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People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 29, 2020
No. B293515 (Cal. Ct. App. Jan. 29, 2020)

Opinion

B293515

01-29-2020

THE PEOPLE, Plaintiff and Respondent, v. DANIEL MARTINEZ, Defendant and Appellant.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.


ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT] THE COURT:

It is ordered that the unpublished opinion in the above-captioned matter, filed on January 29, 2020, be modified as follows:

1. On page 3, the text of footnote 3 is deleted and replaced with the following: Teque testified that he initially believed the gun was real, but later learned it was not.

2. On page 7, on the ninth line from the top, immediately after "(Ibid.)", insert the following: We view the evidence in the light most favorable to the defendant, and resolve doubts about its sufficiency in defendant's favor. (People v. Moye (2009) 47 Cal.4th 537, 562; People v. Aguilar (2019) 41 Cal.App.5th 1023, 1027-1028; People v. Larsen (2012) 205 Cal.App.4th 810, 824.)

3. On page 8, at the beginning of the first full paragraph under subheading b., omit the first sentence and substitute the following: Viewing the evidence in the light most favorable to Martinez, there was insufficient evidence to show either the objective or subjective component of heat of passion manslaughter.

This modification does not change the judgment.

The petition for rehearing is denied. /s/_________
EDMON, P.J. /s/_________
LAVIN, J. /s/_________
DHANIDINA, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA098733) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Villalobos, Judge. Affirmed. Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

A jury convicted defendant and appellant Daniel Martinez of second degree murder, with a dangerous and deadly weapon enhancement. He argues the trial court erred by failing to instruct the jury on voluntary manslaughter on a heat of passion theory, and by instructing with CALCRIM No. 372, regarding flight after the crime. He also contends the cumulative effect of the purported errors was prejudicial. Discerning no error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

Viewed in the light most favorable to the judgment (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence adduced at trial was as follows.

a. The murder

In approximately late February 2016, the victim, 22-year-old Israel Ramirez, and his girlfriend, Jessica Justo, were walking down a San Gabriel street near Ramirez's residence. Martinez, driving his green Honda, drove past them on the opposite side of the street. Codefendant Rigoberto Sandoval was seated in the passenger seat; Jorge Lopez and Anthony Sanabria were in the back seat. Sandoval imitated the shape of a gun with his hand, pointed it at Justo or Ramirez, and loudly said, "Clack, clack, clack" or "boom boom." As the car passed, Ramirez yelled, " 'come back.' " When the couple neared Ramirez's apartment, the Honda pulled alongside them. Ramirez walked up to the Honda. Sandoval and Martinez attempted to "argue and fight with" Ramirez, but he declined.

Sandoval is not a party to this appeal.

On the evening of March 8, 2016, Ramirez and his friend, John Teque, were seated in front of Ramirez's apartment in a Chevy Trailblazer, drinking beer and smoking marijuana. Both men were unarmed.

At approximately 10:30 p.m., Martinez drove Sandoval, Lopez, and Sanabria to Ramirez's apartment in his Honda. When they arrived, Martinez's group exited the Honda and approached Ramirez and Teque, who exited the Trailblazer. Martinez angrily and repeatedly asked Ramirez to fight, but Ramirez refused. Sandoval got "in [Ramirez's] face," staring him down. Martinez adopted a boxing stance and "sucker punched" Ramirez in the face with "full force," causing him to fall to the ground. Martinez and Sandoval then jumped on top of or stood over Ramirez and repeatedly punched his face and body as he was on the ground, landing "accurate and heavy" blows. Lopez came from behind the Honda and pointed what appeared to be a black handgun at Ramirez. Teque threw his beer in Lopez's face, grabbed Lopez, and pushed him against a fence. Sanabria used a baseball bat to hit Teque's legs out from under him, and Lopez hit Teque on the head with the gun. Martinez stabbed Ramirez in the chest with a knife. Martinez's group then fled the scene in the Honda.

Teque told a deputy he was unsure whether Ramirez got out of the car on his own, or was pulled out by members of Martinez's group.

The gun was later determined to be a BB gun that resembled a handgun.

Ramirez stood up and asked Teque to call the police "because they stabbed me in the heart." Teque attempted to carry Ramirez to safety, and summoned help. However, Ramirez succumbed to his wounds at the scene, as his parents and another relative attempted to aid him. The cause of death was a single stab wound to the heart. Ramirez also had abrasions on his forehead, the bridge of his nose, and his knee; lacerations to the inside of his lip, indicative of blunt force trauma; and four areas of blunt force trauma to his head.

Sheriff's deputies arrested Martinez, who was again driving the Honda, on March 13, 2016, for possession of marijuana for sale. Two baseball bats, a knife, and a BB gun were inside the car.

b. Martinez's testimony

Martinez, who was 19 years old at the time of the murder, testified in his own behalf, as follows. When he drove past Justo and Ramirez two weeks before the murder, Sandoval did not make any noises or gestures. When Martinez pulled alongside Justo and Ramirez, Sandoval and Ramirez had a conversation "about weed." They did not argue, and Sandoval did not threaten Ramirez.

On the evening of the murder, Martinez, Sandoval, Lopez, and Sanabria were drinking beer. After finishing an 18-pack, they contemplated how to obtain more. Believing that Martinez's friend Teque might be able to obtain beer for them, Martinez drove the group around the neighborhood, looking for Teque. They spotted him sitting in the Trailblazer with Ramirez, whom Martinez did not know. Martinez told Teque to get out of the vehicle, and both Teque and Ramirez did so. Martinez saw there was beer in the Trailblazer's back seat. He asked Ramirez if he could have a can. Ramirez said "no." Martinez asked again, and Ramirez again refused, "with an attitude." They argued for 10 to 15 seconds "about the beer." Martinez then sucker punched Ramirez in the face. Ramirez fell to the ground.

Martinez turned and began walking toward his Honda. Ramirez grabbed him from behind and put his arm around Martinez's neck in a headlock. Martinez tried to get away but Ramirez pulled him backwards and applied pressure to Martinez's neck for "around less than five seconds." Martinez had trouble breathing and felt "a little dizzy." Afraid he could "pass out or be killed," Martinez pulled a switchblade from his pocket, flipped it open, reached over his head, and stabbed Ramirez. He did not undertake alternative defensive maneuvers because he was caught by surprise, the event happened "very quickly," and he did not think about them at the time. He and his companions left the scene and he discarded the knife in some bushes. He did not intend to kill Ramirez. He denied that Ramirez was a rival marijuana dealer. He suffered no injury as a result of Ramirez's purported headlock.

Martinez admitted that a few months before the murder, he was arrested for possession of a switchblade knife. He also admitted being engaged in marijuana sales, and had sold to Teque and Justo.

2. Procedure

A jury convicted Martinez of second degree murder (Pen. Code, 187 subd. (a)), and found he personally used a deadly and dangerous weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)). The jury acquitted him of first degree murder. The trial court imposed a term of 15 years to life for the murder, plus a one-year term for the weapon use enhancement. It imposed a $1,000 restitution fine, a suspended parole revocation restitution fine in the same amount, a $40 court operations assessment, and a $30 criminal conviction assessment, and ordered Martinez to pay direct victim restitution in an amount to be determined at a subsequent hearing. Martinez timely appealed.

All further undesignated statutory references are to the Penal Code.

DISCUSSION

1. The trial court did not err by failing to instruct on heat of passion voluntary manslaughter

The trial court instructed the jury on homicide, first and second degree murder, mutual combat, voluntary manslaughter on an imperfect self-defense theory, involuntary manslaughter, and "perfect" self-defense. When discussing the jury instructions, the court told the parties it did not intend to give CALCRIM No. 570 (voluntary manslaughter on a heat of passion theory), because there was no evidence of provocation or a "heat of passion or sudden quarrel-type of situation." The court invited defense counsel to weigh in on the issue; neither did. Martinez now argues the trial court prejudicially erred by failing to instruct on heat of passion voluntary manslaughter. We disagree.

a. Applicable legal principles

A trial court must sua sponte instruct the jury on lesser included offenses when there is substantial evidence the defendant is guilty of the lesser offense, but not the greater. (People v. Landry (2016) 2 Cal.5th 52, 98; People v. Whalen (2013) 56 Cal.4th 1, 68; People v. Moye (2009) 47 Cal.4th 537, 548.) This duty is not satisfied by instructing on only one theory of an offense if other theories are supported by the evidence. (People v. Lee (1999) 20 Cal.4th 47, 61.) Substantial evidence is that which a reasonable jury could find persuasive. (People v. Williams (2015) 61 Cal.4th 1244, 1263.) The existence of any evidence, no matter how weak, will not justify an instruction. (Whalen, at p. 68; People v. Wyatt (2012) 55 Cal.4th 694, 698.) The testimony of a single witness, including the defendant, may suffice. (Wyatt, at p. 698.) In determining whether substantial evidence existed, we do not evaluate the credibility of the witnesses, a task for the jury. (Ibid.) We independently review the question of whether the trial court erred by failing to instruct on a lesser included offense. (People v. Nelson (2016) 1 Cal.5th 513, 538; People v. Trujeque (2015) 61 Cal.4th 227, 271.)

Voluntary manslaughter is the intentional but nonmalicious killing of a human being, and is a lesser included offense of murder. (§ 192, subd. (a); People v. Nelson, supra, 1 Cal.5th at p. 538; People v. Thomas (2012) 53 Cal.4th 771, 813.) A killing may be reduced from murder to voluntary manslaughter if it occurs upon a sudden quarrel or in the heat of passion on sufficient provocation, or if the defendant kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. (People v. Landry, supra, 2 Cal.5th at p. 97; People v. Moye, supra, 47 Cal.4th at p. 549.)

"The heat of passion sufficient to reduce murder to manslaughter 'exists only where "the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an ' "ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." ' " ' [Citation.]" (People v. Landry, supra, 2 Cal. 5th at p. 97.) Thus, heat of passion manslaughter has both an objective and a subjective component. (People v. Moye, supra, 47 Cal.4th at p. 549; People v. Enraca (2012) 53 Cal.4th 735, 759.) As to the former, the "provocation which incites the defendant to homicidal conduct . . . must be caused by the victim . . . or be conduct reasonably believed by the defendant to have been engaged in by the victim" (People v. Lee, supra, 20 Cal.4th at p. 59; People v. Manriquez (2005) 37 Cal.4th 547, 583), and must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, i.e., " 'from this passion rather than from judgment.' " (People v. Beltran (2013) 56 Cal.4th 935, 939; Enraca, at p. 759.) To satisfy the subjective component, the defendant must actually have killed while under the influence of such a strong passion induced by legally adequate provocation. (Moye, at p. 550; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139.) The passion aroused may be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (Millbrook, at p. 1139; Beltran, at p. 950.)

b. Application here

Here, the evidence was insufficient to show either the objective or subjective component of heat of passion manslaughter. First, there was no evidence of legally adequate provocation. If the People's evidence was credited, Martinez's group carried out an unprovoked attack on Ramirez and Teque, after Ramirez refused to fight. Martinez's testimony, if credited by the jury, likewise failed to show provocation. It is axiomatic that Ramirez's refusal to give Martinez a free beer is not the sort of action that would arouse the passions of a reasonable person and incite him to homicidal conduct. (People v. Beltran, supra, 56 Cal.4th at p. 949 [to "be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection"].)

Martinez does not argue to the contrary. However, as evidence of provocation, he points to his own testimony that, after he sucker punched Ramirez and turned and began to walk away, Ramirez placed him in a headlock. He asserts that Ramirez's action was sudden, unprovoked, unforeseeable, unexpected, and illegal, and constituted "a sudden quarrel initiated by Ramirez."

Martinez is incorrect. The assertion that Ramirez's response was "unprovoked," "unforeseeable," and "unexpected" is patently meritless. Common sense dictates that when a defendant punches a victim in the face without provocation, the victim is likely to respond with force. Moreover, Ramirez was legally entitled to defend himself. "California belongs to the majority of jurisdictions with a '[n]o [r]etreat [r]ule,' under which the victim of an assault is under no obligation to ' "retreat to the wall" ' before exercising the right of self-defense, but is entitled to ' "stand his ground." ' [Citation.]" (People v. Ross (2007) 155 Cal.App.4th 1033, 1044, fn. 13.) "If A walks up to B and punches him without warning, . . . B would be entitled under the law of this state to punch A immediately, without further ado, provided he acted out of an actual and reasonable belief that such action was necessary to avert imminent harm [citation], and he used no more than reasonable force [citation]." (Id. at p. 1044.) "A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible." (People v. Oropeza (2007) 151 Cal.App.4th 73, 83; see People v. Souza (2012) 54 Cal.4th 90, 117 [victim's predictable and reasonable conduct in resisting felonious assault does not constitute provocation sufficient to merit a manslaughter instruction]; People v. Enraca, supra, 53 Cal.4th at p. 760 [same].)

People v. Johnston, supra, 113 Cal.App.4th 1299, is instructive. There, the defendant armed himself with a knife, travelled to an ex-girlfriend's residence at 5:00 a.m., demanded that she exit the house, and verbally abused and threatened her mother and family members. He then stood on the front porch, shouting and challenging the ex-girlfriend's brothers to come out and fight. (Id. at pp. 1302-1304, 1310.) One of the brothers accepted the challenge and "charg[ed]" the defendant. (Id. at p. 1304.) When the brother, who was unarmed, got the better of the defendant in the fight, the defendant pulled a knife and stabbed him to death. (Id. at pp. 1302, 1305, 1311.) The jury convicted the defendant of second degree murder but the trial court reduced the offense to voluntary manslaughter, reasoning that the victim, not the defendant, started the fight. (Id. at pp. 1305, 1310.) Johnston reversed. The defendant could "not claim provocation such as to reduce the crime to voluntary manslaughter." (Id. at p. 1314.) "[I]t was [the defendant] who instigated the fight with [the victim] by creating a loud disturbance at the residence, cursing the mother of the victim and ex-girlfriend and, most particularly, challenging [the victim] to come out and fight. Having done that, he cannot be heard to assert that he was provoked when [the victim] took him up on the challenge. Defendant was 'culpably responsible' for the altercation." (Id. at p. 1313.)

The same is true here. It was undisputed that Martinez initiated the incident, driving up to Ramirez's apartment, approaching Ramirez and Teque, and sucker punching Ramirez. Even if the jury credited the testimony that Ramirez responded to the punch by grabbing Martinez around the neck, this was not sufficient evidence of provocation. It was undisputed that Martinez, not the victim, initiated hostilities. Having engaged in this conduct, he cannot be heard to complain that, seconds after he threw the punch, Ramirez provoked him by grabbing him.

Martinez's argument apparently rests upon the principle that a defendant who initiates a fight may regain the right of self-defense when he unequivocally communicates, by words or conduct, that he has abandoned the fight. (See generally CALCRIM No. 3471; People v. Nem (2003) 114 Cal.App.4th 160, 165-167; People v. Hernandez (2003) 111 Cal.App.4th 582, 588-589.) Given that only seconds had elapsed since the punch, Martinez and the victim were still in close proximity, and Martinez was accompanied by his three companions, we find it doubtful that his mere act of turning away unequivocally communicated to the victim an intent to withdraw. But assuming arguendo it did, the fact Ramirez responded to the punch with nonlethal force cannot, on the facts here, serve as legally adequate provocation for purposes of a heat of passion analysis, regardless of whether it was sufficient for Martinez to regain the right of self-defense.

Nor was there sufficient evidence showing Martinez actually acted in the heat of passion. Martinez argues the jury might have found he stabbed Ramirez "reactively in the heat of the moment out of fear for his safety." We think not. In People v. Moye, for example, the defendant, Moye, and the victim, Mark, argued one evening. The next morning Moye chased and caught up with Mark, whereupon—according to Moye—Mark attacked him with a baseball bat. Moye grabbed the bat and killed Mark with it. (People v. Moye, supra, 47 Cal.4th at p. 552.) Moye testified that when he killed Mark, he was not " 'in the right state of mind,' " i.e., he was worried about Mark's attack and did not want to be beaten or killed. (Ibid.) Moye concluded instruction on a heat of passion theory was unwarranted. (Id. at p. 553.) "[T]he thrust of defendant's testimony below was self-defense—both reasonable self-defense . . . and unreasonable or imperfect self-defense . . . . There was insubstantial evidence at the close of the evidentiary phase to establish that defendant 'actually, subjectively, kill[ed] under the heat of passion.' [Citations.] The only testimonial evidence on the point . . . came from defendant himself . . . . His only claim was that he acted out of self-defense in using the bat to thwart Mark's continuing advances. He provided a blow-by-blow recounting of events in which he characterized every swing he took with the bat as a defensive response to each of Mark's successive advances." (Id. at p. 554.) "[N]o principle of law required the trial judge below to disregard the evidence in order to find that the jury should consider whether defendant subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter, and the evidence actually introduced on the point—the defendant's own testimony—was to the contrary." (Ibid.)

The same is true here. Martinez did not testify he stabbed Ramirez because he was blinded by passion or anger, or that his reason was obscured. Instead, Martinez testified that he thought he might pass out or the headlock might kill him, and he stabbed Ramirez to break free. Just as in Moye, Martinez's testimony may have supported instructions on self-defense and imperfect self-defense—which were given—but not on heat of passion.

It is true that a defendant's strong fear or panic can, in an appropriate case, provide evidence his reason was obscured by "extreme emotion." (See People v. Millbrook, supra, 222 Cal.App.4th at p. 1139.) But the cases Martinez cites bear little resemblance to the instant matter. In People v. Thomas (2013) 218 Cal.App.4th 630, the shooting was preceded by a heated argument and a physical attack on the defendant, during which several men cursed at, "body slammed," punched, beat, and kicked him. (Id. at pp. 634-635, 639-640, 645.) There was also evidence he was distraught: he was crying and calling for his father, who attempted to calm him down, and appeared angry. He testified he fired the gun because he was "afraid, nervous and not thinking clearly." (Id. at p. 645.) The court reasoned that while these facts fit more precisely with an imperfect self-defense theory, it could not "rule out that they may also show" the defendant's "passion was aroused and his reason was obscured due to a sudden quarrel." (Ibid.)

In People v. Millbrook, the court concluded the failure to instruct on heat of passion was error where the defendant shot another partygoer. (People v. Millbrook, supra, 222 Cal.App.4th at p. 1136.) The evidence included testimony that the victim, Manoa, acted belligerently throughout the party, engaged in intense arguments with Millbrook's girlfriend and others, escalated the fight with Millbrook, lunged at him, threatened to get someone to beat Millbrook's girlfriend, and told him " 'check your bitch.' " There was also evidence Millbrook was angered by Manoa's conduct, had been subjected to threats of violence in unrelated incidents in the past, and was intimidated by the fact he was surrounded by Manoa's friends and Manoa was bigger than he was. (Id. at pp. 1139-1140.) From this evidence, jurors could conclude Millbrook shot "spontaneously and under the influence of extreme emotion." (Id. at p. 1140.)

The facts here are closer to those in Moye than in Millbrook and Thomas. Ramirez was not the initial aggressor; the killing was not preceded by an intense argument; Martinez was surrounded by his own companions—one of whom was much bigger than the victim—not by persons hostile to him; and there was very little evidence about his mental state, except that he purportedly stabbed Ramirez to break free of the headlock. Unlike in Thomas and Millbrook, none of the evidence suggested Martinez was acting "under the actual influence of extreme emotion." (People v. Millbrook, supra, 222 Cal.App.4th 1139.) Martinez's unadorned testimony that he was scared because the unarmed victim had him in a headlock and placed pressure on his neck for less than five seconds was not of such an ilk. (See People v. Beltran, supra, 56 Cal.4th at p. 949 [the "anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene"].)

A trial court is not obliged to instruct on theories that lack substantial evidentiary support. (People v. Burney (2009) 47 Cal.4th 203, 246.) Because there was insufficient evidence of both components of a heat of passion theory, the trial court properly omitted the heat of passion instruction here.

In light of our conclusion, we do not reach Martinez's arguments about prejudice.

2. Instruction with CALCRIM No. 372

Without objection, the trial court instructed the jury with CALCRIM No. 372, the standard instruction on a defendant's flight after the crime. It provided: "If a defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that a defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."

Martinez contends the instruction is flawed because it conflicts with section 1127c. Further, he urges the instruction is argumentative because it identifies specific evidence and invites only a "pro-prosecution inference." The purported flaws in the instruction, he maintains, lightened the prosecutor's burden of proof, violated his due process rights, and deprived him of a fair trial. We disagree.

In a criminal case, even absent a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Molano (2019) 7 Cal.5th 620, 667.) When the prosecution relies upon evidence of flight as tending to show guilt, section 1127c requires that the jury be instructed with the principles embodied in CALCRIM No. 372. (§ 1127c; People v. Wallace (2008) 44 Cal.4th 1032, 1074; People v. Howard (2008) 42 Cal.4th 1000, 1020.) Martinez does not dispute that there was sufficient evidence requiring an instruction pursuant to section 1127c.

Section 1127c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."

Our Supreme Court has repeatedly upheld CALJIC No. 2.52, the precursor to CALCRIM No. 372, against similar challenges. (See, e.g., People v. Nelson, supra, 1 Cal.5th at p. 552; People v. Johnson (2015) 61 Cal.4th 734, 774 [CALJIC No. 2.52 is not argumentative, does not permit jury to draw impermissible inferences about defendant's guilt, and does not lessen the People's burden of proof]; People v. Carrasco (2014) 59 Cal.4th 924, 967-968 [CALJIC No. 2.52 is not "unfairly partisan and argumentative," and does not create an unconstitutional permissive inference or lessen the prosecution's burden of proof]; People v. Taylor (2010) 48 Cal.4th 574, 630; People v. Howard, supra, 42 Cal.4th at p. 1021; People v. Mendoza (2000) 24 Cal.4th 130, 180-181.)

Martinez contends these authorities are inapposite because the language of CALCRIM No. 372 and CALJIC No. 2.52 is different. CALJIC No. 2.52 states that the jury may consider flight "in deciding whether a defendant is guilty or not guilty," whereas CALCRIM No. 372 states that flight "may show that [the defendant] was aware of [his] guilt." But, appellate courts have concluded CALCRIM No. 372, like CALJIC No. 2.52, is neither argumentative nor inconsistent with section 1127c. In People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, the court concluded the change in wording did not give rise to an impermissible presumption of the defendant's guilt or lower the prosecution's burden of proof. (Id. at pp. 1157-1159.) Hernandez Rios pointed out that in People v. Mendoza, our Supreme Court held that "permitting 'a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt' is not violative of due process. [Citation.]" (Hernandez Rios, at p. 1158, quoting People v. Mendoza, supra, 24 Cal.4th at p. 180.)

People v. Paysinger (2009) 174 Cal.App.4th 26, similarly rejected the contention that CALCRIM No. 372 unconstitutionally lowers the prosecution's burden of proof. (Paysinger, at pp. 30-31.) The court also concluded the instruction did not conflict with section 1127c. (Paysinger, at pp. 31-32.) Rejecting the defendant's argument that CALCRIM No. 372 was flawed because it " 'tells the jury flight may prove guilt,' " the court explained: "It has long been accepted that if flight is significant at all, it is significant because it may reflect consciousness of guilt, which in turn tends to support a finding of guilt. [Citation.] That CALCRIM No. 372 tells the jury this does not in any way make the instruction unconstitutional." (Paysinger, at pp. 31-32.)

And, in People v. Price (2017) 8 Cal.App.5th 409, the court agreed with Hernandez Rios and Paysinger, and concluded instruction with CALCRIM No. 372 was not inconsistent with section 1127c, was not argumentative, did not lighten the People's burden of proof, and did not violate the defendant's due process rights. (Price, at pp. 454-456.) Among other things, Price reasoned that People v. Wright (1988) 45 Cal.3d 1126—which Martinez relies upon here—was inapposite, explaining: "At issue in [Wright] was whether an instruction requested by the defendant was properly rejected as argumentative. [Citation.] Price cites Wright for the proposition that any instruction that 'invite[s] the jury to draw inferences favorable to [one party] from specified items of evidence on a disputed issue of fact' is argumentative. [Citation.] But unlike the instruction the defendant requested in Wright, which sought to focus the jury's attention on a list of items of evidence that favored the defendant, [CALCRIM No. 372] focuses solely on one factor, evidence of flight, and not on a laundry list of evidence favoring the prosecution, and there is a statute—section 1127c—that requires an instruction on flight if there is evidence of flight. (§ 1127c.)" (Price, at p. 458.) Accordingly, there was no error.

We agree with the analyses in the foregoing authorities and adopt them here. Instruction with CALCRIM No. 372 was not error, and did not violate Martinez's constitutional rights.

3. Cumulative error

Martinez asserts that the cumulative effect of the purported instructional errors requires reversal, even if they were individually harmless. Because we have found no error, "there is no cumulative prejudice to address." (People v. Landry, supra, 2 Cal.5th at p. 101.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J. We concur:

LAVIN, J.

DHANIDINA, J.


Summaries of

People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 29, 2020
No. B293515 (Cal. Ct. App. Jan. 29, 2020)
Case details for

People v. Martinez

Case Details

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

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 29, 2020

Citations

No. B293515 (Cal. Ct. App. Jan. 29, 2020)