P. v.
Filed 10/7/13 P. v. Martinez CA2/7
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IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff
and Respondent,
v.
PASQUAL G. MARTINEZ,
Defendant
and Appellant.
B245710
(Los Angeles County
Super. Ct. No. BA390633)
APPEAL from a judgment of the Superior Court of
County. Dennis J.
Landin, Judge. Affirmed.
Verna Wefald, 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, Senior Assistant
Attorney General, and James W. Bilderback II, Deputy Attorney General, for
Plaintiff and Respondent.
__________________________________
Pasqual Martinez appeals from the judgment entered on his
conviction of first degree murder. Before this court the appellant claims that
the trial court erred when it failed to grant his motion for a mistrial after a
police detective testified during the trial that appellant had been “detainedâ€
by police on one occasion for an unrelated gang incident several months before
the murder occurred. As we shall
explain, appellant has failed to demonstrate prejudicial error as to this
claim. The reference to his detention
was brief, ambiguous and non-responsive to the question posed, and any error
was harmless in light of the other evidence of appellant’s guilt presented
during the course of the trial.
Accordingly, we affirm the judgment.
AND PROCEDURAL BACKGROUND
On the evening of October 24, 2011, the
victim, Ricardo Lopez, his cousin Maria Aaron, Lopez’s girlfriend Edelmira
Aguirre and her cousin Delia Ochoa went out for the evening planning to go to
several nightclubs. They travelled in
Lopez’s car. After going to several
clubs the group purchased food.
Thereafter they drove
to Ochoa’s apartment near the intersection of Berendo
Street and 7th
Street in Los
Angeles. Aguirre was going to spend the night at
Ochoa’s apartment. As Lopez
doubled-parked the car in front of Ochoa’s apartment building, music played on
the car radio. Ochoa looked around and
saw a man, later identified as appellant,
standing across the street.
Ochoa gathered her belongings and
she and Aguirre got out of the car and walked into Ochoa’s building. As Ochoa and Aguirre walked into the lobby,
Lopez got out of the car and called out to get Aguirre’s attention, and started
to approach the apartment building.
Lopez then turned around and walked back toward the car. Ochoa and Aguirre walked toward the stairs
and they sat down so that Aguirre could finish her food. As Ochoa sat down on the stairs, she saw
appellant walk across the street toward Lopez’s car.
At the time, Aaron sat in the front
passenger seat of the car. She saw
appellant walk in front of the car.
Aaron briefly looked up from her cell phone screen, and made eye contact
with appellant, but “didn't really pay attention.â€
As Lopez stood outside next to the
driver’s side of car, appellant passed him and then turned around, pulled out a
gun from his waistband area, and pointed the gun at Lopez’s back and
fired. Aaron heard four or five
gunshots. Ochoa saw the smoke from the
gunfire. Appellant stood by the rear of
the car on the driver’s side and looked at Lopez, who had fallen to the
ground. Appellant looked at Ochoa, and
then ran away toward 7th Street.
Maria Loeza, who was at her window
of a nearby apartment complex observed a person matching appellant’s
description, walking very quickly toward the corner of the intersection. The man continued up the stairs of the second
building from the corner of 7th and Berendo Streets.
Lopez’s aid.
Two Los Angeles Police Officers were
a couple of blocks away at the time of the shooting. They responded to the scene within minutes of
hearing the gunshots. Lopez died as a
result of multiple gunshot wounds to his upper body. Three .38-caliber bullets were recovered
from Lopez’s body.
Shortly after the shooting, appellant, who was a
member of the Leeward clique of the Mara Salvatrucha (M.S.) gang, drove up to
Kevin Diaz, a member of the Francis Locos clique of the M.S. gang, on Catalina
Street, a couple of blocks from 7th and Berendo.
to “be careful†because “he just smoked somebody from Temple
Street†on 7th and Berendo. Diaz understood the comment to mean that
appellant shot and killed someone.
Appellant told Diaz that the victim looked like a gang member and that
he was screaming “some girl’s name.â€
Appellant walked up to the victim because he was playing loud music from
his car and because he appeared to be a gang member. Appellant said that he asked the victim where
he was from and that the victim responded that he was from Temple
Street,
a rival gang of the M.S. gang.
name="_ftnref6" title="">[6]
Shortly thereafter, Diaz went to 7th and Berendo
Streets and saw a body in the street next to a double-parked car. Diaz also saw appellant the evening after the
shooting. Appellant told Diaz that the
police showed his wife and other people in the building a photograph of his
face.
As a result of the information Diaz provided,
police arrested appellant.
name="_ftnref8" title="">[8] Appellant was charged with first-degree
murder in violation of Penal Code section 187.
The information further alleged that appellant personally and
intentionally discharged a handgun and that the offense was committed for the
benefit of, at the direction of, and in association with a
During the trial, in addition to the
testimony of the eyewitnesses, Diaz and the other witnesses who testified about
the investigation and evidence, Los Angeles Police Department (LAPD) gang
officer, Matthew Zeigler testified about appellant’s gang involvement. He testified that he had approximately five
contacts with appellant in the months prior to the shooting and that appellant
had identified himself as a gang member.
The jury found appellant guilty of first-degree
murder and found all the special allegations true. Appellant was sentenced and this appeal
followed.
The Trial Court Did Not Err
When It Denied Appellant's Motion For A Mistrial
Before this court, appellant argues
that trial court erred and violated his due process rights by denying his
motion for a mistrial after Officer Zeigler testified that appellant had been
“detained†by police in June 2004.
A.
Background
During the trial it was anticipated that gang
Officer Zeigler would testify that appellant had admitted his gang membership
during one of their encounters on the street prior to the crime. Appellant therefore asked the court to
conduct a hearing pursuant to Evidence Code section 402 to determine whether
the statements attributed to appellant about his gang involvement were
volunteered during a consensual contact or whether appellant was in custody at
the time and should have been given an admonition pursuant to
outside the presence of the jury, Officer Zeigler testified that he contacted
appellant approximately five times. When
describing one of the contacts in June 2004, Officer Zeigler stated: “I’m not sure if – we’d talked about not
talking about the arrest in front of the jury.
Is it okay in this environment?â€
The court responded, “In this environment, yes.†Officer Zeigler then described that appellant
had been arrested in June 2004 for violating a gang injunction.
Thereafter during his testimony before the jury
Officer Zeigler described his “contacts†with appellant. He related the details of a contact in June
2004 as follows:
“Q Any other contacts with [appellant]?
“A [Zeigler:] One other contact.
“Q And when was that?
“A [Zeigler:] That was in June 2004.
“Q And where did that take place?
“A [Zeigler:] In the area of 7th and Berendo.
“Q And how did that come
about? How did you come across him?
“A [Zeigler:] There was a radio call.
“Q And what did you do?
“A
[Zeigler:] We responded to the radio
call. Two other officers responded
first. And [appellant] was detained.
“Q That was a radio call for what?
“A
[Zeigler:] It was – we call it a 415
gang fight where there was 15 people involved in the alley.
“Q When you arrived, how many people did you see in
the alley?
“A
[Zeigler:] I arrived late. Officers Hernandez and Hernandez were the
first ones there. So they told me what
had occurred when they got there.
“Q When you arrived, you saw [appellant] there?
“A [Zeigler:] [Appellant] was detained with another
individual.
“Q Did you ever determine what was happening in that
incident?
“A [Zeigler:] Yes.
“[Appellant’s
trial counsel]: Your Honor, I have to
object and ask to approach again.
“The Court: Well, is there a relevance objection?
“[Appellant’s trial counsel]:
Yes.
“The Court: The
objection is sustained for now. If
counsel wants to be heard at sidebar, we can do that. Proceed.â€
At sidebar, appellant’s trial counsel stated: “First of all, my prior
objection that I wanted to approach – I had this discussion that we weren’t
going into the arrest, and somehow we got into it. So first I will make a motion for a mistrial
based on that and submit on that.â€
Appellant’s trial counsel then complained about the subsequent series of
questions, specifically objecting because it involved matters previously
undisclosed to the defense. The
prosecutor’s response focused exclusively on the second objection and did not
respond to the motion for the mistrial.
The court denied the motion for a mistrial.
B. Analysis of Appellant’s Contention
“‘A motion for mistrial is directed
to the sound discretion of the trial court [and] should be granted if the court
is apprised of prejudice [it deems] incurable by admonition or
instruction.’†(People v. Cox (2003) 30 Cal.4th 916, 953, overruled on other
grounds in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) “‘Whether a
particular incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions.’†(
986.)
A witness’s volunteered statement can, under
some circumstances, provide the basis for a finding of incurable
prejudice. (See People v. Wharton (1991) 53 Cal.3d 522, 565 [motion for mistrial
properly was denied because court’s admonition and witness’s later testimony
under cross-examination dispelled prejudice].)
But the court does not presume that knowledge that a defendant
previously has been convicted and is being retried is incurably
prejudicial. (See People v. Anderson (1990) 52 Cal.3d 453, 468 [claim that trial
court improperly disclosed to jury that the defendant previously had been
sentenced to death for the same offense was waived by counsel’s tactical
failure to object, and was not prejudicial].)
Thus, “[w]hether in a given case the erroneous
admission of [evidence of the defendant’s prior criminality] warrants granting
a mistrial or whether the error can be cured by striking the testimony and
admonishing the jury rests in the sound discretion of the trial court.†(
1575, 1581, citing People v. McLain
(1988) 46 Cal.3d 97, 113.) A trial court
must grant a motion for mistrial when a party’s chances of receiving a fair
trial have been irreparably damaged. (
573.)
Thus, when the issue is whether the witness’s
comment was so incurably prejudicial that a new trial was required, our
standard of review is deferential. (
It is “only in the exceptional case†however, that the trial court’s
admonition will not cure the effect of improper prejudicial evidence. (People
v. Allen (1978) 77 Cal.App.3d 924, 935.)
Appellant argues that Officer Zeigler violated
the court’s order to not refer to appellant’s “arrest,†when he mentioned that
appellant had been detained; that the reference could not have been cured by
any admonition; and that it was prejudicial in this case.
We are not convinced the trial court
abused its broad discretion when it denied the motion for a mistrial. Preliminarily, Officer Zeigler’s references
to appellant being “detained†did not violate any express order of the court.
Although there was apparently some off-the-record discussion about not
referring to appellant’s prior arrests, there is nothing in the record before
us to indicate that the court “ordered†Officer Zeigler to not make reference
to them.
In addition, the references were brief and
volunteered; they were not directly responsive to the questions posed. The prosecutor’s first question: “And what
did you do?†did not ask whether appellant had been arrested or detained. Instead, Officer Zeigler responded to the
question, saying “We responded to the radio call,†and then Officer Zeigler
volunteered: “Two other officers
responded first. And [appellant] was
detained.†Likewise the second reference
to appellant being detained was also unprompted after the prosecutor asked:
“When you arrived you saw [appellant] there?†to which Officer Zeigler offered:
“[Appellant] was detained with another individual.†The prosecutor’s questions were broad and not
inherently likely to elicit a reference to appellant’s detention.
Moreover, the reference to being
“detained†was also ambiguous and in relative terms fairly innocuous. In the parlance of criminal law, being
“detained†is not the same as being “arrested.â€
As recognized in the fourth amendment law and jurisprudence relating to
something short of arrest—it refers to being confined and held during an
investigatory stop. Here Officer Zeigler
referred to appellant being “detained†in the context of appellant’s prior
consensual “contacts†with gang officers.
And in the universe of possible references to prior criminality—it is
relatively mild. It does not suggest
that appellant was convicted, or served time in prison for any crime. (See People
v. Bolden (2002) 29 Cal.4th 515, 554-555 [where police officer volunteered
that he located defendant through a parole office, no error in denying mistrial
where reference was brief and no reasonable juror would infer that defendant
had served a prior prison term]; People
v. Valdez (2004) 32 Cal.4th 73, 124-125 [where witness volunteered that
defendant had been at Chino prison, no error in denying mistrial because
reference was isolated and prejudice curable by instruction]; see also
524, 532 [hold that officer’s reference to investigating “other crimes†did not
mean that appellant had been suspected of other crimes and any implication
could have been dispelled by a request for an admonition].) Officer Zeigler also had testified about his
consensual, cooperative contacts with gang members, including appellant. Thus, in our view, no reasonable juror would
automatically infer that appellant had been arrested, charged or convicted of a
crime based on Officer Zeigler’s reference to appellant being detained by
police.
Finally, in this case, the jury’s brief exposure
to reference to appellant’s detention could have been curable by a timely
admonition to disregard it. Indeed, the
court sustained a relevance objection to the question that followed the last
reference, and the trial court subsequently instructed the jury to ignore the
evidence where objections had been sustained.
We presume the jury heeded that instruction and disregarded the
irrelevant evidence. (See
833, 874 [“We do not agree the isolated references to an escape, immediately
followed by an admonition to disregard them, mandated a mistrial. In the absence of evidence to the contrary,
we presume the jury heeded the admonition.â€].)
Because there was no pattern of egregious conduct, but instead two brief
references, volunteered by a witness that could have been cured by the court’s
admonishment, appellant was not denied a fair trial, and denial of his mistrial
motion was not an abuse of discretion.
In any event, even if we were to conclude the
court erred, we would also conclude any such error was harmless in light of the
evidence of appellant’s guilt. Two
eyewitnesses—Ochoa and Aaron—identified appellant as the shooter. The women identified appellant from his
distinctive appearance and clothing. A
third witness saw a person matching appellant’s description walk quickly into
appellant’s apartment building immediately after the shots were fired. Diaz, a fellow gang member, described how
shortly after the murder, appellant approached him, and admitted committing the
murder. Appellant described the crime to
Diaz using details that were consistent with the eyewitnesses’ version of
events. Furthermore, when appellant was
arrested, the police found ammunition of the type used in the crime, and
located clothing at appellant’s apartment that matched that worn by the shooter.
In view of this evidence, it is not reasonably
probable that the jury would have reached a more favorable result in the
absence of any mention of the fact that appellant had been detained by police
on one occasion prior to the crime.
The judgment is affirmed.
WOODS,
Acting P. J.
We concur:
ZELON, J. SEGAL,
J.*
*Judge of the Los Angeles
Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
[1] Lopez drove and Aaron sat in the front passenger seat next
to Lopez. Ochoa sat in the rear
passenger seat behind Aaron, and Aguirre sat in the rear passenger seat behind
Lopez.
line-up. Ochoa wrote on the photograph
that “[appellant] had the same similarities of what [she] recalled that
night.†Aaron also selected appellant
from a six-pack photo array. In
addition, both Ochoa and Aaron identified appellant in court as the man they
saw that evening; they both identified him by his short stature, his facial
features, and his attire that evening.
