Opinion
B226035
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. JASON STEVEN MARTINEZ, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA337075)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jason Steven Martinez appeals from the judgment entered following his conviction by jury of second degree murder (Pen. Code, § 187) with a finding he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced him to prison for 15 years to life. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 11:30 p.m. on October 30, 2007, Daniel Lopez and Brian Ramos (the decedent) were in front of Ramos's house, which was located on Mariposa, north of San Marino. Lopez testified as follows. Lopez saw a gray Honda drive by. Later, a man approached, pointed a gun at Ramos and Lopez, and asked " 'Where you from?' " The man immediately began shooting. Lopez "probably guess[ed]" the gun was a revolver. Bullets hit Ramos, killing him.
According to Raul Cobos, about 11:30 p.m. on October 30, 2007, Cobos was driving when he saw a gray Honda park on San Marino near Mariposa. Appellant, holding a gun, exited the passenger side of the Honda. Cobos worked in security, knew "a little bit" about weapons, and thought the gun was an automatic. Cobos saw a hat fall off appellant's head, and appellant walked up Mariposa. Cobos drove by, and later heard gunshots. Cobos drove back and saw a man lying in the street on Mariposa. Cobos showed the hat, later identified as a Raiders cap, to police.
Cobos identified appellant from a photographic lineup and, at the time, indicated the person depicted had a little similarity to appellant. Cobos identified appellant at trial as the gunman. Cobos was afraid to testify at trial. About 11:30 p.m. on October 30, 2007, Aldo Acosta was in his apartment at Mariposa and San Marino. He heard gunshots, looked out his window, and saw two males run to a car which was similar to a Honda. The males entered the car and drove away.
Appellant's DNA profile was obtained from the interior headband of the hat, and his DNA profile was the major profile obtained. That DNA profile would be expected once in 2.438 quadrillion unrelated individuals, and once in 154.3 quadrillion unrelated southeast Hispanic individuals.
On November 19, 2007, and November 21, 2007, police contacted appellant at two locations, respectively, both of which were in territory claimed by the 18th Street gang. On each occasion, appellant told police that he was an 18th Street gang member. On the latter occasion, appellant was with two 18th Street gang members and admitted he had been a member of the gang since 1996. On January 10, 2008, police arrested appellant for violating a gang injunction, and appellant indicated he would just " 'go back to [appellant's] hood.' "
Carolina Avila testified she knew appellant. According to Avila, on February 11, 2008, appellant drove a car containing Avila and a male to Hollywood. Appellant put a gun in his lap. Appellant said he wanted to drive around and "catch some fools slipping" which meant catching a rival gang member off guard. When appellant saw a police car following him, appellant and the second male fled on foot. The parties stipulated Avila testified at trial under a grant of immunity.
Los Angeles Police Officers Greg Chin and Ericka Martinez joined the chase of the second male, who was Kevin Perez. Perez had his hands near his front waistband, and he dropped a gun while he was running. Martinez recovered the gun, which was a .38-caliber revolver loaded with four nine-millimeter bullets and one .38-caliber bullet. Nine-millimeter bullets were atypical ammunition for a revolver.
Los Angeles Police Criminalist Stella Chu testified as follows. All bullets and bullet jackets recovered from the murder scene were fired from one firearm. They were either nine-millimeter caliber, .38-caliber, or .357-caliber. Chu could neither confirm nor deny that bullets recovered from the murder scene were fired from the revolver Perez had discarded. Chu, using nine-millimeter bullets, tried to fire the revolver Perez discarded. The bullets fit the revolver, but Chu was unable to fire it.
On February 28, 2008, Los Angeles Police Officer Susanne Gras and her partner were patrolling the 200 block of South Catalina in a marked patrol car. Appellant saw the officers and fled, but was arrested shortly thereafter. Following his arrest, appellant denied to detectives that he was driving a car in Hollywood on February 11, 2008, denied he was involved in the Ramos killing, and claimed he was in Orange County on the date of that killing. Appellant also denied his DNA was on the hat, and denied the hat was his. He suggested he was not an active gang member.
Regarding the Ramos killing, appellant later told detectives that "I was there, but I didn't do it," appellant did not jump out of a car, and he did not shoot anyone. Appellant claimed he was drunk in the car, heard gunshots, and looked out the window. He also claimed his hat fell off. Appellant indicated he was sitting in the middle of the backseat, and there were five people in the car. Appellant offered to identify the car, its driver, the driver's house, and the shooter if appellant was released without charges. Appellant indicated it was possible to shoot nine-millimeter bullets from a .357-caliber revolver.
The parties stipulated 18th Street gang was a criminal street gang, and the People's gang expert testified appellant was a member of that gang. The expert also testified Ramos was from El Salvador; a rival gang, M.S. 13, consisted largely of El Salvadorans; and an 18th Street gang member would probably believe Ramos was an M.S. 13 gang member. The expert further testified to the effect the present offense was committed for the benefit of, or in association with, the 18th Street gang. Appellant presented no defense witnesses.
ISSUES
Appellant claims (1) there was insufficient evidence he committed second degree murder, (2) the trial court erroneously admitted evidence of the February 11, 2008, incident, and (3) appellant's statement to detectives following his arrest on February 28, 2008, was involuntary and his trial counsel provided ineffective assistance of counsel by failing to move to exclude the statement.
DISCUSSION
1. There Was Sufficient Evidence Appellant Committed Second Degree Murder.
The information alleged appellant committed murder with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing great bodily injury and death (Pen. Code, § 12022.53, subd. (d)). The jury convicted appellant as previously indicated, but found not true the above three firearm allegations.
Appellant claims there was insufficient evidence he committed second degree murder. He does not dispute that, absent the above firearm allegations, there was sufficient evidence he committed second degree murder. He argues the not true findings as to said firearm allegations compel the conclusion the jury rejected the People's theory that appellant was the direct perpetrator of the Ramos murder; therefore, appellant's conviction must be reversed because there was insufficient evidence he was liable for the murder as an aider and abettor, or as a member of an uncharged conspiracy to murder rival gang members. We reject appellant's claim.
An inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding on an enhancement allegation is inconsistent with a conviction for a substantive offense, effect is given to both. The jury may have been convinced of guilt but may have arrived at an inconsistent acquittal or not true finding through mistake, compromise, or lenity. Because the defendant is given the benefit of the acquittal, it is neither irrational nor illogical to require the defendant to accept the burden of conviction on the count(s) on which the jury convicted. (People v. Santamaria (1994) 8 Cal.4th 903, 911 (Santamaria I). In the present case, the not true findings as to the firearm allegations were, at best, merely inconsistent with appellant's conviction for second degree murder. Appellant's second degree murder conviction is allowed to stand (ibid.); therefore, we conclude there was sufficient evidence appellant committed second degree murder.
None of the cases cited by appellant compel a contrary conclusion. This includes Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 (Mitchell), and People v. Medina (1995) 39 Cal.App.4th 643 (Medina). Mitchell was the product of a divided panel which did not discuss Santamaria I. Moreover, Mitchell, a Ninth Circuit decision, was overruled by the Ninth Circuit in Santamaria v. Horsley (9th Cir. 1998) 138 F.3d 1280 (Santamaria II)to the extent Mitchell was inconsistent with Santamaria II. Santamaria II was an en banc decision which concluded Mitchell erred, and was inconsistent with Santamaria II, in Mitchell's premise that if a jury found not true a weapon enhancement allegation but convicted the defendant of murder, the jury must have concluded the defendant aided and abetted. (Santamaria II, supra, 138 F.3d at p. 1280.) The premise was erroneous because, under California's law pertaining to murder, in order to convict a defendant of murder a jury must unanimously agree the defendant is guilty of that crime, but need not agree on the legal theory of guilt (i.e., guilt as a direct perpetrator or as an aider and abettor). (Ibid.)
In Medina, as relevant here, the defendant raised the issue of the sufficiency of the evidence supporting his carjacking conviction. The theory the defendant committed kidnapping during a carjacking, armed with a firearm and with personal use of a knife, was the first of two conflicting factual theories which might have provided sufficient evidence supporting the carjacking conviction. However, the facts underlying that theory also provided the basis for a separate charge of kidnapping during a carjacking, with weapon enhancement allegations that the defendant was armed with a firearm and personally used a knife. Medina concluded the fact the jury acquitted the defendant on said separate charge and made not true findings on its enhancement allegations meant the appellate court could disregard the factual theory the defendant committed kidnapping during a carjacking as the appellate court considered whether there was sufficient evidence supporting the carjacking conviction. (Medina, supra, 39 Cal.App.4th at p. 651.)
Unlike Medina, the present case does not involve an acquittal on a related charge that appellant committed a substantive offense. Moreover, nothing in Medina indicates the parties in that case ever raised the issue of whether the acquittal of the defendant on the related charge of kidnapping during a carjacking impacted the issue of the sufficiency of the evidence supporting his carjacking conviction. Medina did not discuss whether the reasoning of Santamaria I (that inconsistent verdicts can result from mistake, compromise, or lenity) was inconsistent with the reasoning of Medina that the acquittal on one charge (kidnapping during a carjacking) impacted the issue of whether there was sufficient evidence supporting his conviction on another related charge (carjacking). The result in Medina was to affirm the carjacking conviction based on the second factual theory; therefore, Medina did not need to decide the above issues. Finally, Medina involved a sufficiency challenge to a carjacking conviction, not a murder conviction; therefore, and unlike the situation in the present case, California's murder law was irrelevant.
2. Evidence of the February 11, 2008, Events Was Admissible.
a. Pertinent Facts.
During an Evidence Code section 402, admissibility hearing, appellant posed an Evidence Code section 352 objection to evidence proffered by the People. That evidence was any statements by appellant to detectives following his February 28, 2008, arrest, and any testimony, to the effect the car from which appellant fled on February 11, 2008, was taken during a carjacking or that appellant had participated in that carjacking. The court ruled no evidence pertaining to the alleged carjacking would be admitted, but ruled other proffered evidence concerning the events of February 11, 2008, was admissible. The People presented evidence of those events as set forth in the Factual Summary. During its final charge to the jury, the court gave a limiting instruction concerning the purposes for which the jury could consider those events.
In particular, the court gave a modified CALJIC No. 2.50, which read: "Evidence has been introduced regarding an incident in Hollywood on February 11, 2008. If believed, any such evidence may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] The existence of any required specific intent or mental state which is a necessary element of the charged or lesser included crimes; [¶] The existence of any motive for the commission of the charged or lesser include crimes; [¶] The charged or lesser included crimes were a part of a larger continuing plan, scheme, or conspiracy; [¶] The existence of a conspiracy; and/or [¶] The charged or lesser included crimes were committed pursuant to Penal Code section 186.22(b)(1) for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose."
b. Analysis.
Appellant claims evidence of the events of February 11, 2008, was inadmissible under Evidence Code sections 1101 and 352; therefore, the trial court erred by admitting that evidence. The claim is unavailing. A careful review of the record reveals the only proffered evidence to which appellant objected concerning the February 11, 2008, events was the evidence that the car from which appellant allegedly fled on February 11, 2008, was taken during a carjacking and appellant was involved in that carjacking. Moreover, the only ground of appellant's objection was Evidence Code section 352. Appellant waived any other admissibility issues as to any evidence of the February 11, 2008, events. (Cf. People v. Clark (1992) 3 Cal.4th 41, 125-126; People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; Evid. Code, § 353, subd. (a).)
An appellate court applies the abuse of discretion standard of review to any ruling by a trial court concerning Evidence Code section 1101, or Evidence Code section 352, issues. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-725; People v. Williams (1997) 16 Cal.4th 153, 213; People v. Memro (1995) 11 Cal.4th 786, 864.) Even if the issues were not waived, no evidence was admitted at trial that the car from which appellant fled on February 11, 2008, was taken during a carjacking or that appellant was involved in that carjacking. Evidence of the remaining events of February 11, 2008, was relevant and admissible, inter alia, to prove appellant's motive, intent (see People v. Ewoldt (1994) 7 Cal.4th 380, 403), and knowledge with respect to the present offense, to prove the Penal Code section 186.22 allegation, and to attack his credibility as to his statements to detectives following his arrest on February 28, 2008. Similarly, evidence that a firearm was on appellant's lap was relevant and admissible. (Cf. People v. Carpenter (1999) 21 Cal.4th 1016, 1052.)
Appellant did not suggest during the admissibility discussions that Avila was an accomplice with respect to the events of February 11, 2008, or the Ramos murder, or that any such accomplice liability impacted admissibility issues. Appellant waived any issues raised by his current arguments concerning Avila allegedly being an accomplice. (Evid. Code, § 353, subd. (a).) Moreover, the record fails to demonstrate Avila was an accomplice with respect to the Ramos murder. (Pen. Code, § 1111.)
We conclude the trial court did not abuse its discretion by admitting the challenged evidence, and the application of the ordinary rules of evidence, as here, did not violate appellant's right to due process (cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428). Finally, even if the trial court erred by admitting the challenged evidence, the court instructed the jury concerning the limited purposes for which the jury could consider the evidence of the February 11, 2008, events, and we presume the jury followed that instruction (cf. People v. Sanchez (2001) 26 Cal.4th 834, 852). The jury heard the stipulation that Avila testified at trial under a grant of immunity, and the court, using CALJIC No. 2.13, instructed the jury they could consider the fact a witness was granted immunity when the jury evaluated that witness's credibility. There was ample evidence of appellant's guilt (including the evidence appellant's DNA was on the interior headband of the hat which the gunman was wearing) apart from the challenged evidence. The alleged trial court error was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
3. Appellant Was Not Denied Effective Assistance of Counsel.
Appellant was arrested on February 28, 2008, and detectives interviewed him. The transcript of the interview, admitted in evidence, consists of 267 pages. The first approximate 40 pages consist of conversation between appellant and detectives before the detectives advised appellant of his Miranda rights.
During that conversation, the detectives obtained from appellant background information concerning, inter alia, appellant, his family, the gang injunction violation for which he had been arrested, his gang involvement, and his tattoos. Appellant and the detectives also engaged in small talk. Appellant and the detective did not, during that conversation, discuss the events of February 11, 2008, or the Ramos murder. A detective eventually told appellant "Let's get to the reason why you're brought over here [from Wilshire]" and the detective indicated he was investigating the carjacking even though appellant had been arrested for a violation of a gang injunction.
The next approximate two pages of the transcript reflect appellant's waiver of his Miranda rights and willingness to talk about the carjacking case. The next approximate 73 pages reflect the ensuing conversation between appellant and the detectives and, during that conversation, the detectives occasionally employed ruses to get appellant to talk. The next approximate two pages reflect that, after that conversation, a detective reminded appellant of his Miranda rights, and appellant waived them again and agreed to talk about the present offense. The remaining approximate 150 pages reflect the ensuing conversation between appellant and the detectives.
Appellant failed to object in the trial court that his Miranda waivers, or statements to the detectives, were involuntary. We have set forth in the Factual Summary the pertinent statements by appellant to the detectives.
Appellant claims the detectives impermissibly softened him prior to his initial Miranda waiver and used impermissible ruses when obtaining his statements concerning the carjacking; therefore, his Miranda waiver(s), and all of his statements, were involuntary and, as a result, his trial counsel provided ineffective assistance by failing to seek to exclude appellant's statements on the above grounds. Of course, appellant waived any Miranda or involuntariness issues by failing to raise them below. (Cf. People v. Holt (1997) 15 Cal.4th 619, 666-667; People v. Mayfield (1993) 5 Cal.4th 142, 172.)
We have reviewed the pertinent record of the interview, including the alleged improprieties by the detectives. As to the alleged softening of appellant, appellant's trial counsel reasonably could have concluded the present case is distinguishable from softening cases such as People v. Honeycutt (1977) 20 Cal.3d 150, in which there was an unrecorded 30-minute, pre-Miranda conversation during which the defendant and police discussed mutual acquaintances, past events, and finally the victim. (See People v. Michaels (2002) 28 Cal.4th 486, 511.) Similarly, appellant's trial counsel reasonably could have concluded the present case is more like People v. Gurule (2002) 28 Cal.4th 557, 602 (Gurule), in which there was no discussion of the victim during the alleged softening conversation, and no evidence that small talk between the defendant and police overbore the defendant's free will, facts upon which Gurule relied to conclude no impermissible softening occurred.
As to the use of ruses, the general rule is a confession obtained through use of a ruse is admissible as long as the ruse is not likely to produce a false statement. (People v. Felix (1977) 72 Cal.App.3d 879, 886 (Felix).) On this record, appellant's trial counsel reasonably could have concluded any ruses used by the detectives would not produce false statements and were ruses of far less magnitude than those permitted by case law. (See Felix, supra, 72 Cal.App.3d at p. 886.) Appellant has failed to demonstrate his trial counsel's failure to seek exclusion of his statements was prejudicial constitutionally-deficient representation. (Cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
CROSKEY, Acting P.J.
ALDRICH, J.