P. v. Martinez
Filed 4/17/07 P. v. Martinez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, Plaintiff and Respondent, v. BRENDA MARTINEZ, Defendant and Appellant. | B198194 (formerly B181232) (Los Angeles County Super. Ct. No. BA249009-02) |
APPEAL from a judgment of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Affirmed as modified.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
A jury convicted Brenda Martinez as an aider and abettor in the second degree murder of Sebero Ruiz. She challenges her conviction and sentence. We modify the judgment to credit Martinez with additional days of presentence credit and affirm the judgment as modified.[1]
FACTS AND PROCEEDINGS BELOW
After being Mirandized and purportedly waiving her rights Martinez gave a recorded statement to the police which the prosecution played to the jury. In her statement summarized below Martinez explained how the Ruiz murder occurred.
Martinez and her boyfriend Romulo Nava, both members of the BMS gang, were driving in Navas car when they saw two men about to enter a market located on the border between BMS turf and the turf of its rival, the 38th Street gang. Nava shouted to the men, Where are you from? When neither man responded Nava and Martinez yelled, Fuck Tramps, (a reference to the 38th Street gang) and Its all about BMS.
Nava was angry because the two men did not respond to his gang challenge. He and Martinez drove to the home of another BMS member, Tank. On the way Nava told Martinez he was going to pick up his homey and go back to the market and scare the two men who he believed were 38th Street members. When they arrived at Tanks house Nava went inside. Martinez remained in the car. After a short time Nava returned with Tank who got into the back seat. As he did so Martinez saw he had a gun in his waistband. As they drove back to the market Martinez heard Nava and Tank talking about the gun and the two men from 38th Street. Martinez said to Nava and Tank I thought you guys were just going to scare them. Nava or Tank replied, No, shoot them.
When they arrived back at the market Nava told Martinez to go with Tank and point out the two men. Martinez and Tank went into the market and Martinez identified the two men Nava believed were rival gang members. After she identified the men Martinez went back to the car. A minute or so later she heard shots and Tank ran back to Navas car and got into the back seat. He told Nava, Lets go, fool. Lets get out of here. Nava drove to his house. On the way Tank threw a gun out the window. At Navas house Martinez heard Tank tell Nava he had shot a person in the market a whole bunch of times. Nava and Tank then called someone to come and pick up Tank. A short time later someone arrived at Navas house and Tank left with this person.
In addition to giving the police the statement summarized above Martinez was shown a photographic lineup and identified a picture of Tank. Martinez wrote: This is that guy who we pick up at that house and I see him with that gun, we take him to that store to show who thats guys and after he run to the car.
The markets surveillance videotape showed Sebero Ruiz and another man entering the market together. It showed Martinez and Tank entering the market approximately four minutes later and Martinez leaving and getting into a blue Toyota after about a minute. Another segment of the tape shows Tank waiting by the market entrance. As Ruiz approaches, Tank confronts him, hits him, and then pulls a gun from his waistband and shoots him. Ruiz died later that day from three bullet wounds to his chest and abdomen.
The day after the murder the police traced the blue Toyota shown on the videotape to Navas house. Nava and Martinez were arrested without incident.
Sergio Guzman, who had accompanied Ruiz, to the market, identified Nava as the person driving a blue car who had shouted gang slogans at him and Ruiz shortly before the shooting.
The prosecutions gang expert testified Nava, Martinez and Tank were members of the BMS gang, a bitter rival of the 38th Street gang whose territories overlapped the location of the market where the shooting occurred. The primary criminal activities of BMS included murder, robbery, drug dealing, assault and battery. In the experts opinion, killing a member of the 38th Street gang would benefit and promote the BMS gang by issuing a challenge to its main rival and increasing its prestige in the neighborhood.
A jury convicted Martinez of second degree murder as an aider and abettor of Tank, the shooter. The jury also found the street gang and gun use enhancement allegations to be true. The trial court sentenced Martinez to a total prison term of 40 years to life.[2]
DISCUSSION
I. | THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT THE JURY SUA SPONTE ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER. |
Under the common law a person could be found liable as a principal to the crime if she aided orabetted the perpetrator.[3]Penal Code section 31[4]effectively did away with this rule of liability by providing [a]ll persons [who] aid and abet, (aid with knowledge of the perpetrators criminal intent) are principals in any crime so committed. (Italics added.) But California retains the common law rule one who incites the commission of a crime can be liable not only for the crime incited but also for any incidental consequences which might reasonably be expected to result from the intended wrong. [Citations].[5] This rule, often referred to as the rule of natural and probable consequences,[6]holds the defendant liable as a principal in the perpetrator s ultimate crime if the defendant aided and abetted the perpetrator in committing the target crime (the crime the accomplice intended to aid and abet) and the perpetrators ultimate crime was a natural and probable consequence of the target crime even though the defendant did not intend the latter crime to occur.[7] Thus, for example, a defendant can be convicted of second degree murder if he aids and abets the perpetrator of an assault and the jury finds it reasonably foreseeable death was a natural and probable consequence of the assault.[8]
In the present case the trial court instructed the jury: You may find [Martinez] guilty of the crime of murder if you are satisfied beyond a reasonable doubt that: 1. The crimes of simple assault or brandishing a firearm were committed; 2. That [Martinez] aided and abetted that crime; 3. That a co-principal in that crime committed the crime of murder; and, 4. The crime of murder was a natural and probable consequence of the commission of assault or brandishing a firearm.
Martinez does not challenge this instruction. Rather, she argues the trial court should also have instructed the jury sua sponte it could find her guilty of involuntary manslaughter because involuntary manslaughter could also be the natural and probable consequence of the commission of assault or brandishing a firearm. We disagree.
Whether a particular crime is a natural and probable consequence of another criminal act is not an abstract question of law. It is a fact question determined by all the circumstances surrounding the incident.[9] Here the evidence showed Tank got into Navas car already armed; Tank and Nava discussed the fact the men at the market were members of the rival 38th Street gang; Tank stated his object was to shoot the men at the market. When Nava, Martinez and Tank arrived at the market Martinez pointed out the men to Tank and two minutes later Tank confronted Ruiz, hit him, then shot him three times at close range. This evidence establishes the shooting was premeditated and intentional and would not have supported an instruction on involuntary manslaughter as to Tank.
Because Tank would not have been entitled to an instruction on voluntary manslaughter, neither was Martinez. A trial court need not instruct on lesser offenses where there is no evidence the offense was less than that charged.[10]
It is true, at least in theory, an aider and abettor could be entitled to a lesser offense instruction when the actual perpetrator would not. As the court explained in People v. Woods: Even when lesser offense instructions are not required for the perpetrator because the evidence establishes that, if guilty at all, the perpetrator is guilty of the greater offense, the trial court may have a duty to instruct sua sponte on necessarily included offenses as to aider and abettor liability.[11] This would occur, the Woods court theorized, where the evidence raises a question whether the offense charged against the aider and abettor is a natural and probable consequence of the criminal act originally aided and abetted but the evidence would support a finding an offense, which is deemed a necessarily included offense within the offense committed by the perpetrator, was such a consequence[.][12]
We have found no reported case in which a sua sponte lesser offense instruction was required under the Woods theorem. Woods is not applicable here because the evidence established beyond question second degree murder based on wantonly reckless conduct was a reasonably foreseeable consequence of the target offenses of assault and brandishing a firearm.
We conclude, therefore, the trial court did not err in failing to instruct the jury sua sponte on the lesser offense of involuntary manslaughter.
II. | SUBSTANTIAL EVIDENCE SUPPORTS THE GANG-RELATED FIREARM ENHANCEMENT. |
Based on the jurys findings Martinez committed the crime of second degree murder for the benefit of a criminal street gang as defined in section 186.22, subdivision (b)(1)[13]and a principal in the commission of the crime personally and intentionally discharged a firearm causing the death of Sebero Ruiz, within the meaning of section 12022.53, subdivision (d),[14]the trial court enhanced Martinezs sentence by an additional consecutive prison term of 25 years to life under section 12022.53 (e)(1).[15]This enhancement applies to an aider and abettor if the aider and abettor commits the crime for the benefit of a criminal street gang and any principal in the crime personally used or discharged a firearm in its commission.
Martinez argues she is not subject to the gang-related firearm enhancement for two reasons. There was insufficient evidence the crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members.[16] Furthermore, a person convicted of murder on the theory the murder was a natural and probable consequence of a lesser target offense is not a principal for purposes of section 12022.53, subdivision (e)(1). We reject both these arguments.
A. Substantial Evidence Supports The Jurys Finding Martinez Aided And Abetted The Murder Of Ruiz With The Specific Intent To Promote, Further, Or Assist In Criminal Conduct By Members Of The BMS Gang. |
To come within section 186.22, subdivision (b)(1) the defendant must commit the crime for the benefit of a criminal street gang with the specific intent to promote, further or assist in any criminal conduct by gang members[.] Martinez argues the evidence may show she aided and abetted Tank for the benefit of the BMS gang but there was insufficient evidence to show she acted with the specific intent to promote, further or assist the gangs criminal conduct.
We disagree. The evidence showed Martinez, Nava and Tank were all BMS members. Martinez knew BMS and 38th Street were rivals. She also knew Nava believed Ruiz and his companion were members of the 38th Street gang. From the evidence at trial the jury could reasonably conclude the reason Martinez accompanied Tank into the market and pointed out the two suspected 38th Street members was because she wanted to assist her gang, BMS, by intimidating or eliminating rivals and competitors to its criminal activities and by intimidating the residents of the neighborhood so they would not interfere with those activities.
B. Martinez Was A Principal For Purposes Of The Gang-Related Firearm Enhancement. |
Section 12022.53 applies to certain serious felonies including murder.[17] Subdivision (d) of the statute requires a sentence enhancement of 25 years to life for any person who, in the commission of a [predicate felony] personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death[.] In the predicate felonies which are gang-related section 12022.53, subdivision (e)(1) provides: The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision . . . (d). (Italics added.)
The trial court imposed the 25 years to life enhancement on Martinez because as an aider and abettor she was a principal in the commission of murder, she violated section 186.22, subdivision (b), the criminal street gang law and Tank, a principal in the murder, personally and intentionally discharged a firearm killing Ruiz.
Martinez contends the trial court erred in imposing the gang-related gun enhancement on her because she was not a principal in the commission of the offense of murder within the meaning of section 12022.53, subdivision (e)(1). She acknowledges under section 31 [a]ll persons concerned in the commission of a crime including those who aid or abet in its commission . . . are principals in any crime so committed. Nevertheless, she maintains the term principal as used in section 12022.53, subdivision (e)(1) does not apply to aiders and abettors whose liability for the enhancement is based solely on the predicate offense, which they did not intend to aid and abet, being a natural and probable consequence of the offense they did intend to aid and abet. Here, Martinezs conviction of murder, a predicate offense under section 12022.53, subdivision (a)(1), was based solely on the jurys finding Ruizs murder was a natural and probable consequence of her aiding and abetting Tank in the crimes of assault and brandishing a firearm. Therefore, because she did not directly aid and abet the murder, she maintains she is not a principal for purposes of the firearm enhancement under section 12022.53, subdivision (e)(1).
To support her contention the term principal means something different in section 12022.53 than in section 31 Martinez makes the following arguments. Under section 12022.53, subdivision (d) an aider and abettor is only subject to a sentence enhancement if, during the commission of a serious felony, she personally and intentionally discharges a firearm and causes serious bodily injury or death. Under subdivision (e), however, one who aids and abets a predicate crime for the benefit of a criminal street gang is subject to the enhancement if any principal personally and intentionally discharges a firearm and causes serious bodily injury or death.[18] Martinez acknowledges the Legislature may have wanted to punish more severely those who directly aided and abetted serious gang-related offenses such as murder by making them liable if any principal in the offense discharged a firearm and caused serious bodily injury or death. She argues it does not follow, however, the Legislature intended to extend this severe punishment to one who only directly aids and abets a lesser crime not listed as a predicate crime in section 12022.53.[19]
We do not find this argument persuasive. The more severe punishment of the aider and abettor is justified by the fact a reasonable person would have known the so-called lesser crime could reasonably and probably result in a serious felony such as murder, rape or kidnapping. Here, the prosecution presented evidence a reasonable person should have known there was a reasonable probability pointing out the two men in the market to Tank would lead to their deaths.
Martinez next argues the term principal does not include those aiders and abettors whose guilt is based on the natural and probable consequences doctrine because the doctrine is not contained in section 31.
This argument lacks merit. Section 7(16) states: Words and phrases [in the Penal Code] must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning. It has been understood for more than four centuries an aider and abettor is liable not only for the crime she intended to aid and abet but for any crime which is the natural and probable consequence of such crime.[20] Thus, whether the term aid and abet is considered to have an approved usage or to have acquired over the centuries a peculiar and appropriate meaning it is clear that when the Legislature declared aiders and abettors to be principals it included within that term aiders and abettors concerned in the commission of crimes which are the natural and probable consequences of the crimes they intended to aid and abet. If the Legislature had intended to give the term principal a different meaning in section 12022.53, subdivision (e)(1) it would have said so.[21]
Finally, Martinez purports to find a fourth category of criminally liable persons in California who are neither principals, aiders and abettors or accomplices after the fact. She labels them vicariously liable accomplices. This category is made up of persons who aid and abet the commission of a lesser crime knowing it is naturally and reasonably probable the lesser crime will lead to the commission of a greater crime. Martinez professes to find recognition of this fourth category in People v. Garcia in which our Supreme Court explained in order to subject an aider and abettor to the gang-related gun enhancement under section 12022.53, subdivision (e) the prosecution must plead and prove among other things the aider and abettor was a principal in the offense . . .[22] From this statement Martinez draws the conclusion that for the enhancement to apply something more is required than mere liability for the crime as an aider and abettor and that there are some categories of aiders and abettors who are not principals.
Martinez misinterprets the Garcia opinion. Garcia merely recognizes the principle we explained earlier in this opinionit is possible a jury could find the defendant aided and abetted the perpetrator in the commission of the target offense but not in the commission of the ultimate offense. This could occur if the ultimate offense, e.g., murder, was not a reasonable and probable consequence of the target offense.[23] For example, assume A and B are members of the same gang. A, who is age 18, goes to a liquor store intending to use a fake ID to buy a case of Scotch for a gang party that evening. B, knowing As intent, accompanies A to the store to help pay for the liquor. After A uses his fake ID to purchase the liquor and B is carrying the case to the car A sees two members of a rival gang and uses the opportunity to shoot them, killing both. B may be liable as an aider and abettor as to As crime of using a fake ID to purchase liquor[24]but he would not be an aider and abettor as to the murder of the rival gang members because the murder was not a reasonable and probable consequence of the crime of buying liquor with a fake ID. Thus B would not be subject to a murder
prosecution or a gang-related gun enhancement even though he and A both committed an
offense for the benefit of a criminal street gangpurchasing liquor with a fake ID.
For these reasons we conclude the trial court properly applied the gang-related gun enhancement of section 12022.53, subdivision (e) to Martinez.
III. | THE CONSECUTIVE TWENTY-FIVE YEARS TO LIFE GANG-RELATED FIREARM ENHANCEMENT IMPOSED ON MARTINEZ DOES NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT. |
Continuing on the theme discussed in Part II B above, Martinez contends imposing section 12022.53s gang-related firearm enhancement on vicariously liable accomplices on its face constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article 1, section 17 of the California Constitution. She further contends the enhancement constitutes cruel and unusual punishment as applied to her. Even if these contentions were not forfeited by failing to raise them at sentencing,[25]we find no merit to either contention.
We begin by observing if a sentence of 50 years to life for stealing a few videotapes[26]and 25 years to life for stealing three golf clubs[27]do not offend the Eighth Amendment a discussion of Martinezs Eighth Amendment challenge to an enhancement of 25 years to life for murder is unnecessary.
Turning to the California Constitution, we do not believe 25 years to life for aiding and abetting a murder is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.[28] Martinez attempts to show unconstitutionality by comparing and contrasting the punishment under section 12022.53, subdivisions (d) and (e) with the punishments for other arguably more serious conduct. This comparison has been considered and rejected in previous opinions with which we concur.[29]
Martinez attempts to minimize her blameworthiness in the murder of Ruiz arguing she was only 18 years old at the time; borderline mentally retarded; had no criminal record; and as a rule was a passive, quiet and non-violent young woman. There was sufficient evidence to show, however, Martinez was a member of the BMS gang; she remained in the gang even after her former boyfriendalso a BMS memberwent to prison; she knew Nava and Tank were BMS members; she knew Tank was armed and that he intended to shoot one or both of the men at the market. Then, like a modern-day Pirate Jenny, she pointed out the intended victims to Tank knowing there was a natural and reasonable probability her identification would result in their death.[30]
For these reasons we hold the 25 years to life gun enhancement did not constitute cruel and unusual punishment.
IV. | MARTINEZ IS ENTITLED TO AN ADDITIONAL 18 DAYS OF CUSTODY CREDITS. |
There is substantial evidence in the record showing the actual time Martinez spent in custody prior to sentencing was 575 days, not 557 days as calculated by her trial counsel and accepted by the court.
DISPOSITION
The judgment is modified to reflect defendant Martinez is to receive 575 days of presentence credit. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
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[1] Although we affirm the judgment based on the record before us, in a related habeas petition Martinez has made out a prima facie case for writ relief based on ineffective assistance of her trial counsel. We are issuing an order to show cause returnable in the trial court for a determination of the issues raised in Martinezs petition and supplemental petition.
[2] In a separate opinion filed today we affirm Navas conviction for first degree murder as an aider and abettor. (People v. Nava B181232.)
[3] Developments in California Homicide Law (2003) 36 Loy. L.A. L.Rev.1371, 1524.
[4] All statutory references are to the Penal Code unless otherwise noted.
[5]People v. Woods (1992) 8 Cal.App.4th 1570, 1583.
[6] See People v. Prettyman (1996) 14 Cal.4th 248, 254.
[7]People v. Prettyman, supra, 14 Cal.4th at page 254.
[8]People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177.
[9]People v. Nguyen (1993) 21 Cal.App.4th 518, 531.
[10]People v. Woods, supra, 8 Cal.App.4th at page 1592 [aider and abettor not entitled to involuntary manslaughter instruction because perpetrator would not have been entitled to such instruction].
[11]People v. Woods, supra, 8 Cal.App.4th at page 1593.
[12]People v. Woods, supra, 8 Cal.App.4th at page 1593.
[13] [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony be punished as follows . . . .
[14] [A]ny person who, in the commission of a felony [including murder], personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.
[15] The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of section 186.22 [see footnote 12, above]. (B) Any principal in the offense committed any act specified in subdivision . . . (d).
[16] Section 186.22, subdivision (b)(1).
[17] Section 12022.53, subdivision (a)(1).
[18] Walwyn, Targeting Gang Crime: An Analysis Of California Penal Code Section 12022.53 And Vicarious Liability For Gang Members (2002) 50 UCLA L.Rev. 685, 697.
[19] The legislative history of subdivision (e)(1) sheds no light on what the lawmakers meant by the term principal except that they intended to apply the enhancement to persons who were principals by reason of being aiders and abettors. Otherwise subdivision (e)(1) would be redundant because, as Martinez points out, each of the preceding subdivisions provides enhancements for perpetrators who personally used or discharged a firearm in the commission of a predicate crime.
[20] One commentator who researched English law reports between 1557 and 1578, concluded under the early common law A defendant was liable if, having commanded or procured B to commit a crime, B . . . committed a crime different from the one directed, but a natural and probable consequence flowing out of it. (Sayre, Criminal Responsibility For The Acts Of Another (1930) 43 Harv. L.Rev. 689, 696-699.
[21]People v. Acosta (2002) 29 Cal.4th 105, 114. (As a matter of statutory construction, a word or phrase repeated in a statute should be given the same meaning throughout. [Citation].)
[22]People v. Garcia (2002) 28 Cal.4th 1166, 1174.
[23] See People v. Woods, supra, 8 Cal.App.4th at page 1593.
[24] Business and Professions Code section 25661 makes it a misdemeanor for any person under the age of 21 to use a false identification to buy alcoholic beverages.
[25] See People v. Demirdjian (2006) 144 Cal.App.4th 10, 13-14.
[26]Lockyer v. Andrade (2003) 538 U.S. 63.
[27]Ewing v. California (2003) 538 U.S. 11.
[28]In re Lynch (1972) 8 Cal.3d 410, 424.
[29] See e.g., People v. Gonzalez (2001) 87 Cal.App.4th 1, 12-19.
[30] And theyre chainin up people and theyre bringin em to me askin me Kill them now, or later? Askin me Kill them now, or later? Brecht & Weill (1928) The Three Penny Opera, Pirate Jenny.