Monterey County Superior Court Ct. No. SS111585, Hon. Julie R. Culver, Trial Judge.
[Copyrighted Material Omitted]
Patrick McKenna, Under Appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon and Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent.
By way of an information filed on December 20, 2011, the Monterey County District Attorney charged Gabriel Antonio Martinez (appellant) with one count of murder (Pen. Code, § 12022.7, count one, victim Lisa Groveman), one count of involuntary manslaughter (Pen. Code, § 192, subd. (b), count two, victim Lisa Groveman), and three counts of selling, transporting, or furnishing a controlled substance (hereafter furnishing). (Health & Saf. Code, § 11352, subd. (a), count three methadone, count four, hydrocodone, and count five methadone.) Attached to both count three, and count four, was a personal infliction of great bodily injury (GBI) enhancement (Pen. Code, § 12022.7) for victim Lisa Groveman.
Before trial, appellant waived his right to a jury trial in return for the prosecution's agreement to dismiss count one (murder) and a stipulated sentence of no more than 11 years, eight months in state prison if the court found him guilty; the parties agreed that appellant could be sentenced on only one of the GBI enhancements since the two counts to which the GBI enhancements attached related to one victim. Appellant agreed to waive his Penal Code section 654 rights as to sentencing on the involuntary manslaughter count and GBI enhancements; and the parties waived any confrontation clause and hearsay objections as to two witnesses, Lejla Mavris and Thorston Hoffman.
On January 25, 2013, the court found appellant guilty of involuntary manslaughter and three counts of furnishing a controlled substance; the court found true the GBI enhancement attached to two of the furnishing counts—counts three and four. On February 26, 2013, the court sentenced appellant to a prison term of 11 years, eight months—the upper term of five years on count three (furnishing methadone to Ms. Groveman), with three years for the GBI enhancement, plus consecutive terms of one year four months for counts four and five (furnishing hydrocodone to Ms. Groveman and methadone to Lejla Mavris) and a consecutive one-year term for count two (manslaughter). The court imposed various fines and fees including, as relevant to this appeal, a $12, 320 restitution fund fine imposed pursuant to Penal Code section 1202.4.
Appellant filed a timely notice of appeal.
On appeal, appellant's main contention is that as a matter of law the GBI enhancement cannot attach to the furnishing charge in count three; and that there was insufficient evidence to support the GBI enhancement. Second, appellant argues that the evidence was insufficient to support the verdict as to count five—furnishing methadone to Leija Mavris. Finally, appellant asserts that his trial counsel was ineffective in failing to object to the restitution fund fine since the court set the fine at an amount that was not applicable to conduct occurring in June 2011; and the fine is set above the statutorily authorized maximum. For reasons that follow we agree with appellant that the restitution fine must be modified, but as so modified we affirm the judgment.
Facts and Proceedings Below
In accordance with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103].)
At approximately 11:12 a.m. on June 10, 2011, Officer Shaumbe Wright was sitting in his patrol car when appellant approached him. Appellant told Officer Wright that he thought " 'this girl over there is dead. Somebody needs to check.' " Appellant explained to Officer Wright that he did not know the girl; however, he went on to say that he and the girl had "gone out last night" and even though he was married they "hooked up." When Officer Wright asked how he knew the girl was dead, appellant said he found "stuff" oozing out of her mouth.
After appellant indicated which apartment the girl was in, Officer Wright knocked on the door, but there was no answer. The door was unlocked; when Officer Wright called inside no one answered. The officer entered the apartment and went to the bedroom where he saw a woman, later identified as Lisa Groveman, lying on her right side with her eyes open. She had some discoloration in her right jaw area and appeared to the officer to be deceased; Officer Wright could not find a pulse. According to Officer Wright, Ms. Groveman's body felt stiff and her lips were a different color. The officer did not see any fluid flowing from her mouth. When paramedics arrived and checked Ms. Groveman's condition they pronounced her dead.
At the scene, Officer Wright asked appellant if he would be willing to answer some questions and appellant responded that he was willing so to do. One of the questions that Officer Wright asked was if appellant had seen Ms. Groveman take any pills. Appellant said that he had seen her take pills at the restaurant where they met; this was before they came to the apartment. Appellant said that the pills were white and that he had given them to
Ms. Groveman; specifically, he said he had given her two 10-milligram methadone pills. Appellant told Officer Wright that he did not have any more pills. Appellant explained that he had met Ms. Groveman at Lalapalooza the evening of June 9, between 9:45 p.m. and 10:00 p.m. He talked with Ms. Groveman. Later, they met up at another bar called "Cibo's" at approximately 12:15 a.m. After meeting at Cibo's they went to Ms. Groveman's apartment and had sexual intercourse.
Appellant told Officer Wright that after intercourse, he and Ms. Groveman were sleeping and he noticed Ms. Groveman was " 'acting weird.' " He tried to wake Ms. Groveman, but she was "kind of groggy." Appellant said that he left the apartment at 8:00 a.m. He telephoned Ms. Groveman, but she did not answer her telephone. He returned to the apartment at 11:03 a.m. and knocked on the door. However, Ms. Groveman did not answer the door so he left; appellant explained that when he saw Officer Wright sitting in his patrol car he went back to the apartment. When he returned he opened the apartment door and went in. Appellant said he found Ms. Groveman on the bed, but he could not find a pulse; that is when he notified Officer Wright that possibly Ms. Groveman was dead.
After Ms. Groveman's body was discovered Detective Newby interviewed Lejla Mavris. Ms. Mavris said that she met her friend Lisa Groveman at Lalapalooza on June 9, 2011. Appellant approached the bar and began talking to them. When Ms. Mavris asked appellant if he was in the military, he responded that he was in "pharmaceuticals." Ms. Groveman asked appellant what kind of pharmaceuticals and appellant responded "methadone." Ms. Groveman expressed interest in getting methadone and appellant left to get some. Ms. Groveman and Ms. Mavris decided to leave Lalapalooza and go to another bar, Cibo's. Appellant met them there. Appellant took some pills from his pocket and gave them to Ms. Groveman. Ms. Mavris saw Ms. Groveman ingest three pills. Ms. Mavris said that Ms. Groveman offered her some pills, but she refused because she was not sure what it was that appellant was giving them. A few moments later, Ms. Groveman ingested two more pills, and the two additional pills that Ms. Groveman had tried to give to Ms. Mavris. Ms. Mavris said that Ms. Groveman took a total of seven pills, which Ms. Mavris thought were methadone; Ms. Mavris did not see appellant take any pills. Ms. Mavris tried to persuade Ms. Groveman to leave Cibo's, but Ms. Groveman refused to go and told Ms. Mavris not to judge her. Ms. Mavris left Cibo's with a friend—Ryan. Ryan offered to drive
Ms. Groveman home. According to Ms. Mavris she texted and telephoned Ms. Groveman several times to find out if she got home safely, but she never got a response.
Ryan Lama testified that he and another friend met Ms. Mavris and Ms. Groveman at Lalapalooza. Mr. Lama was close friends with Ms. Mavris; he met Ms. Groveman for the first time that evening. Mr. Lama said that the women finished three bottles of wine and possibly had a couple more drinks. They were happy and having a good time. By the end of the evening Ms. Groveman was intoxicated. Appellant started talking to Ms. Mavris and Ms. Groveman; Mr. Lama thought that appellant was intoxicated. After a couple of hours the group moved to Cibo's. They had another round of drinks there. Appellant and Ms. Groveman were talking, but although Mr. Lama could not hear what they were saying, he saw them passing drugs. Specifically, Mr. Lama said that he saw Ms. Groveman get some white pills from appellant and he thought that Ms. Groveman tried to give some to Ms. Mavris. Ms. Groveman put some pills in her mouth, possibly two pills. Mr. Lama decided to leave Cibo's at around 1:30 a.m. and offered to drive Ms. Groveman home, but she said she wished to remain and told Mr. Lama not to judge her. Mr. Lama testified that he was concerned the two women had had too much to drink. Mr. Lama left Cibo's with Ms. Mavris.
Peter Inzerillo, the bouncer at The Britannia Arms, testified that at one point Ms. Groveman tried to get into his bar, but because she appeared intoxicated he refused to let her in. He told Ms. Groveman that she had had enough to drink. Ms. Groveman told Mr. Inzerillo that she was only going with appellant because he had Vicodin. Mr. Inzerillo saw Ms. Groveman walk down the street with appellant; they were kissing and being affectionate.
The June 9, 2011 video surveillance footage from Cibo's was played for the court. The video showed appellant talking to Ms. Groveman and Ms. Mavris at the bar. At 12:10 a.m. appellant reached into his pocket and pulled something out. A few moments later Ms. Groveman ingested the something. Later, at approximately 31 minutes after midnight, Ms. Mavris and Ms. Groveman can be seen joining appellant who put his hand into his pocket and appeared to remove something. Ms. Groveman appeared to look down at the something then appeared to put the something in her mouth. Subsequently, Ms. Groveman and Ms. Mavris appeared to be discussing something, Ms. Mavris shakes her head; it appeared she handed something back to Ms. Groveman, who then placed something in her mouth again. Appellant was observing what was taking place between Ms. Groveman and
Ms. Mavris. At approximately 12:53 a.m. Mr. Lama and Ms. Mavris left the bar. At approximately 1:00 a.m. appellant and Ms. Groveman left the bar.
A videotape of appellant's two police interviews was played for the court. During the interviews, appellant told the police that he works for a company that returns expired drugs from pharmacies back to the manufacturer. He packages the drugs for shipment to the manufacturers. On June 9, 2011, he was in Monterey for work and was staying at a hotel.
Appellant explained that he went to Lalapalooza and saw Ms. Groveman with her friend. He went up to them and started talking. He and Ms. Groveman exchanged telephone numbers. They met up at Cibo's at approximately 12:15 a.m. Appellant said he had two drinks. Sometime after 1:00 a.m. appellant offered to take Ms. Groveman home—he felt he ought to drive because he had had only a couple of drinks, and so he drove Ms. Groveman's car to her apartment. Appellant admitted that he saw Ms. Groveman have several drinks over the course of the night; he could not estimate how many. At Ms. Groveman's apartment, they had sexual intercourse. Afterwards they were lying in bed and Ms. Groveman was mumbling and rambling; she was not making much sense. While she was sleeping she was making snorting sounds and breathing irregularly. Appellant said he tried to wake her, but she did not want to be bothered. He thought about calling 911, but she seemed to still be responsive and breathing on her own. At approximately 8:00 a.m. he told Ms. Groveman he was leaving and that he would telephone her. Earlier, he had dressed Ms. Groveman in her black top and pants. Ms. Groveman mumbled as he was leaving. She was drooling and perspiring. Appellant said that he placed her telephone next to her so she would hear it ring.
Appellant told the police that he went back to his hotel room and slept for a little while. At 10:30 a.m. he decided to go back to Ms. Groveman's apartment because he had tried telephoning her; he had left a voicemail. When he reached her apartment, he saw a police officer parked nearby. Appellant explained that he knocked on the door of Ms. Groveman's apartment, but after there was no response, he left. As he drove down the street he saw the officer again; he decided to turn around because of "intuition"—"something just didn't feel right." Appellant said that he knocked on the door of the apartment again, but then remembered that the door had been left unlocked. He walked in and saw Ms. Groveman lying on her back and side; her lips were purple. "Stuff" was coming out of her mouth. He tried to feel for her pulse.
Appellant told the police that Ms. Groveman had been drinking at the bars, that she asked him what he did for a living and if he had any drugs. When he left Lalapalooza he went to get drugs. Appellant admitted giving
Ms. Groveman two 10-milligram methadone pills at Cibo's, which Ms. Groveman ingested. Appellant said he gave Ms. Mavris two pills, he assumed she took them, but was not sure. Appellant said he had a total of six pills when he was at the bar; he had taken a couple of methadone pills earlier in the evening. Appellant explained that he was addicted to painkillers as a ...