Filed 1/6/21 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, B302410
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA089911)
v.
ROBERT MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. David W. Stuart, Judge. Affirmed.
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Robin Urbanski and Mary Katherine
Strickland, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Robert Martinez appeals from a judgment which sentences
him to state prison for attempted voluntary manslaughter,
possession of an assault weapon, and assault with a
semiautomatic firearm. Martinez argues the trial court
prejudicially erred when it instructed the jury with Judicial
Council of California Criminal Jury Instructions (CALCRIM)
Nos. 361 and 372. We affirm the judgment.
FACTS
On October 25, 2017, Martinez shot his cousin, Jeffrey
Smith, in the left arm and chest. Smith was asleep with his
girlfriend in a shed in the backyard of their grandmother’s home.
Smith survived the shooting and his girlfriend was unhurt.
Their uncle, Mario Sanchez, witnessed the incident. Martinez
was arrested at his home approximately one month after the
shooting. He consented to a search and officers recovered
ammunition and a TEC-9 assault pistol, which is illegal in
California.
After waiving his rights under Miranda v. Arizona (1966)
384 U.S. 436, Martinez admitted in two recorded interrogations
to shooting Smith but claimed it was in self-defense. He
explained he had an ongoing feud with Smith, who often
threatened him and had previously sent people to assault him.
As a result, Martinez believed his life was in danger. On the day
of the incident, he decided to visit his grandmother, who had been
in ill health for several years. Because he knew Smith and his
friends were often in the area, he wore a bulletproof vest and
carried a gun.
Martinez explained to the officers he built the gun himself
by buying parts online. He referred to it as a “ghost gun” because
it was not registered and untraceable. Martinez described the
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type of bullets he favored as “RIP” rounds and compared them to
hollow point bullets. He said the rounds were expensive but
“[w]ell worth it . . . if you really need to put someone down.”
He admitted he used the RIP rounds to shoot Smith.
Martinez told the officers he began to “search the
perimeter” after he arrived at his grandmother’s home. He
almost immediately encountered Smith in the backyard shed.
He and Smith fought. He twice shot at Smith; first aiming for
the center of his chest and then aiming for Smith’s head.
Martinez characterized the second shot as the “money shot”
because it is used “when you need to put somebody down . . . .”
At that point, Sanchez attempted to intervene by restraining and
punching Martinez. Martinez’s gun discharged accidentally a
third time as he extricated himself from Sanchez. He then got
“the hell out of there.”
Martinez also told officers he regretted not killing Smith.
He stated, “there’s no point of going down for attempted murder”
because he saw it as a “bigger liability.” He reiterated, “I fucked
up. I got attempted versus murder, turns into a liability.” When
the officers recalled Smith was shot last year by someone else,
Martinez said, “I wish that was me, too.”
Martinez was charged with attempted premeditated and
deliberate murder (Pen. Code, §§ 664, 187; count 1)1; possession
of an assault weapon (§ 30605, subd. (a); count 2), and assault
with a semiautomatic firearm (§ 245, subd. (b); count 3). Firearm
enhancements pursuant to section 12022.53, subdivisions (b)–(d)
and section 12022.5, subdivision (a) were alleged as to count 1.
Additionally, it was alleged Martinez personally inflicted great
1 All further section references are to the Penal Code.
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bodily injury on Smith within the meaning of section 12022.7,
subdivision (a) as to counts 1 and 3.
At trial, the prosecution presented testimony from Sanchez,
Smith, and the investigating officers regarding the circumstances
surrounding the shooting. Martinez’s statements during his
interrogations were also played to the jury.
Martinez testified in his own defense. He explained he and
Smith lived at their grandmother’s house in 2014. His
grandmother asked both of them to leave after she had to break
up a fight between them on September 18, 2014. Martinez was
hospitalized and Smith suffered a broken rib as a result of the
fight. Martinez’s aunts, Linda Martinez and Rosie Martinez,
confirmed Smith did not have permission to live on the property
at the time of the incident. As a result, Martinez did not expect
to find Smith at his grandmother’s home that day.
Martinez testified he decided to retrieve a few items from
his family’s storage shed before seeing his grandmother.
According to Martinez, Smith opened the door to the shed and
attacked him. They exchanged blows. Martinez fired his gun,
hitting Smith. He gave conflicting testimony about whether
Smith had a gun in his hand or was reaching for one when
Martinez fired the first shot. According to Martinez, Smith
continued to raise his firearm after the first shot and appeared to
advance in Martinez’s direction when Martinez fired the second
shot.
Sanchez then attempted to restrain Martinez. They
struggled and his gun accidentally discharged. Martinez broke
free from Sanchez and walked to his bicycle while Sanchez
continued to punch him in the chest from behind. A defense
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expert diagnosed Martinez with a neurocognitive disorder and
posttraumatic stress disorder.
The jury found Martinez guilty of attempted voluntary
manslaughter (§§ 664 & 192, subd. (a)), a lesser-included offense
of attempted murder, possession of an assault weapon (§ 30605,
subd. (a)), and assault with a semiautomatic firearm (§ 245, subd.
(b)). The jury also found true the allegations that Martinez
inflicted great bodily injury (§ 12022.7, subd. (a)) and personally
used a firearm (§ 12022.5, subd. (a)) as charged in counts 1 and 3.
Martinez was sentenced to a total of 19 years and eight
months in state prison. This was comprised of the midterm of six
years for assault with a semiautomatic firearm plus eight months
for possession of an assault weapon. In addition, the trial court
imposed a 10-year term for the firearm enhancement under
section 12022.5 and an additional three years for the great bodily
injury enhancement under section 12022.7.
Martinez timely appealed.
DISCUSSION
Martinez contends the trial court prejudicially erred by
instructing the jury with CALCRIM No. 361, which addresses a
testifying defendant’s failure to explain or deny evidence against
him that was within his knowledge, and CALCRIM No. 372,
which addresses a defendant’s flight from the scene of a crime.
He claims there was no evidentiary basis to support either
instruction. We conclude the instructions were warranted given
the evidence adduced at trial. Moreover, any error was harmless
since the evidence against Martinez was overwhelming.
We review Martinez’s instructional claims de novo. (People
v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Berryman (1993)
6 Cal.4th 1048, 1089, overruled on a different ground by People v.
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Hill (1998) 17 Cal. 4th 800, 823.) Courts have uniformly applied
the harmless error standard set forth in People v. Watson (1956)
46 Cal.2d 818, 836 (Watson), when reviewing claims of
instructional error. (People v. Vega (2015) 236 Cal.App.4th 484,
501; People v. Lamer (2003) 110 Cal.App.4th 1463, 1471.) Under
that standard, reversal is warranted only if it is reasonably
probable the defendant would have obtained a more favorable
result in the absence of the error. (Watson, supra, at p. 836.)
I. The Trial Court Properly Gave CALCRIM No. 361
Martinez argues CALCRIM No. 361 was improvidently
given because he did not fail to explain or deny any material fact
within his knowledge during cross-examination. He instead fully
described the shooting and his possession of an assault weapon.
The record demonstrates otherwise.
The trial court instructed the jury with CALCRIM No. 361
as follows: “If the defendant failed in his testimony to explain or
deny evidence against him, and if he could reasonably be
expected to have done so based on what he knew, you may
consider his failure to explain or deny in evaluating that
evidence. Any such failure is not enough by itself to prove guilt.
The People must still prove the defendant guilty beyond a
reasonable doubt. If the defendant failed to explain or deny, it is
up to you to decide the meaning and importance of that failure.”
“[T]he instruction applies only when a defendant
completely fails to explain or deny incriminating evidence, or
claims to lack knowledge and it appears from the evidence that
the appellant could reasonably be expected to have that
knowledge.” (People v. Cortez (2016) 63 Cal.4th 101, 117
(Cortez).) In Cortez, the Supreme Court held the instruction was
properly given where a defendant previously provided detailed
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statements to police regarding a gang-related shooting, but at
trial, testified she did not know why or how the shooting
occurred. (Id. at p. 122; see also People v. Saddler (1979) 24
Cal.3d 671, 682 (Saddler) [holding that CALJIC No. 2.62, the
equivalent of CALCRIM No. 361, is appropriate when there are
“facts or evidence in the prosecution’s case within [appellant’s]
knowledge which he did not explain or deny”].)
Martinez likewise testified he did not recall certain facts
that he previously relayed to police officers in detail. During his
recorded interrogation, Martinez told officers he built a gun.
When the officer asked if he built an “untraceable” gun, Martinez
responded, “Yeah. A ghost gun.” At trial, the prosecutor asked
him, “you built it because it was a ghost gun?” Martinez
responded he did not recall why he built the gun. He also
testified the term “ghost gun” was “new” to him. The prosecutor
challenged this assertion by playing the recorded interrogation to
him and asking, “You knew what a ghost gun was, didn’t you?”
He responded, “Apparently,” but failed to explain the
discrepancy.
Just as in Cortez, these were facts or evidence in the
prosecution’s case about which Martinez “claims to lack
knowledge and it appears from the evidence that the defendant
could reasonably be expected to have that knowledge.” (Cortez,
supra, 63 Cal.4th at p. 117.) At a minimum, Martinez could
reasonably be expected to know why he built a gun. Accordingly,
there was no error when the trial court instructed the jury with
CALCRIM No. 361.
Even if it was error to give CALCRIM No. 361, however, it
was harmless because there was overwhelming evidence of
Martinez’s guilt. He confessed to shooting Smith during his
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interrogations and at trial. He admitted he wore a bullet proof
vest and carried a “ghost gun” loaded with RIP bullets designed
“to put someone down” when he went to his grandmother’s house.
When he arrived there, he did not go to the main house to see her
but instead immediately walked to the shed where Smith and his
girlfriend were staying. Although he knew he had shot Smith, he
then left without rendering aid or calling for paramedics. He
later admitted to officers he wished he had succeeded in killing
Smith.
Beyond the strength of the evidence against him,
CALCRIM No. 361 cautions the jury that any failure in the
defendant’s testimony “is not enough by itself to prove guilt.
The People must still prove the defendant guilty beyond a
reasonable doubt.” CALCRIM No. 361 also instructs its use by
the jury is conditional in that it may only be applied “[i]f the
defendant failed in his testimony to explain or deny evidence
against him, and if he could reasonably be expected to have done
so based on what he knew . . . .” The conditional use of
CALCRIM No. 361 is reinforced by CALCRIM No. 200, which
instructed the jury that “[s]ome of these instructions may not
apply,” and you should “follow the instructions that do apply to
the facts as you find them.” Courts have recognized that
CALCRIM No. 200 mitigates any prejudicial effect resulting from
an instruction based on CALCRIM No. 361, because one can
assume the jury disregarded CALCRIM No. 361 if it determined
there was no adverse evidence Martinez failed to explain or deny.
(See Saddler, supra, 24 Cal.3d at p. 684; People v. Lamer, supra,
110 Cal.App.4th at p. 1472.)
In view of the evidence against him and the instructions
given, we cannot say it is “reasonably probable that a result more
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favorable to [Martinez] would have been reached in the absence
of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
II. The Trial Court Properly Gave CALCRIM No. 372
Martinez next argues the trial court erred when it
instructed the jury with CALCRIM No. 372. Martinez contends
there was no evidence he left the scene of the shooting to avoid
detection or arrest. He asserts he left because Sanchez continued
to punch him in the chest. Moreover, his subsequent cooperation
with the police demonstrated he lacked a guilty mindset. We
disagree.
CALCRIM No. 372 provides: “If the defendant fled
immediately after the crime was committed, that conduct may
show that he was aware of his guilt. If you conclude that the
defendant fled, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the
defendant fled cannot prove guilt by itself.” This instruction is
properly given if there is any evidence from which a juror could
reasonably infer a defendant’s departure from the crime scene
was motivated out of consciousness of guilt. (People v. Cage
(2015) 62 Cal.4th 256, 285.) “Evidence that a defendant left the
scene is not alone sufficient; instead, the circumstances of
departure must suggest ‘a purpose to avoid being observed or
arrested.’ To obtain the instruction, the prosecution need not
prove the defendant in fact fled, i.e., departed the scene to avoid
arrest, only that a jury could find the defendant fled and
permissibly infer a consciousness of guilt from the evidence.”
(People v. Bonilla (2007) 41 Cal.4th 313, 328.)
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People v. Bradford (1997) 14 Cal.4th 1005 (Bradford), a
case relied upon by Martinez, is instructive. There, the Supreme
Court found a similar flight instruction2 was properly given. In
Bradford, the defendant did not leave the apartment building in
which the murder occurred but he left the apartment in which he
killed the victim and told someone, “ ‘I really got to get the hell
out of here.’ ” (Id. at p. 1019.) He packed his belongings, asked a
friend who lived in a different city if he could stay with her, and
repeatedly asked his roommate to drive him out of town. (Id. at
p. 1020.) The high court concluded, “[t]his is sufficient evidence
to warrant instructing the jury to determine whether flight
occurred, and, if so, what weight to accord such flight. [Citation.]
Moreover, the instruction given adequately conveyed the concept
that if flight was found, the jury was permitted to consider
alternative explanations for that flight other than defendant’s
consciousness of guilt.” (Id. at p. 1055.)
Martinez likewise told officers he had to get “the hell out of
there” after the shooting. Moreover, when Sanchez released the
magazine from the gun and it fell to the ground during their
struggle, Martinez made sure to retrieve it before he left. From
these facts, the jury could permissibly infer a consciousness of
2 CALJIC No. 2.52 was given as follows: “ ‘The flight of a
person immediately after the commission of a crime is not
sufficient in itself to establish his guilt, but is a fact which, if
proved, may be considered by you in the light of all other proved
facts in deciding the question of his guilt or innocence. If there
was such flight, the weight to which such circumstance is entitled
is a matter for the jury to determine.’ ” (Bradford, supra, 14
Cal.4th at p. 1054, italics omitted.)
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guilt. Just as the Bradford court did, we conclude this was
sufficient evidence to warrant a flight instruction.
Martinez claims he left because Sanchez continued to
punch him, not to avoid arrest. This alternate theory of the
evidence does not negate the equally permissible inference of
consciousness of guilt discussed above. In any case, Martinez
told police he got away from Sanchez by simply turning around;
he did not need to hit Sanchez. He also admitted his life “wasn’t
completely threatened” by Sanchez. Moreover, Sanchez testified
he only punched Martinez once, and its force was impeded by the
bullet proof vest and only hurt his arm. This evidence would
tend to show Martinez did not leave the scene because of
Sanchez’s conduct.
Martinez further argues CALCRIM No. 372 impermissibly
diluted the prosecution’s burden of proof and emphasized a state
of mind not supported by the evidence. As a result, his due
process and fair trial rights under the Fifth and Fourteenth
Amendments were violated. We find no error resulted from the
trial court’s flight instruction to the jury, and Martinez fails to
provide any support for a constitutional violation on that basis.
In any case, we have concluded the evidence of guilt was
overwhelming. Any error was thus harmless. Martinez contends
the error was of “federal constitutional dimension” and thus we
must examine the issue under the standard set forth in Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman). We need not
address whether this is the proper standard to apply because we
see no probability that the jury’s verdicts might have been
different had the flight instruction not been given, even if the
Chapman standard is applied.
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DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J.
WILEY, J.
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