P. v. Martinez

Filed 5/8/06 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.

Law Offices of Barry Bernstein and Barry Bernstein for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Ralph Daniel Martinez, Jr., appeals from his conviction of first degree murder and the true finding on the enhancement allegation that he personally used a firearm in the commission of the crime. He contends that (1) his pretrial statement should have been excluded as involuntary because it was the product of coercion after he invoked his right to silence; (2) the trial court denied him his right to make a defense when it denied his ex parte motion to hire a forensic interrogation/coercion expert; (3) the sentence of 25 years to life for the firearm use enhancement should be vacated as unauthorized by statute; (4) the evidence was insufficient to show that he committed murder deliberately and with premeditation; and (5) the 25-year-to-life sentence for the firearm use violates the Eighth Amendment prohibition against cruel and unusual punishment. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Procedural History

A complaint alleged that defendant committed the willful, deliberate, and premeditated murder of Daniel Patrick Moreno on April 9, 2002, and that defendant personally and intentionally discharged a firearm proximately causing Moreno's death. (Pen. Code,^[1] §§ 187, 12022.53, subd. (d), 1192.7, subd. (c)(8).)

Defense counsel moved before trial to exclude defendant's statements to the police. The trial court held an evidentiary hearing at which it listened to tapes of defendant's interrogation and heard the testimony of police officers. Following the hearing, the trial court denied the motion.

Following trial, the jury found defendant guilty of first degree murder and found the firearm use enhancement allegation true. The trial court sentenced him to 25 years to life for the murder and to a consecutive term of 25 years to life for the firearm use enhancement.

B. Evidence at Trial

The prosecution's theory at trial was that defendant had shot Daniel Moreno in the mistaken belief that he was a man named Richard Garcia with whom defendant had previously fought.

Melissa Morreo testified that defendant was her cousin on her mother's side, and Moreno had been her cousin on her father's side. In April 2002, Moreno had been living in her home. Morreo also knew Garcia. In April 2002, both Moreno and Garcia had short hair.

In the evening of April 9, Moreno had been walking down a road on the Soboba Indian Reservation wearing denim pants, white shoes, and a gray hooded sweatshirt with the hood on his head. The sweatshirt belonged to Garcia, who had previously lent it to Morreo. Morreo heard gunshots nearby and looked out the window. She saw a white van with a man nearby; she thought the man was defendant because of his red hat and baggy shorts. The man was picking something up off the ground that Morreo thought might be shotgun casings. The van drove away toward the east with its lights off. Morreo recognized the van as belonging to the Briones family, who lived five or six houses up the street to the east. Morreo went to the spot where the van had stopped, and she found Moreno lying on the ground. Police officers found plastic wadding from three shotgun shells at the scene. About a month before the shooting, Morreo had heard Aurelia Najar tell Garcia that she would have defendant, Najar's cousin, shoot Garcia.

Lydia Ramirez testified that in April 2002, she had been living with her friend Aurelia Najar. Several weeks before the shooting, defendant had a fight there with Richard Garcia. After the fight, defendant told Garcia â€