term nerve damage and headaches
every day. He cannot see well out of his
damaged eye, and he has problems with memory.
The Defense
Brittany testified that while
Martinez and she were behind Stater Bros., Jones approached them in his
car. He said, “Remember me,†and made a
hand gesture as if shooting at them.
When he opened his door to get out, Martinez used his foot to close the
door. Jones exited his car, went to his
trunk and then, swinging a bat, approached Martinez. Martinez took a few steps back and blocked
the bat with his forearm. Jones swung
the bat at least three or four times. At
one point, he swung so hard that he spun and fell. Martinez was nicked. Because he had to lean back to avoid getting
hit, he also fell. They both scrambled
to get back up. Jones told Martinez,
“You’re going to jail tonight. I want
the cops to come.â€
According to Brittany, Jones
appeared drunk. He was swinging wildly
and misplacing his footsteps. He did not
take a proper stance when he swung the bat, which is why he fell.
After he stood up, Jones swung at
Martinez again. Brittany’s pit
bull—which was a year and four months old—gave Jones a warning bark. The dog was 45 to 50 pounds. Jones hit it in the head. It ran into the middle of the street. Brittany had to run after the dog, grab it by
the leash and bring it back. Jones
advanced on Brittany. When Jones started
to swing the bat, she grabbed it mid-swing and Martinez punched him in the
face. Soon after, Jones let go of the
bat.
Brittany held the bat in a
nonthreatening manner. Jones lunged at
her. She thought he was trying to
recover the bat. Martinez took the bat
from Brittany. When Jones lunged at
Martinez, he at first backed up. But
when Jones kept charging, Martinez used the bat to hit him. Even though he had been hit, Jones rushed
Martinez twice more and got hit twice more.
After the third hit, Jones stopped.
So did Martinez. Jones said
something, then got into his car and drove away.
The Sentence
The jury
found Martinez guilty of attempted murder and assault with a deadly
weapon. As to the attempted murder
count, the jury found true the allegation that Martinez personally used a
deadly weapon within the meaning of section 12022, subdivision (b)(1). Regarding both counts, the jury found true
the allegation that Martinez inflicted great bodily
section 12022.7, subdivision (a). The
trial court sentenced Martinez to 13 years in state prison. The sentence was calculated based on the
upper term of nine years for attempted murder, three years for the great bodily
injury enhancement, and one year for the use of a deadly weapon enhancement.
This timely
appeal followed.
DISCUSSION
I. The Mutual Combat/Initial Aggressor
Instruction was Proper.
Pursuant
to CALCRIM No. 3471, the trial court instructed that a “person who engages in
mutual combat or who starts a fight has a right to self-defense only if: One, he actually had in good faith tried [to]
stop fighting, and two, he indicated by word or by conduct to his opponent in a
way that a reasonable person would understand that he wanted to stop fighting and
that he had stopped fighting, and three, he gave his opponent a chance to stop
fighting. If the defendant meets these
requirements, he then had a right to self-defense
if the opponent continued to fight.
[¶] A fight is mutual combat when
it began or continued by mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claim to self-defense arose.â€
The trial
court omitted the paragraph in CALCRIM No. 3471 that provides: “[I]f the defendant used only 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/herself) with deadly
force and was not required to try to stop fighting [or] communicate the desire
to stop to the opponent[, or give the opponent a chance to stop fighting].â€
Martinez
assigns error to the trial court’s failure to instruct on the omitted
paragraph. He relies on the holding in
294, 301 [if an opponent uses deadly force in response to nondeadly force by
the defendant, the defendant has a right of self-defense].
Upon review, we
find no error. A trial court must
instruct on any affirmative defense that is supported by substantial
evidence. (People v. Salas (2006) 37 Cal.4th 967, 982.) But the evidence did not support Martinez’s
contention that he was entitled to reclaim self-defense. While Brittany’s testimony suggests that Martinez
initiated the altercation with nondeadly force, and that Jones responded with
deadly force, her testimony did not suggest that it was impossible for Martinez
to withdraw from the fight. Rather, it
suggested the opposite. According to
Brittany, Jones appeared to be drunk and was misplacing his steps when he was
swinging the bat. Martinez was not boxed
in, and there was no evidence that he was unable to withdraw from the fight by
retreating. Certainly, assuming Brittany’s
version of events, Martinez could have easily withdrawn once Jones turned his
attention toward Brittany’s pit bull.
Further, it must be acknowledged that Martinez quickly came into
possession of the bat. He could have
tossed the bat away and withdrawn then.
Continuing on, Martinez contends
that the evidence did not support the mutual combat/initial aggressor
instruction or, in the alternative, the trial court failed to properly define
mutual combat. These contentions lack
merit.
In the case against Martinez, there
was substantial evidence from which the jury could have concluded that Martinez
was the initial aggressor. The evidence
included the following: Martinez had
kicked Jones’s car on prior occasions; Martinez pounded on Jones’s car window
and said something that sounded like, “Get out of that car[,] I’ll kick your ass;â€
Martinez either kicked the car or pounded on the hood; when Jones approached,
Martinez let the pit bull off its leash to attack Jones; and after Jones hit
the dog, Martinez rushed Jones.
Likewise, there was substantial evidence that Martinez and Jones
impliedly agreed to engage in mutual combat.
It showed that Martinez kicked the car door to keep Jones from getting
out in response to threats from Jones, or Martinez pounded on the window and
issued his own threat. At that point,
the jury could have concluded that there was an invitation to fight by either
Martinez or Jones. Jones got out,
grabbed a bat and approached Martinez.
Martinez did not back down.
Clearly, both had a chance to reflect on what might happen if the
confrontation escalated. From this
evidence, the jury could have concluded that the ensuing fight began or
continued by mutual consent or agreement.
Though Martinez argues that the
trial court failed to give the jury the legal definition of mutual combat set
forth in People v. Ross (2007)
Cal.App.4th 1033 (Ross), this
argument is belied by the record.
that as used in this state’s law of self-defense, ‘mutual combat’ means not
merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the
initiation of hostilities.†(
two people are engaged in mutual combat only if they expressly or impliedly
agreed to fight.
II. There was Sufficient Evidence to Negate the
Possibility that Martinez Acted in Imperfect Self-Defense or Heat of Passion.
Martinez argues that his attempted
murder conviction should be reversed because there is insufficient evidence
that he acted with malice. The question
presented is whether the record contains substantial evidence from which a
reasonable trier of fact could find Martinez guilty beyond a reasonable doubt. (People
v. Lenart (2004) 32 Cal.4th 1107, 1125.)
We find no error.
To prove attempted murder, a
prosecutor must show that the defendant acted with malice, i.e., the specific
intent to kill. In addition, attempted
murder requires the commission of a direct but ineffectual act toward
accomplishing the intended killing. (
739; People v. Gonzalez (2012) 54
Cal.4th 643, 653–654; §§ 187, subd. (a), 192.)
“Malice is presumptively absent
when the defendant acts upon a sudden quarrel or heat of passion
. . . , or [attempts to kill] in the unreasonable, but good
faith, belief that deadly force is necessary in self-defense. [Citation.]â€
(People v. Manriquez (2005) 37
Cal.4th 547, 583.) If a jury finds that
a defendant held an “‘honest but unreasonable belief that [it was necessary] to
defend oneself from imminent peril to life or great bodily injury,’†he or she
may be convicted of attempted voluntary
manslaughter in imperfect self-defense.
(People v. Blakeley (2000) 23
Cal.4th 82, 86; People v. McCoy
(2001) 25 Cal.4th 1111, 1115; §§ 192, 664.)
Martinez’s first argument is based
on imperfect self-defense.
The doctrine of imperfect
self-defense requires that the “[f]ear of future harm—no matter how great the
fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of
injury. ‘“[T]he peril must appear to the
defendant as immediate and present and not prospective or even in the near
future. An imminent peril is one that, from appearances, must be instantly dealt
with.†. . .
[¶] This definition of imminence
reflects the great value our society places on human life.’ [Citation.]
Put simply, the trier of fact must find an actual fear of an imminent
harm. Without this finding, imperfect
self-defense is no defense.†(
783 (Christian S.).)
“The principles of self-defense are
founded in the doctrine of necessity.
This foundation gives rise to two closely related
rules. . . . First, only that force which is
necessary to repel an attack may be used in self-defense; force which exceeds
the necessity is not justified.
[Citation.] Second, deadly force
or force likely to cause great bodily injury may be used only to repel an
attack which is in itself deadly or likely to cause great bodily injury; thus
‘[a] misdemeanor assault must be suffered without the privilege of retaliating
with deadly force.’ [Citations.]†(People
v. Clark (1982) 130 Cal.App.3d 371, 380.)
A defendant cannot invoke imperfect
self-defense if he initiates a physical assault and creates a situation in
which his adversary’s attack or pursuit is legally justified. (Christian
S., supra, 7 Cal.4th at p. 773, fn. 1.)
We easily conclude that there was
sufficient evidence that Martinez did not act in imperfect self-defense. The evidence favorable to the prosecution
showed that when Jones approached, Martinez used his pit bull as a weapon to
attack Jones. After Jones hit the dog,
Martinez rushed Jones, causing him to back up.
If Jones swung the bat, it was only in lawful self-defense during a
scuffle for the bat. Under
imperfect-self defense because he initiated a physical assault and Jones’s
response was lawful. Moreover, Jones did
not use deadly force, so Martinez’s use of deadly force could not be
justified. Further, Martinez took
possession of the bat, which rendered Jones defenseless. At that point, Jones could not have possibly
posed an imminent threat of death or great bodily injury. Nonetheless, Martinez used the bat to hit
Jones in the head and body with such force that it could be heard over a
hundred yards away and sounded like a watermelon being hit or a wooden
thump. Jones slumped over and was barely
moving. According to the evidence,
Martinez did not stop attacking until he heard sirens and Curtis shouted. Before running away, Martinez kicked Jones,
who had already been incapacitated. In
our view, the evidence painted a vivid picture of a defendant who wanted to
kill his victim. This conclusion is
bolstered by the severity of Jones’s injuries.
(People v. Lashley (1991) 1
Cal.App.4th 938, 951 [serious injury is evidence of intent to kill].)
Martinez’s second argument is based
on heat of passion.
“Heat of passion arises when ‘at
the time of the killing, the reason of the accused was obscured or disturbed by
passion to such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and reflection, and
from such passion rather than from judgment.’
[Citations.]†(
201.) “[T]he factor which distinguishes
the ‘heat of passion’ form of voluntary manslaughter from murder is
provocation. The provocation which
incites the defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim. [Citations.]â€
(People v. Lee (1999) 20 Cal.4th
47, 59.) The qualifying passion can be
any violent, intense, high-wrought or enthusiastic emotion, but not
revenge. If enough time elapses after
the provocation for passion to subside and reason to return before the
attempted killing, the defendant cannot claim heat of passion. (People
v. Breverman (1998) 19 Cal.4th 142, 163.)
The
evidence favorable to the prosecution showed that Martinez had a history of
kicking Jones’s car. Outside of Stater
Bros., Martinez gave Jones a mean look.
Then Martinez pounded on the window, shouted something akin to, “Get out
of that car[,] I’ll kick your ass,†and either pounded on the hood or kicked
the front fender. The jury could have
concluded that Martinez provoked the fight, not Jones. After Jones got the bat, he held it in the
middle and did not raise it as he approached Martinez. Jones did not make any threats. The jury could have concluded that Jones
confronted Martinez in a nonviolent manner, nonoffensive manner, and he would
not have caused an ordinary person of average disposition to act rashly or
without due deliberation and reflection.
In support of this conclusion, the jury could have found that Martinez
acted with deliberation and reflection because his first response was to take
the calculated step of using the pit bull as a weapon. Then he obtained the bat, kept attacking
Jones, who was defenseless, and inflicted severe injuries to his head, eye,
hand, wrist, and forearm. Even when
Jones was incapacitated, Martinez kicked him.
All this evidence suggests that Martinez acted with cold
calculation. Last, the jury could have
concluded that Martinez had been slighted when Jones offered encouragement
about being homeless and was seeking revenge for that slight. If he was seeking revenge, Martinez was barred
from claiming heat of passion.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
FERNS
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further statutory references are to the Penal Code unless otherwise indicated.
Martinez cites Ross and People v. Rogers
(1958) 164 Cal.App.2d 555, 557 when arguing that the trial court should not
have instructed on mutual combat. We
have reviewed those cases and find them distinguishable. In any event, even assuming there was no
evidence of mutual combat, there was certainly evidence that Martinez was the
initial aggressor, which made the instruction proper.
