P. v. Martinez
Filed 8/28/06 P. v. Martinez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. RUDOLPH RICHARD MARTINEZ, Defendant and Appellant. | E038661 (Super.Ct.No. SWF007676) OPINION |
APPEAL from the Superior Court of Riverside County. Rodney L. Walker, Judge. Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
Following a jury trial, defendant Rudolph Richard Martinez was convicted of attempted carjacking. (Pen. Code, §§ 664 & 215, subd. (a).[1]) In a bifurcated proceeding, the trial court found true the allegations that defendant had been previously convicted of two serious felonies within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(A). He was sentenced to state prison for an indeterminate term of 25 years to life. On appeal, defendant contends: (1) the trial court abused its discretion by admitting evidence of his prior criminal conduct under Evidence Code section 1101, subdivision (b); (2) the trial court abused its discretion by excluding expert testimony on eyewitness identification; (3) the trial court erred in failing to instruct the jury with CALJIC No. 2.71; (4) the trial court abused its discretion by denying his motion to strike a prior conviction; (5) the 25-year-to-life sentence violates the Eighth Amendment prohibition against cruel and unusual punishment; and (6) the cumulative error doctrine applies.
PROCEDURAL BACKGROUND AND FACTS
In the afternoon of April 26, 2004, Kathleen Lebarre was playing with her grandson, Dyllan, at Rancho Park in Riverside County. Lebarre observed a Hispanic male, later identified as defendant, walk towards her. Defendant was wearing a white short-sleeved T-shirt, black pants, black shoes, black sunglasses, and a black baseball cap. He began speaking to Lebarre, who is partially deaf but able to read lips, depending on the words, and able to hear with the assistance of hearing aids. Lebarre determined that defendant was saying, â€
