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People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 23, 2012
No. E052705 (Cal. Ct. App. Jan. 23, 2012)

Opinion

E052705 Super.Ct.No. RIF154562 Super.Ct.No. RIF150357 Super.Ct.No. RIF1000832

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. JACOB ANTONIO 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. (Retired Judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, and Vincent P. LaPietra, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Jacob Antonio Martinez (defendant) appeals from his conviction of five felony offenses and the resulting 23-year prison sentence. The convictions stem from two separate incidents in which he slashed and stabbed a man and later brandished a sawed-off shotgun at his girlfriend during an argument. Defendant contends: (1) substantial evidence does not support the conviction for gang terrorism with regard to the shotgun incident; (2) punishment for the two gang terrorism convictions should be stayed pursuant to Penal Code section 654; and (3) the abstract of judgment should be corrected to reflect that the gang terrorism offenses are not listed as violent felonies in section 667.5, subdivision (c). As discussed below, we affirm the convictions but direct the trial court to stay punishment for the two gang terrorism convictions and amend the abstract of judgment to reflect that gang terrorism is not a violent felony under section 667.5, subdivision (c).

All further statutory references are to the Penal Code unless otherwise indicated.

FACTS AND PROCEDURE

On the evening of October 18, 2009, defendant approached the victim, Gregory Henry, as Henry was waiting outside the home of a friend as the friend's father went inside to get him. Henry greeted defendant, who replied, "Do you know who I am . . . I'm Muck, Eastside Riva Patterson Park." Defendant then slashed Henry's face with a knife and stabbed him in the ribs. Henry was left with a cut on his lip, a five-inch cut on his forehead, cuts across the bridge of his nose and one eyelid, and a defensive cut to the bone in his pinky finger. Henry also had a puncture wound below his left armpit.

Rosalinda Gonzalez (Gonzalez) was defendant's girlfriend. Gonzalez's 10-year-old son testified that, on a single occasion, he had seen defendant holding a brown shotgun during an argument he was having with Ms. Gonzalez. The boy was afraid the shotgun might go off accidentally. Gonzalez's father testified that his grandson called him on the phone on December 13, 2009, and told him defendant was chasing his mother around the house with a shotgun. Gonzalez's older son told a police officer that defendant owned a sawed-off shotgun with gold paint on it and a red and white sticker on the stock wood part of the gun. The older boy told the police officer that defendant carried the gun around in a sock.

On December 13, 2009, a woman saw defendant in her front yard petting her dog. Defendant told her he was hiding from police and asked if he could come inside her house. The woman told defendant to go away. The woman saw a police car turn down her street at that time, and defendant jumped the fence into her neighbor's yard. A little while later, defendant was in the woman's backyard screaming to be let inside. Defendant eventually left. The woman's neighbor saw someone in her yard. The neighbor called her son-in-law to come over; he found a short-barreled shotgun in the bushes. The shotgun was encased in a dark brown nylon sock or stocking. The barrel of the gun was painted gold and it had a skateboarding sticker on the stock.

A detective with the Riverside County Sheriff's Department testified as an expert witness on criminal street gangs. The detective testified that it was his opinion that defendant was an active member of a local street gang, the Eastside Riva. He based this opinion, in part, on several occasions in 2008 and 2009 during which law enforcement officers had contact with defendant and completed field identification cards documenting his gang-related behavior. In addition, in 2009 defendant had pled guilty to committing vehicle burglary along with a fellow Eastside Riva gang member. This particular gang had about 500 members, whose primary activities included auto theft, burglary, vandalism, drug sales, and crimes of violence against a rival gang. Crimes of violence are particularly important to the gang because they instill fear in the community and dissuade witnesses from coming forward. The detective further testified that it was his opinion that defendant committed the knife attack so he could move to a more senior clique of the Eastside Riva.

In an amended information filed on August 20, 2010, the People charged defendant with six criminal offenses. The charges stemming from the knife attack are: count 1, attempted first degree murder (§§ 664, 187); count 2, assault with a deadly weapon (§ 245, subd. (a)(1)); and count 3, active participation in a criminal street gang (gang terrorism) (§ 186.22, subd. (a)). The charges stemming from the shotgun incident are: count 4, unlawful possession of a firearm (§ 12021, subd. (a)(1)); count 5, unlawful possession of a short-barreled shotgun (§ 12020, subd. (a)(1)); and count 6, active participation in a criminal street gang (gang terrorism) (§ 186.22, subd. (a)). Regarding counts 1 and 2, the People alleged defendant committed the offenses for the benefit of a gang (§ 186.22, subd. (b)) and personally inflicted great bodily injury on the victim (§§ 12022.7, subd. (a), 1192, subd. (c)(8)). Regarding count 1, the People alleged defendant personally used a deadly and dangerous weapon. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The People also alleged defendant had a prior "strike" conviction. (§§ 667 subds. (c) & (e)(1), 1170.12, subd. (c)(1).)

On October 27, 2010, the jury found defendant guilty on counts 2 through 6 and found true the gang and great bodily injury enhancements as to count 2, assault with a deadly weapon. The jury was unable to reach a verdict on count 1, attempted murder.

At sentencing on December 22, 2010, the trial court dismissed count 1 and found the prior strike allegation to be true. The court sentenced defendant to a total of 23 years in state prison, which included consecutive, middle-term sentences on counts 2, 3, 4 and 6 (six years for count 2, and 16 months each for counts 3, 4, and 6). The court stayed the sentence on count 5 (unlawful possession of a short-barreled shotgun) under section 654 because the jury also convicted him of unlawful possession of a firearm in count 4. Thirteen years of the sentence resulted from the gang and great bodily injury enhancements on Count 2.

This appeal followed.

DISCUSSION

1. Evidence That Gun Possession Involved Gang Terrorism (Count 6)

Defendant argues that his conviction in count 6 for gang terrorism under section 186.22, subdivision (a), should be reversed because it is not supported by substantial evidence that he possessed the shotgun on December 13, 2009, in order to promote, further, or assist in felonious conduct by the gang of which he is an admitted member.

One of the three elements of the crime of gang terrorism is that the defendant must "willfully promote[], further[], or assist[] in any felonious criminal conduct by members of th[e] gang . . . ." (§ 186.22, subd. (a).) This element can be satisfied by evidence that the defendant personally perpetrated a felony and does not require that he commit the crime in concert with other gang members. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1306-1307 [Fourth Dist., Div. Two]; People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437.) "[A] gang member who perpetrates a felony by definition also promotes and furthers that same felony." (Sanchez, at p. 1307.) Here, defendant personally committed the felony of unlawfully possessing the shotgun and, so, under Sanchez and Ngoun, defendant's argument on this issue fails. Defendant acknowledges these cases and asks this court to "reconsider its holding on this issue" in Sanchez, but does not provide a convincing argument as to why we should do so. We decline to reconsider this holding and conclude that sufficient evidence supports the gang terrorism conviction in count 6.

The other two elements are: (1) active participation in a street gang; and (2) knowledge that the gang's members engage in a pattern of criminal gang activity. (People v. Lamas (2007) 42 Cal.4th 516, 523.) Defendant does not challenge the sufficiency of the evidence as to these two elements.

2. The Sentences for the Gang Terrorism Counts (3 & 6) Should Be Stayed

Defendant also argues the 16-month sentences for his gang terrorism convictions in counts 3 and 6 should be stayed pursuant to section 654 under People v. Sanchez, supra, 179 Cal.App.4th 1297. In People v. Sanchez, this court held that, where an underlying felony was the basis for finding true the crime of gang terrorism, the defendant's intent and objective in committing both the felony and the gang terrorism offense are the same. Accordingly, section 654 applies, and sentence on the gang terrorism offenses should be stayed. The instant case is indistinguishable from Sanchez. The underlying knife assault and gun possession were necessary elements of counts 3 and 6, the gang terrorism charges. Defendant's intent in committing the gang offenses was identical to the intent in committing the underlying felonies. The same acts that made the knife assault and gun possession punishable also made the gang terrorism offenses punishable. Just as in cases of felony murder and the underlying felony, the underlying felonies here were necessary elements that transformed defendant's gang membership into a criminal offense. (People v. Sanchez, at p. 1315.) In the absence of any evidence of an independent intent and purpose, section 654 applies to prohibit punishment for both charges.

We note that other courts have decided the issue differently (see People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27, 2010, S185688 [Fourth Dist., Div. One]), but choose to follow our own precedent on the question.

3. Gang Terrorism Is Not a Violent Felony Under Section 667.5, Subdivision (a)

Defendant argues, and the People agree, that the gang terrorism charges in counts 3 and 6 are not currently listed as violent offenses in section 667.5, subdivision (c). Thus, the abstract of judgment should be amended to reflect this.

DISPOSITION

The trial court is directed to stay the sentences on counts 3 and 6 and to amend the abstract of judgment to reflect that these counts are not violent offenses under section 667.5, subdivision (c). The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.
We concur: MILLER

J.
CODRINGTON

J.


Summaries of

People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 23, 2012
No. E052705 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Martinez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JACOB ANTONIO MARTINEZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 23, 2012

Citations

No. E052705 (Cal. Ct. App. Jan. 23, 2012)