P. v. Martinez

Filed 5/27/08 P. v. Martinez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Appellant Rudy Martinez was convicted by a jury of the attempted and premeditated murder of Hector R. but was exonerated by the jury of the attempted murders of Isaias H. and Oscar H. The jury also convicted appellant of being a felon in possession of a firearm. The jury found great bodily injury and various firearm enhancements to be true but the jury found the allegation untrue that the attempted murder of Hector R. was for the benefit of a criminal street gang. Appellant was sentenced to life in prison for attempted murder and this was enhanced by a term of 25 years to life; the sentence for being a felon in possession of a firearm is to run concurrently.

FACTS

Appellant was a member of the 38th Street gang, which is a rival of the Playboys gang; the two gangs operate in adjacent territories around Central Avenue in Los Angeles.

On November 7, 2005, at 6:08 p.m., the police received a report that Jesus Martinez had been shot to death at 41st Street and Central Avenue. Martinez was a member of the 38th Street gang.

Shortly after 6:30 p.m. on the same day, 14-year-old Hector was walking on 51st Street toward Central with his friends Isaias and Oscar when a light blue sports utility vehicle (SUV) stopped in front of them; Hector and Isaias are members of the Playboy gang. It was dark and the SUV had its lights off. The SUV was about 15 feet from Hector and there was nothing between Hector and the car.

Isaias thought that the people in the SUV might be friends and he took a few steps towards the vehicle. The right front passenger, identified as appellant, rolled the window down. Hector described appellant as a bald, light-complexioned Hispanic male wearing a white T-shirt; Isaias also saw appellant and noticed that he was bald and had no facial hair.

Appellant said to Hector [w]hats up with the Playboys life, which Hector understood to be a question whether Hector was a member of that gang. Hector, Isaias and Oscar stood there, not saying anything. The SUV started to move and Isaias saw flashes and ducked down. Hector saw one flash that blinded him, heard five or six shots, was hit and fell to the ground.

At the time of the shooting, Isaias was standing about three feet from Hector. Isaias testified that he saw the shooters face, which he told the police was shaved down and had no facial hair. He also told the police that he would be able to recognize the shooter if he saw him again.

Neither Isaias nor Oscar were shot.

The police received the report of this shooting at 6:41 p.m. on November 7.

Hector spent two months in the hospital and underwent rehabilitation; he is now able to walk.

Hector described appellant to the police a day or two after the shooting as a young Hispanic male with a thin face, light skin, shaved head and no facial hair. On November 18, 2005, Hector picked out appellant from a six-pack photographic lineup prepared by the police; he was 100 percent certain of appellants identity. In early December 2005, Isaias also identified appellant as the shooter from a six-pack photographic lineup. (One of the principal contentions on appeal is the allegedly suggestive nature of the photographic lineups presented to Hector and Isaias.) Both Hector and Isaias identified appellant during the trial.

Appellant testified in his own defense and denied shooting Hector.^[1] In substance, appellants testimony was that during the relevant time period he was at his girlfriends house, got a call from Jorge Medina that Jesus Martinez had been shot, drove to pick up Medina and took him to the hospital where Martinez was, and then returned to his girlfriends house. Appellants testimony was corroborated by the testimony of Medina, Martinezs sister-in-law and appellants girlfriend. In particular, according to Medina, he and appellant were on their way to the hospital at the time that Hector was shot.

DISCUSSION

1. The Photographic Lineup

Appellant contends that the photographic lineup presented to Hector and Isaias were unduly suggestive and irretrievably tainted appellants in-court identification by these two witnesses.

The dual difficulty that appellants contention faces is that he did not object to this evidence during the trial and that the jury evidently rejected defense counsels argument that the photographic lineup was suggestive.

[A]ppellant contends that the photographic lineup . . . was impermissibly suggestive. . . . The point was not raised in the trial court. . . . Objections not presented to the trial court cannot be raised for the first time on appeal. (In re Michael L. (1985) 39 Cal.3d 81, 87-88; accord, People v. Cunningham (2001) 25 Cal.4th 926, 989.)

As appellant points out, during his first trial he did move to suppress both the out-of-court and the in-court identification, but that motion appears to have been denied; he now contends that it would have been futile to renew that objection during the second trial. We cannot agree with this reasoning. One of the functions of an objection is to make a record that is the basis for appellate review; it is also true that if an objection is made and overruled, the reviewing court not only has a record but also the benefit of the trial courts reasoning. Thus, the fact that an objection was unsuccessful in a prior trial does not mean that the salutary rule requiring an objection to the admission of evidence can or should be dispensed with. As it is, there is now neither a record nor a ruling, which are among the core reasons why an objection is necessary to preserve the point for appellate review.

While the lack of an objection is enough to foreclose appellate review, we note that counsel did argue during his closing argument that the photographic lineups were suggestive because (1) appellants photo is larger than the other five, causing his photo, in counsels words, to jump out of the lineup; and (2) the other men shown had facial hair, while appellant had none, which are the reasons appellant gives in this appeal why the lineup was unduly suggestive.

The jury had the opportunity to reject Hectors and Isaiass identification on the grounds that are now urged on appeal. The fact that the jury did not do so is significant. If an objection had been made, the standard on appeal would have been to resolve all evidentiary conflicts in favor of the trial courts finding and uphold that finding if substantial evidence supports it. (People v. Wimberley (1992) 5 Cal.App.4th 773, 788.) An analogous rule applicable to this case is that our inquiry should be limited to whether there is substantial evidence that supports the jurys rejection of counsels argument that the identification was impermissibly tainted.

We think there is substantial evidence that even if the photographs themselves were suggestive, Hectors and Isaiass identification was nonetheless reliable.^[2] Hector and Isaias were approximately 15 feet from appellant and had the opportunity to clearly see him. They certainly focused on appellant since he was speaking to them. The description given seems to have been accurate and both witnesses were certain of their identification. The photographic identification was reasonably close in time to the shooting. There is also the fact that both identified appellant in court. Thus, there is a solid evidentiary basis for the finding that the identification was not tainted.

This is not to say that we have concluded that the photographic lineup was suggestive, a proposition that respondent vigorously contests.^[3] We only conclude that there is substantial evidence that the identification by Hector and Isaias was reliable.

We have considered appellants ably presented contention that eyewitness identification is inherently untrustworthy. One of the difficulties with this argument is that there are cases, and this is one of them, where the only evidence is that of eyewitnesses; there is simply no physical or other evidence. And while caution is not out of order in the case of eyewitness testimony, it is unacceptable to dismiss it out of hand. Eyewitness testimony has always been, and remains, an important source of facts in our judicial system.

Appellant contends that counsels failure to object to the admission of the photographic lineup constitutes inadequate assistance of counsel. There may or may not be a satisfactory explanation for counsels decision not to object. It is also true, as respondent points out, that it is not likely that the trial court, having denied this motion during the first trial, would have granted it in the second trial. For these and other reasons that have been set forth elsewhere, this claim of error should be raised, if at all, in a petition for a writ of habeas corpus and not in the direct appeal. (People v. Gray (2005) 37 Cal.4th 168, 206-207.)^[4]

2. The Request for Juror Information

Appellant contends that it was error to deny his request for juror information. We do not agree.

The jury began deliberations on November 21, 2006, and resumed deliberations after the long weekend on November 27, 2006. That afternoon, the jury reported that it was not able to reach a verdict and that the split was 11 to 1. The forepersons opinion was that one of the jurors was not deliberating reasonably. After a hearing and discussion between court and counsel, the court directed the jury to return to deliberate the next day.

On November 28, the trial court reread to the jury CALCRIM No. 3550 on its duty to deliberate, and sent the jury out to deliberate. The jury requested a readback of testimony and again reported at the end of the day that it was deadlocked. Finally, on the next day, having deliberated through the lunch hour, the jury returned with its verdict in the afternoon.

The defense requested the release of juror identifying information, contending that the verdicts of not guilty of the attempted murders of Isaias and Oscar and the gang enhancement, and the repeated reports of deadlock, all added up to a compromise verdict and juror misconduct. The trial court rejected the request, pointing out that it was reasonable to conclude that Isaias and Oscar had not been in the intended line of fire (they were not in the zone) and that the gang enhancement was found not true because the shooting was personal revenge for the shooting of Martinez.

The fact, if it is a fact, that the verdict was a compromise does not invalidate the verdict. (Harris v. Rivera (1981) 454 U.S. 339, 345, fn. 14.) And, as the trial court pointed out, it is not at all apparent that the verdict was a compromise. Isaias and Oscar were not shot. While in and of itself this circumstance did not necessarily exonerate appellant, it does explain, at least in part, the jurys verdict. The fact that the jury did not find the gang enhancement to be true is explained by the relative weakness of the gang evidence, which we have not detailed, and the fact noted by the trial court that the shooting seemed to be a matter of personal revenge. All in all, the verdict is more reflective of a thoughtful jury than a compromise verdict.

Other than the allegation that this was a compromise verdict, appellant was not able to point to any facts that suggested jury misconduct. That the jury was deadlocked for a while with a single juror holding out does not, standing alone, suggest misconduct. In short, the showing that supported the request for juror information was insufficient and for that reason the trial court properly denied the request. (People v. Barton (1995) 37 Cal.App.4th 709, 716.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

GILBERT, J.^*

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^[1] Appellant is confined to a wheelchair as a result of a shooting but he is able to drive.

^[2] If the issue had been properly preserved for appellate review by a timely objection, the tests to be applied in this court would have been as follows: In order to determine whether the admission of identification evidence violates a defendants right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (People v. Cunningham, supra, 25 Cal.4th at p. 989.) Thus, the ultimate inquiry is whether the identification was reliable.

^[3] Respondent points out that facial hair on some of the other photos is very light and barely noticeable and that at least one other photo was nearly as large as appellants. We have reviewed the photographic lineup and find that there is some basis for respondents argument on this score.

^[4] It is also true that appellants argument on this issue is rather perfunctory, which is an independent reason to reject it. (People v. Mayfield (1993) 5 Cal.4th 142, 196; see generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal,  146(7), p. 393.)

^* Presiding Justice of the Court of Appeal, Second Appellate District, Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.