Opinion
D068735
03-01-2017
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL ADAN MARTINEZ, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Lynn G. McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF31828) APPEAL from a judgment of the Superior Court of Imperial County, Raymundo Ayala Cota, Judge. Affirmed. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Lynn G. McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Rafael Adan Martinez of conspiracy to commit kidnapping for ransom (Pen. Code, §§ 182, subd. (a)(1), 209, subd. (a); count 1), possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 2), and transportation of a controlled substance for sale (Health & Saf. Code, § 11379, subd. (a); count 3). The trial court sentenced Martinez to 15 years to life in state prison: 15 years to life on count 1 and a concurrent three-year midterm on count 3. The court stayed under section 654 a two-year midterm on count 2. Martinez contends the court abused its discretion and violated his Sixth Amendment rights by denying his motion to relieve his counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and also erred in connection with its unanimity instruction on the count 1 kidnapping charge. Martinez also asks us to review a sealed hearing that occurred after his counsel sought the name, identity and criminal history of the kidnap victim, asking us to determine whether his counsel was provided an opportunity to propose questions; the court properly balanced the privilege of protecting disclosure with his rights; and the court's ruling was made conditional. We affirm the judgment.
Statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Martinez does not raise a sufficiency of the evidence challenge to his convictions, and so we summarize them briefly to provide context for his claims on appeal.
In September and October 2013, law enforcement intercepted telephone calls and text messages between Martinez and Jonathan Vizcaino in which they discussed a plan to pretend to arrest and kidnap an unnamed man who stole narcotics from them and owed them a large sum of money. On September 30, 2013, the men also discussed taking a woman, but over the course of a few days they continued discussing their plans with respect to the man. The phone calls indicated that Martinez, who had worked for one year as an Imperial County deputy sheriff, and Vizcaino would be assisted by Jose Cordova and others.
On October 3, 2013, law enforcement set up surveillance at Martinez's tire shop in El Centro. An employee of the tire shop told a special agent he overheard Vizcaino and Martinez talking about going to Los Angeles to kidnap a woman and then tell a man they had her so the man would pay Vizcaino. Officers eventually arrested Martinez, Vizcaino and Cordova together after the men travelled to Fontana and purchased items at a Fontana Walmart. The men were then interviewed by police. Inside the men's Fontana hotel rooms officers found pepper spray, handcuffs, badges, a pellet gun and a stun gun, as well as various items of clothing and tactical gear. A search of Martinez's tire shop turned up 900 grams of methamphetamine wrapped in electrical tape and hidden in an upstairs storage area. Based on a scale and packaging material found in the shop, an agent testified the methamphetamine was going to be used for sale and distribution.
DISCUSSION
I. Review of In Camera Hearing
During the preliminary hearing before Judge L. Brooks Anderholt, Vizcaino's counsel asked a DEA witness about the identity of a person's wife who was mentioned in one of the telephone conversations. Both the witness and the prosecution invoked a privilege under Evidence Code section 1040 not to disclose information about the woman. The court then held a closed-session hearing on the matter in the presence of only the witness and the prosecutor, after which it stated: "I did conduct a brief hearing in camera. I will sustain the objection of the People. And I'm making that ruling specific to this proceeding only, counsel. It's without prejudice, as if you may want to renew such motion at a later date in the proceedings, you may certainly do so. For purposes of this proceeding, I don't believe that the information is relevant on the one hand; and, if relevant, that it is for the purpose of this proceeding protected by privilege."
The issue arose again during the hearing on in limine motions, when the trial court—Judge Raymundo Cota—noted that the People had taken the position that for the crime of conspiracy the victim need not be identified or named for the jury, and asked how the People proposed to deal with that issue. The court stated it would allow the prosecution to decide how to handle the issue, but invited defense counsel to offer an objection to the absence of any requirement that the jury learn the conspiracy victims' names. Cordova's counsel objected to the nondisclosure of the conspiracy targets' names, descriptions or criminal history, which he asserted raised issues with his client's rights to due process and Sixth Amendment confrontation, as well as entitlement to exculpatory or damaging information under Brady v. Maryland (1963) 373 U.S. 83 (Brady). He sought an order that the prosecution disclose the names, birthdates and criminal history of the individuals with an appropriate protective order. Martinez's counsel joined in the objections. The court questioned the relevance of such information on the issue of the defendants' guilt or innocence or any self-defense claim. It also stated it would not be surprised if the target were an unsavory person. Cordova's counsel argued that Brady information was not simply exculpatory, but encompassed information fatal to the People's presentation, and disclosure of the victim information was required so he could properly advise his client how to testify and not get "sandbagged" with impeaching information. Stating it was not persuaded, and pointing out defense counsel had previously obtained a ruling on the matter during the preliminary hearing but did not further pursue it, the court overruled the objections.
Counsel posed a hypothetical: "And on Mr. Cordova's right to counsel, should he choose to testify, I would have to prepare him. And again, a hypothetical, if Mr. Cordova says, 'hey, the reason I had a stun gun and handcuffs, and it was because this guy was a murdering, you know, raping guy,' and he testifies to that, and then the people impeach him with, 'oh, guess what. This guy has no record and he's 5 feet 2 inches [tall]. It is going to go make him look like a complete liar and make the defense look like a charlatan. [¶] So in order to properly advise my client, should he choose to testify, that information is relevant for that purpose. If not, it puts me at a complete disadvantage . . . [and] in a position to get sandbagged should this person turn out to be somebody of good moral character."
Martinez asks us to independently review the sealed transcript of the in camera hearing to determine whether the court followed the procedures set out in In re Marcos B. (2013) 214 Cal.App.4th 299 by providing his counsel an opportunity to propose questions; balancing the privilege of protecting disclosure with his rights; and making its ruling "conditional." Looking to the standards used for defense requests to obtain the identity of a confidential informant, Martinez asks that we reverse the judgment if we conclude the court failed to turn over any information material to his defense, including exculpatory evidence within the meaning of Brady or other material evidence subject to mandatory disclosure under section 1054.1 and authorities such as People v. Izazaga (1991) 54 Cal.3d 356. He correctly states that the determination of the materiality of the information for purposes of Evidence Code section 1040 is reviewed for abuse of discretion. (See People v. Suff (2014) 58 Cal.4th 1013, 1059; People v. Bradley (2017) 7 Cal.App.5th 607, 621; Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277.) The People do not oppose his request. A. Legal Principles
Evidence Code section 1040 grants a public entity a privilege to refuse disclosure of official information if the privilege is claimed by a person authorized by the public entity to do so and "[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice." (Evid. Code, § 1040, subd. (b)(2); People v. Suff, supra, 58 Cal.4th at p. 1059; People v. Bradley, supra, 7 Cal.App.5th at pp. 626-627; People v. Acevedo (2012) 209 Cal.App.4th 1040, 1053.) The statute defines "official information" as "information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made." (Evid. Code, § 1040, subd. (a).)
In reviewing a claim of privilege under Evidence Code section 1040, the court may conduct an in camera hearing under Evidence Code section 915 outside the presence of the defendant and his counsel. (Evid. Code, § 1042, subd. (d); see People v. Bradley, supra, 7 Cal.App.4th at pp. 620-621; People v. Acevedo, supra, 209 Cal.App.4th at p. 1053; Davis v. Superior Court, supra, 186 Cal.App.4th at p. 1277; People v. Montgomery (1988) 205 Cal.App.3d 1011, 1021.) At that hearing, the prosecution may offer evidence that discloses the confidential information to aid the court in determining materiality: that is, " 'whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.' " (Bradley, at p. 621, quoting Evid. Code, § 1042, subd. (d); see People v. Lewis (2009) 172 Cal.App.4th 1426, 1441 [" '[T]he test of materiality is not simple relevance; it is whether the nondisclosure might deprive defendant of his or her due process right to a fair trial' "]; People v. Garza (1995) 32 Cal.App.4th 148, 153.) "The defendant should be given an opportunity to propose questions to be asked at this hearing. The in camera hearing is a preliminary inquiry into whether the claim of privilege should be upheld." (Montgomery, at p. 1021; see also Torres v. Superior Court (2000) 80 Cal.App.4th 867, 873-874.)
If the court makes the determination that the privilege applies, the defendant then has an opportunity to establish that the privilege is outweighed by the necessity to disclose "material" evidence. (Evid. Code. § 1042, subd. (a).) An adversary hearing may be necessary following the completion of an in camera review by the court. (Torres v. Superior Court, supra, 80 Cal.App.4th at p. 874; see In re Marcos B., supra, 214 Cal.App.4th at p. 308.) Where the court permits the prosecution to invoke the privilege, the court "shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material." (Evid. Code, § 1042, subd. (a); People v. Lewis, supra, 172 Cal.App.4th at p. 1432.) The requirement for an adverse order or finding only applies when the assertedly privileged information is material, not merely relevant. (Id. at p. 1441.)
"A trial court has discretion to deny disclosure not only when the necessity for confidentiality outweighs the necessity for disclosure, but also 'when there is an " 'absence of a showing which specifies the material sought and furnishes a "plausible justification" for inspection [citations].' " ' " (People v. Suff, supra, 58 Cal.4th at p. 1059.) B. Analysis
Here, in addition to asking that we review the in camera hearing, Martinez argues that the trial court failed to follow required procedures. Specifically, he argues "the record here reveals no opportunity for defense counsel to propose questions" and the court failed to balance the People's and defense counsel's respective interests, did not make its ruling provisional, and after the in camera hearing, did not continue the matter in an adversarial setting.
We reject Martinez's procedural challenges. During the preliminary hearing, the privilege was raised and defense counsel was aware of the issue as well as the in camera review; counsel made no objections and offered no questions for the court. The record shows Martinez's counsel had a fair opportunity to pose questions, but did not. Following the hearing, the court ruled that the matter was both irrelevant and privileged, a finding that it was not material. Counsel did not ask for a further hearing and made no further objection. At no time did he challenge the process used by the court or its outcome. This is unlike Torres v. Superior Court, supra, 80 Cal.App.4th 867, in which defense counsel objected to the in camera procedure and sought writ relief to prevent the court from holding such a hearing without preliminary procedures. Here, Martinez cannot remain silent and let the trial court conduct a review of the claim of privilege, then wait until appeal to challenge the process. We have independently examined the reporter's transcript of the trial court's in camera hearing, and find the record is adequate for meaningful appellate review. We conclude the trial court did not abuse its discretion in ruling on the claim of privilege as to the identity of the kidnapping victims' identity (People v. Suff, supra, 58 Cal.4th at p. 1059), and discern nothing in the conduct of the proceedings that warrants reversal.
When the matter arose again, it was initiated by the trial court, not defense counsel. And it was Cordova's counsel, not Martinez's attorney, who sought to make a record concerning the materiality of the victims' identity. To show materiality, the defendant must show more than "a mere suspicion" that the information sought will prove "relevant and helpful" to his defense; it must be "essential" to a fair determination. (People v. Acevedo, supra, 209 Cal.App.4th at p. 1055.) Even if we infer that Martinez joined in Cordova's showing, we conclude that showing—based on a hypothetical scenario—did not establish that the privilege earlier found by the trial court was essential or outweighed by the necessity to disclose material evidence. (Evid. Code, § 1042, subd. (a).)
II. Denial of Marsden Motion
A. Background
Following his arrest, Martinez was represented by attorney John Kelly, who was relieved in September 2014. Later that month, the court appointed attorneys Steven Walker and Mitchel Driskill to represent Martinez. In April 2015, Martinez sought appointment of new counsel under Marsden, supra, 2 Cal.3d 118. The court conducted a closed hearing at which Martinez explained the reasons for his request. Martinez told the court he felt there was not enough communication with his attorney, who visited him only once, and his counsel were not prepared with paperwork or discovery. He asserted his counsel did not in their notes have certain information that Martinez had previously provided to attorney Driskill. Martinez also stated that attorney Walker represented the City of Holtville at a time in 2006 when Martinez had sued the city for discrimination, giving rise to a conflict of interest. Further, he stated that in 2013, attorney Driskill filed an eviction complaint against him on behalf of Driskill's cousin, who was then the landlord of Martinez's business. Martinez told the court he believed attorney Walker had medical problems, and expressed concern that those problems would affect Walker's representation or focus.
Though the transcript of the closed Marsden hearing was filed under seal, Martinez also attached that transcript to his reply memorandum of points and authorities for his new trial motion, which is in the public clerk's transcript. Hence, there is no impediment to our summarizing the proceedings that took place in the Marsden hearing.
The court had counsel respond to Martinez's comments. Attorney Walker stated that he had had a biopsy on his nose but that would not affect his ability to competently represent Martinez. He told the court that he had visited Martinez once while he was out on bail, and his investigator had also visited Martinez and exchanged information with Martinez. Walker acknowledged he had represented the City of Holtville at the time of Martinez's grievance, but he did not recall what had happened or his involvement in the matter. In response to the court's questions, Martinez explained he had filed a discrimination complaint in "maybe" 2006 or 2007 while he was a police officer and Walker was the attorney; Walker responded that he thought he recalled the circumstance but not what happened, and he did not recall being actively involved in it. Walker acknowledged it would be difficult to competently represent a client who did not trust his attorneys.
Attorney Driskill explained that earlier that day the prosecutor handed him a compact disc of a recorded interview with Martinez, and Martinez brought it to his attention the day before, but there was nothing in the defense file about it. Walker confirmed that it was the first time both counsel heard about the interview that took place when Martinez was represented by different counsel, and there was no reference to it in their file. Attorney Driskill admitted he had represented a landlord in an eviction action against Martinez but Driskill did not believe it was a conflict as there were no overlapping issues, nor was there confidential information from the other case. Driskill acknowledged that Martinez viewed it differently. Driskill stated he had no interest representing a client who lacked trust and confidence in him.
Notwithstanding their remarks, both Walker and Driskill stated they did not believe they had any conflict in representing Martinez. When asked whether their representation of Martinez would suffer under the circumstances of his lost confidence, Walker, speaking for both himself and Driskill, stated that they would put the same energy into the case, but it would be harder if there was no communication, and they did not want to be second guessed when making objections or strategic decisions. Driskill stated he did not believe there could be effective representation without communication, despite best intentions or greatest energies for advocacy.
Martinez thanked his attorneys for their time and apologized, and remarked that there would be complications, but expressed a desire to get together with counsel and discuss his case so he could express what happened and provide his input. He repeated his complaint that he had seen Walker only once for ten minutes. Martinez stated he had previously mentioned his interview to the attorneys, and asked why the prosecutor had hidden the compact disc until now.
The trial court denied Martinez's Marsden request. It stated that the court's impression was that Martinez wanted to communicate and cooperate with counsel, and that Walker had communicated with him via his investigator. The court stated that Martinez's feelings did not mean that Walker could not adequately and competently represent him, and it expressed no doubt that the communication efforts would be more evident in the coming weeks and days. It found there was no legal conflict given the nature of the prior representations and the passage of time; counsel felt they could represent Martinez and could not remember the prior matters, they were professionals who could set aside information that was not germane and only act in his best interests. B. Legal Principles
"When a defendant seeks to obtain a new court-appointed counsel on the basis of inadequate representation, the court must permit her to explain the basis of her contention and to relate specific instances of inadequate performance. The court must appoint a new attorney if the record clearly shows the current attorney is not providing adequate representation or that the defendant and counsel have such an irreconcilable conflict that ineffective representation is likely to result. [Citations.] If the court holds an adequate hearing, its ruling is reviewed for abuse of discretion." (People v. Rodriguez (2014) 58 Cal.4th 587, 623; People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) Martinez "does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' " (People v. Welch (1999) 20 Cal.4th 701, 728-729.) Nor is a defendant's lack of trust in or inability to get along with appointed counsel sufficient. "If a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (Jones, at p. 1246.) Denial of a Marsden motion is not error " ' "unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." ' " (People v. Streeter (2012) 54 Cal.4th 205, 230, disapproved on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834; People v. Taylor (2010) 48 Cal.4th 574, 599.) We review the court's ruling for abuse of discretion. (Streeter, at p. 230.) C. Analysis
Martinez contends the trial court abused its discretion by denying his request for substitute counsel under Marsden, supra, 2 Cal.3d 118. He maintains his counsel had a conflict of interest and his relationship with them was irrevocably impaired such that ineffective representation was likely to result, and denial of the motion consequently violated his Sixth Amendment right to counsel. Martinez points out he doubted his counsel's representation given they had not communicated with him up to the eve of trial, they previously represented interests adverse to his, and he was unable to communicate with them to help prepare and present his defense.
We cannot say Martinez has shown the trial court clearly abused its discretion by denying his motion. As stated above, any asserted lack of trust expressed by Martinez is insufficient by itself to warrant appointment of substitute counsel. And his complaint that his counsel visited him only once does not justify substitution of counsel. (People v. Myles (2012) 53 Cal.4th 1181, 1208; see People v. Silva (1988) 45 Cal.3d 604, 622 ["the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence" warranting substitution under Marsden]; People v. Streeter, supra, 54 Cal.4th at p. 230.) We will not disturb the court's finding that these asserted problems "were not insoluble and had not given rise to such an irreconcilable conflict that ineffective representation was likely to result." (People v. Hines (1997) 15 Cal.4th 997, 1026.) With respect to the asserted lost information about Martinez's interview, both counsel advised the court that they had just been given information about it contrary to Martinez's claim; the court was entitled to accept counsel's explanation on this credibility call. (People v. Smith (1993) 6 Cal.4th 684, 696.)
As for Martinez's counsel's prior adverse representations, we look to whether they posed a conflict that undermined counsel's duty of loyalty. (See People v. Doolin (2009) 45 Cal.4th 390, 417.) The applicable rule of professional conduct states: "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." (Rules Prof. Conduct, rule 3-310(E), italics added.) An attorney's prior representation of a witness in an unrelated matter ordinarily creates no conflict of interest for counsel unless the witness imparted confidential information material to the defendant's defense. (People v. Clark (2011) 52 Cal.4th 856, 983-984; see People v. Cox (2003) 30 Cal.4th 916, 949 ["[a] conflict may arise if a former client is a witness in a new case because the attorney is forbidden to use against a former client any confidential information acquired during that attorney-client relationship. [Citations.] [¶] But if the attorney possesses no such confidential information, courts have routinely held that no actual or potential conflict of interest exists"], overruled on other grounds in Doolin, at p. 421, fn. 22.) And courts should look to the totality of circumstances, and will not presume public defenders acquired confidential information in connection with prior representations. (People v. Clark, at p. 984; see Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566, 1581.) "In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest 'that affected counsel's performance—as opposed to a mere theoretical division of loyalties.' [Citations.] '[I]nquiry into actual conflict [does not require] something separate and apart from adverse effect.' [Citation.] 'An "actual conflict," for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.' " (Doolin, at pp. 417-418.)
Martinez made no showing that either Walker or Driskill obtained any confidential information about Martinez from their former clients. Nor did he demonstrate that their representation in the prior matters was such that the court should have presumed they obtained confidential information (see People v. Friend (2009) 47 Cal.4th 1, 46 [explaining when such a presumption may arise]), or that anything about Walker or Driskill's prior representations would diminish their ability to be vigorous advocates on Martinez's behalf. In short, he did not establish either attorney operated under an actual or potential conflict of interest, much less a conflict that would adversely affect their performance, and we cannot disturb the trial court's ruling that no such conflict existed for purposes of justifying appointment of new counsel under Marsden, supra, 2 Cal.3d 118.
III. Claim of Instructional Error on Unanimity
In his opening brief, Martinez contended the trial court erred by failing to sua sponte instruct the jury with a unanimity instruction as to the count 1 conspiracy charge, violating his due process rights as well as his Sixth and Fourteenth Amendment rights to an accurate jury determination of the facts. He argued there was evidence of two conspiracies to kidnap different victims, requiring that the jury be instructed that they must unanimously agree beyond a reasonable doubt on the particular act constituting the predicate crime. The People responded that the court did in fact instruct the jury before deliberations that it must unanimously agree on which victim formed the basis for the conspiracy.
Before sending the jury to deliberate, the court instructed jurors with a modified version of CALCRIM No. 415, the pattern conspiracy instruction, in part as follows:
"The defendants are charged in Count 1 with conspiracy to commit kidnapping for the purpose of ransom, reward, or extortion in violation of Penal Code Section 182. [¶] To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant intended to agree and did agree with his co-defendant or with Jonathan Vizcaino to commit kidnapping for the purpose of ransom, reward, or extortion. [¶] Two, at the time of the agreement, the defendant and his co-defendant or Jonathan Vizcaino intended that one or more of them would commit kidnapping for the purpose of ransom, reward, or extortion. [¶] Three, one of the defendants or Jonathan Vizcaino or both of the defendants or all of them, committed at least one of the following alleged overt acts to accomplish kidnapping for the purpose of ransom, reward, or extortion: drove to Fontana to meet with victim John Doe; gathered replica guns and law enforcement equipment to use in kidnapping and brought them to Fontana. And four, at least one of these overt acts was committed in California.
[¶] . . . [¶]
". . . An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. . . . You must all agree that at least one alleged overt act was committed in California by at least one alleged member of the conspiracy. But you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.
"[¶] . . . The People allege that the defendants conspired to commit the following crimes: . . .
[¶] . . . [¶]
". . . Conspiracy to commit kidnapping for ransom, reward, or extortion of John Doe, conspiracy to commit kidnapping for ransom, reward or extortion of Jane Doe. . . .
"You may not find a defendant guilty of conspiracy unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes and you all agree which crime he . . . conspired [to] commit." (Italics added.)
In his reply brief, Martinez argued for the first time that this instruction inadequately explained the unanimity requirement; his case presented a "unique situation" and that "because there were two target crimes and only some overt acts related to only one of the two, the jury had to be told the overt act had to match the target conspiracy." Thus, he argued, there was need for a unanimity instruction that "linked the overt act to the target crime the act supposedly furthered." He maintained that CALCRIM No. 415 permitted an impermissible jury verdict on count 1 if some jurors found any overt act related to either target crime plus a plan to commit either target crime, and no instruction explained that unanimity required the overt act be in furtherance of the same target crime. Martinez asked this court for leave to file supplemental briefing on the issue; we deemed those pages of his reply brief on the matter his supplemental brief and permitted the People to respond.
Having reviewed the additional briefing, we conclude Martinez has not demonstrated instructional error. The court unequivocally instructed the jury that it was required to agree unanimously on one of two discrete target crimes of the conspiracy charged in count 1: kidnapping for ransom of either John Doe or Jane Doe. Martinez's original claim that no unanimity instruction was given is without merit; the instruction was indeed given.
Further, Martinez has not demonstrated the instruction given was improper. (See People v. Russo (2001) 25 Cal.4th 1124, 1135; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 [review of adequacy of instructions is based on whether the court fully and fairly instructed on the applicable law, considering the instructions as a whole].) Russo explains that while a jury must unanimously agree that a defendant has committed a specific crime (id. at p. 1132), "[t]he key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation] . . . . But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' " (Id. at pp. 1134-1135.) In Russo, the court emphasized that where the evidence suggested two discrete conspiracies, a unanimity instruction was required, but where the evidence established one conspiracy ("but one agreement"), jurors need not agree unanimously on which overt act of a conspiracy was proved. (Id. at p. 1135; see People v. Grimes (2016) 1 Cal.5th 698, 726.) Here, the instruction provided that it could not find Martinez guilty unless all of the jurors agreed the People proved he conspired to commit at least one of the kidnappings, and they all agreed which crime he conspired to commit.
As for Martinez's claim that the instruction failed to link overt acts to their related target crimes, such an instruction constitutes a clarifying or amplifying instruction that Martinez should have sought below. (People v. Bolden (2002) 29 Cal.4th 515, 557; see also People v. Trujillo (2015) 60 Cal.4th 850, 856.) His failure to seek such a clarifying or amplifying instruction forfeits his appellate challenge. (Ibid.) In sum, Martinez has not shown error in the unanimity instruction given to the jury.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: NARES, Acting P. J. IRION, J.