Filed 1/25/22 P. v. Martinez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059724
v. (Super. Ct. No. 15CF1174)
EDGAR EDUARDO MARTINEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed as modified.
Mark D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C.
Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Edgar Eduardo Martinez was convicted of attempted murder for
shooting at a police officer who came to his home in response to a domestic disturbance.
He contends reversal is required because the prosecutor distorted both the burden and the
standard of proof in his closing argument. Appellant also contends the trial court
improperly amended his sentence while this appeal was pending. As respondent
concedes, appellant’s latter contention has merit. Therefore, we will modify the
judgment to reflect the trial court’s original sentencing decision. In all other respects, we
affirm.
FACTS
In 2015, appellant was living in Orange with his mother, brother, and
several other members of his extended family. The household was peaceful for the most
part, but early one morning, appellant got into a heated argument with his mother because
she refused to drive him to his girlfriend’s house. During the row, appellant brandished a
gun and threatened to kill his mother, so another family member called 911.
When the police arrived, they evacuated appellant’s family through the side
windows and took up armed positions around the house. Then appellant came outside
and began walking down the driveway, where Police Officer Nicholas Silver was
positioned behind a car. When appellant noticed Silver, he exclaimed “oh, shit” and
retreated to an alcove by his front door. Silver tried to talk him into surrendering, but
appellant stayed by the door and smoked a cigarette.
Then, without warning, appellant pulled his gun and started shooting
toward Silver. That drew a barrage of return fire from the officers. Although appellant
was shot and fell to the ground, he continued to reach for his gun, so the officers shot him
again. All told, appellant sustained three gunshot wounds. Investigators found three
spent cartridges in his gun, and they also detected an apparent bullet mark on a car that
was parked behind Silver in the driveway.
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Appellant was charged with attempting to murder Silver and assaulting him
with a firearm, in addition to making a criminal threat against his mother. At trial, the
defense presented evidence appellant was depressed, suicidal and under the influence of
methamphetamine at the time of the shooting. It theorized appellant never intended to
harm anyone and never actually fired his gun during the standoff. Instead, he merely
pulled his gun in order to provoke the officers into shooting him, in a failed attempt to
commit “suicide by cop.”
The jury disagreed and convicted appellant as charged. It also found true
allegations appellant intentionally discharged a firearm in attempting to murder Silver
and he personally used a firearm during his other two offenses. The trial court sentenced
him to 27 years to life in prison for his crimes.
DISCUSSION
Prosecutorial Misconduct
Appellant contends that in discussing the law respecting circumstantial
evidence, and in other parts of his closing argument, the prosecutor prejudicially distorted
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the burden and standard of proof. We cannot agree.
Prosecutors have broad leeway in closing argument to discuss the legal and
factual merits of the case. (People v. Bell (1989) 49 Cal.3d 502, 538.) However, “it is
improper for the prosecutor to misstate the law generally [citation], and particularly to
attempt to absolve the prosecution from its prima facie obligation to overcome reasonable
doubt on all elements” of the charged offenses. (People v. Marshall (1996) 13 Cal.4th
799, 831.) Therefore, courts will not countenance a prosecutor’s attempt to shift the
burden of proof to the defense or dilute the beyond-a-reasonable-doubt standard of proof.
(People v. Centeno (2014) 60 Cal.4th 659, 667-674 (Centeno).)
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Although defense counsel did not object every time the prosecutor allegedly misspoke, thus
raising the specter of forfeiture, we will consider appellant’s claim because he contends his attorney was ineffective
for failing to raise any necessary objections.
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However, “[w]hen attacking the prosecutor’s remarks to the jury, the
defendant must show that, ‘[i]n the context of the whole argument and the 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.]’
[Citation.]” (Centeno, supra, 60 Cal.4th at p. 667.)
Just before closing arguments in this case, the trial court instructed the jury,
“A defendant in a criminal case is presumed to be innocent. This presumption requires
that the People prove the defendant guilty beyond a reasonable doubt.” “Unless the
evidence proves the defendant guilty beyond a reasonable doubt, he’s entitled to an
acquittal, and you must find him not guilty.”
The trial court also instructed on the permissible use of circumstantial
evidence. Per CALCRIM No. 225, the court told the jurors, “Before you may rely on
circumstantial evidence to conclude that a fact necessary to find the defendant guilty has
been proved, you must be convinced that the People have proved each fact essential to
that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on
circumstantial evidence to conclude that the defendant had the required intent or mental
state, you must be convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the required intent or mental state. If
you can draw two or more reasonable conclusions from the circumstantial evidence, and
one of those reasonable conclusions supports a finding that the defendant did have the
required intent or mental state, and another reasonable conclusion supports a finding that
the defendant did not, you must conclude that the required intent or mental state was not
proved by the circumstantial evidence. [¶] However, when considering circumstantial
evidence, you must accept only reasonable conclusions and reject any that are
unreasonable.”
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Appellant’s misconduct claim is primarily based on how the prosecutor
explained this instruction to the jury. Before addressing the instruction, the prosecutor
went over the parties’ respective theories of the case. He said the state was contending
appellant attempted to murder Officer Silver by intentionally firing his gun at him, and
the defense was contending that although appellant pulled his gun, he did not actually fire
it because he was merely attempting to provoke the officers into shooting him.
Then, alluding to CALRCIM No. 225, the prosecutor stated, “[W]hen you
have two reasonable interpretations of the evidence, one pointing to guilty, one pointing
to not guilty, you must choose not guilty. [¶] If you are a baseball fan, it’s the theory of a
tie goes to the runner. So if the prosecution presents a theory of guilty and you say,
‘that’s reasonable,’ and the [d]efense presents something that says -- that’s reasonable,
it goes to the [d]efense, not guilty. [¶] But what [CALCRIM No. 225] says specifically is
you have to look at the evidence on both sides and determine that it’s reasonable. That’s
the key. So that instruction is there in the back for you to read.” (Italics added.)
Appellant claims that by alluding to the defense “present[ing] something”
and telling the jury it had to consider the reasonableness of the evidence presented by
“both sides,” the prosecutor effectively placed the onus on him to present reasonable
circumstantial evidence of his innocence in order to obtain an acquittal. In support of this
claim, appellant relies on People v. Woods (2006) 146 Cal.App.4th 106 (Woods), People
v. Johnsen (2021) 10 Cal.5th 1116 (Johnsen) and People v. Hill (1998) 17 Cal.4th 800
(Hill). However, those decisions are inapt.
Woods is readily distinguishable because the prosecutor there argued the
defense was “obligated” to put on evidence, which “expressly and erroneously advised
the jury [the defendant] bore some burden of proof or persuasion.” (Woods, supra, 146
Cal.App.4th at p. 113.) The prosecutor’s comments in the present case are in no way
comparable to such an obviously improper attempt to undermine the burden of proof.
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Johnsen and Hill did not involve such blatant misconduct. But in those two
cases, the prosecutor’s arguments were found to be improper because in discussing the
standard of proof, they said reasonable doubt had to be based on some evidence, which
erroneously implied the defendants had the burden to prove their innocence. (Johnsen,
supra, 10 Cal.5th at p. 1166; Hill, supra, 17 Cal.4th at pp. 831-832.) These cases
illustrate the peril of attempting to explain the concept of reasonable doubt beyond the
definition provided in the standard jury instruction. (See generally Centeno, supra, 60
Cal.4th at p. 667 [“case law is replete with innovative but ill-fated attempts to explain the
reasonable doubt standard.”].)
In our case, however, the prosecutor was not trying to explain the concept
of reasonable doubt, or the burden of proof, when he made his challenged remarks.
Instead, he was discussing the use of circumstantial evidence to ascertain the defendant’s
intent. He was merely trying to make the point that the rule requiring the jury to find lack
of criminal intent applies only when the circumstantial evidence is reasonably susceptible
of such a finding. This was not improper. (See CALCRIM No. 225 [when considering
circumstantial evidence, the jury “must accept only reasonable conclusions and reject any
that are unreasonable.”].)
Nor was there anything wrong with the prosecutor encouraging the jury to
consider the circumstantial evidence on “both sides” in deciding the reasonableness issue,
since the defense did in fact present circumstantial evidence of appellant’s mental state at
the time of the alleged offenses. This comment was consistent with the jury’s obligation
to “impartially compare and consider all the evidence that was received throughout the
entire trial.” (CALCRIM No. 220, italics added.)
Moreover, the trial court repeatedly instructed the jury the prosecution had
the burden of proving appellant’s guilt beyond a reasonable doubt. Considering
everything the jurors were told, it is simply not reasonably likely they construed the
prosecutor’s remarks as turning that burden on its head. (See generally People v. Cortez
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(2016) 63 Cal.4th 101, 131-132 [emphasizing the trial court’s instructions on the law
generally take precedence over the prosecutor’s description of the law in closing
argument].)
Appellant also contends the prosecutor distorted the standard of proof by
conflating the beyond-a-reasonable-doubt standard with mere reasonableness. This
contention is based in part on the quoted statements set forth above in which the
prosecutor told the jury “when you have two reasonable interpretations of the evidence,
one pointing to guilty, one pointing to not guilty, you must choose not guilty.” (Italics
added.) And, “[I]f the prosecution presents a theory of guilty and you say, ‘that’s
reasonable,’ and the [d]efense presents something . . . that’s reasonable, it goes to the
[d]efense, not guilty.” (Italics added.)
Appellant also relies on what the prosecutor said on the heels of these
remarks. After discussing the evidence on the attempted murder count, the prosecutor
told the jurors “if you conclude that the reasonable evidence . . . shows [appellant] did
fire that weapon, then you arrive at a guilty verdict.” (Italics added.) Then, after
discussing the evidence regarding appellant’s threatening behavior toward his mother, the
prosecutor told the jury, “I think it’s reasonable to say that [what appellant did] is a
criminal threat.” (Italics added.)
The prosecutor’s repeated use of the word “reasonable” would be
problematic if he had used it to explain the standard of proof applicable in deciding the
truth of the charges. But that is not what he did. In making the challenged remarks, the
prosecutor was discussing the special rules respecting the permissible use of
circumstantial evidence. Therefore, it is unlikely the remarks tainted the jury’s
understanding of the applicable standard of proof. (People v. Meneses (2019) 41
Cal.App.5th 63, 69-76 [prosecutor’s repeated references to reasonableness in closing
argument properly related to how the jurors should evaluate the circumstantial evidence
as opposed to how they should ultimately decide the truth of the charged offenses].)
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Appellant’s prosecutorial misconduct argument has one more component.
He contends the prosecutor erred by telling the jurors that trials are a “search for the
truth” and imploring them to find out “the truth of what happened” during the encounter
between appellant and the police. Appellant fears these comments steered the jury away
from the proper standard of proof, but trials are often described as a search for the truth,
and the rules of evidence are designed to aid the jury in that quest. (See California v.
Green (1970) 399 U.S. 149, 158 [quoting Professor Wigmore’s famous line that “cross-
examination is the ‘greatest legal engine ever invented for the discovery of the truth.’”].)
Of course, it would be overly simplistic to say the jury’s only duty is to find
out the truth of what happened, when its ultimate responsibility is to ascertain whether
the prosecution’s evidence rises to the level of proof beyond a reasonable doubt. We are
wary of attempts to divorce one concept from the other and imply the jury’s only job is to
seek the truth. But in this case, the prosecutor made no attempt to do that, and the trial
court repeatedly instructed the jurors that in order to convict appellant, they had to be
convinced beyond a reasonable doubt that he was guilty of the charged offenses.
Under these circumstances, the jurors would have known evidence
interpretation was only one part of their assignment and that even after filtering through
all of the facts and ascertaining the “truth” of what happened in appellant’s driveway,
they still had to assess whether the evidence constituted proof beyond a reasonable doubt
of appellant’s guilt. Therefore, the challenged remarks were not improper.
Sentencing Issue
That brings us to appellant’s sentencing claim, which is undisputed. The
parties agree that while this appeal was pending, the trial court amended the abstract of
judgment to stay sentence on the firearm enhancements attendant to counts 2 and 3. They
also agree the trial court lacked the authority to do so because “once a notice of appeal is
filed, jurisdiction is vested in the appellate court until the appeal is decided on the merits
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and a remittitur is issued to the trial court.” (People v. Awad (2015) 238 Cal.App.4th
215, 220.) Accordingly, we will modify the judgment to restore the trial court’s original
sentencing decision, which was to strike, not stay, the subject enhancements.
DISPOSITION
The judgment is modified to strike the firearm enhancements attendant to
counts 2 and 3. In addition, the clerk of the trial court is ordered to prepare an amended
abstract of judgment reflecting that modification and to send a certified copy of the
amended abstract to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
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