Filed 2/16/21 P. v. Martinez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301401
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA149434)
v.
JUAN ANTHONY MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael A. Cowell, Judge. Affirmed.
Patrick J. Hoynoski, 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, Assistant Attorney
General, Michael Pulos and Britton B. Lacy, Deputy Attorneys
General, for Plaintiff and Respondent.
**********
Defendant and appellant Juan Anthony Martinez was
found guilty of one count of possession of methamphetamine for
sale and one count of transporting methamphetamine and
sentenced to four years in state prison. The sole issue on appeal
is whether the prosecutor made statements during closing
argument that improperly shifted the burden of proof to
defendant. We conclude defendant forfeited the contention and
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of December 2, 2018, Los Angeles County
Deputy Sheriff David Pantoja was on patrol in the city of
Norwalk. He pulled defendant over for a traffic stop. Defendant
was driving a car registered in his name and had three
passengers with him. At some point, defendant and his
passengers were ordered out of the car. Six baggies of a
substance later determined to be methamphetamine were found
in the car, plus $760 in cash and two cell phones. One baggie was
visible on the center console, and the other baggies were in a box
on the floor. The money and one phone were found in defendant’s
pockets, and the other cell phone was on the driver’s seat. No
pipes or other drug paraphernalia were found in the car and none
of the occupants appeared to be under the influence of any drug
at the time of the stop.
Deputy Pantoja read defendant his rights and defendant
agreed to speak with him. Defendant said the drugs were his,
that he intended to sell them and that none of his passengers was
involved or had knowledge of the drugs.
Defendant was charged with one count of possession for
sale of a controlled substance (methamphetamine) (Health & Saf.
Code, § 11378; count 1) and one count of transportation of a
2
controlled substance (methamphetamine) (Health & Saf. Code,
§ 11379, subd. (a); count 2). It was also alleged defendant had
suffered a prior conviction of a serious or violent felony (criminal
threats) within the meaning of the “Three Strikes” law (Pen.
Code, § 667, subds. (b)-(j), § 1170.12).
A jury trial was held in September 2019. Deputy Pantoja
testified to the above facts. Detective Christopher Conley, a
narcotics officer, explained that a total of 44.55 grams of
methamphetamine was found in defendant’s car. A usable
quantity or dose of methamphetamine is 0.02 grams. Even
assuming someone used a gram a day, the quantity found in
defendant’s car was enough for over 40 days. In Detective
Conley’s experience, the quantity and individual packaging were
consistent with defendant possessing the drugs for sale. Further,
individuals who sell narcotics often carry two cell phones, one to
engage in sales with customers and the other for personal use.
Defendant testified and said he first started using drugs
around the age of nine. On the night of December 2, 2018, he
was going to a party with his friends and was bringing the
methamphetamine for use at the party. He said the money in his
pocket was a recent withdrawal from a former girlfriend’s
account to pay for rent because he was on unemployment at the
time. He denied telling Deputy Pantoja that all the drugs were
his or that he was planning to sell them. Defendant also said
Deputy Pantoja was wrong to say there were no pipes in the car
because there were three in the center console. Defendant said
Deputy Pantoja allowed one of his passengers to take the pipes.
The jury found defendant guilty as charged.
In a bifurcated proceeding, defendant admitted his prior
strike. The court granted defendant’s oral motion to strike the
3
prior conviction pursuant to Penal Code section 1385. The court
acknowledged counsel’s argument that while the prior strike was
18 years old and warranted being stricken, defendant still had a
record of several other drug-related convictions spanning several
years. The court imposed a four-year upper term on count 2 and
imposed and stayed the low term on count 1. The court awarded
defendant 60 days of presentence custody credits and imposed
various fines and fees.
This appeal followed.
DISCUSSION
Defendant contends the prosecutor committed misconduct
by making statements during closing argument that shifted the
burden of proof to him to prove reasonable doubt. Defendant did
not object in the trial court to the statements he now seeks to
challenge on appeal. The contention has therefore been forfeited.
“It is well settled that making a timely and specific objection at
trial, and requesting the jury be admonished . . . is a necessary
prerequisite to preserve a claim of prosecutorial misconduct for
appeal.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328;
accord, People v. Bonilla (2007) 41 Cal.4th 313, 336 & People v.
Davenport (1995) 11 Cal.4th 1171, 1209.) We are not persuaded
the record shows that an objection and request for admonition
would have been futile. Defendant has not shown any persuasive
basis for excusing his forfeiture.
Moreover, even were we to consider the contention on its
merits, we would reject it. Our Supreme Court has explained
that we must consider a prosecutor’s argument as a whole and in
context. (People v. Lucas (1995) 12 Cal.4th 415, 475.) A
defendant challenging a prosecutor’s remarks before the jury
“must show that, ‘[i]n the context of the whole argument and the
4
instructions’ [citation], there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this
inquiry, we “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (People v. Centeno (2014)
60 Cal.4th 659, 667.)
Here, during cross-examination of defendant, the
prosecutor elicited testimony showing defendant was still in
touch with at least one of the friends who was in the car with him
when he was pulled over for the traffic stop and the former
girlfriend from whom he said he got the money. He argued the
jury should question defendant’s credibility because he did not
call them to corroborate his testimony. The jury was properly
instructed that the People have the burden to prove guilt beyond
a reasonable doubt (CALJIC No. 2.90) and that they were to
disregard any comments about the law by the attorneys that
differed from the court’s instructions (CALJIC No. 1.00). The
jury was also given CALJIC No. 2.62 which, in relevant part, told
the jury that “[i]n this case defendant has testified to certain
matters. [¶] . . . [¶] The failure of a defendant to deny or
explain evidence against him does not, by itself, warrant an
inference of guilt, nor does it relieve the prosecution of its burden
of proving every essential element of the crime and the guilt of
the defendant beyond a reasonable doubt.”
The prosecutor also told the jury that “[i]t is my job to prove
this case. It is my job alone. You will never hear me argue
otherwise. [¶] But just because I have the burden of proof,
doesn’t mean I got to sit back, hands behind my back and let the
5
defendant lie. I get to question him. It’s called something on [sic]
the law called the failure to call logical witnesses.”
The prosecutor then used a hypothetical, asking the jury to
consider the credibility of a defendant who chooses to take the
stand to assert an alibi that lacks corroboration. “If he gets up on
the stand and testifies that this is what happened, but there is
zero evidence to back that up, you treat his testimony the same
way you treat all the other testimony.” Later on, the prosecutor
reiterated the burden of proof was his alone, but when a
defendant testifies, the jury still must assess the credibility of the
defendant’s testimony and purported alibi. “[W]hen a defendant
testifies, you question his testimony the exact same way you
question everybody else’s.”
It is “well established that although Griffin [v. California
(1965) 380 U.S. 609] prohibits reference to a defendant’s failure
to take the stand in his own defense, that rule ‘does not extend to
comments on the state of the evidence or on the failure of the
defense to introduce material evidence or to call logical witnesses.
[Citations.]’ ” (People v. Vargas (1973) 9 Cal.3d 470, 475, italics
added; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1340
[“A distinction clearly exists between the permissible comment
that a defendant has not produced any evidence, and on the other
hand an improper statement that a defendant has a duty or
burden to produce evidence, or a duty or burden to prove his or
her innocence.”].)
The prosecutor here did not assert or suggest that
defendant had any affirmative duty, burden or obligation to
produce evidence of any kind. The prosecutor permissibly argued
the jury should consider defendant’s credibility in light of his
failure to call logical witnesses to support his defense.
6
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
7