Opinion
D059072 Super. Ct. No. SCN255316
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed.
A jury convicted Francisco Martinez of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and found true the special allegations that he personally used a knife (§ 12022, subd. (b)(1)), personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)), and personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). In a bifurcated proceeding, Martinez admitted he suffered a prior strike conviction (§ 667, subds. (b)-(i)), a prior serious felony conviction (§ 667, subd. (a)), and served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Martinez asserts the trial court abused its discretion, and denied him due process, by admitting into evidence certain photographs of the wounds suffered by the victim. He also asserts there was sentencing error because the court imposed but stayed execution of a term for his prior prison term enhancement; he argues the term should not have been imposed.
I
FACTUAL BACKGROUND
A. Prosecution Case
The victim, Stephanie Rivera (Stephanie), was dating Martinez and had begun a sexual relationship with him at the end of 2008. On January 3, 2009, Stephanie invited Martinez to join her at the home of Veronica Urrutia (Stephanie's friend) to watch a football game with Urrutia. Two others also watched the game with them: Cindy Soto (Urrutia's cousin) and Javier DeAnda (Martinez's friend). Everyone except Urrutia was drinking an alcoholic beverage, although Stephanie only had one drink, and everyone also consumed some marijuana. Martinez and DeAnda also took some pills. Stephanie was aware while watching the game that Martinez was upset with her.
DeAnda bragged to the women about being involved in a very recent hit-and-run accident in which he had hit a car but left the scene because he was intoxicated. Urrutia chastised him, saying he should have reported the accident to police and calling him an "idiot." Urrutia's comments appeared to upset DeAnda. DeAnda and Martinez spoke in low voices, and then left the room together before returning. Martinez later told Stephanie that Urrutia should not have spoken that way to Martinez's friend, and that Stephanie had "better shut [Urrutia] up," and Stephanie told Urrutia to be quiet because the things Urrutia was saying to DeAnda were not right.
At some point, Stephanie drove Martinez to the bank to get money. They argued in the car, and Martinez punched Stephanie's car radio and broke it. After they returned to Urrutia's house, Martinez tried to talk to Stephanie several times. She told him to leave her alone and that she did not think their relationship would work out.
After telling Martinez their relationship would not work out, Stephanie lay down on a mattress in the living room. Martinez and DeAnda sat on a couch in front of her while Soto and Urrutia went to the kitchen. Suddenly, and without saying anything, Martinez moved off the couch, went behind Stephanie, and stabbed her twice in the back and twice in the arm with a pocketknife. Soto and Urrutia heard Stephanie yell out, "What was that for?" and ran back into the room. They saw Martinez standing near the front door, hiding one hand behind his back, and Stephanie standing and grabbing her back while crying. DeAnda quickly stood up from the couch, and asked, "What's up homie? You done?" Martinez said nothing, but stared angrily at Stephanie for nearly a minute. Martinez and DeAnda then ran out the door.
After the men left, Stephanie told Soto and Urrutia that she had been stabbed. Urrutia ran outside after Martinez and DeAnda and saw them running down the street. Urrutia returned inside and called 911. Stephanie was treated at the hospital, where she received four staples in her upper arm, six staples in her lower arm, and seven staples in her back. The knife wounds were about one to one and one-half inches deep.
B. Defense
Martinez testified and denied stabbing Stephanie. He instead claimed DeAnda had stabbed Stephanie. Martinez testified that, on the night of the stabbing, he had not been drinking or using drugs. DeAnda had been drinking and became upset because Stephanie and her friends had joked about photographing him to turn him over to police in regard to the hit-and-run incident. He told Martinez that he (DeAnda) feared they were serious and wanted to stab them all. Martinez told him not to make trouble. However, shortly thereafter, DeAnda stabbed Stephanie while Martinez stood in front of her. Martinez grabbed the knife from DeAnda's hands to protect Stephanie from further injury. Martinez said he fled because there was an outstanding warrant for him and he feared being reimprisoned. He stayed in Mexico at an uncle's house for 10 months before turning himself in at the Tijuana port of entry. He admitted that, in 2007, he had pleaded guilty to a charge of inflicting corporal injury on a cohabitant and to a charge of making criminal threats.
ANALYSIS
A. Admission of the Photographs Was Not an Abuse of Discretion
Martinez contends that, under Evidence Code section 352, the court abused its discretion by admitting photographs of the wounds suffered by Stephanie.
Background
Martinez moved in limine to exclude numerous photographs depicting Stephanie's stab wounds that the prosecution proposed to introduce into evidence. Martinez moved to exclude the photographs under Evidence Code section 352 on the ground the photographs were gory, and he argued the prejudicial impact of the photographs clearly outweighed any probative value. After confirming the defense was not stipulating that the wounds suffered by Stephanie constituted great bodily injury within the meaning of sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (e), and that the prosecution was therefore required to prove those allegations, the court ruled that four of the five proffered photographs would be admitted into evidence. The court found the photographs "are not particularly prejudicial . . . [t]here isn't blood everywhere. They are very accurate depictions of the two stab wounds . . . . [¶] . . . [¶] In a case where the jury has to evaluate the nature and extent of her injuries and whether or not those injuries constitute great bodily injury, I think [the photographs] are necessary, and I don't find them to be overly prejudicial."
Analysis
Martinez asserts admission of the photographs was an abuse of discretion and deprived him of a fair trial because (1) Stephanie testified she was stabbed and received staples to treat the injuries, and (2) the treating physician testified the wounds on her back were one to one and one-half inches deep (which he characterized as "superficial") and the wounds to her arm were "full thickness" wounds that penetrated the skin and subcutaneous tissue into the triceps muscle "about an inch." Martinez argues the photographs were purely cumulative and served no purpose other than to inflame the jury.
"The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court's exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect." (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.)
We conclude the photographs were relevant to the issue of great bodily injury, and were admissible to assist the jurors in understanding the medical testimony about those injuries. (See People v. Roldan (2005) 35 Cal.4th 646, 713, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Cooks (1983) 141 Cal.App.3d 224, 311.) The defense expressly told the court it was not stipulating that the wounds constituted great bodily injury, and the photographs were germane to blunt a potential defense argument that the doctor's characterization of the wounds (e.g. as "superficial") and relatively de minimus treatment of those wounds demonstrated the wounds were minor in nature.
The doctor testified the wounds were cleansed and closed with staples, and Stephanie was released early that morning.
More importantly, even if the photographs were cumulative to the medical testimony, "this fact, even if true, does not demonstrate the trial court abused its broad discretion. '[P]rosecutors . . . are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case.' " (People v. Roldan, supra, 35 Cal.4th at p. 713.)
We have reviewed the photographs and, although they are unpleasant, they are not unduly shocking, gruesome, or inflammatory. The photographs are relatively clinical in appearance, contain almost no blood, and consist of close-up shots of the stab wounds on Stephanie's body. None of the photographs depicts Stephanie's face or entire body. "The record reflects that the experienced trial judge was well aware of [her] duty to weigh the prejudicial effect of the photographs against their probative value, and carefully did so." (People v. Ramirez (2006) 39 Cal.4th 398, 454.) The court did not abuse its discretion in admitting the photographs, and the admission of the photographs did not render the trial so fundamentally unfair as to deny Martinez due process.
B. The Sentence Was Proper
The information alleged, and Martinez admitted, that he suffered a prior serious felony conviction within the meaning of section 667, subdivision (a), and a prior prison term within the meaning of section 667.5, subdivision (b). The court's sentence included a five-year term for the section 667, subdivision (a), allegation and an imposed but stayed one-year term for the section 667.5, subdivision (b), allegation. Martinez argues this was error under People v. Jones (1993) 5 Cal.4th 1142, and that the proper sentence required the court to strike the one-year term for the section 667.5, subdivision (b), allegation.
In Jones, the defendant was sentenced to five years for a section 667, subdivision (a), enhancement, and to a one-year section 667.5, subdivision (b), enhancement, based on a prior conviction for a single serious felony and the resulting prior prison term for that felony. (People v. Jones, supra, 5 Cal.4th at p. 1145.) Jones concluded that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement—but only that one—will apply. Because the trial court in Jones had used the same offense to impose a five-year term (because the underlying offense was a serious felony) and a one-year term (because the defendant was imprisoned for the prior serious felony), Jones held the one-year term should be stricken. (Jones, at pp. 1150-1153.)
However, numerous courts have distinguished Jones and permitted imposition of both a five-year prior serious felony term and a one-year prior prison term when distinct prior offenses were involved. In People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610-1611, this court concluded Jones did not preclude imposition of a prior prison term enhancement when the prior prison term is based only in part on the same case that also is the basis of the prior serious felony enhancement. (Gonzales, at p. 1611 ["Each of these cases therefore provides an independent basis for the . . . prior prison allegation alleged against [the defendant] in the amended information. Each case involves a separate crime, which was committed separately and brought and tried separately."].) Numerous other courts have agreed. (See, e.g., People v. Solorzano (2007) 153 Cal.App.4th 1026, 1040-1041; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1670.)
Martinez asserts these authorities are distinguishable and apply only when the prior serious felony enhancement is based on a prior offense that had been joined (either for trial or sentencing) with a separately filed case involving a different offense, while the present matter involved a single prior case number that involved multiple convictions on multiple counts. Although Martinez is correct that those cases involved distinguishable facts, People v. Brandon (1995) 32 Cal.App.4th 1033 supports the sentence imposed here. In Brandon, this court interpreted Jones to permit imposition of both a five-year prior serious felony term and a one-year prior prison term when (as here) the defendant was convicted of distinct offenses in a prior case involving multiple counts, even though that prior case had been filed as a single criminal action. We find no reason to depart from Brandon's rationale, and therefore conclude a court may impose both a five-year prior serious felony term and a one-year prior prison term when, as here, the defendant is convicted of distinct offenses in a prior case involving multiple counts (regardless of whether the prior counts had been originally filed in a single criminal action or resulted from the joining of two criminal cases) as long as the underlying counts of which the defendant had been convicted would separately support a five-year prior serious felony term and a one-year prior prison term. Because Martinez admitted his 2007 convictions included a conviction for violating section 422 (which qualified as a § 667, subd. (a), serious felony prior), and admitted he had served a prison term for (among other crimes) a violation of section 273.5, subdivision (a) (thereby supporting the § 667.5, subd. (b), enhancement), we conclude under Brandon that Jones did not require the court to strike the latter enhancement.
Martinez argues Brandon should be disregarded because the trial court in Brandon had imposed the sentence before Jones was decided, and argues Brandon's rationale rested on its statement that the Jones rule was "not applicable to this case because the rule is not retroactive." (People v. Brandon, supra, 32 Cal.App.4th at p. 1054.) Although Martinez has correctly extracted this quote from Brandon, his argument is based on a misunderstanding of the significance of the quoted language. In Brandon, the People argued on appeal that the appellant did not object at trial to the sentencing and had therefore waived any claim of sentencing error under the rationale of the recently decided case of People v. Scott (1994) 9 Cal.4th 331. The Brandon court concluded the waiver rule adopted in Scott was inapplicable because it was not retroactive (Brandon, at p. 1054), but did not hold the Jones rule was not retroactive.
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DISPOSITION
The judgment is affirmed.
MCDONALD, J. WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.