P. v. >Martinez>
Filed 7/19/13 P. v. Martinez CA4/1
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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
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THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARTINEZ, Defendant and Appellant. | D062309 (Super. Ct. No. SCS246652) |
APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Ana Espãna, Judge.
Affirmed.
Therese
Osterman Stevenson for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lise
Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury found Robert Martinez guilty of href="http://www.mcmillanlaw.com/">mayhem (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1] §
203) and battery causing serious bodily injury (§ 243, subd. (d)), both as
lesser included offenses of aggravated mayhem (§ 205; count 1). The jury also found Martinez
guilty of assault by means likely to produce great bodily href="http://www.sandiegohealthdirectory.com/">injury (§ 245, subd.
(a)(1); count 2) and found true an allegation he personally inflicted the great
bodily injury (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (a)). Martinez
additionally admitted having a prior prison commitment conviction (§ 667.5,
subd. (b)). The court subsequently set
aside the battery with great bodily injury conviction and sentenced him to a
total term of nine years in prison.
Martinez
appeals, contending the court erroneously admitted cumulative and prejudicial
identification evidence, there was insufficient evidence of disfigurement or
disability to support the mayhem conviction, the court erroneously failed to
instruct the jury on multiple causation, the court erroneously imposed an
excessive fine and fee, and the abstract of judgment does not conform to the
court's oral pronouncement of judgment.
The People
concede the latter two errors and we shall direct the court to modify the
abstract of judgment to correct them. We
affirm the judgment in all other respects.
BACKGROUND
Sammy Thomas, a jail inmate, sucker punched another jail
inmate in the jaw, causing the inmate to fall down. Martinez,
also a jail inmate, then joined Thomas in punching, kicking, and stomping on
the victim as the victim lay on the ground covering his face with his hands and
arms. Thomas and Martinez
initially ignored a responding prison guard's verbal commands to stop
fighting. After another prison guard
arrived with a pepper ball launcher, they stopped their attack and retreated to
their respective cells. When the guards
went to Martinez's cell to get him,
the guards noticed Martinez was
breathing hard and his knuckles were red.
After the incident, one of the guards reviewed a video recording of the
attack and confirmed Martinez was one of the attackers.
As a result
of the assault, the victim's jaw was fractured on both sides of his face. In addition, he suffered a fractured forearm,
fractured ribs on both sides of his chest, a crushed or lacerated spleen, and
punctured and collapsed lungs. The
victim had surgery to repair his broken jaw, after which his lower jaw
protruded, changing his appearance and causing a speech impairment. He also lost feeling in his chin causing him
to drool.
Defense Evidence
While two
prison guards identified Martinez as one of the assailants, neither guard
noticed Martinez had tattoos on the underside of his forearms. The parties stipulated Martinez had the
tattoos on the date of the incident.
DISCUSSION
I
>Failure to Exclude Video Stills
A
After playing a video recording of the attack, the
prosecutor began introducing 30 still images taken from the video. For each image, the prosecutor had one of the
prison guards who witnessed the attack identify the individuals depicted in it
and what they were doing. After the
tenth image, defense counsel objected to the presentation of any additional
images as cumulative under Evidence Code section 352. The court overruled the objection.
B
Martinez
contends the additional images were cumulative to the testimony of the two
prison guards who witnessed the attack and to the videotape of the attack shown
to the jury. He further contends the
additional images were more prejudicial than probative because they
artificially bolstered otherwise weak identification evidence. Consequently, he contends the admission of
the additional images deprived him of his state and federal constitutional
right to a fair trial. We disagree.
Evidence
Code section 352 permits a court to "exclude evidence if its probative
value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury." " 'A trial court's exercise of
discretion in admitting or rejecting evidence pursuant to Evidence Code section
352 "will not be disturbed on appeal unless there is a manifest abuse of
that discretion resulting in a miscarriage of justice." [Citation.]'
[Citation.]" (>People v. Thomas (2011) 51 Cal.4th 449,
485.)
Even when
photographs are offered to prove facts already established by other evidence, a
court is not required to exclude them as cumulative if the photographs are
relevant and can assist the jury in understanding and evaluating the
testimony. (People v. Pollock (2004) 32 Cal.4th 1153, 1170-1171; >People v. Heard (2003) 31 Cal.4th 946,
977-978; People v. Michaels (2002) 28
Cal.4th 486, 532; People v. Price
(1991) 1 Cal.4th 324, 441.) Here, the
photographs were unquestionably relevant because they depicted the assault and
the assailants. Moreover, the jury was
tasked with deciding not just whether Martinez was one of the assailants, but
numerous other issues including Martinez's intent, whether he personally used
force, and whether the force he used was likely to produce great bodily
injury. (CALCRIM Nos. 800, 801, 875,
925, and 3160.) The video stills
provided the jury an opportunity to study the attack on essentially a
frame-by-frame basis. Thus, the video
stills could have assisted the jury in understanding and evaluating both the
testimony of the two prison guard eyewitnesses and the videotape of the attack.
Further,
the record does not show admission of the video stills necessitated an undue
consumption of time, confused issues, or misled the jury. Although Martinez asserts admission of the
video stills unduly prejudiced him, "[p]rejudice for purposes of Evidence
Code section 352 means evidence that tends to evoke an emotional bias against
the defendant with very little effect on issues . . . . " (People
v. Crew (2003) 31 Cal.4th 822, 842.)
It does not include evidence probative of a defendant's guilt. (Ibid.) Accordingly, Martinez has not established the
court manifestly abused its discretion in declining to exclude the video stills
under Evidence Code section 352.
II
Sufficiency of Evidence of Mayhem Conviction
Martinez
contends there was insufficient evidence the victim sustained a disabling or
disfiguring injury to support his mayhem conviction. In deciding claims of insufficient evidence
in criminal cases, " 'we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.
[Citations.] The standard of
review is the same in cases in which the People rely mainly on circumstantial
evidence. [Citation.] "Although it
is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and
the other innocence [citations], it is the jury, not the appellate court which
must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably
justify the trier of fact's findings, the opinion of the reviewing court that
the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment." ' [Citations.]" [Citation.]'
[Citations.] The conviction shall
stand 'unless it appears "that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction]." '
" (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)
The crime
of mayhem is codified in section 203, which "provides: 'Every person who
unlawfully and maliciously deprives a human being of a member of his body, or
disables, disfigures, or renders it useless, or cuts or disables the tongue, or
puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.' [Citations.]
Section 203 generally prohibits six injurious acts against a person,
three that specify a particular body part and three that do not: (1)
dismembering or depriving a part of someone's body; (2) disabling or rendering
useless a part of someone's body; (3) disfiguring someone; (4) cutting or
disabling the tongue; (5) putting out an eye; and (6) slitting the nose, ear or
lip. [Citation.]" (People
v. Santana (2013) 56 Cal.4th 999, 1003.)
The rationale for the crime is " ' "the preservation of the
natural completeness and normal appearance of the human face and body." '
" (Id. at p. 1004.)
Among the
types of injuries that will support a mayhem conviction are severe facial
trauma requiring the implanting of metal plates to provide structure to facial
bones, impaired upper lip sensation, and a broken ankle not completely healed
after more than six months. (>People v. Santana, supra, 56 Cal.4th at p. 1004; People
v. Newby (2008) 167 Cal.App.4th 1341, 1348; People v. Hill (1994) 23 Cal.App.4th 1566, 1571; >People v. Thomas (1979) 96 Cal.App.3d
507, 512, disapproved on another point in People
v. Kimble (1988) 44 Cal.3d 480, 496 & fn. 12.) In this case, the evidence shows the victim
suffered substantially similar injuries.
More than a year after the attack, his broken arm had calcium build up
and could not bear much weight. In
addition, doctors used metal plates and screws to repair his jaw with only
partial success. His bottom jaw now
protrudes causing a slight speech impairment and he lost sensation in his chin
causing him to drool. He testified he
did not have these problems before the attack.
He also testified his jaw was a noticeably different shape after the
attack.
The trauma
surgeon who treated the victim after the attack confirmed a person with the
type of arm injury the victim had could develop decreased strength and a
decreased ability to rotate his arm at the elbow. The surgeon also confirmed a person with the
type of jaw injury the victim had could develop slurred speech, facial
numbness, and facial deformity. We,
therefore, conclude there is sufficient evidence of permanent disability or
disfigurement to support the mayhem conviction.
The
surgeon's testimony about the victim's prior facial injuries does not alter our
conclusion. The surgeon noted the victim
had previously fractured his skull, his nose, and other bones on the upper
front and side of his face. Although the
surgeon was not involved in the treatment of those injuries, he testified he
did not believe they would have affected the victim's speech because they
involved a different part of the victim's face and were healed by the time of
the attack. Even if the victim had a
pre-existing speech impediment from the prior injuries, the victim's other
attack-related injuries were sufficient to support the mayhem conviction.
III
Refusal to Instruct on Multiple Causation
A
The court
instructed the jury on causation with CALCRIM No. 240. The instruction informed the jury, "An
act causes injury if the injury is the direct, natural, and probable
consequence of the act and the injury would not have happened without the
act. A natural and probable consequence
is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether
a consequence is natural and probable, consider all the circumstances established
by the evidence."
Because the
trauma surgeon testified the victim had prior facial injuries, defense counsel
requested the court also instruct the jury on multiple causation. The instruction would have informed the jury: (1) there may be more than one cause of
injury; (2) an act causes injury only if it is a substantial factor in causing
the injury; (3) a substantial factor is more than a trivial or remote factor;
and (4) a substantial factor does not have to be the only factor that causes
the injury. (CALCRIM No. 240.) The court declined to provide the multiple
causation instruction, finding there was not substantial evidence to support
it.
B
Martinez
contends the court's refusal to instruct on multiple causation requires
reversal of his mayhem conviction because it deprived him of his due process
right to a fair trial. We disagree.
" '
"[T]he trial court normally must, even in the absence of a request,
instruct on general principles of law that are closely and openly connected to
the facts and that are necessary for the jury's understanding of the
case." [Citation.] In addition, "a defendant has a right to
an instruction that pinpoints the theory of the defense. . . ." ' [Citation.]
The court, however, 'may properly refuse an instruction offered by the
defendant if it incorrectly states the law, is argumentative, duplicative, or
potentially confusing [citation], or if it is not supported by href="http://www.mcmillanlaw.com/">substantial evidence [citation]."
' [Citation.]" (People
v. Bivert (2011) 52 Cal.4th 96, 120.)
In this
case, there was no evidence the victim's prior injuries wholly or partially
caused the speech impairment he suffered from the attack.href="#_ftn2" name="_ftnref2" title="">[2] The victim testified he did not have a speech
impairment before the attack. In
addition, the trauma surgeon testified he did not believe the prior injuries
could have caused a speech impairment because the injuries involved a different
part of the victim's face. Accordingly,
the court correctly concluded there was not substantial evidence to support the
multiple causation instruction.
IV
Restitution Fine Amount
As part of
the sentence, the court ordered Martinez to pay the maximum restitution fine of
$10,000. Martinez contends the court
abused its discretion by imposing the maximum fine without considering his
ability to pay.
Martinez
has forfeited this issue on appeal by failing to object to the fine below. "By 'failing to object on the basis of
his [ability] to pay,' defendant forfeits both his claim of factual error and
the dependent claim challenging 'the adequacy of the record on that
point.' [Citations.]" (People
v. McCullough (2013) 56 Cal.4th 589, 597.)
Even if Martinez had not forfeited this issue, he has not established an
abuse of discretion.
"In every case where a person is convicted of a
crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record."
(§ 1202.4, subd. (b).) Where, as here, a defendant is convicted of a
felony on or after January 1, 2012, but before January 1, 2013, the fine shall
be set between $240 and $10,000, commensurate with the seriousness of the
offense. (§ 1202.4, subd. (b)(1).)
In setting
the fine above the minimum "the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its commission,
any economic gain derived by the defendant as a result of the crime, the extent
to which any other person suffered any losses as a result of the crime, and the
number of victims involved in the crime."
(§ 1202.4, subd. (d).) The court
may not consider a defendant's inability to pay a compelling and extraordinary
reason not to impose a restitution fine.
It may only consider the defendant's ability to pay in increasing the
fine above the statutory minimum. (§
1202.4, subd. (c).)
Moreover, a
court is not required to make express findings as to the factors bearing on the
amount of the fine (§ 1202.4, subd. (d)), and because the defendant has the
burden of demonstrating an inability to pay, the defendant is impliedly
presumed to have an ability to pay unless the defendant adduces contrary
evidence. (People v. Romero (1996) 43 Cal.App.4th 440, 448-449.) As Martinez did not adduce contrary evidence,
he did not rebut this presumption.
Although
the probation officer's report indicated Martinez has limited education and
work experience, these circumstances do not compel a conclusion Martinez
necessarily lacks the ability to pay the maximum fine. Martinez was 26 years old at the time of
sentencing and nothing in the record suggests he is physically, mentally or
emotionally incapable of finding and maintaining productive employment once his
sentence is completed. (§ 1202.4, subd.
(d) [consideration of inability to pay may include consideration of a
defendant's future earning capacity].)
Accordingly, Martinez has not shown the court abused its discretion by
imposing the maximum restitution fine.
As we have
addressed the merits of this issue, we need not address Martinez's contention
his trial counsel provided ineffective
assistance of counsel by failing to object to the imposition of the maximum
fine.
V
Excessive Fee and Assessment
As part of
Martinez's sentence, the court imposed a $160 court security fee and a $120
criminal conviction assessment. Martinez
contends, the People concede, and we agree these amounts are excessive.
Section
1465.8, subdivision (a)(1), requires a court to impose a $40 court security fee
for every criminal conviction.
Similarly, Government Code section 70373, subdivision (a)(1) requires a
court to impose a $30 criminal conviction assessment for every felony
conviction. Since the court set aside
Martinez's conviction for battery causing great bodily injury, Martinez was
only convicted of two crimes and the court was only authorized to impose an $80
court security fee and a $60 criminal conviction assessment. We shall direct the court to modify the
abstract of judgment accordingly. (>People v. Smith (2001) 24 Cal.4th 849,
854 [appellate court may correct an unauthorized sentence without remand].)
VI
Discrepancy Between Oral Pronouncement and Abstract of Judgment
Although
the court set aside Martinez's conviction for battery with serious bodily
injury at the sentencing hearing, the abstract of judgment nonetheless states
Martinez's count 1 conviction was for violating sections "203/>243(d)," described as "Mayhem/>Battery w/Serious Bodily Injury
LIO." (Italics added.) As the abstract of judgment is inconsistent
with the court's oral pronouncement, Martinez contends, the People concede, and
we agree the abstract of judgment must be modified to correct the
discrepancy. We, therefore, shall direct
the court to modify the abstract of judgment to reflect mayhem under section
203 as the sole basis for Martinez's conviction in count 1. (People
v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order
correction of an abstract of judgment that does not accurately reflect the oral
pronouncement of judgment].)
DISPOSITION
The court is directed to modify the abstract of judgment
to reduce the court security fee to $80, to reduce the criminal conviction
assessment to $60, and to show mayhem under section 203 as the sole basis for
the count 1 conviction. In all other
respects, the judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.