In re Martinez CA4/1 ( 2015 )

Filed 5/15/15 In re Martinez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re HECTOR MARTINEZ D066705
on (San Diego County
Super. Ct. No. SCD224457)
Habeas Corpus.
THE COURT:
Petition for habeas corpus. Petition denied.
Marilee Marshall & Associates and Marilee Marshall for Petitioner.
Kamala D. Harris, Attorney General, William M. Wood, Deputy Attorney
General, for Respondent.
This case is before us a second time. In the prior case (People v. Martinez et al.
(March 5, 2013, D058929) [nonpub. opn.] (Martinez I)), Hector Martinez and his
codefendant appealed, contending among other things that their first degree murder
convictions should be reversed because the trial court erred by failing to adequately
instruct the jury on the natural and probable consequences doctrine of liability for aiders
and abettors. Specifically, they argued the instruction "failed to correctly inform the jury
that [they were] guilty of premeditated murder only if the jury found that premeditated
murder, and not merely murder, was the natural and probable consequence of the target
crimes." We rejected that argument based on People v. Favor (2012) 54 Cal.4th 868,
876-880. Martinez appealed to the California Supreme Court, which denied his petition
for review without prejudice to any relief he might obtain under People v. Chiu (2014) 59
Cal.4th 155, 166 (Chiu), which holds that the natural and probable consequences rule
cannot be a basis for convicting a defendant of first degree murder.
Martinez filed this writ petition, arguing he is entitled to have his sentence reduced
to second degree murder under Chiu, supra, 59 Cal.4th 155.1 The People acknowledge
that we have jurisdiction to resolve this writ petition under Application of Hillery (1962)
202 Cal.App.2d 293, 294, but they argue we should remand the matter for the trial court
to resolve it in the first instance. We elect to exercise our jurisdiction to resolve the writ
petition. Because sufficient evidence supported Martinez's first degree murder conviction
under a direct aiding and abetting theory, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of our decision in Martinez I, which affirmed Martinez's
conviction for the first degree murder of Guillermo Esparza (Pen. Code,2 § 187, subd.
1 The parties do not dispute that Chiu is retroactive and applies to this case. The
decision changed the law by disapproving the use of the natural and probable
consequences theory as a basis to elevate murder to first rather than second degree. (See
In re Johnson (1970) 3 Cal.3d 404, 410-411 [retroactivity of decisions announcing a new
rule of law].)
2 All statutory references are to the Penal Code.
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(a)); assault of Esparza with a semi-automatic firearm (§ 245, subd. (b)(1)) and assault
with force likely to cause great bodily injury to Jimmy Parker (§ 245, subd. (a)(1)). The
jury found true allegations that each crime was committed for the benefit of, at the
direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1));
Martinez was vicariously armed with a firearm in the commission of the murder
(§ 12022, subd. (a)(1)); the codefendants were principals in the commission of the
murder; and a principal used a firearm and proximately caused great bodily injury and
death (§ 12022.53, subds. (d), (e)(1)). The trial court sentenced Martinez to a
determinate term of six years plus an indeterminate term of 50 years to life.3
3 In the trial court, Martinez moved for a modification of his sentence under section
1181, subdivision (6), arguing the evidence was insufficient to show he committed
murder; rather, at the most, it showed he had assaulted Parker. The People opposed
Martinez's motion, arguing sufficient evidence existed to sustain the first degree murder
conviction: "This murder was a cold[-]blooded, gang[-]motivated crime in which the
defendants seized the opportunity to represent themselves and their gang by committing
[a] violent crime that enhanced their and their gang's reputation. Under a simple aiding
and abetting theory, the People demonstrated that 1) [the codefendant] committed
murder, 2) [Martinez] knew [the codefendant] intended to commit murder, 3) before or
during the commission of the murder, [Martinez] intended to aid and abet [the
codefendant] in committing the murder, and 4) [Martinez's] words or actions did in fact
aid and abet [the codefendant's] commission of the murder. Indeed, the People argued [at
trial] that [the codefendant] and [Martinez] formed a murder team—each with a specific
role to play. Each defendant shared a gang, shared a motive to kill to enhance the gang's
reputation, shared common experience as gang members, worked in tandem to kill and
ran away from the scene together." The trial court agreed with the People: "Having
heard and considered the motion, and bearing in mind I presided over the jury trial in this
case, the motion is denied. And in denying the motion, I have weighed the merits of the
motion and I incorporate the People's response specifically as to the following: First of
all, the court is guided by a presumption in favor of the correctness of the verdict. [¶]
Second of all, there is sufficient credible evidence to sustain the verdict of first degree
murder, and the jury properly received and considered the evidence in this case. I find no
3
We summarize the facts set forth in Martinez I, supplementing it with expert
testimony from San Diego Police Department Detective Nestor Hernandez: Late in the
evening on August 20, 2009, the codefendant's girlfriend was with the codefendant and
Martinez when she saw the codefendant with a gun. She objected to his having a gun at
her house, and asked him to take the gun away. The codefendant, accompanied by
Martinez, left the house. But the codefendant had not disposed of the gun. A few hours
later, Martinez, the codefendant and his girlfriend were in her vehicle at a drive-thru
restaurant. She noticed a gun in the codefendant's lap. When she was driving home, the
codefendant suddenly told her to stop the vehicle. Martinez and the codefendant left the
vehicle and ran up to Jimmy Parker and Guillermo Esparza, who were walking down the
street. Martinez asked Parker, "Where are you from?" Parker mentioned the name of a
group that was not a gang, but rather engaged in tagging. Martinez punched Parker and
they fought. Parker heard the codefendant say, "This is Lomas," and the codefendant
shot Esparza, who died as a result. Martinez hit Parker once more after the gunshot was
fired. Immediately afterwards, Martinez and the codefendant ran from the crime scene.
Detective Hernandez testified that Martinez and his codefendant were documented
Lomas gang members. According to the detective, gang members commonly carried
weapons when preparing to assault someone or enter rival gang territory, and by being
armed they showed their fellow gang members their willingness to commit violence to
defend themselves or the gang. Detective Hernandez stated that when gang members
basis in law or fact where I could exercise my discretion and either reduce the verdict or
set aside the verdict."
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approached someone and asked, "where are you from," that aggressive question set up a
challenge that usually ended with the questioner attacking the other person. Detective
Hernandez stated gang members were expected to support one another: "If you are a
companion or your gang associate or your gang member friend hit someone up and asks
where they are from, or is challenged or do the challenging, they have to back up their
gang associate or gang member friend, irregardless, for not only representation for
themselves . . . but the gang itself, and if they don't, then there is severe retaliation or
severe repercussions on that person who doesn't participate."
The prosecutor asked Detective Hernandez: "If . . . a Lomas gang member were to
issue a gang challenge and engage in an assault with other Lomas gang members and
some of those others had any kind of weapon, would there be an expectation for the
person who has the weapon to use it in the confrontation?" Detective Hernandez replied
in the affirmative. The prosecutor posed a hypothetical based on the facts of this case,
asking what would happen if two Lomas gang members approached perceived rivals,
issued a gang challenge, received the reply that the perceived rival belonged to a tagging
group, and the Lomas members simply walked away. Detective Hernandez responded
that those individual gang members—and by extension the Lomas gang itself—would be
perceived as weak in the eyes of the tagging group and rival gangs.
Detective Hernandez testified gang members value "respect," which they purport
to gain by "committing more acts of violence, more crimes, being involved with more
confrontations with other gang members, expressing that or relaying that to the other
active gang members themselves, not only that you are trying to up the status—your own
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status within the gang, but also up the status of the specific gang as to how it reflects on
rival gang members."
The court instructed the jury with CALCRIM Nos. 400 and 401 regarding aiding
and abetting, and with CALCRIM No. 403 regarding the natural and probable cause
doctrine.4
DISCUSSION
"Both aiders and abettors and direct perpetrators are principals in the commission
of a crime." (People v. Calhoun (2007) 40 Cal.4th 398, 402; § 31.) "[A]iding and
abetting is one means under which derivative liability for the commission of a criminal
offense is imposed. It is not a separate criminal offense." (People v. Francisco (1994) 22
Cal.App.4th 1180, 1190.) "There are two distinct forms of culpability for aiders and
abettors. 'First, an aider and abettor with the necessary mental state is guilty of the
intended crime. Second, under the natural and probable consequences doctrine, an aider
and abettor is guilty not only of the intended crime, but also "for any other offense that
was a 'natural and probable consequence' of the crime aided and abetted." ' " (Chiu,
supra, 59 Cal.4th at p. 158.)
4 During deliberations, the jury sent the court a note stating: "Clarification Request
on description of [CALCRIM No.] 401[,] Aiding and Abetting: Point # 2 says: 'The
defendant knew that the perpetrator intended to commit the crime[.]' What is meant by
'the crime?' Did aider and abettor have to know or even expect the possibility that it will
be murder ([as charged in] count #1)? Or does it mean any crime?" The court replied
that " 'the crime' refers to any crime the defendant(s) are on trial for." Regarding aiding
and abetting, the court replied, "This is what the jury has to decide. Refer to [CALCRIM
Nos.] 400, 401 and 403, read together." The court added, " '[A]ny crime' means any
crime the defendants are on trial for."
6
Chiu holds : "[P]unishment for second degree murder is commensurate with a
defendant's culpability for aiding and abetting a target crime that would naturally,
probably, and foreseeably result in a murder under the natural and probable consequences
doctrine. . . . [W]here the direct perpetrator is guilty of first degree premeditated murder,
the legitimate public policy considerations of deterrence and culpability would not be
served by allowing a defendant to be convicted of that greater offense under the natural
and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at p. 166.)
Chiu explains: "First degree murder, like second degree murder, is the unlawful
killing of a human being with malice aforethought, but has the additional elements of
willfulness, premeditation, and deliberation which trigger a heightened penalty.
[Citation.] That mental state is uniquely subjective and personal. It requires more than a
showing of intent to kill; the killer must act deliberately, carefully weighing the
considerations for and against a choice to kill before he or she completes the acts that
caused the death." (Chiu, supra, 59 Cal.4th at p. 166.)
"When a trial court instructs a jury on two theories of guilt, one of which was
legally correct and one legally incorrect, reversal is required unless there is a basis in the
record to find that the verdict was based on a valid ground." (Chiu, supra, 59 Cal.4th at
p. 167.) Thus, a defendant's "first degree murder conviction must be reversed unless we
conclude beyond a reasonable doubt that the jury based its verdict on the legally valid
theory that defendant directly aided and abetted the premeditated murder." (Ibid.) Under
those principles, the prosecution must show that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the perpetrator and
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with the intent or purpose of committing, encouraging, or facilitating its commission.
(Id. at p. 167.)
As noted, the jury here was instructed regarding aiding and abetting principles.
Applying those principles, we conclude sufficient evidence supports Martinez's first
degree murder conviction. We reiterate what we stated in Martinez I: "Here, [Martinez]
was the aider and abettor, but he initiated the attack by asking which gang the victims
belonged to, and swung and hit Parker. Even after approximately four minutes of
fighting, [Martinez] did not manage to overcome Parker's resistance. Afterwards, [the
codefendant] fired one shot. [Martinez], undeterred by the gunshot, subsequently took
another swing at Parker. It was not until [the codefendant] fired two more shots that
[Martinez and the codefendant] ran away. This evidence offers no indication that the
murder was anything other than willful, deliberate and premeditated."
Chiu, supra, 59 Cal.4th 155, does not alter that conclusion, particularly as we
bolster our analysis with expert testimony relating to the jury's true finding that Martinez
committed the murder for the benefit of, at the direction of, and in association with a
criminal street gang. The jury reasonably could conclude Martinez was aware the
codefendant carried a gun in the vehicle because he was aware the codefendant had it
earlier, and after the girlfriend had told the codefendant to remove it from her house,
Martinez accompanied the codefendant who had promised to dispose of it. Further, the
gang expert's testimony provided the jury with a basis to find that Martinez likely was
emboldened to challenge Parker and Esparza—by asking them where they were from—
precisely because Martinez knew the codefendant was carrying a gun and Martinez relied
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on his codefendant's support as he attacked the others. Further, Martinez's use of
violence would enhance the respect he received within the gang and for the gang among
rival gangs. Lastly, Martinez encouraged and facilitated the first degree murder by
attacking Parker, thus simultaneously preventing Parker from defending Esparza, and
freeing up the codefendant to focus exclusively on Esparza, which the codefendant did by
shooting and killing him. Accordingly, we conclude that on this record, any instructional
error concerning the natural and probable consequences doctrine was harmless even
under the higher standard set forth in Chapman v. California (1967) 386 U.S. 18, 22-24.
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DISPOSITION
The writ petition is denied.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.
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