Filed 10/17/17 P. v. Martinez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Guillermo Antonio Martinez, guilty of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 189, 664),[1] and two counts of robbery (§ 211).[2] The jury found true the allegations that (1) defendant personally used a firearm during the attempted murder and one count of robbery (§ 12022.53, subd. (b)); (2) defendant personally and intentionally discharged a firearm during the attempted murder and one count of robbery (§ 12022.53, subd. (c)); (3) defendant personally and intentionally discharged a firearm and proximately caused great bodily injury during the attempted murder (§ 12022.53, subd. (d)); and (4) defendant personally used a firearm during one count of robbery (§ 12022.5, subd. (a)). The trial court sentenced defendant to prison for a determinate term of 10 years and a consecutive indeterminate term of 40 years to life.

Defendant raises four issues on appeal. First, defendant contends the trial court erred by failing to instruct the jury on unanimity in relation to premeditation. Second, defendant contends the prosecutor erred by misstating the law of premeditation. Third, defendant contends his trial counsel was ineffective for failing to object to the alleged prosecutorial error. Fourth, defendant asserts the cumulative effect of the foregoing alleged errors requires the attempted murder conviction be reversed. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. DEFENDANT’S CRIMES

On December 12, 2013, at approximately 1:29 a.m., Vincent Laflin was walking home from work, near the Fontana Metrolink station. Defendant asked Laflin to tell him the time. Laflin looked at his cell phone. Defendant pointed a gun at Laflin. Laflin asked, “‘Are you for real?’” Defendant said, “‘Yes.’” Laflin gave defendant his cell phone. Defendant demanded Laflin empty his pockets. Defendant took Laflin’s iPod.

On January 12, 2014, at approximately 1:55 a.m., Roscoe Morris was at the Fontana Metrolink station. Morris had a backpack and suitcase with him; the backpack was next to Morris. Morris looked up and defendant was in front of him pointing a gun. Defendant said, “‘Run, you shit fool.’” Morris told defendant that he had nothing of value. Defendant fired the gun between Morris’s legs. Morris gave defendant his backpack. Morris’s cell phone and money were in the backpack thus defendant took Morris’s cell phone.

Also on January 12, 2014, at approximately 1:55 a.m., John Doe was at the Fontana Metrolink station. Doe was 16 years old. Doe was with his father (Father) and brother (Brother). Doe and Brother had accompanied Father to work in Los Angeles, and returned via the Metrolink to Fontana. When they arrived, they discovered their car battery had died due to the lights being left on. Doe, Brother, and Father waited outside their car, at the Metrolink station, for Father’s friend to arrive.

Father went into the station to use the restroom. Defendant approached Doe and asked Doe to tell him the time. Doe’s telephone battery had died, so he looked to Brother and asked for the time. When Doe looked back toward defendant, defendant was pointing a gun at Doe’s chest. Defendant said, “‘It’s time to give me all your stuff.’” Doe said, “‘Hey, man, your gun is fake, man. Just get out of here.’”

Defendant responded, “‘Okay, you think it’s fake.’” Defendant shot the gun toward Father, who was returning to the car. Defendant then shot the gun toward Brother, and then shot the gun toward the ground. Defendant aimed the gun at Doe’s chest and pulled the trigger, but the gun jammed. Defendant pulled the trigger a second time while pointing the gun at Doe’s chest, but the gun was still jammed.

Defendant put the gun in his pocket and ran away. Doe chased after defendant. After approximately 15 feet, Doe caught defendant. Doe placed defendant in a chokehold and brought him to the ground; however, defendant ended up on top of Doe. Defendant removed the gun from his pocket and pointed it at Doe’s chest. Brother pulled defendant by his legs, to try to remove defendant from Doe. Defendant shot Doe in the chest.

Doe struggled to get defendant off of him. Defendant pointed the gun at Doe’s head. Father grabbed defendant’s hand and tried to take the gun away from defendant. Defendant shot Doe in the neck. Doe stopped struggling. Defendant stood up and said he “had something for [them]. That he lived right across the street and that he was going to come back either with another gun or something to “get [them] all back for what [they] had done to him.” Defendant left.

Morris saw Doe lying on the ground. Morris called 911. An ambulance arrived and took Doe to the hospital. Doe stayed in the hospital for approximately four days. A bullet remains lodged in Doe’s neck.

B. CLOSING ARGUMENT

When the prosecutor made his closing argument regarding attempted murder, the prosecutor cited as evidence (1) defendant aiming the gun at Doe’s chest, pulling the trigger, and the gun jamming; (2) defendant shooting Doe’s chest during the struggle; (3) defendant pointing the gun at Doe’s head during the struggle; and (4) defendant shooting Doe’s neck.

In regard to premeditation and deliberation, the prosecutor argued the same foregoing four acts supported the finding. The prosecutor argued, “The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. [¶] What that means is it doesn’t need to be minutes, hours, thinking about should I kill him, should I not? You run a yellow light. Your actions are quick. You think about it. You make a decision quick. We asked you to use your common sense when you became jurors in this case. That’s where your common sense will come into play in all these instructions, but here as well. Based on the facts that were presented to you, does it prove that the defendant deliberated, made a willful action, premeditated?

“His actions speak for themselves. He points the gun at [Doe’s] chest, tries to shoot him, gun doesn’t go off. During the fight, he puts the gun [sic], takes it out, puts it on [Doe’s] chest. After he shoots him, he moved it to [Doe’s] head. This isn’t a situation where the defendant is just waving the gun around taking potshots. He put the gun to [Doe’s] chest and then his head, attempting to kill him. [¶] Also, with willful and deliberate [sic] and premeditation. Easiest one. Defendant acted with express malice if he unlawfully intended to kill. He put it to the chest, put it to the head, and he tried to kill [Doe]. And, again, but for [Father’s] action, [Doe] would likely be dead.”

C. JURY INSTRUCTIONS

The trial court instructed the jury on the union of act and intent. The trial court explained, “For you to find a person guilty of these crimes or to find the allegations true, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state.” (CALCRIM No. 252.)

The trial court also instructed the jury on premeditation and deliberation. The trial court explained, “The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.” (CALCRIM No. 601.)

The trial court also instructed the jury on attempted voluntary manslaughter. (CALCRIM No. 603.) The trial court informed the jury that the verdict must be unanimous. (CALCRIM No. 3550.) However, the court did not instruct the jury on unanimity related to a particular act when the prosecutor has presented evidence of multiple acts. (CALCRIM No. 3500.)

D. CONVICTIONS

The jury found defendant guilty of the attempted murder of Doe, robbery of Morris, and robbery of Laflin.

DISCUSSION

A. UNANIMITY INSTRUCTION

Defendant contends the trial court erred by not instructing the jury on the law of unanimity. (CALCRIM No. 3500.) The focus of defendant’s argument is the jury’s premeditation finding. Defendant asserts there were two separate acts: (1) defendant pointing the gun at Doe’s chest, pulling the trigger, and the gun jamming; and (2) defendant shooting Doe in the chest and neck during the struggle. Defendant notes the prosecutor relied on both acts when arguing premeditation. Defendant asserts that because the prosecutor relied on both acts, the trial court needed to instruct the jury on unanimity in relation to premeditation.

We apply the de novo standard when reviewing alleged instructional errors. (People v. Jandres (2014) 226 Cal.App.4th 340, 358.) The unanimity instruction provides, “The People have presented evidence of more than one act to prove that the defendant committed this offense.” (CALCRIM No. 3500.) The offense at issue, in relation to Doe, is attempted murder. Deliberation and premeditation are mental states. (People v. Castillo (1997) 16 Cal.4th 1009, 1016-1017.) Because deliberation and premeditation are mental states, not offenses or acts, we conclude the trial court did not err by not instructing the jury on unanimity in relation to deliberation and premeditation. (People v. Taylor (2010) 48 Cal.4th 574, 627-628.)

Next, to the extent defendant intended to argue a unanimity instruction should have been given in relation to the offense of attempted murder, we will address that issue. “A unanimity instruction is not required where the offenses are so closely connected [that they] form a single transaction.” (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)

Defendant pointed the gun at Doe’s chest, pulled the trigger, the gun jammed, defendant ran 15 feet, he was caught by Doe, they went down to the ground, defendant was on top of Doe, defendant shot Doe in the chest, defendant pointed the gun at Doe’s head, defendant struggled with Father over the gun, and defendant shot Doe in the neck.

The evidence reflects defendant’s acts are not separated. All of defendant’s acts occurred during a single incident, within a space of 15 feet, without any lengthy breaks between the acts. The acts were sufficiently close in time and space as to constitute a single transaction. Accordingly, a unanimity instruction was not required.

B. PROSECUTORIAL ERROR

Defendant contends the prosecutor erred by misstating the law of premeditation and deliberation.[3] In particular, defendant asserts the prosecutor erred by saying, “What that means is it doesn’t need to be minutes, hours, thinking about should I kill him, should I not? You run a yellow light. Your actions are quick. You think about it. You make a decision quick.”

It is misconduct for a prosecutor to misstate the applicable law. (People v. Gray (2005) 37 Cal.4th 168, 217.) “When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘“the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’” (People v. Thompson (2010) 49 Cal.4th 79, 121.)

Premeditation and deliberation are not dependent on a particular amount of time passing. Premeditation and deliberation can happen quickly. As our Supreme Court has explained, “Premeditation and deliberation do not require much time [citation], for ‘“[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.”’” (People v. Lenart (2004) 32 Cal.4th 1107, 1127; see also People v. Mendoza (2011) 52 Cal.4th 1056, 1072-1074.) The prosecutor argued that premeditation and deliberation can happen quickly. That is an accurate statement of the law. Accordingly, we are not persuaded that the prosecutor erred.

Defendant contends the prosecutor’s yellow light example trivialized the thought process that is required for premeditation and deliberation by equating premeditation and deliberation with a mundane activity. The prosecutor was not arguing about the thought process when giving the yellow light example—he was arguing about the duration of the thoughts. In regard to the thought process, the prosecutor said, “Defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.”

By contrast, the prosecutor was arguing about the duration of the thoughts when giving the yellow light example. The prosecutor said, “The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. [¶] What that means is it doesn’t need to be minutes, hours, thinking about should I kill him, should I not? You run a yellow light. Your actions are quick. You think about it. You make a decision quick.”

Thus, the prosecutor informed the jury that the thought process must involve a careful weighing of the various considerations, but that such a process could occur quickly. Accordingly, we are not persuaded that the prosecutor trivialized the deliberation process. (See generally People v. Avila (2009) 46 Cal.4th 680, 715 [yellow light example given in premeditation argument].)

Next, defendant contends the prosecutor erred in applying the law to the facts. Defendant contends the prosecutor equated premeditation and deliberation with an intent to kill by arguing that premeditation and deliberation were proven by evidence that (1) defendant aimed the gun at Doe’s chest, pulled the trigger, and then the gun jammed; (2) defendant shot Doe’s chest during the struggle; (3) defendant pointed the gun at Doe’s head during the struggle; and (4) defendant shot Doe in the neck.

The prosecutor’s application of the law to the facts was weak. The prosecutor argued that defendant premeditated and deliberated while performing the acts that constituted the attempted murder. A better argument would have been that defendant premeditated and deliberated while shooting at Father, Brother and the ground. This argument would place the premeditation and deliberation before the acts that constituted the attempted murder. (See People v. Thomas (1945) 25 Cal.2d 880, 900 [deliberation and premeditation must precede homicidal conduct].) However, we are provided no law reflecting a weak argument constitutes prosecutorial misconduct.

Nevertheless, we will examine if it is likely the jury applied the prosecutor’s remarks in an objectionable fashion. When the trial court instructed the jury on the law of premeditation and deliberation, it told the jury, “The defendant premeditated if he decided to kill before acting.” (CALCRIM No. 601.) The court’s instruction was correct: it explained that the premeditation had to precede defendant’s act of attempted murder. (People v. Thomas, supra, 25 Cal.2d at p. 900.)

Given that the jury was correctly instructed on the law, i.e., premeditation must occur before the acts constituting attempted murder, it is likely the jury found the prosecutor’s application of law to the facts to be confusing and therefore disregarded the prosecutor’s argument on this topic.

The jury could reasonably conclude defendant premediated and deliberated when shooting at the ground, Father and Brother. After shooting in other directions, defendant chose to aim the gun at Doe’s chest, rather than shoot at a non-lethal place, indicating defendant had decided to kill Doe during the time that he was shooting in other directions. Earlier that night, defendant shot between Morris’s legs, which indicates defendant knew how to fire the gun in a manner that would scare, but not potentially kill, a victim. Therefore, when defendant aimed at Doe’s chest after firing three rounds in other directions, there was circumstantial evidence that defendant had reflected upon killing Doe and decided to kill Doe while firing the other three shots.

In sum, the prosecutor made a weak argument, which was confusing, and thus there is not a reasonable likelihood the jury applied the prosecutor’s remarks in an objectionable fashion. Moreover, the jury was correctly instructed on the law, and there is evidence to support the jury’s finding of premeditation and deliberation. Therefore, we conclude there is not a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (See People v. Proctor (1992) 4 Cal.4th 499, 544-545 [not reasonably likely that a properly instructed jury misapplied prosecutor’s alleged erroneous remarks].)

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends his trial counsel was ineffective for failing to object to the foregoing alleged acts of prosecutorial error, i.e., the alleged misstatement of law and the poor application of the law to the facts.

“‘“n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof.”’” ([i]People v. Weaver (2001) 26 Cal.4th 876, 925.)

As explained ante, the prosecutor did not misstate the law. Defense counsel could reasonably choose to not object to the prosecutor’s application of the law to the facts because the prosecutor’s argument was weak. If defendant objected, the prosecutor may have realized that he was making a poor argument and found a means of making a better argument, such as the one set forth ante that reflects the premeditation and deliberation occurred before the attempted murder. Defendant’s trial counsel’s failure to object could have been a tactical decision to permit a weak prosecution argument to be presented to the jury, rather than assist the prosecutor in making a stronger argument. Accordingly, it has not been demonstrated that defense counsel’s performance fell below an objective standard of reasonableness.

D. CUMULATIVE EFFECTS

Defendant contends the cumulative effect of the foregoing alleged errors requires the attempted murder conviction be reversed. We have found no errors and therefore have nothing to cumulate. Thus, there is no cumulative prejudice. (People v. Grimes (2016) 1 Cal.5th 698, 737.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.