IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
January 17, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEVEN HECTOR MARTINEZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF09-3843)
The opinion of the court was delivered by: Butz ,j.
P. v. Martinez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Steven Hector Martinez was convicted of battery with serious bodily injury. (Pen. Code, § 243, subd. (d).)*fn1 The trial court sustained allegations of two strikes, two serious felonies, and one prior prison term (§§ 667, subds. (a)(1), (d), (e)(2), 667.5, former subd. (b)) and sentenced defendant to 31 years to life in state prison.
On appeal, defendant contends: (1) there is insufficient evidence to support his conviction; (2) the admission of gang evidence violated his federal rights to due process and jury trial; (3) counsel was ineffective in failing to object to the gang evidence; (4) prosecutorial misconduct during closing argument; (5) ineffective assistance of counsel for failing to object to the alleged misconduct; (6) cumulative error; (7) it was an abuse of discretion to deny defendant's motion to dismiss one of the strikes; (8) the trial court miscalculated defendant's presentence conduct credits; and (9) the court should have struck one of the serious prior felony allegations. Agreeing with the last two contentions, we shall modify the award of custody credits, strike one of the serious felony allegations, and affirm the judgment as modified.
On the afternoon of April 18, 2009, Mario Tamayo was at Bistro 33 in Davis, celebrating UC Davis "Picnic Day" with friends. Tamayo was in the restaurant's patio, where he was "buzzing" after consuming three to four cocktails.
A fight broke out in the patio and progressed to outside the patio fence. Tamayo and his party moved out to the street to see the commotion. The fight broke up, and Tamayo asked one of the participants why they fought. As Tamayo walked back to the restaurant, a man came up from behind and punched him in the right eye, causing two orbital fractures. Tamayo could not describe his assailant at trial, but admitted telling the police the assailant was a Hispanic man with black baggy shorts or pants and a black Dickies brand shirt.
The assailant left the scene with three or four other men; Tamayo tried to follow but was bleeding very badly and never caught up. He later met police officers in a cul-de-sac with some people who looked like they were from his assailant's group. Tamayo, who was very upset, told an officer two of the people had been with his assailant, but testified he was not 100 percent sure at the time. Tamayo then identified defendant as the assailant in a show-up. Defendant was the only person in the police car when Tamayo identified him.
Brendan Goodman went to the Davis Picnic Day with his girlfriend and family on April 18, 2009. As he approached Bistro 33, Goodman heard a verbal altercation to his right, and then saw one man throw punches at another man. The incident took place during the afternoon on a sunny day. Goodman was about 25 feet away, and nothing obstructed his view of the attack.
According to Goodman, the assailant was a stocky Hispanic man with a lot of tattoos, a mustache, wearing a white tank top undershirt and darker pants. Goodman identified defendant as the assailant at trial.
Defendant was face-to-face with the victim when he struck the victim three times. The victim stumbled and grabbed his glasses after the assault, while defendant and three other men continued down G Street. Goodman then called the police and followed defendant's group, maintaining visual contact and describing their whereabouts to the police dispatcher.
Goodman did not break off the pursuit until a police officer contacted the men. He did not contact the officer because Goodman wanted to conceal his identity. Goodman later agreed to view the suspect at the police station, where he identified defendant as the assailant. He was absolutely certain when he made the identification at the police station, and remained certain about defendant's identity at trial.
On the day of the incident, Davis Police Officer Mike Munoz was dispatched to an assault at the intersection of Third and G Streets. Officer Davis received continuous updates from dispatch as he approached, and learned the assailant was part of a group of four Hispanic males. Dispatch told Officer Davis that one of the men wore a black tank top and white hat, another wore a gray hat, while a third man had a white tank top and tattoos.
Officer Davis saw one suspect entering a Goodwill store, and three other suspects exiting a car wash and crossing I Street. Defendant, who wore black shorts with a white tank top and was heavily tattooed, was in the group of three men exiting the car wash. Noting defendant closely fit a description given by dispatch, Officer Davis got out of his patrol car and asked the men to talk to him. They agreed, and Officer Davis eventually detained defendant and placed him in the back seat of the patrol car.
Tamayo soon came to the scene. Officer Davis observed that Tamayo was very upset, had cuts above and below his right eye, and smelled of alcohol. Tamayo told Officer Davis that two of the men were from his assailant's group. Officer Davis read a field admonishment to Tamayo and took him to the police car, where Tamayo identified defendant as his assailant. Tamayo said he was "real sure" that defendant was his assailant.
Officer Davis later talked to Goodman, who described the assailant as a Hispanic male with a white tank top and tattoos. Goodman agreed to participate at an identification through a one-way mirror at the police station. Officer Davis admonished Goodman regarding identifications, and Goodman identified defendant as the assailant. Officer Davis believed defendant was wearing handcuffs when Goodman identified him. Asked what he recognized about defendant, Goodman said that defendant was a Hispanic male with a mustache, tattoos on the upper arms and body, a narrow waist, white tank top, and black shorts.
I. Sufficiency of the Evidence
Defendant contends the identification testimony was insufficient as a matter of law to support his conviction. He is wrong.
"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Wallace (2008) 44 Cal.4th 1032, 1077.)
Defendant begins by asserting eyewitness testimony is generally unreliable. He notes that Tamayo was under the influence of alcohol when he identified defendant to the police. Also, defendant asserts the out-of-court identifications were made under questionable circumstances--defendant was alone in a police car when Tamayo identified him, and Goodman identified defendant, who was alone in a room, through a one-way mirror.
"'It is well settled in California that one witness, if believed by the [trier of fact], is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.'" (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)
Neither Tamayo's nor Goodman's identification of defendant was inherently improbable. Although Tamayo recently drank and smelled of alcohol when he made the identification, he did not otherwise appear intoxicated to Officer Davis. Defendant was not in a lineup when he was identified by Goodman or Tamayo, but both witnesses were admonished that they were not obligated to identify anyone and not to assume or guess anything about the suspect's involvement.
Goodman was only 25 feet away and had an unobstructed view as defendant hit Tamayo. Goodman then followed defendant and gave a detailed description of him to the dispatcher, which Goodman later reiterated to Officer Davis. Defendant clearly stood out to Officer Davis as the person described by the dispatcher. Goodman was certain of his identification at the police station and at trial. His identification of defendant, together with Tamayo's, is sufficient evidence to support defendant's conviction.
II. Gang References
Defendant asserts the trial court violated his rights to due process and jury trial by admitting references to defendant's gang membership.
Although the trial court granted defendant's in limine motion to exclude any reference to defendant's history of gang involvement, Tamayo's trial testimony contained incidental references to gangs. He referred to the people detained by the police, which included defendant, as "gangbangers." Later, when addressing his reluctance to testify due to fear for his safety, Tamayo said, "It's been around, so, yes, people like that, and they don't really man up. They do stupid [things]." Finally, when explaining how he could distinguish the men who were fighting from the rest of the crowd, Tamayo noted how he could "tell a group of gangbangers [from] your average college students."
Defendant contends these statements were admitted in violation of the trial court's exclusion order, and their admission was prejudicial. Defendant's failure to object at trial forfeits any contention that the testimony was improperly admitted. (Evid. Code, § 353; People v. Ervin (2000) 22 Cal.4th 48, 82.) Anticipating our ruling, defendant asserts trial counsel's failure to object to Tamayo's testimony constituted ineffective assistance of counsel.
To prevail on a claim of ineffective assistance, defendant must show that: (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693, 697-698].)
"The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on [direct] appeal." (People v. Frierson (1991) 53 Cal.3d 730, 749.) In addition, defendant was not prejudiced by trial counsel's failure to object. Tamayo made two brief, passing references to the participants in the street fight as "gangbangers." He made no direct reference to defendant being in a gang, or that defendant was a member of a particular gang. Tamayo did not describe the nature or characteristics of a gang or its members, nor was there testimony to suggest defendant belonged to a criminal street gang. Tamayo's other statement, that he was afraid to testify because people do stupid things, does not even make an indirect reference to defendant's alleged gang membership.
The evidence of defendant's guilt was compelling--defendant was identified by two eyewitnesses, whose respective identifications were largely consistent. Goodman gave a detailed description of the perpetrator to the 911 dispatcher. This description closely matched defendant, and allowed the police to find defendant soon after the crime was committed. The prosecution made no references to the gang testimony in its closing argument. The brief, general references to gangs did not prejudice defendant.
III. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct in the rebuttal argument by twice criticizing the defense for the "common ploy" it called "smoke and mirrors," and by asking the jury to "Convict [defendant] because he is definitely guilty."
Defendant did not object to any of the prosecutor's comments. To the extent that any of the comments were objectionable, we shall see they could easily have been cured by an admonition from the judge. Accordingly, defendant has forfeited his claims of prosecutorial misconduct. (People v. Huggins (2006) 38 Cal.4th 175, 205 (Huggins).) As with his gang evidence claim, defendant claims trial counsel's failure to object to the alleged misconduct was ineffective assistance of counsel. Not so.
On rebuttal, the prosecutor responded to defense counsel's closing argument as follows: "What we have with the defense case is a common ploy called smokey [sic] mirrors. My brother used to do this to me when I was little. What he would do is, 'Hey, look at this hand. Look over here and look over here,' and as soon as I would, he would smack me with the other one. As I grew up, I finally figured out what to do when my brother would say 'look over here, look over here.' You take a step back. Just like I'm asking you to do. You take a step back so you are out of the smoke. Out of the shine of what the defense is trying to do and you take a look at all of the evidence."
Later, when referring to defense arguments concerning inconsistent testimony over the color of a hat worn by a member of defendant's group, the prosecutor said, "I'll concede. If that hat was on trial here today, you would have to let the hat go free. That you couldn't convict the hat. However, step back from the smoke and mirrors. Step back from the person with his hand up who's about to smack you because this is [defendant's] trial. And in this trial, you have multiple eyewitnesses who watched what he did and what that was [was to] shatter Mario Tamayo's eye. So acquit the hat. That's fine. Let the hat go free. Convict [defendant] because he is definitely guilty."
References to counsel's argument as "smoke and mirrors" is not misconduct since it is a permissible comment on opposing counsel's arguments rather than a personal attack on counsel. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [prosecutor's statement that defense counsel's job was to "'create straw men'" and "'put up smoke, red herrings'" not misconduct]; People v. Stitely (2005) 35 Cal.4th 514, 559 [referring to defense counsel's argument as "'ridiculous'" and a "'legal smoke screen'" not misconduct].)
Nor did the prosecutor commit misconduct by asking the jury to convict defendant because he is "guilty." It "is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office[.]" (Huggins, supra, 38 Cal.4th at pp. 206-207.) Asking the jury to convict defendant because the evidence shows he is guilty does neither. (Id. at p. 207; People v. Brown (1981) 119 Cal.App.3d 116, 133.)
Since the prosecutor committed no misconduct, trial counsel was not required to raise a meritless objection. "Counsel's failure to make a futile or unmeritorious motion or request is not ineffective assistance." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
IV. Cumulative Error
Defendant contends the cumulative effect of the alleged trial errors was prejudicial. In this case, we have found no trial errors. Accordingly, we also reject the claim of cumulative error. (People v. Roybal (1998) 19 Cal.4th 481, 531.)
V. Section 1385 Motion
Defendant contends it was an abuse of discretion for the trial court to deny his motion to strike one of his two prior strike convictions in the interest of justice. (§ 1385.) We disagree.
A trial court may exercise its discretion under section 1385 to strike a finding that a prior conviction comes within the meaning of section 667, subdivision (d), if, and only if, a defendant can be "deemed outside the . . . spirit" of the statute, giving "preponderant weight" to inherent statutory factors (such as the background, character, and prospects of a defendant, as well as the nature and circumstances of the present and previous felony convictions) and ignoring any factors extrinsic to the statute (such as court congestion or antipathy to the sentencing consequences for the defendant). (People v. Williams (1998) 17 Cal.4th 148, 161.)
The burden is on defendant to demonstrate that the trial court's decision was irrational or arbitrary, rather than being one of alternative reasonable readings of the facts before the court. Defendant must overcome a "strong" presumption that a court's denial of a request to exercise discretion under section 1385 is proper. (People v. Carmony (2004) 33 Cal.4th 367, 377, 378.)
In 1996, defendant, a Sureno gang member, fired multiple shots from a semiautomatic pistol into a crowd of rival gang members, hitting a 16-year-old male and a 19-year-old male. Defendant pleaded no contest to two counts of assault with a semiautomatic firearm (§ 245, former subd. (b)) and was given six years of probation with 365 days of jail time and a suspended nine-year state prison sentence. Probation was terminated and the suspended prison term was executed when defendant later sustained a felony theft conviction in Colorado.
Defendant was disciplined in prison for five separate incidents of battery on another inmate or mutual combat, and one time for possession of a controlled substance and five syringes. Defendant committed the current offense three months after he was paroled from the strike convictions. While in jail awaiting trial in this case, defendant assaulted fellow prisoners on two separate occasions. At least one of the assaults was on a rival gang member.
Defendant asserts the trial court should have struck one of his prior strikes because: (1) both strike convictions arose out of the same incident; (2) he was given probation for the two strike convictions; and (3) his instant offense is neither a serious nor a violent felony.
A trial court may, but is not required to, exercise its discretion to strike a prior strike conviction where the prior strikes arise from a single incident with a single victim or a single act. (People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8; People v. Burgos (2004) 117 Cal.App.4th 1209, 1212, fn. 3, 1216.) Here, defendant's strike convictions involve two separate victims and more than one act--his repeatedly firing a handgun into a crowd of people. The initial grant of probation for defendant's strike convictions does not exempt them from the three strikes law. (§ 1170.12, subd. (b)(1).) Furthermore, defendant's current offense is a serious felony. (§ 1192.7, subd. (c)(8); People v. Moore (1992) 10 Cal.App.4th 1868, 1871.)
Defendant was given a break by getting probation following his conviction for two serious felonies. He has repaid society by committing a felony in another state, repeatedly engaging in violent acts in prison, and committing the current offense within three months of being given his freedom. He is the type of violent, career offender for whom the three strikes law was designed. It was not an abuse of discretion for the trial court to deny his section 1385 motion.
VI. Conduct Credits
On June 24, 2010, the trial court awarded defendant 423 days of custody credit and, pursuant to section 2933.1, 63 days of conduct credit. Defendant asserts he is entitled to additional conduct credit because he is not subject to the limitation in section 2933.1. The Attorney General concedes the point. We agree.
Section 2933.1 limits conduct credits to 15 percent for defendants who are currently or previously convicted of a violent felony under section 667.5. (§ 2933.1, subd. (a).) Neither defendant's conviction for battery with serious bodily injury (§ 243, subd. (d)) nor his prior convictions for assault with a semiautomatic firearm (§ 245, former subd. (b)) are violent felonies (§ 667.5, subd. (c)(1)-(23)).
Since defendant has a prior conviction for a serious felony, his conduct credits are calculated under section 4019. (§ 2933, former subd. (e)(3).) Therefore, defendant's custody credits are calculated "'by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody.'" (People v. Williams (2000) 79 Cal.App.4th 1157, 1175-1176, fn. 14.) Having served 423 days, defendant is entitled to 210 days of conduct credit. The abstract of judgment must be amended to reflect these numbers.
VII. Staying an Enhancement
The trial court stayed one of defendant's prior serious felony enhancements. Defendant and the Attorney General agree that the enhancement should have been stricken rather than stayed. They are correct.
Section 667, subdivision (a)(1) provides, in relevant part: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately."
Our Supreme Court held in In re Harris (1989) 49 Cal.3d 131 at page 136 that "the requirement in section 667 that the predicate charges must have been 'brought and tried separately' demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." Since defendant's two serious felony convictions arose from a single no contest plea, the trial court could impose only a single enhancement.
While the trial court correctly determined that defendant could receive but one enhancement, it erred in staying the other enhancement. The trial court is required to either impose or strike the enhancements. It does not have the authority to stay them. (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1123.) "The failure to impose or strike an enhancement is a legally unauthorized sentence[.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Since defendant could not be subject to both serious felony enhancements, we strike one of the enhancements. The abstract shall be modified accordingly.
The judgment is modified as follows: The award of conduct credits is modified to 210 days, for a total of 633 days of presentence credit, and one serious felony enhancement (§ 667, subd. (a)(1)) is stricken. As modified, the judgment is affirmed. The trial court is further directed to prepare an amended abstract of judgment to accurately reflect the foregoing and to forward a certified copy to the Department of Corrections and Rehabilitation.
HULL , Acting P.J. MURRAY ,J.