Filed 9/2/26 P. v. Martinez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B344304

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA085403
v.

SANTIAGO MARTINEZ et al.,

Defendants and
Appellants.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Emily J. Cole, Judge. Affirmed as modified.
Sally Patrone, under appointment by the Court of Appeal,
for Defendant and Appellant Santiago Martinez.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant Alberto Mejia.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.
 ____________________
Inmates Santiago Martinez and Alberto Mejia attacked
another inmate. Martinez and Mejia challenge their convictions
for attempted murder and other charges. We agree with the
prosecution that we must reverse Mejia’s conviction under section
4501, subdivision (a) because it duplicates his conviction under
section 4500. We otherwise affirm. Statutory citations are to the
Penal Code.
I
Martinez and Mejia were inmates at a maximum-security
prison in Los Angeles County. Within the prison, they were
housed in administrative segregation, “a prison within a prison”
for inmates who commit violent crimes in prison or who pose
other safety concerns. Inmates in this section are cuffed at the
hands and ankles with a waist chain anytime they are out of
their cells, unless they are in the shower or yard. Zapatistas and
2-5ers are two rival groups present at the prison.
Martinez and Mejia were sitting next to each other at a
group therapy session. An officer escorted fellow inmate Gabriel
Vildasola past the window of the room in which the therapy
session was occurring. Martinez and Mejia used a handmade key
to unlock their shackles within seconds. Martinez passed a
weapon to Mejia. Officers later found handcuff keys on the floor
of the classroom.
Vildasola pulled away from the officer escorting him and
began running. Mejia ran out the door of the therapy room with
a weapon in his hand and down a hallway parallel to the one
Vildasola was running down. A door connected the two
hallways. Mejia slipped before reaching the connecting door, and
officers pinned him down.

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 Martinez ran down the same hallway Vildasola took. An
officer kicked Martinez’s legs out from under him, causing him to
fall to the ground. Martinez got up, shoved past another officer
who pepper sprayed him, and caught Vildasola, whom he stabbed
four times. An officer jumped on Martinez, grabbing him around
the neck, and pulled him off Vildasola, before pinning Martinez to
the ground. Martinez had a knife-like weapon in his hand. As
officers escorted him away, Martinez yelled, “I got that fool,” so
other inmates could hear. He also said, “I stabbed a Zapatista
right now,” and, in Spanish, “I’m here for 2-5.” He later told an
officer, “This was nothing personal. It’s just business.” During
his closing, the prosecutor pointed out a 2-5er tattoo on
Martinez’s cheek.
Officers found another handcuff key and weapon in
Martinez’s cell.
An officer pinned Vildasola down after the attack when he
reached for a weapon on the ground by his hand. The stab
wounds to Vildasola’s back and abdomen caused his lung to
collapse.
Attorney Robert Haberer represented Martinez, and
attorney James Pinchak represented Mejia. During voir dire but
before jury selection, the trial court spoke with counsel on the
record about safety measures without Martinez or Mejia
present. The court noted that earlier, off the record, each defense
counsel had requested the court place his clients in a stealth belt
due to counsel’s concern for his own safety. The court further
noted that it would not have required the belts absent counsels’
request because the court had not noticed any concerns. Due to
Pinchak’s earlier on the record objection, the court pulled the
prison reports for Martinez and Mejia to determine if there was

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manifest need for the belts. Pinchak noted that he had objected
“to protect the record to also show my client that I’m working for
him so I would have a better client control.”
At the court’s invitation, the prosecutor laid out several
rules violations Mejia committed while in prison. The court itself
then read into the record a number of rules violations Martinez
committed.
Haberer then shared his concerns with the court. He noted
that the belts did not prejudice the defendants because the jury
could not see them. Haberer expressed his concern for his safety,
noting both defendants already were serving life sentences and
had a “nothing to lose” attitude: “that’s scary to me.” He was
also concerned by the “unpredictability” of his client’s personality,
who could appear “happy-go-lucky, charming” in contrast to the
nature of the charges. Haberer objected to a suggestion that he
sit between Martinez and Mejia, because his carotid artery “is
exposed to everything,” and his client had a “history of being able
to secrete weapons.” He noted that “[i]nstead of paying attention
to the trial, my peripheral vision has to be on alert all the time.
It reduces my ability to focus.”
Pinchak objected to his seat being moved because “[i]f
something happens, I have plenty of space to move away.”
The court ultimately found there was manifest need for
both Martinez and Mejia to wear stealth belts. The court also
ordered extra bailiffs in the courtroom.
During the trial, the jury saw surveillance video of the
attack. Ten correctional officers testified.
The jury convicted Martinez and Mejia each of attempted
premeditated murder and assault with a deadly weapon by a
state prisoner (§ 4501, subd. (a) (§ 4501(a)).

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 The jury also convicted Mejia of assault with malice
aforethought (§ 4500).
Whether § 4501(a) and section 4500 are different crimes or
are essentially the same crime on the facts here is an issue in this
appeal. Prosecutors had charged Mejia but not Martinez with
two different assault crimes, apparently because the prosecution
was uncertain exactly which of these theories jurors might
accept, given that Mejia was not the one who plunged the weapon
into the victim. Jurors, however, accepted all of the prosecution’s
theories, thus raising the issue of possible duplication, which as
we shall see the prosecution now concedes.
II
Martinez and Mejia appeal their convictions on three bases.
First, Martinez and Mejia claim a violation of their constitutional
rights to be present at all critical proceedings and to conflict-free
counsel. Because they do not show prejudice, these claims
fail. Second, they argue section 954 prohibits multiple
convictions based on the single act of stabbing. As the
prosecution agrees, we must reverse Mejia’s conviction for
§ 4501(a), for it essentially duplicates his conviction for section
4500. We affirm all other convictions. We reject an argument
about prosecutorial misconduct because there is no showing of
prejudice.
A
Martinez and Mejia argue the court violated their
constitutional rights in two interrelated ways. First, they argue
the court violated their constitutional right to be present at a
critical proceeding when they were absent from the hearing
discussing security measures. Second, they argue this exclusion
prevented them from realizing their counsel had conflicts of

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interest: the lawyers were worried about the lawyers’ own safety
as well as the clients’ best interests. Their claims fail. Prejudice
is required, but Martinez and Mejia do not show it.
Defendants have a constitutional right to be present at
proceedings where necessary to protect their ability to effectively
cross-examine and at critical stages where their presence would
enhance the fairness of the proceeding. (People v. Flinner (2020)
10 Cal.5th 686, 710.) Violations of this right are harmless unless
defendants show prejudice. (Ibid.)
Defendants also have a constitutional right to counsel free
of professional conflicts. (People v. Doolin (2009) 45 Cal.4th 390,
417 (Doolin).) Representation by counsel laboring under a
conflict of interest is ineffective assistance of counsel. (Id. at pp.
417–418.) Where the conflict is caused by representation of
multiple clients in the same matter, we presume prejudice. (Id.
at pp. 418, 428; see also People v. Almanza (2015) 233
Cal.App.4th 990, 1006–1007 [under Doolin, where counsel not
representing two or more defendants concurrently, traditional
prejudice standard, not presumption, applies].) In other cases, a
defendant asserting this type of claim must show counsel had an
actual conflict that adversely affected the representation and that
the effect on the representation prejudiced the defendant.
(Doolin, supra, 45 Cal.4th at pp. 417–418.)
We will assume Martinez and Mejia had a right to be at the
security proceeding. Both argue the exclusion caused prejudice
because neither learned about the professional conflict and
neither knew the lawyers were arguing against their clients’ best
interests.
Martinez and Mejia argue their counsel had a conflict
because they were afraid of the defendants and this caused their

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counsel to take positions adverse to the best interests of their
clients. We will assume for the purposes of this analysis that
their counsel had a conflict.
Citing People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
309, Martinez and Mejia argue prejudice is presumed when an
actual conflict of interest exists. However, Gonzales requires an
actual conflict must have “affected counsel’s performance” before
a defendant can gain a remedy. (Ibid.)
Martinez and Mejia have shown no adverse effect.
Martinez argues his attorney’s fear led him to argue his
client was dangerous and led to the admittance of evidence such
as the rules violation report, as well as imposition of the stealth
belts. As noted, the jury could not see the stealth belt. Martinez
does not explain how prejudice resulted from this.
Martinez argues that the court’s exposure to the
information about the rules violation and counsel’s argument
that he was dangerous tainted the guilt phase and sentencing.
Martinez does not make this argument until his reply brief, and
we disregard it for this reason. (Julian v. Hartford Underwriters
Ins. Co. (2005) 35 Cal.4th 747, 761 fn. 4.)
Moreover, this prejudice argument also fails on the merits
for want of a factual basis. Nothing suggests counsels’ fear or the
court’s exposure to Martinez’s rules violations played a role at
trial or during sentencing. The court’s use of the information
about the attorneys’ fear and Martinez’s prison behavior was
extremely limited: it considered the information only for the
purpose of determining whether there was manifest need for the
stealth belt. The court did not mention counsels’ fear or the rules
violations during trial or sentencing. At sentencing, for instance,
the prosecutor argued, and the court relied on, solely on previous

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convictions and the nature of the crime itself to determine factors
in aggravation.
Mejia argues the conflict led his counsel to request Mejia be
restrained while simultaneously objecting on the record for the
purpose of client control. Mejia argues prejudice resulted because
his counsel argued for the stealth belt, a position against Mejia’s
best interests. The jury could not see the stealth belt, which had
no effect on the trial. The prejudice argument fails.
B
Martinez and Mejia argue their respective § 4501(a)
convictions are improper under section 954. Martinez argues his
§ 4501(a) conviction duplicates his attempted murder charge,
while Mejia argues his § 4501(a) conviction duplicates his section
4500 assault charge. As the prosecutor concedes, Mejia is correct.
Martinez, however, has not established his conviction is
improper.
Section 954 allows prosecutors to charge “different
statements of the same offense,” but does not allow a defendant
to be convicted for multiple statements of the same offense.
(People v. Vidana (2016) 1 Cal.5th 632, 650 (Vidana).) Multiple
convictions can arise from the same act. (Id. at p. 637.)
There are two tests to determine whether an uncharged
offense is necessarily included within a charged offense: the
“elements” test and the “accusatory pleading” test. Under the
elements test, if the statutory elements of the greater offense
include all of the statutory elements of the lesser offense, the
latter is necessarily included in the former. Under the accusatory
pleading test, if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense, the

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latter is necessarily included in the former. (People v. Reed
(2006) 38 Cal.4th 1224, 1227–1228 (Reed).)
A defendant cannot be convicted of two offenses if one is
necessarily included in the other or if the legislature intended to
define a single offense that can be committed multiple ways – in
other words, if the convictions are different statements of the
same offense. (Vidana, supra, 1 Cal.5th at pp. 637, 648–649.)
To determine if two convictions run afoul of section 954, we
consider the elements as well as legislative intent. (Vidana,
supra, 1 Cal.5th at p. 638.) If one is a necessarily included
offense of the other, they are not different offenses. (Id. at p.
637.) Even if the elements differ, two offenses can be essentially
the same if legislative intent shows this is so. (Id. at p. 648.) We
consider the text and structure of the statutes, the elements of
the offenses, the punishments, the legislative history, and the
historical context of the statutes’ enactment. (People v. Aguayo
(2022) 13 Cal.5th 974, 982–983.)
Mejia argues he may be convicted only of section § 4501(a)
or of 4500, but not both. This is correct, as the prosecutor
concedes. (See People v. Nava (2007) 107 Cal.App.5th 624, 626
[person cannot be convicted under both § 4500 and § 4501(a) for
same conduct].)
Martinez makes a different, and incorrect, contention: that
his section § 4501(a) conviction duplicates his attempted murder
charge.
Martinez does not dispute that, under the statutory
elements tests, the conviction under § 4501(a) for assault with a
deadly weapon is not included in the conviction for attempted
murder. Instead, he argues that under the accusatory pleading
test, they are different statements of the same offense. But Reed,

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supra, 38 Cal.4th 1224, a case Martinez cites, holds the statutory
elements test should be used and the accusatory pleading test
should not. (Id. at pp. 1229–1230.)
Martinez makes no attempt to show the legislative intent
requires a different result. Based on the record before us, section
954 does not preclude Martinez’s convictions for attempted
murder and for violating § 4501(a).
C
Martinez and Mejia argue that the prosecutor committed
misconduct in closing argument requiring reversal. These
arguments fail.
Prosecutorial misconduct violates the federal Constitution
when the prosecutor’s conduct so infects the trial with unfairness
as to make any resulting conviction a denial of due process.
(People v. Nadey (2024) 16 Cal.5th 102, 156 (Nadey).) Under
state law, prosecutors commit misconduct when they use
deceptive or reprehensible methods to attempt to persuade the
jury or court. (Ibid.) Where the alleged misconduct consists of
comments to the jury, we evaluate whether there is a reasonable
likelihood the jury applied or construed the comments in an
objectionable fashion. (Ibid.)
To preserve an objection for appeal, defendants must object
and request a curative admonition. (People v. Choyce (2025) 18
Cal.5th 86, 114.) Defendants are excused from these
requirements only when the objection would be futile or the trial
court overrules the objection immediately and does not provide
opportunity for counsel to request an admonition. (People v.
Boyette (2002) 29 Cal.4th 381, 432 (Boyette).)
Martinez and Mejia both assert an instance of alleged
misconduct, and Martinez alleges two additional instances. We

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need not determine if defendants preserved their objections
because they are meritless in any case. We will describe and
analyze each in turn.
First, both Martinez and Mejia argue the prosecutor
improperly shifted the burden to defendants to produce
evidence. Pinchak argued the prosecutor had not called
witnesses to establish the motive he was urging the jury to find
for the attempted murder: a feud between Zapatistas and 2-
5ers. In rebuttal, the prosecutor argued defense counsel had the
same ability to subpoena witnesses that he did and suggested
defense counsel had not done so because the witnesses would
have testified about the defendants’ “motive to stab Vildasola and
made their case worse.” Pinchak objected and asked to
approach. The trial court overruled and declined to allow counsel
to approach. Later, outside the presence of the jury, Pinchak
stated he had not commented on what the witnesses’ testimony
might be and the prosecutor’s rebuttal had improperly done so.
The jurors were not likely to misapply this comment. (See,
e.g., Nadey, supra, 16 Cal.5th at p. 159–160.) The comment was
brief, and the judge clearly instructed the jurors on the burden
and that the attorneys’ comments were mere argument. Given
the strength of the evidence here, this comment could not have
swayed jurors. This is especially true given the prosecutor
directed this argument at proving motive, which the prosecutor
had emphasized he did not need to prove. (People v. Steskal
(2021) 11 Cal.5th 332, 352–353 [comment harmless where
tangential to issues in case].) Nor did the comment
impermissibly shift the burden to defendants. The prosecutor did
not suggest or imply defendants had a duty to produce evidence.
(Id. at pp. 351–352 [prosecutorial comments that do not state or

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imply defendant has duty to produce evidence do not
impermissibly shift burden].)
Martinez next argues the prosecutor’s reference to
President John Kennedy was unduly inflammatory. This odd
reference arose as follows. Defense attorney Haberer argued the
improbability that Martinez and Mejia would have an
opportunity to attack Vildasola militated against a finding that
this was a planned attack. In rebuttal, the prosecutor argued
that Lee Harvey Oswald took a difficult shot in assassinating
President John Kennedy and that the difficulty of the shot did
not diminish his culpability for the murder.
There is no likelihood the jury misapplied this comment.
The prosecutor’s comment was brief and referred to an event
from more than 60 years ago, not to some current cause of boiling
national outrage. It validly illustrated the point that taking a
long shot does not reduce culpability of attempted murder.
Finally, Martinez challenges the prosecutor’s comment
about him to the jury during his closing. The prosecutor told the
jury, “You can consider the evidence. You can also consider the
defendant’s behavior in court. You may even be able to see from
where you’re sitting that Mr. Martinez has a dos cinco tattoo, two
dots and a line, on his cheek.” We assume this comment was
improper. (See Boyette, supra, 29 Cal.4th at p. 434.) However, it
was also harmless. The prosecutor’s brief comment was isolated.
As mentioned, the uncontested evidence was Martinez yelled, “I
got that fool,” so other inmates could hear. He also said, “I
stabbed a Zapatista right now,” and, in Spanish, “I’m here for 2-
5.”

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 DISPOSITION
We direct the trial court to reverse Mejia’s conviction under
section 4501, subdivision (a) and to strike the sentence and any
fees imposed in connection with that charge. We further direct
the trial court to correct the abstract of judgment in accordance
with this holding and forward a certified copy of the corrected
abstract of judgment to the Department of Corrections and
Rehabilitation. As so modified, we affirm the judgment.

WILEY, ACTING P. J.

We concur:

VIRAMONTES, J.

SCHERB, J.

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