P. v. >Martinez>

 

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Martinez CA2/5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   BRAYON MARTIN MARTINEZ,               Defendant and Appellant.

B240371         (Los Angeles County Super. Ct.        No. YA075442)

 

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Stuart M. Rice, Judge. 
Affirmed.

            Fay Arfa, a
Law Corporation, and Fay Arfa for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II,
Supervising Deputy Attorney General, and Marc A. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.

 

_____________________________

            Defendant
and appellant Brayon Martin Martinez appeals from the judgment entered after
two trials.  Prior to the first trial,
defendant pled guilty on count 5 to possession
of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)).href="#_ftn1" name="_ftnref1" title="">^[1]  The
jury convicted defendant in count 4 of evading an officer (Veh. Code, § 2800.2,
subd. (a)).  The trial court declared a
mistrial after the jury deadlocked on counts 1-3 and 6-7.

            After the
information was amended, defendant was convicted in the second trial on counts
6 and 7 of assault on a peace officer with a semiautomatic firearm (§ 245,
subd. (d)(2)) and on count 8 of assault with a semiautomatic firearm on an
unidentified victim (§ 245, subd. (b)). 
The jury found true the allegations defendant used a firearm within the
meaning of section 12022.53, subdivisions (b) and (c), as to counts 6 and 7,
and he used a firearm within the meaning of section 12022.5, subdivisions (a)
and (d), as to all three counts.

            The trial
court sentenced defendant to 33 years 8 months in state prison.

            Defendant
contends insufficient evidence,
instructional error, improper exclusion of evidence, and cumulative error
require reversal of the judgment.  We
affirm.

 

FACTS

 

            At
approximately midnight on June 27, 2009, Redondo Beach Police
Officers John Anderson and Brian Long were on patrol in an unmarked car.  The officers were in standard police uniform
and wore badges, reflective patches, and utility belts.  The officers observed defendant, one other
man, and two women in the street. 
Defendant was holding his waistband as if he had a gun.  The officers drove past the group and then
returned to investigate.  A BMW was
stopped in the middle of the street.  The
officers observed a man run from the sidewalk to the passenger side door of the
BMW.  Defendant immediately exited from
the driver’s side door, extended his arm over the vehicle, and fired a
semiautomatic weapon at the man, who was standing right next to the car facing
defendant.  The man fled away from the
vehicle, and defendant repositioned himself behind the BMW and fired at him a
second time.

            The
officers stopped their car.  Officer
Anderson exited and yelled, “Hey, police.” 
Defendant turned toward Officer Anderson and immediately fired at
him.  Officers Anderson
and Long fired numerous shots at defendant. 
Defendant returned fire and then fled in the BMW.

            Defendant
led the officers on a high speed chase. 
Other marked patrol cars pursued defendant with lights and sirens
activated, but he continued to evade arrest. 
Finally, defendant drove back to the scene of the shooting and
surrendered.  Defendant was arrested and
transported to the hospital.

            Defendant’s
gun was found lying in the street on the path he used to escape.  The serial number had been defaced and was
illegible.

            Defendant
presented evidence that it was dark at the time of the shooting.

            An expert
for the prosecution testified the photographs presented by the defense did not
accurately depict the lighting conditions at the time of the shooting.

 

DISCUSSION

 

Sufficiency of the Evidence

 

            The Fifth and Sixth Amendments,
which apply to the states through the Fourteenth Amendment, require the
prosecution to prove all elements of a crime beyond a reasonable doubt.  (Sullivan
v. Louisiana (1993) 508 U.S. 275, 277-78.) 
A conviction supported by insufficient evidence violates the Due Process
Clause of the Fourteenth Amendment and must be reversed.  (Jackson
v. Virginia (1979) 443 U.S. 307, 318-319.) 
“‘In reviewing the sufficiency of evidence . . . the question we ask is
“whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.”’  [Citations.]  . . . ‘In determining whether a reasonable
trier of fact could have found defendant guilty beyond a reasonable doubt, the
appellate court “must . . . presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.”’  [Citation.]” 
(People v. Young (2005) 34
Cal.4th 1149, 1175.)  “The record must
disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”  (People
v. Zamudio (2008) 43 Cal.4th 327, 357.)  The reviewing court does not reweigh the
evidence, evaluate the credibility of witnesses, or decide factual conflicts,
as these are the province of the trier of fact. 
(People v. Culver (1973) 10
Cal.3d 542, 548; In re Frederick G.
(1979) 96 Cal.App.3d 353, 367.)

 

Defendant Knew Or Should Have Known the Victims Were Peace Officers

 

            Defendant’s contention there was
insufficient evidence to support his convictions on the basis that he knew or
should have known that Officers Anderson and Long were peace officers engaged
in the performance of their duties is without merit.

            Pursuant to section 245, subdivision
(d)(2), “Any person who commits an assault upon the person of a peace officer
or firefighter with a semiautomatic firearm and who knows or reasonably should
know that the victim is a peace officer or firefighter engaged in the
performance of his or her duties, when the peace officer or firefighter is engaged
in the performance of his or her duties, shall be punished by imprisonment . .
. .”

            Evidence was presented that the
officers were in full uniform.  Officer Anderson
identified himself and Officer Long by yelling, “Hey, police” before defendant
turned in their direction and fired at them. 
The jury could have reasonably inferred that defendant heard the officer
identify himself, saw the officers in standard, full uniform and fired
nonetheless.  Thus, substantial evidence
supports the jury’s finding that defendant either knew or should have known
that Officers Anderson and Long were police officers engaged in the performance
of their duties.

 

Sufficient Knowledge of the Facts to Know Defendant’s Acts Would
Probably and Directly Result in Injury

 

            Defendant’s contention the evidence
was insufficient to support the finding that he intended to shoot the
unidentified man also fails.

            “‘Any person who commits an assault
upon the person of another with a semiautomatic firearm shall be punished by
imprisonment in the state prison . . . .’  (§ 245, subd. (b).)  ‘An assault is an unlawful attempt, coupled
with a present ability, to commit a violent injury on the person of another.’  (§ 240.)  Assault requires the willful commission of an
act that by its nature will probably and directly result in injury to another
(i.e., a battery), and with knowledge of the facts sufficient to establish that
the act by its nature will probably and directly result in such injury.”  (People
v. Miceli (2002) 104 Cal.App.4th 256, 268-269.)

            The record belies defendant’s
assertion that no evidence was presented regarding how close defendant was to
the unidentified man when defendant shot at him.  Officer Anderson observed an unidentified man
run to the passenger’s side of a BMW and defendant “immediately” jump out of
the driver’s side door, extend his arm over the vehicle, and shoot in the man’s
direction.  He clarified that the
unidentified man was “right up on the car” facing it when defendant shot at him
from the driver’s side.  As the man fled,
defendant repositioned himself behind the vehicle and shot at him again from
approximately 15 feet away.  Likewise,
Officer Long observed that “as soon as [the unidentified man] got to the front
passenger door, the driver stepped out, . . . reached over the hood of his car,
and shot one round at [the unidentified man].” 
Officer Long confirmed that defendant went to the back of the vehicle
and shot at the man again as he fled. 
The evidence that defendant fired two rounds at the unidentified man at
close range and repositioned himself in between firing to get a better shot
supports the jury’s finding that defendant had knowledge of the facts
sufficient to establish his acts would probably and directly result in injury.

 

Lawfulness
Instruction

 

            The crime of aggravated assault on a
peace officer requires that the officer be “engaged in the performance of his .
. . duties” at the time of the assault.  (§
245, subd. (d)(2).)  The officer
must be acting lawfully.  If the officer
used excessive force or detained the defendant without justification, the
defendant may be found guilty only of the lesser offense of simple
assault.  (People v. White (1980) 101 Cal.App.3d 161, 166.)  The trial court has a sua sponte duty to instruct
on lawfulness if there is sufficient evidence the officer was not lawfully
performing his or her duties.  (>People v. Gonzalez (1990) 51 Cal.3d
1179, 1217 [“disputed facts bearing on the issue of legal cause must be
submitted to the jury considering an engaged-in-duty element”], superseded by
statute on another point as explained in In
re Steele (2004) 32 Cal.4th 682, 690.)

            Here, no facts were presented that
would necessitate giving Judicial Council of California Criminal Jury
Instructions (2009-2010) CALCRIM No. 2670 (Lawful Performance, Peace Officer),
as defendant contends.  It is undisputed
defendant fired on the unidentified man twice and then turned and fired on the
officers immediately after Officer Anderson identified them as policemen, and
before either of the officers fired a single shot.  The officers could not have been using
excessive force when defendant assaulted them, nor were they detaining him
without justification.

 

Exclusion of
Evidence

 

            Pursuant to Evidence Code section
1240, “Evidence of a statement is not made inadmissible by the hearsay rule if
the statement:  [¶]  (a)  Purports to narrate, describe, or explain an
act, condition, or event perceived by the declarant; and  [¶]  (b)
 Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.”  “‘“To render [statements] admissible [under
the spontaneous declaration exception] it is required that (1)  there must be some occurrence startling enough
to produce this nervous excitement and render the utterance spontaneous and
unreflecting; (2)  the utterance must
have been before there has been time to contrive and misrepresent, i.e., while
the nervous excitement may be supposed still to dominate and the reflective
powers to be yet in abeyance; and (3)  the utterance must relate to the circumstance
of the occurrence preceding it.”  [Citations.]’
 [Citation.]”  (People
v. Thomas (2011) 51 Cal.4th 449, 495 (Thomas).)
 â€œâ€˜Such declarations are admissible only
when they are “ ‘made at a time when there was no motive to deceive.’”’  [Citation.]” 
(People v. Ervine (2009) 47
Cal.4th 745, 779.)  “‘Whether the
requirements of the spontaneous statement exception are satisfied in any given
case is, in general, largely a question of fact.  [Citation.]  The determination of the question is vested in
the court, not the jury.  [Citation.] . .
.  [Citation.]’”  (Thomas,
supra, at p. 495.)  “‘[T]he discretion of the trial court is at
its broadest’ when it determines whether an utterance was made while the
declarant was still in a state of nervous excitement.”  (Id.
at p. 496.)

            During defendant’s first trial,
Officer Justin Korte testified that he handcuffed defendant and accompanied him
to the hospital.  The trial court held an
Evidence Code section 402 hearing regarding admission of statements defendant
made to Officer Korte during that time.  Officer
Korte stated that some time after they arrived at the hospital, defendant said
that he had been robbed and “they” were jealous of him.  The officer could not recall if defendant had
been drugged or treated at that time but did recall the statement was made
after some time had passed at the hospital.  Defense counsel requested the statement be
admitted as a spontaneous statement.  Judge
Rand Rubin, who presided over the first trial, excluded the evidence, finding
insufficient evidence that defendant made the statement while under the stress of
the event, or that the statement purported to describe the shooting, rather
than events that occurred before the shooting.

            During Officer Korte’s testimony in the
second trial, defense counsel again requested the statement be admitted as a
spontaneous statement.  No further
evidence was offered.  The trial court
agreed with the reasoning of the prior trial judge and excluded the evidence as
self-serving hearsay.

            Defendant contends the trial court
abused its discretion and violated his federal constitutional rights in
excluding the evidence.  He argues the
statement was admissible both as a spontaneous statement (Evid. Code, § 1240)
and as state of mind evidence (id., § 1250).

            Defendant failed to object to the exclusion
of the statement on constitutional grounds or as state of mind evidence and has
therefore forfeited those arguments.  (See,
e.g., People v. Pearson (2013) 56
Cal.4th 393, 470, fn. 10 [failure to articulate state of mind as theory of
admissibility forfeited argument on appeal].) 
Additionally, defendant’s constitutional argument is forfeited because
he did not support his assertion with substantive argument.  (People
v. Hovarter (2008) 44 Cal.4th 983, 1010 [“The ‘routine application of state
evidentiary law does not implicate [a] defendant’s constitutional rights.’  [Citation.]  As defendant provides no elaboration or
separate argument for these constitutional claims, we decline to address
further these boilerplate contentions.”].) 


            With respect to defendant’s
contention that the statement should have been admitted as a spontaneous
statement under Evidence Code section 1240, the trial court did not abuse its
discretion.  As the prosecution aptly argued
at the Evidence Code section 402 hearing, defendant made the statement
after waiting in the emergency room for a while with Officer Korte.  Prior to making the statement, he had engaged
in a car chase, discarded his weapon, been arrested, and been taken to the
hospital in an ambulance.  The facts
support the trial court’s determination that the statement was not spontaneous
because defendant had ample time for reflection and a motive to deceive. 

 

Cumulative Error

 

            Finally, defendant contends that cumulative
errors at trial deprived him of due process. 
As we have concluded that the trial court did not err, the contention
necessarily fails.  (See >People v. Hines (1997) 15 Cal.4th 997,
1062.)

 

>DISPOSITION

 

            The judgment is affirmed.

 

 

                        KRIEGLER, J.

 

 

We
concur:

 

 

                        TURNER, P. J.

 

 

                        MOSK, J.