Filed 6/10/21 P. v. Martinez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B299222
(Super. Ct. No. 2014010150)
Plaintiff and Respondent, (Ventura County)
v.
MARK JAMES MARTINEZ,
Defendant and Appellant.
A jury convicted appellant Mark J. Martinez on one count
of murder in the first degree (Penal Code, § 187, subd. (a)1) and
on one count of shooting at an inhabited dwelling (§ 246). It
found true allegations he intentionally discharged a firearm
causing death (§ 12022.53, subd. (d)) and committed both offenses
as an active participant in a criminal street gang (§ 190.2, subd.
(a)(22)). The court sentenced appellant to life without parole plus
25 years on the first count and to a consecutive term of 40 years
to life on the second count. He appeals.
All statutory references are to the Penal Code unless
1
otherwise stated.
Appellant challenges the jury’s rejection of his self-defense
theory and raises purported instructional errors relating to that
theory. He also argues the People elicited improper testimony
from its gang expert about appellant’s guilt. Lastly, he contends
the trial court erred when it applied the multiple victim exception
to his conviction for shooting at an inhabited dwelling and
declined to stay his sentence on that charge.
We affirm the judgment as modified below.
STATEMENT OF FACTS
On the afternoon of Saturday, March 29, 2014, Norma
Elizalde did laundry on the back porch of her home at 1211 High
Street in Santa Paula. Her 14-year-old son Ricardo played video
games in the living room. Ricardo thought he heard gunfire and
rose from his chair to investigate. He peered through the screen
of the front door and saw a man crouched on the sidewalk. As he
turned and ran to find his mother, bullets shattered the living
room window. He hid in the kitchen and began calling her name.
Ms. Elizalde emerged from the rear doorway of the home and fell
to the ground, bleeding heavily from her neck and unable to talk.
Ricardo’s screams caught the attention of Norma’s brother,
Nicolas Ramos, who lived next door. The two attempted to slow
her bleeding while waiting for first responders. Norma’s twin
sister Irma joined their efforts. Police and paramedics arrived
promptly but their attempts to revive her failed. The medical
examiner later determined a bullet had entered her neck and
pierced her aorta, heart, and lungs before coming to rest near her
armpit.
Several eyewitnesses helped police piece together the
events leading up to the shooting. A customer at nearby
Neighborhood Market recalled hearing what sounded like a car
backfiring. He turned and saw a man standing next to a black
2
Infiniti firing a pistol toward two men fleeing down High Street.
Another witness remembered seeing the distinctive black car as
she worked at a taco stand in the market’s parking lot. She saw
the driver and his passenger get out, shoot, then get back in and
drive away. Two low-resolution surveillance cameras at
Neighborhood Market recorded portions of the shooting.
The victim’s brother, Ramos, told police two young men
walked by his house as he was finishing yard work that
afternoon. One of them made hand signs and yelled out a gang
name in the direction of a black Infiniti sedan coming from the
nearby intersection of High Street and 12th Street. The driver
and his passenger yelled out a different gang name, stopped, and
got out. The four immediately began brawling in the street.
Ramos dialed 911 and fled to the backyard when he heard two
sets of gunshots in succession. He returned to the front expecting
to see one of the combatants lying wounded or dead in the street,
but all four had vanished. His nephew Ricardo’s screams then
drew him next door.
Ramos recognized the driver of the car as appellant Mark
“Basik” Martinez. The men shared an acquaintance. Santa
Paula police knew the 31-year-old Martinez as a longtime
member of a local street gang called the Crazy Boyz. His
passenger was a younger member named Jessie “Foe” Ruiz. The
pair were arrested along with the two suspected pedestrians,
Valente “Tiny” Tobias and Ernesto “Silencio” Marron, who Ramos
likewise recognized and understood to be members of another
gang called the 12th Street Locos.
Marron was the only suspect to provide an account to law
enforcement. He said he and Tobias were walking to
Neighborhood Market when Tobias noticed the occupants of a
black Infiniti staring at them from the intersection of High Street
3
and 12th Street. Marron had a .45 caliber pistol tucked into the
waistband of his sweat pants. As they approached the car, the
passenger rolled down the window and asked, “Where you from?”
Tobias responded, “12th Street Locos Tiny.” The driver and
passenger replied “Crazy Boyz gang” and got out of the car.
Marron watched as the passenger fought with Tobias. The driver
then came around the car and hit Marron in the head. When
Marron stumbled, the pistol dislodged from his waistband and
fell through his pant leg to the ground. He picked it up, shot
several times in the driver’s direction, and began running. The
driver retrieved his own gun from the car and started shooting at
the fleeing Marron. Ballistics experts traced the 9mm bullet that
struck Ms. Elizalde to casings found in the street near the
driver’s approximate location. When police searched appellant’s
home three days after the shooting they found an empty carrying
case for a 9mm pistol registered to appellant’s wife.
PROCEDURAL HISTORY
At trial, prosecutors theorized appellant and Ruiz were
intentionally cruising in 12th Street Locos’ territory to provoke a
confrontation. A gang expert testified that calling out “where you
from?” to a potential rival all but invited a deadly response. In
contrast, defense counsel characterized the brawl as a chance
encounter that turned deadly only after Marron began firing at
appellant. Appellant immediately returned fire, they explained,
to defend himself in a kill-or-be-killed situation.
Jurors found appellant guilty of both murder and shooting
at an inhabited dwelling. They found true allegations he
intentionally discharged a firearm causing death and that he
committed both offenses for the benefit of a criminal street gang.
Defense counsel asked the trial court to stay appellant’s sentence
on the second count because it was based on the same acts as the
4
first count. It denied the request. The presence of Ms. Elizalde’s
son in the home, the court held, meant appellant could be
punished separately for each offense under the multiple victim
exception to Penal Code section 654. Appellant appealed.
DISCUSSION
1. Sufficiency of the Evidence at Trial
Appellant contends the uncontested evidence shows he
provoked only a non-deadly fistfight. Marron’s deadly and
excessive response, he argues, entitled him to return fire in self-
defense. (See People v. Quach (2004) 116 Cal.App.4th 294, 301,
quoting 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Defenses § 75, p. 410 [“‘Where the original aggressor is not guilty
of a deadly attack, but of a simple assault or trespass, the victim
has no right to use deadly or other excessive force. . . . If the
victim uses such force, the aggressor’s right of self-defense arises.
. . .’”].) Appellant contends the evidence was insufficient to show
he acted unreasonably under the circumstances.
We review the record in the light most favorable to the
judgment to determine if it discloses substantial evidence from
which the jury could have found appellant guilty beyond a
reasonable doubt. (People v. Cravens (2012) 53 Cal.4th 500, 507-
508.) Substantial evidence must be “reasonable, credible, and of
solid value.” (Id. at p. 507.)
The record does not present an open-and-shut case of self-
defense. Inconsistent testimony about the duration of time
between Marron’s shots and appellant’s shots left jurors to
resolve an important factual dispute. Ricardo Elizalde testified
enough time passed for him to get up from his computer, go to the
front door, spot a man crouching on the sidewalk, and begin
running toward the kitchen to find his mother. Other witnesses
estimated anywhere between half a second to more than 20
5
seconds elapsed. Jurors could have interpreted this evidence as
showing enough time passed that Marron no longer posed a
threat to appellant when the latter returned fire.
Appellant next argues Marron alone is responsible for
escalating the confrontation from a fistfight into a gun battle.
The evidence on this point was also in conflict. Marron testified
the driver and passenger of the car asked him “Where you from?”
A detective familiar with Santa Paula’s gang culture testified this
question is often a prelude to armed confrontations between
members of different gangs. The immediate and violent reaction
of appellant and Ruiz to Tobias’s response corroborated the
detective’s opinion. The jury could also have considered the
speed with which appellant retrieved a loaded pistol from his car
as showing he had a weapon at the ready, knowing an assault on
two members of a different gang could turn deadly. These facts
could have reasonably justified the jury’s findings. (People v.
Cravens, supra, 53 Cal.4th at p. 508.)
2. Jury Instruction on Causation
The trial court’s jury instructions included CALCRIM 505,
“Justifiable Homicide: Self-Defense or Defense of Another.” This
told the jury it could consider Ms. Elizande’s killing justified if
appellant “believed there was imminent danger of death or great
bodily injury to himself” and “acted only because of that belief.”2
This echoes section 198, which requires: (1) the circumstances of
2 CALCRIM 505 as issued stated in relevant part: “Belief
in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have
believed there was imminent danger of death or great bodily
injury to himself. Defendant’s belief must have been reasonable
and he must have acted only because of that belief.”
6
a justified killing to be “sufficient to excite the fears of a
reasonable person”; and (2) the defendant to “have acted under
the influence of such fears alone.”
Appellant contends CALCRIM 505 is ambiguous because it
does not contemplate “mixed motive” killings, i.e., those in which
the defendant harbors motives other than fear when killing in
self-defense. The trial court should have clarified this ambiguity,
he asserts, by instructing the jury sua sponte that fear of
imminent danger or death or great bodily injury must have been
a “substantial factor” in appellant’s decision to shoot at Marron,
but not necessarily the only factor.3
Appellant frames his case as an opportunity for this court
to clarify whether section 198 accommodates those who act with
“mixed motives.”4 He proposes we answer this question by
3 Appellant suggests a modified version of CALCRIM 240
could have served this purpose. He proposes the following in his
opening brief:
“When CALCRIM No. 505 states that ‘Defendant’s belief
must have been reasonable and he must have acted only because
of this belief,’ this means that a killing in self-defense is not
justified if some motive other than reasonable fear was a ‘cause’
of the killing.
“A motive caused the defendant to kill if the killing was the
direct, natural, and probable consequence of that motive and the
defendant would not have killed absent that motive. [. . .]
“There may have been more than one cause of a killing. A
motive caused the defendant to kill only if it was a substantial
motivating factor. A substantial factor is more than a trivial or
remote factor. However, it does not have to be the only
motivating factor.”
4Appellant identifies the dicta below from People v. Nguyen
(2015) 61 Cal.4th 1015, 1046 as leaving this question open: “We
7
equating the section 198.2 “fear alone” standard of causation with
a “substantial factor” standard. (See e.g., In re M.S. (1995) 10
Cal.4th 698, 716 [substantial factor causation standard implied
under hate crime statute; crime could have multiple concurrent
causes so long as “prohibited bias was a substantial factor in the
commission of the crime”].) Appellant characterizes defense
counsel’s failure to propose such an instruction as ineffective
assistance of counsel.5
We decline to graft a substantial factor standard onto
section 198. This would require us to ignore the statute’s
directive that one invoking self-defense must have “acted under
the influence of such fears [of imminent harm or death] alone.”
(Italics added.) Instructing the jury that section 198 permits the
defendant to have been motivated by other factors, whether
substantial or not, would contravene the statute’s plain language.
(See People v. Trevino, supra, 200 Cal.App.3d at p. 879 [“The
party killing is not precluded from feeling anger or other
emotions save and except fear; however, those other emotions
cannot be causal factors in his decision to use deadly force”].) We
conclude the trial court properly instructed the jury using
note that defendant did not argue in the trial court, nor has he
argued on appeal, that the jury should have been instructed that
acting based on mixed motives is permissible so long as
reasonable fear was the but-for cause of his decision to kill. We
therefore have no occasion to consider whether such a rule would
be consistent with section 198 as interpreted in [People v. Trevino
(1988) 200 Cal.App.3d 874] or other cases.”
5Appellant raises ineffective assistance of counsel in this
appeal as well as in a subsequently filed petition for writ of
habeas corpus. (See In re Mark James Martinez, Court of Appeal
No. B311136.) We will decide his petition separately.
8
CALCRIM 505 under these circumstances. As such, defense
counsel did not fall below an objective standard of reasonableness
by not requesting a causation instruction like the one proposed by
appellant. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [“[A]
reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance”].)
3. Jury Instruction on Contrived Self-Defense
Appellant argues the trial court erred by instructing the
jury on “contrived self-defense”6 because the instruction suggests
the initiator of a non-deadly confrontation can never assert self-
defense, even when the victim escalates the situation by using
deadly force. (See People v. Ramirez (2015) 233 Cal.App.4th 940,
945 [contrived self-defense instruction misled jurors because it
“made no allowance for an intent to use only nondeadly force and
an adversary’s sudden escalation to deadly violence”].) The trial
court addressed the same concern by adding prophylactic
language to the form instruction.7 We conclude substantial
evidence supported the initial instruction and that the trial
6 CALCRIM 3472 states: “A person does not have the right
to self-defense if he or she provokes a fight or quarrel with the
intent to create an excuse to use force.”
7 The court added the following sentence to form CALCRIM
3472: “If the defendant intended to provoke only a non-deadly
altercation and the other party responded with deadly force, this
instruction does not apply.” (Italics added.) This additional text
appears consistent with CALCRIM 3472’s bench notes, which
highlighted the need to modify the instruction “in the rare case in
which a defendant intends to provoke only a non-deadly
confrontation and the victim responds with deadly force.”
Appellant’s is one such “rare case.”
9
court’s modification relieved any tension created by the
instruction’s use under these circumstances.
4. Prosecutorial Misconduct
Appellant contends prosecutorial misconduct occurred
during closing argument when the People insisted self-defense
could not apply because appellant and Ruiz instigated the fight
with Marron and Tobias. We find no misstatement of law in the
record. The prosecutor’s closing argument aligned with the
People’s theory of contrived self-defense, which, as stated in
modified CALCRIM 3472, required proving appellant intended to
provoke a deadly rather than non-deadly response.
Appellant also argues defense counsel provided ineffective
assistance by not objecting when the prosecutor purportedly
misstated the law to jurors. Defense counsel’s decision to forego
what would have been a weak or meritless objection at this point
did not constitute ineffective assistance of counsel.
5. Expert Testimony About Appellant’s Guilt
The People called Detective Allen Macias to testify about
whether appellant committed the charged crimes as an active
participant in a criminal street gang. (§ 190.2, subd. (a)(22).)
Macias described how the department used a Field Identification
(FI) database to track the city’s suspected gang members. He
used a printout from the database to recall appellant’s long
history of gang-related contacts with police. The prosecutor
examining Macias then posed a detailed hypothetical in which an
individual with appellant’s background shot Ms. Elizalde under
identical circumstances. Macias concluded her death was gang
related. Defense counsel cross-examined him at length about this
opinion and the hypothetical upon which it was based.
Appellant argues the trial court erred by allowing the
People to stray from the hypothetical during its redirect
10
examination of Macias. He points to the following exchange
between prosecutor and witness:
“Q. Now, you talked about -- [defense] counsel asked you
a series of questions about the progression of contacts for
individuals and how that can show patterns and help understand
subsequent criminal conduct. With respect to the defendant in
this case, the contacts that we’ve seen over the years culminating
in a shooting of 12th Street Locos out in the street that ends up
killing Mrs. Elizalde, do you see that as the progression where
the progression ended to ultimately now we have a murder?
(Italics added.)
“A. Yes.”
Appellant maintains this exchange violated the well-
established rule that “a witness cannot express an opinion
concerning the guilt or innocence of the defendant.” (People v.
Torres (1995) 33 Cal.App.4th 37, 46; People v. Prince (2007) 40
Cal.4th 1179, 1227 [“an expert’s opinion that a defendant is
guilty is both unhelpful to the jury . . . and too helpful, in that the
testimony may give the jury the impression that the issue has
been decided and need not be the subject of deliberation”].) While
the People’s redirect did blur the line between appellant and his
fictional counterpart, the record shows defense counsel
repeatedly did the same while cross-examining Macias about the
hypothetical. The court did not abuse its discretion by permitting
the People to do so briefly on redirect examination.
In addition, jurors heard from other sources about the
gang-related nature of appellant’s confrontation with Tobias and
Marron. Appellant concedes the evidence established he and
Ruiz belonged to the Crazy Boyz gang and Tobias and Marron to
the 12th Street Locos. Ramos testified the combatants on both
sides exchanged their gang affiliations before starting their
11
fistfight. Marron explained the meaning of the question “where
you from” and how appellant and Ruiz yelled “Crazy Boyz gang”
before attacking him and Tobias. Jurors could conclude from
these facts alone appellant acted for the benefit of a criminal
street gang when he fired at Marron.
6. Multiple Punishments for a Single Act
Penal Code section 654 “permits one unstayed sentence per
victim of all the violent crimes the defendant commits incidental
to a single criminal intent,” thereby circumventing section 654,
subdivision (a)’s prohibition on multiple punishments for the
same act. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.)
The trial court cited section 654 when it imposed consecutive
sentences for murder (count 1) and for shooting at an inhabited
dwelling (count 2). Appellant argues the exception should not
apply because charging documents did not identify Ricardo
Elizalde as a separate victim and because the People did not
introduce evidence of his victim status at the preliminary
hearing. We do not agree.
The amended felony information identified 1211 High
Street as the “dwelling” for the purposes of count 2. At the
preliminary hearing, an officer recalled Ramos telling him shortly
after the shooting that Ms. Elizalde lived at this address with her
“husband and two children.” Ramos became aware of his sister’s
condition when her son Ricardo began “yelling that his mother
had been shot.” This evidence shows at least one person other
than Ms. Elizalde was in the house at the time of the shooting.
In addition, the People were not required to name each victim in
the information. (See People v. Centers (1999) 73 Cal.App.4th 84,
101 [“a number of cases have upheld the application of the
multiple victim exception based on evidence of multiple victims,
without considering whether the identities of those victims had
12
been pleaded”].) Appellant need not have been aware of the
identity or number of people in a building to face punishment for
each victim separately. (People v. Felix (2009) 172 Cal.App.4th
1618, 1631, citing People v. Anderson (1990) 221 Cal.App.3d 331.)
The trial court properly applied the exception under these
circumstances.
7. Court Fees
The abstract of judgment imposed a court security fee and a
criminal conviction assessment against appellant. The reporter’s
transcript of his sentencing mentions neither fee. The superior
court shall strike both from the abstract.
DISPOSITION
We direct the trial court to strike the court security fee and
criminal conviction assessment from the abstract of judgment.
Judgment is affirmed as modified.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
TANGEMAN, J.
13
Derek D. Malan, Judge
Superior Court County of Ventura
______________________________
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
14