Opinion
D071014
07-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ABEL ANGEL MARTINEZ, Defendant and Appellant.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Kristen A. Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE338835) APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Sentence vacated with directions to impose corrected sentence and amend the abstract of judgment; judgment otherwise affirmed. Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Kristen A. Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Abel Angel Martinez appeals from a judgment of conviction and sentence imposed after a jury found him guilty of second degree murder with respect to victim Eufracio Alberto Enriquez and deliberate and premeditated attempted murder as to victim L.F.
Martinez, who had been in a long-term relationship with L.F. and had been friends with Enriquez for many years, learned that L.F. and Enriquez began an intimate relationship just after Martinez and L.F. ended their relationship. Approximately a week later, in the middle of the night, Martinez, without permission, entered the residence where Enriquez and L.F. were sleeping and attempted to get L.F.'s attention by telling her that her adult daughter needed her. Martinez then shot Enriquez in the face, and then turned the gun toward L.F. and shot at her head. L.F. managed to shield her head with her arms and survived.
On appeal, Martinez raises six claims. First, Martinez contends that there is insufficient evidence to sustain the jury's finding that the attempted murder of L.F. was willful, deliberate and premeditated. Second, Martinez asserts that the trial court abused its discretion in allowing the People to present hearsay evidence of L.F.'s recorded statements to a law enforcement deputy soon after the shootings, which were made when the deputy first encountered L.F., while he accompanied her to the hospital in an ambulance and after they arrived at the hospital. Martinez contends that the statements do not qualify as spontaneous statements under Evidence Code section 1240.
Third, Martinez contends that the trial court abused its discretion in admitting two photographic exhibits of a machete that police found in appellant's residence because, he asserts, the machete was unrelated to the shootings and was offered only to demonstrate that Martinez was the sort of person who carried deadly weapons. Fourth, Martinez contends that his convictions should be reversed due to cumulative error, even if no single error requires reversal on its own.
Fifth, Martinez asserts that the trial court imposed an unauthorized sentence of seven years to life for premeditated attempted murder; he maintains that the correct sentence for this offense is life with the possibility of parole. Finally, Martinez contends that the abstract of judgment should be corrected to reflect that restitution payments are to be made to the Restitution Fund and not to certain claimants, directly.
We find no merit to Martinez's first four contentions. With respect to his final two contentions, the People concede that Martinez is correct. We accept the People's concessions. We therefore vacate the sentence and remand the matter to the trial court with specific directions as set forth in the disposition portion of this opinion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
a. Background
Martinez and L.F. dated for approximately five years, and ended their relationship in February 2014. After the breakup, L.F. began an intimate relationship with Enriquez, who had been a friend of Martinez's for many years.
Enriquez lived and worked on a property located in San Diego County. The property had multiple structures on it, including one referred to as the "Ring House," which is where Enriquez spent much of his time. The Ring House consisted of a single room, approximately 14 feet in diameter, with a queen-sized bed in the middle and no bathroom. Enriquez's sister, M.E. also lived on the property with her two sons, in a house near the Ring House.
Martinez lived in a motor home on Harbinson Canyon, which was located in an area of the county that is reasonably close to the property where the Ring House is located.
After Martinez and L.F. broke up, L.F. began staying with Enriquez at the Ring House. At some point closer to the date of the shooting, L.F. began calling a close friend of Martinez's, T.L., to ask to stay with her or to take a shower at her place.
b. Martinez's March 9, 2014 assault of L.F. and events leading up to the shooting
Approximately a week before the shooting, L.F. admitted to Martinez that she had had sex with Enriquez. She showed Martinez hickeys on her neck as evidence of what had occurred.
On March 9, 2014, Enriquez's sister M.E. was at her residence with Enriquez when she heard L.F. screaming. She walked toward the sound of the screaming, and observed Martinez and L.F. on the deck of the Ring House. Martinez had blood on his face. M.E. saw Martinez punch L.F. in her head and stomach. After punching her, he grabbed L.F. by her hair and dragged her approximately 10 feet, then threw her to the ground and kicked her.
Martinez left L.F. on the ground and began to walk toward a waiting car. Enriquez followed him and said to him, " 'This is not what you think.' " Martinez replied, " 'I thought you were my friend.' " Enriquez "tried to explain 'I called you many times to come and pick her up, and you didn't answer the phone.' " Martinez responded, " 'You're going to pay for this' " before leaving in a car.
On the night of March 15, 2014, Martinez spent some time at a casino with a friend. While there, he met up with another friend, T.L., who gave him a ride home at approximately 3 a.m. on March 16. Martinez was angry and upset. He told T.L. that he had been hurt by Enriquez and L.F., that he loved L.F., and that Enriquez had ruined his life. He also said that he wished Enriquez " 'would be dead in an accident because [he was] tired of [Enriquez] interfering in [his] life.' "
c. The shooting on March 16, 2014
On March 16, 2014, after spending the early morning talking with T.L., Martinez asked T.L. to drive him to the Ring House in her car. The lights were off inside the Ring House when they arrived.
Martinez did not have his own vehicle.
Martinez entered the Ring House through a glass door. He called out to L.F. and said something like, " '[Y]our daughter is looking for you and she's at my house.' " Enriquez stood up. Martinez shot Enriquez in the face with a revolver. After shooting Enriquez, Martinez walked toward L.F., who was in bed, and aimed the revolver at her head. L.F. covered her face with her arms, and Martinez fired one shot at her. At some point during these events, L.F. screamed " 'Abel, no.' " After the shooting, L.F. told a deputy that Martinez had said, "I told you 'to stop fucking with him.' " M.E. testified that she heard Martinez say, " 'I told you not to fuck with me.' " M.E. also told police that immediately after the shooting, she heard Martinez say, in Spanish, " 'I told you not to come here, you were going to pay for it.' " One of M.E.'s sons heard the gunshots, and heard L.F. scream, " 'Why Abel? Why did you do this?' "
Martinez ran out of the Ring House to T.L.'s car and got into the car. T.L. then drove away.
L.F. ran out of the Ring House and toward M.E., who by that point had run out of her house. L.F. was holding her arm and screaming "that Abel shot [Enriquez]." She repeated that phrase three or four times. She also said, " 'He shot me, too.' "
M.E. called 911. During the call, L.F., who was nearby, said, "Abel just shot [Enriquez] . . . then me." M.E. told the 911 operator that she had heard screaming and then gunshots, and that she believed that Enriquez had been shot in the head.
Enriquez died from a single gunshot wound to his head. L.F. suffered a gunshot wound to her left forearm and her right bicep.
d. Post-shooting events
After Martinez got into T.L.'s car, he instructed her to drive him home. He threw the revolver into some bushes near his motor home. He did not call 911. He washed the clothes that he had been wearing during the shooting.
San Diego County Sheriff's Deputy Wesley Manning was one of the first responders to the scene. Deputy Manning observed L.F. sitting in a truck, holding her arms and leaning forward. He noticed that L.F. had injuries to her left forearm and right bicep that were consistent with gunshot wounds. L.F. appeared to be tired, in shock, and in pain.
Manning turned on a voice recorder when he first encountered L.F. at the scene; he left the recorder on throughout the time he was with L.F., including during the ambulance ride to the hospital and after she arrived at the hospital. Manning asked L.F. what had happened. L.F. told Manning that Martinez had entered the Ring House through a sliding door and had told her that her daughter was looking for her. She said that Martinez pulled out a gun and shot Enriquez after Enriquez stood up, and that Martinez then walked toward her, aimed the gun at her head and fired, while she was still lying in bed. Martinez then ran out.
The trial court admitted in evidence the recording Deputy Manning made that morning. The prosecutor played the recording for the jury and provided them with a transcript.
L.F. told Manning that she had broken up with Martinez two weeks before the shooting, and that she had been dating Enriquez for about a week. She said that Martinez knew that they were dating and that she and Martinez had gotten into an argument at Enriquez's residence about a week before the shooting.
At approximately 10:00 a.m. on the morning of March 16, 2014, Martinez went to the Alpine Sheriff's Station and informed law enforcement officers that he had done " 'something bad.' " Officers arrested Martinez after he told them, " ' I was in a shooting this morning with my friend' " and identified himself.
Officers conducted a search of Martinez's motor home. They found a machete with a three-foot-long blade under a cushion on a banquette bench in the motor home. They also found the washing machine half full of water with laundry in it. Under Martinez's mattress, officers found some papers with Martinez's handwriting and drawings on them. Officers photographed and collected the papers, and then had them translated from Spanish to English. The documents were introduced in evidence at trial.
On one piece of paper, Martinez had written the Spanish word for " 'bitch,' " which could also be interpreted as " 'prostitute,' " and the words " 'shit,' " and " 'trash' " repeatedly. Another document included the words " 'How I am going to laugh at you, fucking bitch. The bitches don't know how to value what they have. Shit, shit, shit,' " and the word " 'bitch' " written 12 times. A different document included the following entry, " 'With the bar you measure with, you will be measured, bitch. And you think I'm going to forget. Idiot. You don't know what is awaiting you, traitor. Son of a bitch. I wish I would have never met you, but what's done is done. The rest is not my fault.' " Then there was the word " 'Dog' " or " 'Bitch,' " followed by " 'You don't respect what is a friendship, but you are going to pay and with lots of interest. And you, fuck you. ' "
Elsewhere, Martinez had written, " 'Of which you cannot imagine. Everything has a cost. Idiots think they got away with their own plans. Fuck you.' " This was followed by the letter "B" and " 'You don't know what's coming. And you knew if you already be prepared [sic], fucking bitch. And the other guy, a piece of shit that stinks of the worst kind. I think I'm going to vomit. What' " followed by the letters "asso." Another document included the handwritten entry, " 'The worms you have within your soul, you are eating them or they're eating you. Shit and shit . . . go together. It happens to me for being dumb and for believing trash. I deserve this. And how I would like to turn back time and be happy again. This chick doesn't know what she is doing. She is burning herself. If only she knew what's coming to her. Ha ha ha. Trash. Shit.' " Martinez had written the words " 'Shit' " and " 'Danger' " underneath a drawing of a skull and bones on another piece of paper. The paper also included the letter "L" written three times on the bottom of the page. On another exhibit, the following handwritten entry appeared: " 'How are you going to trash your life? And if you're worth anything, I believe you would be good for a moment as plant fertilizer.' "
The Sheriff's Department interpreter who testified about what was written on the exhibits stated he did not understand the letters "asso" to have any particular meaning in Spanish.
Martinez led officers to a hill, approximately 70 to 80 yards behind his motor home, where he had disposed of the revolver that he had used to shoot Enriquez and L.F. There were two expended cartridges in the gun. An expert traced lead fragments found in Enriquez and L.F.'s bodies to the revolver. The revolver was not registered to either Enriquez or Martinez.
2. The defense
Martinez testified in his own defense. He described his childhood in El Salvador, including the violence that he had observed there. He testified that he left El Salvador when he was 17 years old and eventually made his way to the United States. He worked as a tree trimmer and landscaper. In the past and more recently, he would use a chainsaw, axe, and machete in his work.
Martinez described his relationship with L.F. With respect to the March 9, 2014 incident, Martinez said that he had received a request from Enriquez to come and retrieve L.F. When he arrived at the Ring House, L.F. came outside upset and pushed him. L.F. then grabbed an item and used it to hit Martinez in his face. According to Martinez, L.F. screamed at him and then fell down as she was walking backward, toward the Ring House. At that point, he was aware that L.F. was staying at the Ring House with Enriquez. However, it was not until the following day that L.F. told him that she and Enriquez had been intimate with each other. Martinez and L.F. discussed ending their relationship "once and for all," but then spent the night together that night and had sex.
With respect to the night before the shooting, Martinez testified that he and T.L. hung out together in Martinez's motor home after a night at a local casino. He said that T.L. had told him that L.F. had been calling her and wanted T.L. to pick her up so that she could sleep at T.L.'s place or take a shower there. Martinez and T.L. agreed to go pick up L.F. from Enriquez's place.
Once they arrived at the Ring House, Martinez told T.L. to go knock on the door to get L.F. T.L. knocked on the door, but came back to the car and said that she had received no response. Martinez then approached the Ring House. Martinez admitted that he called L.F.'s name and said, " 'Your daughter is at my house. She want[s] to see you.' " Martinez conceded that he said that in order to get L.F.'s "attention to see if she [wa]s there." He then went to the "sliding door" and saw Enriquez standing there. Martinez inquired about L.F., and Enriquez said that she was there and invited Martinez inside. According to Martinez, Enriquez's demeanor was such that Martinez believed Enriquez "want[ed] to kick my ass."
Martinez explained that although Enriquez was telling him that L.F. was there, Martinez did not see her, but he saw a gun on a table. He noticed that Enriquez smelled of alcohol. Martinez claimed that Enriquez had told him about past incidents in which Enriquez claimed to have killed one or more people, and that, in view of that information, on the morning of March 16, Martinez was "in danger" and believed that he "can't turn [his] back and walk away" because Enriquez might "shoot [him]." According to Martinez, both he and Enriquez "went for the gun," but Martinez "got there first." The two were struggling over the gun when it went off twice.
Martinez testified that Enriquez "fell in front of [him]," and that he took the gun and walked away to T.L.'s car. He told T.L., "I think I shot [Enriquez]." She screamed at him, " 'No. No. Abel, why did you do that?' " He told her to go because he was afraid that if Enriquez had not been shot, he might come after them and shoot them. When they arrived at Martinez's home, he told T.L. to leave. He acknowledged that he "hid the gun" when he got back to his home. He explained, "If something happened they are going to call the cops. I don't want to be hunted. I am not a person with a weapon. I am not going around with the weapons nowhere. I didn't know what to do with the gun. I didn't want to have it in my possession at all. I went around right next to my property, and I went and drop[ped] it in the bushes right there." He also said that he did not call 911 because he "wasn't sure what happened," and he was "not the person to call 911 for no reason."
Martinez claimed that he had written all of the notes that were found under his mattress after he had disposed of the gun that morning. He had felt betrayed and decided to write down his thoughts. Martinez further testified that after he wrote these things down, he washed his clothes. Martinez asked a friend to come to his house, and while she was there, she received a phone call in which the caller told her that the police were looking for Martinez and that Enriquez was dead, which she relayed to Martinez. He waited for a while for police to show up at his house. When police did not arrive, Martinez's friend drove him to a sheriff's station, where he turned himself in. Martinez claimed that he did not know that L.F. was in the Ring House that morning, implying that he had no memory of having shot her. He claimed that he first learned that she had been there when officers told him. B. Procedural background
Martinez was charged with Enriquez's murder (Pen. Code, § 187, subd. (a); count 1) and the deliberate and premeditated attempted murder of L.F. (§§ 664, 187, 189; count 2). The information further alleged that in the commission of both offenses, Martinez intentionally and personally discharged a firearm, causing great bodily injury or death to a person other than an accomplice (§ 12022.53, subd. (d)), and that in the commission of the attempted murder, Martinez personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
Further statutory references are to the Penal Code unless otherwise indicated.
A jury was sworn to hear the case in September 2015. The trial court declared a mistrial in late October after the jury was unable to reach a verdict as to all counts.
A second trial began in June 2016. The second jury found Martinez guilty of second degree murder and deliberate and premeditated attempted murder, and found true both of the enhancement allegations.
The trial court sentenced Martinez to state prison for an aggregate term of 72 years to life, which included multiple consecutive terms, including a term of 15 years to life on count 1; a term of 25 years to life for the firearm enhancement corresponding with count 1; a term of 7 years to life on count 2; and term of 25 years to life for the firearm enhancement on count 2. The court imposed, but stayed, a four-year term for the section 12022.7, subdivision (e) enhancement with respect to count 2.
Martinez filed a timely notice of appeal.
III.
DISCUSSION
A. Substantial evidence supports the jury's determination that Martinez's attempted murder of L.F. was willful, deliberate, and premeditated
Martinez contends that insufficient evidence supports the jury's finding of premeditation and deliberation with respect to his conviction for the attempted murder of L.F.
He does not challenge the sufficiency of evidence to support the finding that he intended to kill L.F.
1. Legal standards
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Elliott (2012) 53 Cal.4th 535, 585.)
2. Analysis
" '[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citations.]" (Smith, supra, 37 Cal.4th at p. 739.) An attempted murder is premeditated and deliberate when it occurs "as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.)
A defendant deliberates if he or she carefully weighs the considerations for and against the choice and, knowing the consequences, decides to kill. (CALCRIM No. 601.) A defendant acts with premeditation if he or she decides to kill before completing the act of attempted murder. (Ibid.) It is not necessary, however, to prove that a defendant "maturely and meaningfully reflected upon the gravity of his or her act" in order to prove that an attempted killing "was 'deliberate and premeditated.' " (§ 189.) "The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (CALCRIM No. 601; People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); People v. Mayfield (1997) 14 Cal.4th 668, 767, abrogated on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2 [" 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . .' "].)
In Anderson, the Supreme Court identified three basic categories of evidence that are pertinent to the determination of premeditation and deliberation in the context of murder: (1) facts that may be characterized as planning activity; (2) facts about the defendant and victim's relationship that support a motive for the killing; and (3) facts about the manner of killing. (Anderson, supra, 70 Cal.2d at pp. 26-27.) However, "[i]n identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation." (People v. Perez (1992) 2 Cal.4th 1117, 1125.) "The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (Ibid.)
With respect to the element of planning activity, the writings found in Martinez's home could lead to the reasonable inference that he was considering killing both Enriquez and L.F. For example, he wrote, " 'Everything has a cost. Idiots think they got away with their own plans. Fuck you. B. You don't know what's coming. And you knew if you already be prepared, fucking bitch. And the other guy, a piece of shit that stinks of the worst kind. I think I'm going to vomit.' " He also wrote, " 'This chick doesn't know what she is doing. She is burning herself. If only she knew what's coming to her. Ha ha ha. Trash. Shit.' " On another piece of paper, Martinez drew a skull and cross bones, and wrote the words, " 'Shit,' " " 'Danger' " and the letter "L" multiple times. Finally, another handwritten entry included the following language: " 'How are you going to trash your life? And if you're worth anything, I believe you would be good for a moment as plant fertilizer.' " Although Martinez claimed at trial that he wrote these things after returning home after the shootings, the jury could have disbelieved him and believed instead that he wrote these things after learning that L.F. and Enriquez were involved in an intimate relationship, before shooting them on March 16, 2014.
In addition, after hearing from Lynch that L.F. had been calling looking for a place to stay, Martinez insisted on going to Enriquez's residence to find L.F., and asked Lynch to drive him there. Martinez told Lynch that he " 'wish[ed] [Enriquez] would be dead in an accident because [he was] tired of him interfering in [his] life.' " Martinez showed up uninvited and unannounced at Enriquez's home, and broke into the residence through a sliding door. He initially called out to L.F. to get her to come to him, and then shot Enriquez in the face. Rather than run or call for help after shooting Enriquez, Martinez walked toward L.F., aimed, and shot at her head. These facts all support an inference that Martinez planned to shoot L.F.
In addition, there was evidence demonstrating that Martinez had a motive to kill L.F. Specifically, the evidence demonstrated that L.F. had ended their relationship in the weeks leading up to the shooting. The evidence further demonstrated that Martinez was extremely upset about the situation, and, in particular, that he was angry and felt betrayed by the fact that L.F. had been intimate with his longtime friend, Enriquez. Martinez was "upset," "hurt," and "mad and sad," according to T.L. A week prior to the shooting, Martinez had demonstrated his feelings by physically attacking L.F., punching her in her head and stomach, grabbing her by her hair and dragging her approximately 10 feet before throwing her to the ground and kicking her. At that time, L.F. cried out apologies to Martinez, and Martinez looked at Enriquez and said, " 'You're going to pay for this.' "
Finally, evidence regarding the manner in which the attempted murder was committed also demonstrated premeditation and deliberation. After shooting Enriquez in the face, Martinez aimed the gun right at L.F.'s head while she was lying in bed. He shot at her from a close distance. At some point he said to her, " 'I told you not to come here, you were going to pay for it.' " In addition, Martinez specifically targeted L.F.'s head, from which one could infer that he premeditatedly and deliberately attempted to kill her. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 ["firing a shot at a vital area of the body at close range" can be a factor supporting finding that killing was done with a deliberate intent to kill sufficient to support first degree murder conviction].) After shooting at L.F.'s head, Martinez ran out of the house and had T.L. drive him away. He did not call for help for L.F., did not try to help her himself, and did not attempt to get her to a medical facility. Instead, he fled the scene, hid the firearm, and washed the clothing that he had been wearing during the shooting. All of this is evidence from which one could infer premeditation and deliberation in Martinez's attempt to kill L.F.
On appeal, Martinez focuses on evidence that was favorable to the defense. However, the jury obviously rejected this evidence, which it was entitled to do. We do not reweigh the evidence on appeal. There is sufficient evidence to support the jury's ultimate finding that Martinez committed premeditated attempted murder with respect to L.F., and we therefore affirm his conviction for that offense. B. The admission of L.F.'s statements to Deputy Manning in the ambulance and upon arriving at the hospital
1. Additional procedural background
Deputy Manning testified that he had a voice recorder in his possession and that he turned it on when he first encountered L.F. at the scene of the shootings. He accompanied L.F. to the hospital in the ambulance, and also spoke with her after she arrived at the hospital. He recorded everything that was said during that period of time. At trial, defense counsel objected to the admission of L.F.'s statements to Deputy Manning during the ambulance ride to the hospital and upon their arrival at the hospital. Defense counsel argued that the statements constituted unreliable hearsay, and that their admission would violate Martinez's rights to due process and a fair trial.
The trial court indicated that it would overrule the objection if the People sought to introduce the recording, concluding that L.F.'s statements were admissible because they qualified as spontaneous and excited utterances, and their admission in evidence did not violate Crawford's prohibitions against the admission of testimonial statements because the statements were made in the course of a contemporaneous emergency. During Manning's testimony, the People sought to introduce the recording that Manning had made of his conversation with L.F. in the ambulance and at the hospital. The trial court inquired of defense counsel whether there was any further objection, and hearing none, permitted the prosecutor to play the recording and provide jurors with a transcript to assist them in understanding the recording.
Crawford v. Washington (2004) 541 U.S. 36.
The court clarified that the recording was the evidence, not the transcript.
The transcript of the conversations recorded by Deputy Manning's voice recorder is included in Clerk's Transcript provided on appeal. It comprises approximately 35 pages, and includes interjections by paramedics and doctors. The transcript of what was said demonstrates that L.F. was complaining of intense pain much of the time or was making sounds indicating that she was in pain. The comments by others made to L.F. indicate that she was groggy and that she may have had some difficulty maintaining consciousness at various times during virtually the entire recording. For example, at several points, L.F. says things such as, "Ow, ow, ow, ow, my wrist, ow," "Oh, oh," "Ow, my fuckin arm," "my arm, my arm is, oh," "Oh, my fucking arm, it's killing me," "Oh. It hurts. It's twisting. It's twisting. Oh my God." Manning and a paramedic can be heard saying things such as the following at various times, "Hey, [L.F.], I know, I know you're in a lot of pain right now . . . ;" "Lean your head forward. I know it hurts. I'm sorry;" "[L.F.], hey, open your eyes;" "Open your eyes wide. Open, open, open. Look at me. [L.F.], open your eyes. Come on. Open your eyes;" and "Wake up. You need to stay awake to talk to the doctors okay?" The final 12 pages of the transcript reflects the doctors attempting to elicit medical information and history from L.F. The vast majority of L.F.'s statements to Manning were made in the first 22 pages of the transcript.
At the beginning of the recording, Manning asks L.F. her name, and asks her what happened. She initially says that she "broke up with [her] ex-boyfriend" and identifies Martinez as the ex-boyfriend. She tells Manning that Martinez "comes over here this morning and he's trying to get in through the window" and it "woke [Enriquez] up." After some interruptions from questions and interjections by a paramedic, L.F. continues to tell Manning that Martinez shot her "one time," and that he "shot [Enriquez] first in the face." After she is placed in the ambulance, L.F. tells Manning that she and Enriquez were sleeping when Martinez opened a window and came in, telling her that her daughter was looking for her and was at his house. The following exchange then took place:
"[L.F.]: And then he took out the gun I guess.
"MANNING: Where was the gun at?
"[L.F.]: I don't know.
"MANNING: Do you know what the gun looked like?
"[L.F.]: It was a big, a little,
"MANNING: Huh?
"[L.F.]: It was a medium size, round gun.
"MANNING: Okay, was it black, chrome?
"[L.F.]: I don't know.
"MANNING: You don't know? Okay and then he pulled out the gun . . .
"[L.F.]: He shot [Enriquez].
"MANNING: He shot [Enriquez]?
"[L.F.]: And then he walked over to me but I put my hand over my face . . .
"MANNING: Okay.
"[L.F.]: . . . my hands over my face.
"MANNING: Were, were you laying [ sic ] in bed still?
"[L.F.]: Yes.
"MANNING: Where was [Enriquez] when he got shot?
"[L.F.]: He was standing up.
"MANNING: He was standing up . . .
"[L.F.]: . . . by the window."
At other points during these interactions, L.F. reiterated that Martinez had shot her and Enriquez and that he had aimed the gun "right at [her] head." She told Manning that Martinez had said, "I told you 'to stop fucking with him.' " She also repeated that she had broken up with Martinez, and indicated that he had come to Enriquez's house the week before, and that she and Martinez had fought that day.
Later, after they arrived at the hospital, L.F. repeated to a doctor, in response to his asking her what had happened, that Martinez had shot her and that he had shot Enriquez in the head.
The court permitted the prosecutor to play for the jury the entire unredacted recording of Manning's interaction with L.F.
Martinez does not argue that the recording should have been redacted or that only certain portions were admissible. Rather, he contends that no portion of L.F.'s statements on the recording should have been admitted as a spontaneous statement.
2. Relevant legal standards
Evidence Code section 1240 codifies the common law exception for spontaneous statements and provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
"The foundation for this exception [in the common law] is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury." (Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 468 (Showalter), quoting Wigmore on Evidence, [2d ed.], sec. 1747 et seq.) "The basis for this circumstantial probability of trustworthiness is 'that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.' " (Showalter, supra, at p. 468.)
"A spontaneous statement is one made without deliberation or reflection. [Citation.] 'The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.' [Citation.]" (People v. Raley (1992) 2 Cal.4th 870, 892-893.) "To qualify for [the spontaneous statement] exception, (1) there must have been a startling occurrence that produced nervous excitement, thus making the statement spontaneous and unreflecting; (2) the statement must have been made before there was time to contrive and misrepresent; and (3) the statement must relate to the occurrence preceding it. [Citation.]" (People v. Becerrada (2017) 2 Cal.5th 1009, 1027.)
"A number of factors may inform the court's inquiry as to whether the statement in question was made while the declarant was still under the stress and excitement of the startling event and before there was 'time to contrive and misrepresent.' [Citation.] . . . [However], no one factor or combination of factors is dispositive. [Citations.]" (People v. Merriman (2014) 60 Cal.4th 1, 64-65.)
"Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.]" (People v. Poggi (1998) 45 Cal.3d 306, 318 (Poggi).) The trial court's determination of preliminary facts will be upheld if supported by substantial evidence. (People v. Brown (2003) 31 Cal.4th 518, 541.) However, "[w]e review for abuse of discretion the ultimate decision whether to admit the evidence." (People v. Phillips (2000) 22 Cal.4th 226, 236.) In performing the task of determining whether the requirements of the spontaneous statement exception are satisfied, the court " 'necessarily [exercises] some element of discretion . . . .' [Citation.] [¶] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation]." (Poggi, supra, at pp. 318-319.)
3. Analysis
We conclude that the trial court did not abuse its discretion in determining that L.F.'s statements to Manning that Manning recorded during the ambulance ride and after their arrival at the hospital met the requirements of the spontaneous statement exception.
L.F.'s statements to Manning describe Martinez shooting at her and Enriquez at close range, obviously satisfying the requirement that the statements in question relate to an occurrence that was sufficiently startling to cause nervous excitement. The record also supports the trial court's implicit finding that L.F. was under the "stress of excitement," and that there had not been time for her to contrive or misrepresent what had happened at the time she was talking with Manning. Manning first contacted L.F. approximately 30 minutes after the shooting. At that time, she appeared to him to be "in shock, slightly tired, and [in] a lot of pain." Although the conversation that Manning recorded was not brief, the evidence demonstrates that it took place while L.F. was under significant stress arising from the shooting. In particular, statements made by L.F. and statements made to L.F. throughout the conversation suggest that L.F. continued to suffer from the shock, fatigue, and intense pain that Manning described, throughout the ambulance ride and after her arrival at the hospital. Further, L.F.'s responses to all of the questions posed to her tended to be brief and sometimes abrupt. Often, the questioners had to prompt her for more or additional information, or to clarify what L.F. meant by a short response.
The Supreme Court relied on similar factors in affirming a trial court's admission of statements made by a victim who had watched the defendant injure her best friend and who was then beaten and strangled by the defendant, who eventually left her for dead. (People v. Clark (2011) 52 Cal.4th 856, 926.) Although the victim made a statement about the threat the defendant had made to her "many hours after [the threat] was made," the Supreme Court nevertheless concluded that the evidence demonstrated that the victim was "still under the influence of the stress and shock of the night's events when she told Dr. Fisher that defendant threatened to kill her and [her friend.]" (Ibid.) Among the evidence that the court relied on was the fact that, upon arriving at the emergency room, the victim "alternated between sleepiness and agitation," that her "responses to [the doctor's] questions were not 'normal conversation-type answers,' and that if left alone, she frequently drifted off to sleep." (Ibid.) The Supreme Court concluded that even though the victim's statement to the doctor "came two to seven hours after the shocking and disturbing events, it retained its spontaneity because, as the evidence showed, her mental and physical condition prevented her from reflecting on and fabricating her account of what had happened." (Ibid.) Similarly, here, the record demonstrates that L.F.'s mental and physical condition would have made it difficult for her to have been able to contrive a story about what she had just witnessed and been subjected to. Her statements to Manning thus retained their spontaneity, such that they were admissible.
Martinez argues that L.F. "demonstrated her ability and willingness to reflect and deliberate by answering a litany of question from both Manning and the paramedics regarding her name, date of birth, relationship with [Enriquez], Martinez's name, age, whether he had a car, and when she broke up with him." He further contends that her ability to provide Manning with clear directions to Martinez's house also demonstrates that she was "not controlled by the stress of the excitement" and suggests that she had the opportunity to "contrive or reflect." The trial court concluded otherwise, and substantial evidence supports the court's findings. The record demonstrates that L.F. was in pain and appeared to provide direct, brief answers regarding information that she could easily recall, as opposed to lengthy narratives. Further, the nature of the interactions, including her repeated spontaneous references to her pain, suggest that she was responding without having reflected or deliberated about what she was going to say. C. Photographic evidence of the machete found in Martinez's home
Martinez contends that the trial court abused its discretion in admitting photographic evidence of a machete that was found in Martinez's home because the machete was unrelated to the shootings. According to Martinez, evidence regarding the machete was unfairly prejudicial because the jurors would infer that he was the sort of person who carries deadly weapons.
1. Additional background
At trial, the People twice published two photographs of a machete that was discovered in Martinez's residence, his motor home, during the examination of two different witnesses. Defense counsel did not object to the publication of the photographs on either occasion, although counsel did object to the prosecutor asking one detective about the approximate length of the blade of the machete. The court overruled that objection, and the witness testified that the machete blade was approximately three feet in length.
After the People rested, defense counsel objected to the admission of the two photographic exhibits of the machete on relevance grounds and on the ground that the potential prejudice outweighed any probative value pursuant to Evidence Code section 352. In response, the People argued that the exhibits would be relevant if Martinez testified that he threw the revolver on the hill behind his motor home so that the police would not believe that he possessed weapons such that they might use force against him, because evidence of the presence of a machete in Martinez's home would undermine such a contention. Further, evidence of the machete would rebut the potential defense theory that Martinez suffered from PTSD as a result of "drunk machete-yielding men," in that "it would negate that he was truly scared of machete-wielding men if he keeps a machete inside his home." The court stated, "Right now I find virtually no probative value in the fact that there was a machete on the defendant's property. So at this time, I'm going to exclude that evidence, exhibits 39 and 40, subject to further review depending on what evidence the defense presents."
Martinez testified that he worked as a tree trimmer and landscaper, and listed among the tools of his trade axes, machetes, and a chainsaw "for the tree trimming." According to Martinez, the machete found in his residence was a gift from his sister and was marked with his name, like his other work tools. He said that he put the machete under the seat cushion of the banquette because he had just received it, needed to sharpen it, and did not want it to be stolen. He believed that the location under the seat cushion would be a safe place to store it, since a "machete can be dangerous if not handled correctly."
Martinez further testified that with respect to the revolver that he used to shoot Enriquez and L.F., he hid it in the bushes on the hill behind his motor home because he knew that someone was likely to have "call[ed] the cops" about what had happened at the Ring House, and he "d[id not] want to be hunted" (presumably by the police), he was "not a person with a weapon," and did not "want to have it in [his] possession at all." When he was later asked why he did not simply leave the gun in his motor home and meet the police at the bottom of the hill, Martinez testified that he had called his son, and he "d[idn't] want [his] kid to get in the motor home and see a weapon in the motor home."
In rebuttal, the People sought to admit in evidence the two photographic exhibits depicting the machete. Defendant counsel stated that he had no additional objection to the admission of the exhibits beyond the relevance and Evidence Code section 352 objections that he had previously raised. The court overruled these objections and admitted the photographic exhibits in evidence. The court reasoned that "the defense introduced the fact that he uses a machete in his direct testimony," and so "it became relevant then," and further noted that the photographs of the machete were relevant to rebut Martinez's testimony "that one of the reasons he disposed of the gun in this case was for safety concerns, that somebody else might be injured if they find it," and arguably he could have "hid the gun where the machete was." The court affirmed that under an Evidence Code section 352 analysis, "the probative value has gone way up and the prejudicial impact has gone way down" as a result of Martinez's testimony concerning the machete.
2. Legal standards
All relevant evidence is admissible except as otherwise provided by a statutory or constitutional exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.) Relevant evidence is defined as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The general test of relevance " 'is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " (People v. Bivert (2011) 52 Cal.4th 96, 116-117.)
In addition, evidence that is relevant under the above standards may nevertheless be excluded if its probative value is substantially outweighed by the probability that its admission will necessitate an undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352; People v. Lee (2011) 51 Cal.4th 620, 643 (Lee).) A trial court possesses broad discretion in determining whether evidence is relevant and whether exclusion is appropriate under Evidence Code section 352. (People v. Mills (2010) 48 Cal.4th 158, 195; People v. Williams (2008) 43 Cal.4th 584, 634.)
Given the broad discretion granted to the trial court in making rulings with respect to relevance and section 352 considerations, we review a trial court's rulings on the admissibility of evidence, including those turning on the relevance or probative value of evidence, for an abuse of discretion. (Lee, supra, 51 Cal.4th at p. 643; People v. Hamilton (2009) 45 Cal.4th 863, 930.)
3. Analysis
The trial court did not abuse its discretion in concluding that the photographs of Martinez's machete were relevant and became more probative than prejudicial as a result of Martinez's testimony at trial. Specifically, Martinez testified that he hid the revolver that he had used in the shootings because he was "not a person with a weapon," and suggested that he feared that law enforcement officers might use the fact that they found a weapon in his possession as a reason to become violent toward him. His possession of a large machete, in his residence, tended to contradict Martinez's claim about why he had disposed of the gun in the way in which he had. Further, Martinez also claimed that he had disposed of the revolver in the bushes out of concern for the safety of others. For example, Martinez responded "[c]orrect" when asked whether he kept the machete under the seat cushion because that was a "safe spot." As the trial court concluded, Martinez could have hidden the gun in the same location as the machete to address any concerns regarding safety, yet he hid the gun in a completely different location.
The trial court could have reasonably concluded that the photographic evidence was more probative than prejudicial, given Martinez's testimony. The probative value of the evidence regarding the machete and the location in which it was found became more significant once Martinez testified about his reasons for placing the machete under the cushion and his reasons for disposing of the revolver in the bushes on the hill behind his motor home. Further, the court could have reasonably concluded that the potential prejudicial impact from the evidence did not outweigh its usefulness to the jury in understanding and evaluating the testimony presented. The admission of the photographic evidence was not likely to result in emotional bias against Martinez, particularly given the fact that he provided a reasonable explanation as to why he possessed the large machete, i.e., that he uses them in his line of work.
To the extent that Martinez is asserting that the trial court's ruling admitting the photographs of the machete amounted to a violation of his constitutional rights to "due process and a fundamentally fair trial," it is clear that evidence that has been properly admitted under state law does not violate a defendant's constitutional right to a fair trial. (People v. Fuiava (2012) 53 Cal.4th 622, 670.) D. Cumulative error
Martinez contends that the cumulative effect of the claims of error that he raises requires reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
We have concluded that none of Martinez's asserted claims of error has merit. As a result, there are no errors for which the cumulative effect would require reversal of the judgment against Martinez. E. The trial court must correct the sentence with respect to count 2
Martinez contends that the trial court imposed an unauthorized sentence of seven years to life for his conviction on count 2, for premeditated attempted murder, because the proper sentence for this offense is life with the possibility of parole. The People concede that Martinez is correct.
The statutory sentence for willful, deliberate, and premeditated attempted murder is "life with the possibility of parole." (§ 664, subd. (a).) A person who is sentenced to a term of "life with the possibility of parole" is not eligible for parole until he or she has served seven years of the sentence. (§ 3046.) Although the parole ineligibility period is deemed to be a minimum term for purposes of second strike offender sentencing under the Three Strikes Law (People v. Jefferson (1999) 21 Cal.4th 86, 92-97; §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), it is not otherwise considered a minimum term for purposes of the Determinate Sentencing Act. (People v. Felix (2000) 22 Cal.4th 651, 654, 657-659.)
Section 664, subdivision (a) provides in relevant part: "However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." --------
As the People agree, the semantically correct statement of the sentence that should be imposed on Martinez for his conviction on count 2 is a sentence of "life with the possibility of parole," not "seven years to life." Martinez requests that this court remand the matter to the trial court with directions to issue a corrected sentencing order and an amended abstract of judgment to reflect the imposition of a term of life with the possibility of parole for the willful, deliberate, and premeditated attempted murder of L.F. on count 2, with a resulting aggregate sentence of 65 years to life. The People agree that this would be the appropriate result. We accept the People's concession on this point. We will therefore vacate the sentence and remand the matter for the trial court to issue a new sentencing order and amended abstract of judgment to correct the sentence on count 2. F. The People concede that the abstract of judgment should be corrected to reflect that restitution is to be paid to the victim restitution fund, and not to the claimants directly
Martinez asserts that the case should be remanded with directions to the trial court to issue a new abstract of judgment that reflects that Martinez is to pay $5,375 to the California Victim Compensation and Government Claims Board (CVCGCB) and not to two named individuals.
As of July 12, 2016, the CVCGCB had paid $5,375 in benefits to two claimants, A.R., and M.E., for funeral, burial, and mental health expenses incurred as a result of Martinez's actions in this case. At the time Martinez was sentenced, the court ordered him to pay restitution to L.F., E.E. and C.E., in amounts to be determined. The court also ordered Martinez to reimburse the victim compensation program $5,000 for one of the claimants and another $375 for the other claimant, for the money that the CVCGCB had paid them.
The abstract of judgment incorrectly states that Martinez is ordered to pay $5,375 in victim restitution directly to the two individuals who were issued victim restitution benefits by the CVCGCB, rather than to the Restitution Fund, as reimbursement for the amounts that it had paid out to those individuals.
As the People concede, the trial court's oral pronouncement of the judgment indicated that the trial court intended Martinez to make the $5,375 payment to the agency that incurred those costs when it made benefits payments to the two claimants. When an abstract of judgment fails to reflect the accurate judgment pronounced by the court, the error may be corrected at any time to reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187, 188.) We therefore will direct the trial court to amend the abstract of judgment to reflect that Martinez is to make the $5,375 restitution payment to the Restitution Fund.
IV.
DISPOSITION
The sentence is vacated. On remand, the trial court is directed to issue an amended sentencing order reflecting a sentence of life with the possibility of parole with respect to count 2 and the resulting appropriate aggregate sentence. The court is also directed to amend the abstract of judgment to reflect (1) the new sentence with respect to count 2, (2) any resulting modified aggregate sentence, and (3) the fact that Martinez was ordered to pay restitution in the amount of $5,375 to the Restitution Fund rather than to victims A.R. and M.E., directly. In all other respects, the judgment is affirmed.
AARON, J. WE CONCUR: BENKE, Acting P. J. DATO, J.