(Super. Ct. No. SF115085B)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jose Cesar Martinez was convicted of assault with a deadly weapon. The jury also found that defendant personally used a dangerous or deadly weapon and personally inflicted great bodily injury on the victim. The trial court sentenced him to five years in prison.
Defendant contends on appeal that (1) in responding to a question from the jury during deliberations, the trial court unfairly commented on the evidence, and (2) the enhancement for personally using a dangerous or deadly weapon should be stricken. The Attorney General agrees that the weapons enhancement should be stricken.
We conclude (1) the trial court's response to the jury question was not a comment on the evidence but instead merely repeated portions of CALCRIM instructions that had already been given to the jury, and thus did not affect defendant's substantial rights; and (2) we agree with defendant and the Attorney General that the weapons enhancement should be stricken.
We will strike the weapons enhancement and affirm the judgment as modified.
Gerardo Morales, Jose Sanchez and Brijido Vargas went to Rubie's nightclub in Stockton on May 1, 2010. Morales testified that the three men left the nightclub after 1:00 a.m. within minutes of each other. When Morales left, he saw defendant and co-defendant Miguel Martinez*fn1 beating up Sanchez in a corner of the parking lot. Morales went to assist Sanchez, but defendant stood in front of Morales and pushed him.
Morales then saw defendant and Miguel Martinez hitting Vargas. Defendant punched Morales twice in the stomach when Morales attempted to help Vargas. Morales felt cold and began to lose consciousness. He saw blood and realized that he had been stabbed in his abdomen and ribcage.
Morales was transported to Lodi Memorial Hospital and treated for three stab wounds. He was hospitalized for nine days.
Vargas testified that he had previously seen defendant several times at Rubie's and the Flamingo nightclub. Defendant got upset one night when Vargas and defendant danced with the same woman. Vargas spoke to ...