Opinion
G057186
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHNNY MARTINEZ, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed on March 9, 2020, be modified in the following particulars:
On page 13, footnote 4 is deleted and replaced with the following: "Martinez discusses at length the historical development of the law of implied malice (People v. Thomas (1953) 41 Cal.2d 470, 480, conc. opn. of Traynor, J.), and Justice Liu's concurrence in People v. Cravens (2012) 53 Cal.4th 500, 512 (Cravens). We have stated the correct law of implied malice, and a historical treatment of it is unnecessary for purposes of this appeal. We note Justice Liu concurred in Cravens, and a concurrence is not binding precedent. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)"
The petition for rehearing is DENIED. This modification does not effect a change in judgment.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. GOETHALS, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17WF2615) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Michael Johnny Martinez appeals from a judgment after a jury convicted him of second degree murder and found true he personally used a deadly weapon. Martinez argues the following: (1) there was insufficient evidence of malice; (2) the prosecution did not disprove provocation; (3) the trial court erred by admitting evidence of an uncharged offense, or alternatively, his trial counsel provided ineffective assistance of counsel; (4) the court had a sua sponte duty to instruct on involuntary manslaughter; (5) the court erred in responding to the jury's questions; (6) the prosecutor committed misconduct; (7) there was cumulative error; and (8) the court violated his due process rights by imposing fees and fines without conducting an ability to pay hearing.
Although we agree the trial court erred by admitting the uncharged offense evidence pursuant to Evidence Code section 1101, we conclude Martinez was not prejudiced. None of his other contentions have merit, and we affirm the judgment.
FACTS
I. Substantive Facts A. The Family
Martinez's aunt, Julia M. (Julia), rented a room in Maria R.C.'s (Maria) three-bedroom house. Julia's daughter, Priscilla M. (Priscilla), rented another room. Maria's friend rented the third room. Martinez, who was Maria's boyfriend, stayed there periodically, although it violated a restraining order. Maria, her four children, and Martinez slept in the living room. Martinez was upset he and Maria slept in the living room while others slept in bedrooms. B. The Incident
The prosecution provided Maria use immunity, and a room and board allowance.
Late one evening, Julia, her son Ruben M. (Ruben), his girlfriend Cynthia M. (Cynthia), and Priscilla arrived with movies, pizza, and beer. Ruben had loud music playing in the car. Maria arrived home around the same time. Martinez either arrived with Maria or walked. Martinez told Ruben, his cousin, to turn down the music—he did. Ruben offered Martinez a beer, and he accepted.
As Ruben was unloading items from the car, Martinez said it was his house and he could do whatever he wanted, including smoke. Julia asked Martinez why he was upset, but he did not answer. Martinez again said it was his house and he could do whatever he wanted, including smoke methamphetamine. Julia told Martinez to stop talking like that and either put her hand over his mouth or slapped him on the face.
Martinez, who was about six feet tall and weighed about 190 pounds, stepped back and called Ruben "a pussy." Ruben, who was about five feet and three inches tall and weighed approximately 145 pounds, became upset and told him not to say that and began taking off his shirt. Martinez again called him a "pussy."
Ruben struck the first blow, and they fought. Martinez could not move well because he injured his foot and wore an orthopedic boot, but he was defeating Ruben. Julia repeatedly intervened, and the two men would stop and then resume fighting.
At some point, Maria and Cynthia started fighting. Martinez and Ruben stopped fighting. Maria brought Martinez inside the house, locked the front door, and told Martinez to lock the back door, which he did.
Ruben ran to the backyard, found a metal chair, and tried to break the back door. When he failed, he threw the chair at the glass window, shattering the glass. Ruben was not bleeding after breaking the window.
Maria wanted to call the police, but her cell phone was in her car. She told Martinez to come outside with her so she could take him to Anaheim. As they went outside, Ruben had returned to the front yard.
Ruben, Cynthia, Julia, and Priscilla were hitting Martinez. Maria grabbed Cynthia, and they began fighting near the front porch. Martinez and Ruben started fighting again. Maria was on top of Cynthia putting dirt in her mouth. Ruben stopped, looked at Cynthia, and ran towards them. Julia did not notice any blood at that point. When Ruben reached them, he grabbed Maria's hair and kicked her in the stomach, and tried to pull her off Cynthia. Maria screamed for Martinez to help her.
Martinez punched Ruben with a stabbing or hitting motion. Ruben screamed, released his grip on Maria, and they both fell down. Priscilla screamed Ruben was bleeding. Priscilla picked up Ruben by the right arm, and Julia picked him up by the left arm, and they moved him out of the bushes. Blood was gushing from his arm. Julia used Priscilla's blouse to tie a tourniquet on Ruben's arm, and Priscilla called 911. Martinez fled. The police and paramedics arrived. Ruben died. C. The Investigation
Numerous law enforcement officers responded to the house. Julia told an officer that she believed Martinez stabbed Ruben because when Ruben fell, Martinez fled, but she did not see a weapon. Another officer searched for the suspect but did not find him. That officer found bloody gauze on the sidewalk leading away from Maria's home. A detective found more bloody gauze on an adjacent street. Another detective found a nearby market that had surveillance video that captured Martinez being in the store about 49 minutes after the incident.
Detective Terra Ramirez interviewed Julia at the police station three times. At the first interview a few hours after the incident, Julia said Ruben's injury could be from a rosebush, cactus, stake, or broken window. When Ramirez showed Julia a photograph of Martinez, Julia said she did not want to identify the person or sign it. She said, "I just hope it wasn't him." Julia revealed more details about the events leading to the stabbing. At the third interview days later, Julia revealed additional details. She said Martinez was jealous of Ruben because he was dating Cynthia.
During Ramirez's interview with Maria, which was between Ramirez's first and second interview of Julia, Maria described the events leading to the stabbing. She stated that while she and Cynthia were fighting, Ruben kicked her in the abdomen and she called for help, but Martinez "was just standing there." When Maria again asked for help, Martinez came. Maria saw Martinez raise his hand over his head and swing down in a stabbing motion, striking Ruben. She described the motion as quick, like a "boom." Maria told Ramirez that Martinez had brandished a pocket knife a few days before. D. The Arrest
Detective Pete Garcia, who had responded to the incident, received a description of Martinez. The next morning, Garcia and another detective were in an unmarked vehicle searching the area. As they approached an intersection, they saw a disheveled man matching Martinez's description wearing only one shoe and walking with a limp in the crosswalk. Garcia turned his vehicle around, got out, and arrested Martinez. When Martinez asked why they were arresting him, they told him for the incident at the house. Martinez nodded. He had dried blood on his hands, shirt, and pants. He did not have any weapons.
Ramirez interviewed Martinez at the police station and advised him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. He denied being at the house. Ramirez asked him whether his visible injury happened at the house that night, and he said, "No." During a series of questions Martinez stated the injury occurred during a fight when someone he did not know "hit [him] out of nowhere[,]" but he could not remember where he was. After Ramirez told him that four people said he was at the house, she said the following: "Julie was upset at you. That there was like . . . they say you came to the house and you were just having some family issues amongst your aunt and your cousins and then somehow your . . . I guess one of your cousins['s] girlfriend [sic] was there and then she didn't get along with your girlfriend . . . [Maria] and things just happened. So I'm just . . . can you tell me what happened?" He replied, "That's what happened huh." Martinez said he and his cousin "g[o]t along." He did not know what happened that night. He repeatedly said, "I didn't do nothing." Martinez said he was outside the garage drinking "chillin [sic] and that was it[,]" and then he left. E. The Forensics
Corrie Maggay, a forensic scientist, recovered evidence from the crime scene. Attached to Ruben's hands was long hair that appeared to be from a female. He suffered a large gaping wound to his left arm and a stab wound to his right arm. There was an eyebrow razor on the ground between two vehicles. There was a chef's knife in the backyard. There were six pieces of bloody gauze leading away from the house and then on to an adjacent street. Along the same trail, there was a box cutter in the gutter.
Swabs were taken from Martinez and Ruben to obtain DNA samples. As to two pieces of bloody gauze found outside the home, Ruben was the sole contributor. With respect to a tissue found at the end of the driveway, Ruben was found to be a major contributor; the other contributor was unknown. Martinez's blood was on the wall and floor inside the house. Martinez's right fingernail and shirt contained blood matching Ruben's DNA sample. No blood was found on the box cutter or the chef's knife. Ruben's blood was on the eyebrow razor. II. Procedural Facts A. Pretrial
An information charged Martinez with murder (Pen. Code, § 187, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated), and alleged he personally used a deadly weapon (§ 12022, subd. (b)(1)).
Before trial, the prosecution moved to admit three instances of Martinez's prior uncharged conduct to prove intent and common plan. Two incidents, one from 2014 and one from 2016 (the 2014 and 2016 incidents), involved officers detaining Martinez and discovering he possessed a knife. The other instance was from four days before the stabbing (the 2017 incident). On that occasion, Martinez brandished a pocket knife at Maria and threatened her. She called 911.
At a hearing, the prosecutor argued the three incidents were admissible to prove intent, absence of mistake, and identity. Martinez's counsel argued it was improper propensity evidence and the incidents were dissimilar. The trial court gave its preliminary thoughts on admissibility, including that the evidence was probative as to intent and absence of mistake, but it "question[ed] common plan and scheme because it seemed different to [the court]." The court took the matter under submission.
At a later hearing, the trial court ruled the 2014 and 2016 incidents were inadmissible. The court ruled the 2017 incident was admissible. The court stated the following: "There [was] probative value as to that evidence under [Evidence Code section] 1101 to show his intent and lack of mistake, as well as merely relevance similar to [People v. Cox (2003) 30 Cal.4th 916 (Cox)], albeit it was three days prior, but that he was in possession of a weapon that could have been the type of instrument used to commit the murder." The court added the evidence was not unduly prejudicial or inflammatory, and it would not confuse the jurors or consume an undue amount of time. B. Evidence
Cox was overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22.
In addition to the facts detailed above, the prosecution offered the following evidence. Four days before the charged incident, Martinez was spending the night at Maria's house. Martinez was upset because people had bedrooms while he and Maria slept in the living room. Maria told him that he could leave. Martinez became "more upset." He grabbed her by the shoulder and pulled out a knife that he usually carried with him. The knife was three inches long when folded and had a black handle. Martinez told Maria, "I don't want to hurt you, but this is going to be for you." Martinez put the knife away. Maria called 911. She told the operator Martinez "came here and threatened me with a knife." When the operator asked for her address, she hung up.
An officer responded to the house, but no one was there. About 30 minutes later, Maria called the police again. The officer again responded, and Maria apologized for making the report. Maria told the officer her ex-boyfriend was at her house and she thought he brandished a knife but he brandished a pen to write down something. She hung up because her cell phone battery died.
A couple days after the charged incident, a detective interviewed Maria. She told the detective that she lied to the officer who responded to her home. She said Martinez had a knife, not a pen. After recounting what happened, Maria said she lied to the officer because she feared retaliation from Martinez and his family for reporting him to the police.
Dr. Aruna Singhania, a forensic pathologist, testified she performed the autopsy. The autopsy revealed Ruben suffered a large, deep, gaping five and one-half inch cutting wound to his left upper arm. The muscle and tendon were cut. The axillary artery and the vein were severed. A sharp cutting instrument caused the wound. Ruben died from blood loss. Singhania opined a folding knife, a chef's knife, a box cutter, or a large piece of glass could have caused the fatal wound. She believed it was unlikely the eyebrow razor caused the fatal wound because the blade was too small. There was a superficial one inch cutting wound to the right upper arm. Ruben had superficial cuts to his left middle finger and back right index finger.
On appeal, Martinez's counsel attributes this testimony to Maggay. She testified concerning the forensics, and her testimony spans pages 659 to 759 of the reporter's transcript. It was Singhania who testified concerning the autopsy. Her testimony begins on page 759 of the reporter's transcript.
When asked, Singhania agreed that if Ruben's arm was in a down position blood would probably not gush. She added that if the arm was opened the wound "may not gush, but it will bleed." She agreed that if the person was moved, blood would spurt. On cross-examination, she also agreed that based on the wound, the arm was extended in some manner.
Martinez's pocket knife was not admitted into evidence. Martinez offered testimony that is not relevant to the issues on appeal. C. Jury Instruction
During a discussion of the jury instructions, the trial court stated it did not appear there was sufficient evidence to support an involuntary manslaughter instruction, and asked Martinez's counsel whether he agreed there was no evidence to support that instruction. Counsel answered, "I don't believe there [was]." When the court inquired whether it was correct CALCRIM No. 375 was to be modified to consider the 2017 incident as to "intent, identity[,] and absence of mistake" (italics added), the prosecutor agreed. Martinez's counsel did not object.
The trial court instructed the jury with the following CALCRIM instructions: No. 200, "Duties of Judge and Jury"; No. 220, "Reasonable Doubt"; No. 372, "Defendant's Flight"; No. 375, "Evidence of Uncharged Offense . . ."; No. 520, "First or Second Degree Murder with Malice Aforethought"; No. 522, "Provocation: Effect on Degree of Murder"; and No. 570, "Voluntary Manslaughter: Heat of Passion". D. Closing Argument
During closing argument, the prosecutor was discussing implied malice and stated the following: "A time that you normally see this or a common presentation of this is when you have a person who killed someone while they're drunk and they have a previous [driving under the influence (DUI)]. So they previously knew that everyone knows driving is dangerous, and they knew, like everyone else does, that driving under the influence is dangerous, and then they got a DUI. So they know for sure driving under the influence is not safe, and then they go and do it again. And they know. They intentionally drive and they know that the natural and probable consequences of driving under the influence are dangerous. They know when they do the act that it is, and they do it anyway and end up killing someone." Martinez's counsel did not object.
The prosecutor argued the evidence demonstrated that four days before the charged offense Martinez went to Maria's house with a folding knife. Later, she argued that on the day of the incident, Martinez was either armed with a knife when he arrived at the house and "unfold[ed] it" or "open[ed] the knife," or he obtained a knife from the house. She added Martinez was the only one who possessed a knife that would cause Ruben's death.
Martinez's counsel argued the physical evidence demonstrated Martinez was not the attacker. Counsel alternatively argued that if the jury concluded it was Martinez, he was only guilty of manslaughter.
During rebuttal argument, the prosecutor argued that if the jury believed "51 percent" the 2017 incident, it could "infer that he was the person who committed the alleged offense, acted with intent to kill, or these actions were not the result of mistake or accident." Later, she stated the following: "We know he did the act causing his death. Why? . . . He had the same type of knife at the location four days before." The prosecutor repeated Martinez either was armed when he arrived at the house like he was four days earlier or obtained a knife at the house. E. Jury Deliberations
During deliberations, the jury asked the trial court a number of questions. Out of the jury's presence, the trial court stated it had discussed the questions with counsel and prepared a document that included each question and the court's response. The jury's questions and the trial court's answers were as follows:
"Can [c]haracter (things he has done in the past that was presented to us) be used as evidence to show intent?" "CALCRIM [No.] 375 on page 26 of the jury instructions previously provided to you addresses this question."
"Is stabbing someone with a knife equivalent to an intent to kill[?]" "It is up to the jury to determine the answer to this question. Please refer to the instructions previously provided to you."
"Describe in better detail, provide examples of expressed [sic] malice vs. implied malice." "CALCRIM [No.] 520 contained on page 29 of the instructions provided to you defines [e]xpress and [i]mplied [m]alice. The court will not provide examples to you, it is up to the jury to determine whether defendant acted with express or implied malice."
"Elaborate and better describe page 4, paragraph 3 of CALCRIM [No.] 220 Reasonable Doubt." "The court has no additional instructions to provide to you." When the court asked Martinez's trial counsel whether the responses were agreeable, counsel stated, "Yes, your honor." F. Jury Verdicts & Sentencing
The jury convicted Martinez of second degree murder and found true he personally used a deadly weapon. The trial court sentenced Martinez to 15 years to life plus one year for the weapon enhancement. The court ordered him to pay a $300 restitution fine (§ 1202.4), a $300 parole revocation fine (stayed) (§ 1202.45), a $40 court operations assessment fee (§ 1465.8), and a $30 conviction assessment fee (Gov. Code, § 70373). The court concluded he did not have the ability to pay the costs of the probation report.
DISCUSSION
I. Sufficiency of the Evidence A. Second Degree Murder
Martinez argues insufficient evidence supports his second degree murder conviction. There was sufficient evidence of express and implied malice.
"Defendant bears a massive burden in claiming insufficient evidence to sustain his convictions because our role on appeal is a limited one. Our standard of review is to 'examine the entire record in the light most favorable to the prosecution, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.] Furthermore, if the verdict is supported by substantial evidence, we are bound to give due deference to the jury and not retry the case ourselves. [Citation.] [¶] Defendant's hurdle to secure a reversal is just as high even when the prosecution's case depends on circumstantial evidence. The 'sufficiency of the evidence' standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citations.] '"'"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]"' [Citations.]" (People v. Akins (1997) 56 Cal.App.4th 331, 336-337 (Akins).)
The record does not disclose which theory the jury relied on in convicting Martinez of second degree murder. Thus, we must determine whether there was sufficient evidence supporting his conviction under each theory of second degree murder—express malice and implied malice. (People v. Raley (1992) 2 Cal.4th 870, 886 [sufficient evidence supported each theory of murder], overruled on other grounds as stated in People v. Brooks (2017) 3 Cal.5th 1, 62-63, fn. 8 (Brooks).) 1. Express Malice
Second degree murder is the unlawful killing of a human being with malice aforethought but without willfulness, deliberation, and premeditation. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102 (Nieto Benitez).) "Malice 'may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (People v. Rangel (2016) 62 Cal.4th 1192, 1220 (Rangel).)
Express malice may be "'inferred from the defendant's acts and the circumstances of the crime.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.) Stabbing a person multiple times gives rise to the inference that a defendant deliberately intended to kill a victim. (Id. at pp. 701-702.)
Here, there was sufficient evidence supporting a finding of express malice. We cannot overlook that after the initial fight, Martinez pursued Ruben, first going to the back yard and then returning to the front yard armed with a weapon capable of slicing. During the altercation, Martinez brandished the weapon and inflicted two wounds to Ruben's arms. One of the wounds caused a large, deep, gaping five and one-half inch slicing gash that severed the axillary artery and the vein, which ultimately caused his death. The fact Martinez did not first threaten Ruben did not establish he lacked the intent to kill him. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552 [intent to kill demonstrated in part by evidence of unprovoked attack that rendered unarmed victim prone and defenseless as defendant repeatedly stabbed him].) Based on this evidence, the jury could reasonably conclude Martinez harbored express malice and intended to kill Ruben. 2. Implied Malice
"'[Malice] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' [Citation.] '"We have interpreted implied malice as having 'both a physical and a mental component." (Rangel, supra, 62 Cal.4th at p. 1220.) Malice is usually proved by circumstantial evidence. (People v. Thomas (2011) 52 Cal.4th 336, 355.) Whether a defendant possessed the requisite intent to kill is a question for the trier of fact. (People v. Lashley (1991) 1 Cal.App.4th 938, 946 (Lashley).) Here, there was sufficient evidence supporting a finding of the physical and mental components. a. Physical Component
Martinez discusses at length the historical development of the law of implied malice (People v. Thomas (1953) 41 Cal.2d 470, 480, conc. opn. of Traynor, J.), and Justice Liu's concurrence in People v. Cravens (2012) 53 Cal.4th 500, 512 (Cravens). We have stated the correct law of implied malice, and a historical treatment of it is unnecessary for purposes of this appeal. We note Justice Liu concurred in Rangel, and a concurrence is not binding precedent. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)
"The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.]" (Rangel, supra, 62 Cal.4th at p. 1220.) The trial court instructed the jury on this legal principle as follows: "The natural and probable consequences of the act were dangerous to human life." (CALCRIM No. 520.)
"Autopsy photographs of a murder victim 'are always relevant at trial to prove how the crime occurred; the prosecution need not prove these details solely through witness testimony.' [Citation.]" In addition, '[s]uch photographs may . . . be relevant to prove that the killer acted with malice.' [Citation.]" (People v. Sattiewhite (2014) 59 Cal.4th 446, 471.)
Here, there was sufficient evidence Martinez committed an act the natural and probable consequence of which was dangerous to Ruben's life. By stabbing Ruben with enough force to inflict a large, deep, gaping five and one-half inch wound, which cut muscle and tendon and severed an artery and vein, Martinez committed an act the natural and probable consequence of which was dangerous to Ruben's life. We have viewed the exhibits depicting the autopsy photographs. The photograph shows the wound to Ruben's upper left arm was severe. The jury could rely on this evidence, and Singhania's testimony concerning the severity of the wound, to conclude there was sufficient evidence satisfying the physical component.
Martinez relies on the evidence Julia and Priscilla picked up Ruben and Singhania's testimony concerning whether the wound alone would cause death to assert insufficient evidence supported the physical component. The jury heard this evidence and was not persuaded. The jury's verdict acquitting Martinez of first degree murder demonstrates it carefully weighed the evidence and concluded that although he did not act willfully, and with premeditation and deliberation, he did act maliciously. We cannot reweigh the evidence. (Akins, supra, 56 Cal.App.4th at pp. 336-337.)
Martinez relies on Cravens, supra, 53 Cal.4th at page 505, a case where the Supreme Court affirmed a second degree murder conviction when defendant punched the victim on the head and he fell, hit his head on the concrete, and died. Cravens is of no assistance in a case where Martinez made two stabbing motions to Ruben. The physical component was satisfied. b. Mental Component
"The mental component is the requirement that the defendant "knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life." [Citation.]'"' [Citation.]" (Rangel, supra, 62 Cal.4th at p. 1220.) The trial court instructed the jury on this legal principle as follows: "At the time he acted, he knew his act was dangerous to human life." (CALCRIM No. 520.)
Here, there was sufficient evidence Martinez knew his act was dangerous to Ruben's life. Again, Martinez inflicted a wound to Ruben's left arm with such force it cut muscle and tendon, and severed an artery and vein. It was a gaping wound. And regardless of its severity, he made an additional stabbing wound. Just as shooting at a person from very close range is a strong indicator of an intent to kill (Lashley, supra, 1 Cal.App.4th at p. 945 [act of firing rifle toward victim that could have inflicted mortal wound had bullet been on target sufficient to support inference of intent to kill]), so too is stabbing someone multiple times.
Contrary to Martinez's claim his lack of education in anatomy or physiology established a lack of mental awareness of the dangerousness of his act, the fact Martinez missed Ruben's vital organs was fortuitous rather than indicative of the absence of an intent to kill. (Id. at p. 945 ["poor marksmanship" did not establish lack of intent to kill].) It is common knowledge a weapon capable of slicing can inflict serious injury, and Martinez was familiar with knives. The jury could rely on this evidence to conclude Martinez knew his act endangered Ruben's life and established a conscious disregard for his life.
Martinez's conduct after the stabbing further supported a finding he knew his act was dangerous to Ruben's life. After Martinez stabbed Ruben two times, he fled and was not found until the next morning. Additionally, law enforcement officers recovered two pieces of gauze with Ruben's blood on it. From this evidence the jury could reasonably conclude Martinez used the gauze to clean whichever weapon he used or tried to clean Ruben's blood off himself. This evidence reflected a consciousness of guilt. The mental component was satisfied.
Martinez asserts the fact the severed artery and vein were not immediately visible to Singhania demonstrates he was mentally unaware his act endangered Ruben's life. Again, the jury heard this evidence and discounted it, and we cannot reweigh the evidence. (Akins, supra, 56 Cal.App.4th at pp. 336-337.)
Martinez relies on a number of cases where courts affirmed implied malice second degree murder convictions to support his claim insufficient evidence supports the finding of implied malice. (Nieto Benitez, supra, 4 Cal.4th 91; People v. Benson (1989) 210 Cal.App.3d 1223; People v. Rosenkrantz (1988) 198 Cal.App.3d 1187; In re Russell H. (1987) 196 Cal.App.3d 916; People v. Summers (1983) 147 Cal.App.3d 180; People v. Jones (1963) 215 Cal.App.2d 341; People v. Ogg (1958) 159 Cal.App.2d 38.) When addressing sufficiency of the evidence claims, other cases are of limited relevance because each case necessarily depends on its own facts. (People v. Thomas (1992) 2 Cal.4th 489, 516.)
Based on this evidence, the jury could reasonably conclude the physical and mental components were satisfied and Martinez harbored implied malice. Sufficient evidence supported Martinez's second degree murder conviction. B. Lack of Provocation
Martinez contends that assuming there was sufficient evidence of malice, the prosecution's evidence raised the issue of provocation and it failed its burden to disprove provocation. There was insufficient evidence of provocation.
A murder can be reduced to voluntary manslaughter under circumstances that are viewed as negating malice. (People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) Malice can be negated by the defendant's sudden quarrel or heat of passion arising from provocation that would cause a reasonable person of average disposition to act rashly and without reflection. (Ibid.) When the prosecution's own evidence contains adequate evidence of provocation, the defense has no burden of producing evidence, and the prosecution must prove beyond a reasonable doubt provocation was lacking. (People v. Rios (2000) 23 Cal.4th 450, 462-463 (Rios).)
A reduction of a charge from murder to voluntary manslaughter based on provocation requires both subjective and objective findings. "The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . '[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) "'"'[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.'"' [Citation.]" (Rangel, supra, 62 Cal.4th at p. 1225.)
As to the objective component, Martinez claims "there was evidence of provocation akin to an imperfect defense of habitation." He acknowledges such a defense is "not a recognized term of art." We found no case authority supporting such a defense and conclude his claim is meritless. Additionally, when Ruben threw the chair at the window, Maria told Martinez to follow her because she was going to drive him to Anaheim. They went out the front door to get in her car. In other words, Martinez did not act rashly or without due deliberation and reflection to Ruben's claimed provocative act but instead fled. The objective component was not satisfied.
"Defense of habitation applies where the defendant uses reasonable force to exclude someone he or she reasonably believes is trespassing in, or about to trespass in, his or her home." (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360, italic added.)
With respect to the subjective component, Martinez claims his statements to Ramirez demonstrate "there was no conflict between [his] account and being under the influence of a heat of passion." He cites to his statement he got into a fight and someone hit him. He also cites to Ramirez's account of Julie being upset with him and Cynthia not getting along with Maria. Neither statement demonstrates anyone provoked him. Nor do the events leading to the first fight or that fight itself. (People v. Najera (2006) 138 Cal.App.4th 212, 226 ["'"[a] provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter"'"].) Additionally, sufficient time elapsed between the first fight and the second fight to cool off. (Beltran, supra, 56 Cal.4th at p. 951.) Finally, as we explain above, the prosecution offered sufficient evidence of malice. That evidence proved beyond a reasonable doubt provocation was lacking. (Rios, supra, 23 Cal.4th at pp. 462-463.) The subjective component was not satisfied. Thus, there was not sufficient evidence of provocation. II. Evidentiary Issues
Martinez argues the trial court erred by admitting evidence of the 2017 incident pursuant to Evidence Code section 1101 because there were insufficient similarities between the 2017 incident and the charged offense. The court's ruling was not so limited. The court also relied on general relevance principles. As we explain below, evidence Martinez possessed a knife four days before the incident and that knife could have been the murder weapon was relevant. However, while we agree evidence of the 2017 incident was not admissible pursuant to Evidence Code section 1101, subdivision (b), to prove intent, absence of mistake or accident, or identity, Martinez was not prejudiced. A. Relevance
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is 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.) "'While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.' [Citation.]" (People v. Freeman (1994) 8 Cal.4th 450, 491.) "The trial court has considerable discretion in determining the relevance of evidence. [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 634.)
In Cox, supra, 30 Cal.4th at pages 927, 939, one witness testified she saw defendant use a knife to kill one of the victims, and another witness testified defendant told her that he had stabbed and strangled all three victims. On appeal, defendant challenged the trial court's admission of evidence police found three handguns during a search of his vehicle. (Id. at p. 955.) After discussing the facts in its prior case, People v. Riser (1956) 47 Cal.2d 566 (Riser), the Cox court restated its holding from that case as follows: "'When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]' [Citation.]" (Cox, supra, 30 Cal.4th at p. 956.) The Cox court found no error reasoning that "[a]lthough the prosecutor argued that the evidence pointed to a stabbing, such argument did not preclude the reasonable probability that one or all three of the victims had been shot," such that the guns were relevant either "as possible murder weapons" or they were used to coerce victims into defendant's car and because it was "not known how the three victims were killed." (Id. at pp. 956-957.) The court also stated, "While we agree that admission of the guns might have been improper if offered as 'other crime' evidence, under the facts of this case, the guns were sufficiently connected to the crimes; thus, their admission into evidence was proper." (Id. at p. 955, italics added.)
Riser was overruled on other grounds by People v. Chapman (1959) 52 Cal.2d 95, 98, and by People v. Morse (1964) 60 Cal.2d 631, 637-638 and fn. 2, 648-649.
Here, contrary to Martinez's claim, the trial court's reasoning indicates it ruled evidence Martinez brandished a knife during the 2017 incident was admissible because it was relevant evidence. It stated, "There [was] probative value as to that evidence under [Evidence Code section] 1101 to show his intent and lack of mistake, as well as merely relevance similar to" Cox, supra, 30 Cal.4th 916. None of the witnesses saw a weapon. The murder weapon, an instrument that could slice, was unknown. Singhania testified the box cutter, the chef's knife, a piece of broken glass, or a pocket knife could have caused the fatal injury. Evidence that four days before the charged offense Martinez was in possession of a knife that could have been the murder weapon tended to establish Martinez could have used the same knife when he stabbed Ruben and thus it was relevant to prove the charged offense. Therefore, the trial court did not abuse its discretion by admitting this evidence for this purpose. B. Evidence Code Section 1101
Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, Evidence Code section 1101, subdivision (b), allows the trial court to admit "evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as . . . intent, . . . identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
"[T]he admissibility of uncharged crimes depends upon three factors: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove or disprove the material fact [i.e., probative value]; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other [Evidence Code section] 352 concern). [Citations.]" (People v. Hendrix (2013) 214 Cal.App.4th 216, 238 (Hendrix).)
It is well settled various degrees of similarity are required for a trial court to admit evidence pursuant to Evidence Code section 1101. (Hendrix, supra, 214 Cal.App.4th at p. 239.) The least degree of similarity is required to prove intent, absence of or mistake or accident, or knowledge. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).) The greatest degree of similarity is required to prove identity. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) We review a trial court's evidentiary rulings for an abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) 1. Intent and Absence of Mistake or Accident
Here, the trial court erred by admitting the 2017 incident as to intent, absence of mistake or accident, and identity. The 2017 incident was not sufficiently similar to the charged offense even to prove intent, or absence of mistake or accident, which all require the least degree of similarity. Evidence that four days prior to the charged offense Martinez brandished a knife, threatened his partner, and put the knife away was not sufficiently similar to brandishing a slicing instrument and stealthily inflicting two stabbing wounds on his unsuspecting cousin. One incident involved only brandishing of a weapon and the other incident involved brandishing a weapon and inflicting two slicing wounds, one of which was fatal. In other words, the 2017 incident was not relevant to prove his state of mind, i.e., intent, or absence of mistake or accident, during the charged offense. 2. Identity
Here, the prosecution, in its moving papers, sought admission of the 2017 incident to prove intent and common plan. At the hearing, the prosecution asserted the evidence was admissible for those purposes and to prove identity. The trial court questioned whether the evidence was admissible to prove common plan because the incidents were dissimilar. Later, the court ruled the evidence was admissible "under [Evidence Code section] 1101 to show his intent and lack of mistake" and as we explain above, pursuant to Cox, supra, 30 Cal.4th 916. But at a hearing on the jury instructions, the court stated it was modifying CALCRIM No. 375 to state the jury could consider the 2017 incident as to "intent, identity[,] and absence of mistake." (Italics added.) The prosecutor agreed, but Martinez's counsel did not object. The court instructed the jury it could consider evidence of the 2017 incident in evaluating "whether the defendant was the person who committed the offense alleged in this case," i.e., identity.
Although Martinez did not object, a trial court has a duty to correctly instruct the jury. "The trial court's duty to fully and correctly instruct the jury on the basic principles of law relevant to the issues raised by the evidence in a criminal case is so important that it cannot be nullified by defense counsel's negligent or mistaken failure to object to an erroneous instruction or the failure to request an appropriate instruction. [Citation.]" (People v. Avalos (1984) 37 Cal.3d 216, 229.) Again, Ewoldt holds intent requires the least degree of similarity, common plan or scheme a greater degree of similarity, and identity the greatest degree of similarity. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
The trial court's comments indicate it thought there were insufficient similarities to admit the evidence to demonstrate a common plan or scheme. Yet, the court instructed the jury it could consider the evidence to demonstrate identity, which requires the greatest degree of similarities. This was error. As we explain above, there were not sufficient similarities to prove intent, or absence of mistake or accident. Evidence Martinez brandished a folding pocket knife and threatened his girlfriend was not extremely similar, i.e., did not share the greatest degree of similarity, to someone brandishing a slicing instrument and covertly inflicting two stabbing wounds on Ruben to identify Martinez as the perpetrator. Thus, evidence of the 2017 incident was inadmissible to prove identity.
Although the court erred by admitting the 2017 incident pursuant to Evidence Code section 1101 and should not have instructed the jury with CALCRIM No. 375, as we explain below, the error was harmless. The jury's question concerning the 2017 incident and the prosecutor's comments does not alter our conclusion. Because we have concluded the court did not abuse its discretion by admitting the evidence because it was relevant, we must determine whether Evidence Code section 352 required the evidence be excluded. C. Evidence Code section 352
Evidence Code section 352 authorizes a trial court to exclude relevant evidence. (People v. Young (2019) 7 Cal.5th 905, 931.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) For purposes of Evidence Code section 352, prejudice means "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]'" (People v. Heard (2003) 31 Cal.4th 946, 976.)
Here, evidence of the 2017 incident would not uniquely tend to evoke an emotional bias against Martinez. The evidence consisted only of Martinez brandishing a pocket knife and threatening Maria. It did not involve the infliction of any injury. Additionally, evidence of the 2017 incident would not confuse the jury. It was a discrete, uncomplicated incident the jury could certainly consider separately from the charged offense. Additionally, the trial court properly instructed the jury on reasonable doubt and necessity of proof as to each element of the offenses.
Finally, evidence of the 2017 incident did not consume an undue amount of time. Martinez cites to Maria's and Ramirez's testimony, and the prosecutor's closing argument to support his claim. But he does not specify how much time the evidence consumed in relation to the evidence of the charged crime. (People v. Frazier (2001) 89 Cal.App.4th 30, 42 [no undue consumption of time where court accepted defendant's representation uncharged evidence consumed 27 percent of total trial transcript].) We note another detective and a police officer also testified concerning the 2017 incident. Based on our review of the record, the evidence did consume time, but we conclude the amount of time consumed was not undue. D. Harmless Error
When the trial court erroneously admitted uncharged conduct reversal is required if it was reasonably probable the defendant would have received a better result absent the error. (Hendrix, supra, 214 Cal.App.4th at pp. 248-249.) "[W]e may consider whether a prosecutor's closing argument to the jury exacerbated the prejudicial effect[]" based on a review of the entire record. (Id. at p. 250.)
Martinez analogizes to People v. Williams (2018) 23 Cal.App.5th 396 (Williams), and states, "'There is no doubt defendant caused the victim's death. But his mental state at the relevant time was not clear cut at all.' There was evidence from which the jury could have found [he] cut [Ruben's] arm in the heat of passion on [sic] provocation." Thus, Martinez concedes sufficient evidence demonstrated he was the person who caused Ruben's death. We agree. And as we explain above, there was sufficient evidence to demonstrate he acted with malice. Unlike in Williams, supra, 23 Cal.App.5th at page 424, where the court reasoned defendant's mental state was not clear and the jury could have "easily" inferred he killed victim in the heat of passion, here Martinez's mental state was clear and the jury could not have easily inferred he killed Ruben in the heat of passion or with provocation.
The evidence demonstrated that when Ruben tried to get Maria off Cynthia, Martinez made a hitting motion towards Ruben. Ruben released his grip on Maria, and they both fell. Martinez fled. Although evidence concerning the murder weapon was inconclusive, forensic evidence leading away from the house had Ruben's blood on it, and the evidence demonstrated Martinez was the only participant who left. The jury could reasonably conclude Martinez fled with the murder weapon, cleaned it with gauze and/or tissue, and discarded the weapon. This evidence demonstrated a consciousness of guilt. This was sufficient evidence Martinez both caused Ruben's death and acted with the required mental state.
Martinez cites to many of the prosecutor's arguments, primarily concerning the murder weapon, in an attempt to demonstrate prejudice. It was not improper to suggest the pocket knife Martinez brandished during the 2017 incident could have been the murder weapon. Singhania testified it could have been, along with three other instruments. And as we explain below, the prosecutor's references to the 2017 incident to establish Martinez as the perpetrator were minor.
Martinez was not prejudiced by the error in admitting evidence of the 2017 incident pursuant to Evidence Code section 1101. Finally, because we have addressed the merits of this claim, we need not address his ineffective assistance of counsel claim. III. Jury Instruction—Involuntary Manslaughter
Martinez asserts the trial court erred by failing to instruct the jury sua sponte on involuntary manslaughter. Again, we disagree.
"The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. [Citations.] The duty exists even when the lesser included offense is inconsistent with the defendant's own theory of the case and the defendant objects to the instruction. [Citations.] This instructional requirement '"prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither 'harsher [n]or more lenient than the evidence merits.'"' [Citations.] [¶] We review the trial court's failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant [citations]." (People v. Brothers (2015) 236 Cal.App.4th 24, 29-30 (Brothers).)
Section 192 defines involuntary manslaughter as the unlawful killing of a human being without malice. Our Supreme Court has interpreted section 192 to encompass an unintentional killing in the course of a noninherently dangerous felony committed without due caution or circumspection. (People v. Burroughs (1984) 35 Cal.3d 824, 835, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 88-91; People v. Bryant (2013) 56 Cal.4th 959, 965-966 (Bryant).) The Brothers court explained "the necessary implication" of the Bryant court's majority decision was an unlawful killing committed without malice in the course of an inherently dangerous assaultive felony is also involuntary manslaughter. (Brothers, supra, 236 Cal.App.4th at pp. 33-34.)
The mental state for any form of involuntary manslaughter is criminal negligence. (People v. Evers (1992) 10 Cal.App.4th 588, 596.) Thus, "[i]f a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice. [Citation.]" (Ibid.)
Here, there was no substantial evidence to support an instruction on involuntary manslaughter. The record includes no evidence from which the jury could reasonably conclude Martinez acted with criminal negligence. To the contrary, stabbing someone multiple times with a knife is without question "a type of aggravated assault the natural consequences of which are dangerous to human life" and there was no evidence Martinez failed to "subjectively appreciate[ ] the danger to human life his . . . conduct posed . . . ." (Brothers, supra, 236 Cal.App.4th at p. 35.)
Martinez relies on Singhania's testimony to assert the jury could have concluded he acted with criminal negligence and not malice. He does not dispute he inflicted the fatal injury. But he cites to Singhania's testimony as follows: it was unclear which weapon he used; it was a slicing wound and not a stabbing wound; the injury would have resulted in normal bleeding had he not been moved; and the severed artery was not immediately visible. He also cites to a statement he made to Ramirez suggesting he thought Ruben was still alive. We are not persuaded this was substantial evidence that he acted without malice and with criminal negligence when he stabbed Ruben. "'"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." [Citation.] Such instructions are required only where there is "substantial evidence" from which a rational jury could conclude' the defendant committed the lesser, but not the greater, offense. [Citation.]" (Brothers, supra, 236 Cal.App.4th at p. 35.)
Martinez also relies on People v. Vasquez (2018) 30 Cal.App.5th 786 (Vasquez), to support his claim. In that case, the victim had metal rods in his neck from a prior spinal surgery, which was unknown to defendant. (Id. at p. 791.) Defendant and another man viciously attacked the victim, kicking, stomping, and throwing a metal trash can at him. (Ibid.) The medical examiner opined the fatal injury was a neck fracture adjacent to the metal rods, which "could have acted as a fulcrum and contributed to the break." (Ibid.) The court explained "California courts have long recognized that not all beatings are life-threatening." (Id. at p. 796.) In concluding there was prejudicial error requiring reversal, the court opined, "[a] reasonable juror could have inferred from [the] evidence that the blows were not particularly severe and further inferred that defendant believed beating up [the victim] would injure him but not kill him." (Ibid.)
Vasquez is inapposite. In that case, the victim had a hidden vulnerability and defendant used his hands and feet to beat the victim. In contrast, here, Martinez stabbed Ruben multiple times. Given the repeated use of a knife against Ruben, and the ghastly injury to his upper left arm, no reasonable juror could have concluded that defendant "lack[ed] a subjective awareness that his conduct carrie[d] '"a high degree of probability that it [would] result in death."' [Citation.]" (Vasquez, supra, 30 Cal.App.5th at p. 795.) Thus, we conclude viewing the evidence most favorable to Martinez, the trial court did not have a sua sponte duty to instruct the jury on involuntary manslaughter. IV. Jury's Questions
Martinez contends the trial court erred in responding to the jury's questions. Not so.
"When a jury asks a question after retiring for deliberation, '[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.' [Citation.] But '[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' [Citation.] We review for an abuse of discretion any error under section 1138. [Citation.]" (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) The trial court's refusal to offer any further instruction without first considering how it can assist the jury is an abuse of discretion. (People v. Lua (2017) 10 Cal.App.5th 1004, 1016-1017.)
The Attorney General contends Martinez forfeited review of this issue because he agreed to the trial court's responses. This argument has surface appeal, but because Martinez suggests forfeiture would result in the inevitable ineffective assistance of counsel habeas corpus petition, we address the merits. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 92.)
First, Martinez's suggestion the trial court did not thoroughly consider all the options to help the jury, i.e., threw up its hands, is not supported by the record. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The trial court stated it had discussed the questions with counsel. After the court read each of its proposed answers, Martinez's trial counsel did not request or propose an alternate response. The record demonstrates the court satisfied its duty to consider how it could best aid the jury.
As to the jury's question regarding character, the trial court could reasonably conclude the jury was asking whether the uncharged conduct evidence could be used to establish Martinez's intent to support the charged crime. Contrary to Martinez's claim the trial court should have considered answering, "No," the correct answer to that question was, "Yes" based on the instructions given. It is well established uncharged conduct evidence can be admitted pursuant to Evidence Code section 1101, subdivision (b), for several limited purposes. (Ewoldt, supra, 7 Cal.4th at p. 402.) The trial court correctly referred the jury to CALCRIM No. 375, which instructs the jury how to properly evaluate uncharged offense evidence. Although as we explain above the court erred by admitting the 2017 incident pursuant to Evidence Code section 1101 and instructing the jury with CALCRIM No. 375, we conclude Martinez was not prejudiced.
Although Martinez concedes the instruction was correct, he asserts the prosecutor's argument, which we discuss below, confused the jury on this point. The court also accurately instructed the jury to disregard anything the attorneys might say that conflicts with the court's instructions. (CALCRIM No. 200.) Because CALCRIM No. 375 was a correct statement of the law and answered the jury's question, the court's direction for the jury to refer to it was not an abuse of discretion.
With regard to the jury's question whether stabbing someone with a knife was the "equivalent to an intent to kill," the court was correct in referring the jury to the instructions. The jury asked the court whether using a knife satisfied the mental state required for murder. That was an issue for the jury to decide. A court cannot tell a jury how to decide the issues before it. "When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination." (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) Clearly, Martinez's suggestion on appeal the trial court should have answered that question "No" would have invaded the province of the jury. The trial court did not abuse its discretion in answering the jury's questions. Thus, we need not address his claim he was prejudiced by any error. V. Prosecutorial Error
Martinez argues the prosecutor committed error during closing argument. Again, we disagree.
"Under the federal standard, prosecutorial misconduct that infects the trial with such '"unfairness as to make the resulting conviction a denial of due process"' is reversible error. [Citation.] In contrast, under our state law, prosecutorial misconduct is reversible error where the prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and '"it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct"' [citation]. To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct. [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 955-956.)
As the Attorney General notes, Martinez did not object to any of the alleged misconduct he complains of on appeal. His claims are forfeited. But because he again states forfeiture would result in the inevitable ineffective assistance of counsel habeas corpus petition, we address the merits.
"'"'"[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations[.]] . . ." [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 371 (Gamache).) However, when the trial court makes an erroneous evidentiary ruling, the prosecutor may not improperly capitalize on it during closing argument. (People v. Lawley (2002) 27 Cal.4th 102, 156.) "'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' [Citation.]" (Gamache, supra, 48 Cal.4th at p. 371.)
Martinez argues the prosecutor committed error when she argued that based on the 2017 incident, the jury could infer he used his folding pocket knife to wound Ruben. As we explain above, evidence that a few days before the charged incident Martinez possessed a weapon that he could have used during the charged offense was relevant and admissible. With respect to intent and absence of mistake or accident, the prosecutor made a couple brief references to the 2017 incident demonstrating his state of mind during the charged offense. As to identity, the prosecutor also made a couple of brief comments that if the jury could conclude Martinez committed the 2017 incident, it could consider that evidence in evaluating whether he committed the charged offense. But based on our review of the prosecutor's entire closing argument, it is not reasonably likely a few limited comments improperly influenced the jury's verdict. In light of the overwhelming evidence he was the person struggling with Ruben before the fatal wound was delivered, identity was not a significant issue.
Martinez also contends the prosecutor committed error when she suggested the jurors could analogize this case to a DUI case on the issue of implied malice. Relying on People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [appeal to passion and prejudice], Martinez asserts the prosecutor appealed to the jury to depart from an impartial consideration of the evidence. We disagree. The prosecutor was simply trying to explain the principles of implied malice. The facts of most DUI cases are likely far less repugnant than the violence in this case. In any event, it is not reasonably likely the jury understood or applied the complained-of comments in an improper or erroneous manner. The trial court instructed the jury to follow that law as the court explained it and to not let sympathy, prejudice, or bias influence its decision. (CALCRIM No. 200.) And the court properly instructed the jury on implied malice. (CALCRIM No. 520.)
Assuming for purposes of argument there was error, it was harmless. If the prosecutor's error was one of state law, it is reversible if prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a better result], but if the prosecutor's error was one of federal constitutional law, it is reversible if prejudicial under the standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [harmless beyond a reasonable doubt]). We conclude any error was harmless under either standard.
Martinez does not dispute he inflicted the wound that caused Ruben's death. As we explain above, there was strong evidence, aside from the 2017 incident, supporting malice and his second degree murder conviction. We are convinced beyond a reasonable doubt any error did not contribute to the verdict. VI. Cumulative Error
Martinez asserts the cumulative effect of the errors was prejudicial and requires reversal. We have concluded there was one error—the trial court erred by admitting evidence of the 2017 incident pursuant to Evidence Code section 1101—but it was not prejudicial. Martinez's cumulative error claim is thus meritless. VII. People v. Dueñas
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Martinez argues the trial court violated his due process rights by imposing fees and fines without conducting an ability to pay hearing and the matter must be remanded for the court to conduct such a hearing. We disagree.
In Duenas, supra, 30 Cal.App.5th at pages, 1160-1161, defendant was a married mother of two who suffered from cerebral palsy and was unemployed, homeless, and living on public assistance. As a juvenile, she suffered three juvenile citations and because she could not pay the $1,088 in fines, her driver's license was suspended. (Id. at p. 1161.) She subsequently suffered three misdemeanor convictions for driving on a suspended license, and another conviction, and because she could not afford to pay those fines, she served jail time, but she remained liable for court fees and attorney fees. (Ibid.) After she suffered a fourth conviction for driving on a suspended license and could not obtain a driver's license by the time of the sentencing hearing, the trial court suspended the sentence and placed her on three years of probation on the condition she serve 30 days in jail and pay $300, plus a penalty and assessment, or that she serve an additional nine days in jail. (Id. at p. 1162.) Defendant's counsel indicted she did not have the ability to pay, and the court ordered her to serve the additional nine days. The court also imposed a $30 court facilities assessment fee (Govt. Code, § 70373), a $40 court operations assessment fee (§ 1465.8), and a $150 restitution fine (§ 1202.4). (Dueñas, supra, 30 Cal.App.5th at p. 1162.) Defendant requested an ability to pay hearing for the prior court and attorney fees. (Ibid.) At the ability to pay hearing, the court concluded she lacked the ability to pay the attorney fees and waived them. (Id. at p. 1163.) However, the court stated the $30 court facilities assessment fee (Govt. Code, § 70373), and $40 court operations assessment fee (§ 1465.8) were both mandatory regardless of her ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) In doing so, the court rejected her claim due process and equal protection required the court to consider her ability to pay. (Ibid.) As to the $150 restitution fine (§ 1202.4), the court concluded she had not shown the "compelling and extraordinary reasons" required by statute to justify waiving the fine. (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
The Duenas court reversed, holding due process prohibited a trial court from imposing a court facilities assessment fee (Govt. Code, § 70373), and court operations assessment fee (§ 1465.8), and requires the trial court to stay execution of any restitution fines (§ 1202.4), until the trial court ascertains the defendant's ability to pay those assessment fees and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Duenas court noted the state may not deny access to the courts or inflict punishment on criminal defendants based solely on their poverty. (Id. at pp. 1165-1166.) As to the assessment fees, court funding mechanisms, the court explained imposing them without an ability to pay determination was additional punishment and fundamentally unfair because they could lead to "cascading" and "potentially devastating consequences," including impeding reentry and rehabilitation, limiting employment opportunities, damaging credit, and interfering with other financial commitments. (Id. at pp. 1163, 1168 & fn. 4 [court based decision on due process but noted convergence of due process and equal protection principles].) With respect to the restitution fine, which was additional punishment, the court reasoned that by prohibiting the consideration of a defendant's ability to pay the minimum fine, "the criminal justice system punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.) The court opined imposing a restitution fine without an ability to pay determination on a probationer was fundamentally unfair because an unsatisfied restitution obligation necessarily deprives the indigent defendant of the opportunity to obtain mandatory expungement of the conviction as a matter of right whereas a wealthy defendant earns that right. (Id. at pp. 1171-1172 & fn. 8 [court based decision on due process but noted due process sufficiently similar to federal and California ban on excessive fines].) A. Forfeiture
The Attorney General argues Martinez forfeited review of this claim because he did not raise the issue in the trial court. We disagree.
The Courts of Appeal are divided on the issue of forfeiture in these circumstances. (Compare People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson) [no forfeiture] and People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano) [same], with People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [forfeiture] and People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [same].)
In Castellano, supra, 33 Cal.App.5th at page 489, the court held defendant did not forfeit appellate review of his ability to pay claim, even though he did not object at the sentencing hearing. The court reasoned Dueñas had not yet been decided, "no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay," and Dueñas was based on "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial." (Castellano, supra, 33 Cal.App.5th at p. 489.) In addition, the relevant statutory authority did not allow the sentencing court to consider a defendant's ability to pay since it imposed the minimum restitution fine. (Ibid.)
In Frandsen, supra, 33 Cal.App.5th at pages 1154-1155, the court held defendant forfeited his appellate arguments based on Dueñas about his ability to pay the fines and fees because he failed to object at the sentencing hearing to the restitution fine that was imposed above the statutory minimum, he was raising a question of fact and not of law, and there was nothing in the record to indicate he would have been foreclosed from making the same objections as the defendant in Dueñas. (Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.) The court also "fundamentally" disagreed with Castellano on the assertion Dueñas was "'a dramatic and unforeseen change in the law[,]'" since the defendant in Dueñas "foresaw it" by raising the ability to pay issue based on existing cases. (Frandsen, supra, 33 Cal.App.5th at p. 1154.) "Dueñas applied law that was old, not new." (Id. at p. 1155.)
We agree with the Castellano court's reasoning and conclude Martinez did not forfeit his right to challenge the fees and fine. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citation.]" (People v. Welch (1993) 5 Cal.4th 228, 237-238.) In determining whether the objection would have been futile, "we consider the 'state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial.' [Citation.]" (People v. Black (2007) 41 Cal.4th 799, 811.)
At the time of Martinez's trial, no California case authority supported the proposition due process principles required a trial court to conduct an ability to pay hearing for a court facilities assessment fee (Govt. Code, § 70373), court operations assessment fee (§ 1465.8), or minimum restitution fine (§ 1202.4). Martinez may raise this issue for the first time on appeal because an objection prior to Dueñas "'would have been futile or wholly unsupported by substantive law then in existence.' [Citations.]" (Brooks, supra, 3 Cal.5th at p. 92.) B. Merits
Much has been written about whether Dueñas was correctly decided. Some courts disagree with its holding (see People v. Hicks (2019) 40 Cal.App.5th 320, rev. granted Nov. 26, 2019 (S258946)), while agreeing the downward cascade of fines and fees on the poor is a serious problem that requires Legislative attention (Id. at p. 329). We find it unnecessary to weigh in on this debate because the factual differences between the defendant in Dueñas and Martinez are significant. The defendant in Dueñas had cerebral palsy and was a married mother of two who was unemployed, homeless, and on public assistance. She suffered multiple misdemeanor convictions that resulted in fines and fees she could not pay. Because she was destitute, she chose to serve jail time instead of paying the fines and fees. As the Dueñas court noted, "'"The 'choice' of paying [a] $100 fine or spending 30 days in jail is really no choice at all to the person who cannot raise $100. The resulting imprisonment is no more or no less than imprisonment for being poor . . . [.]" [Citation.]' [Citations.]" (Duenas, supra, 30 Cal.App.5th at pp. 1166-1167.)
Here, on the other hand, the record does not include any evidence Martinez suffers from the same challenges as the Dueñas defendant. The record includes no evidence Martinez is indigent. Simply put, Martinez was not similarly situated to the Dueñas defendant who was burdened by the "cascading" and "devastating consequences" of mounting fines and fees. (See Johnson, supra, 35 Cal.App.5th at p. 139.) Thus, based on the facts in this case, we conclude the imposition of fees and fine in this case did not amount to a due process violation. (People v. Caceres (2019) 39 Cal.App.5th 917, 926-928 [Dueñas's "broad holding" limited to its "unique facts"].) C. Prejudice
Assuming for purposes of argument Martinez suffered a due process violation, we conclude any error was harmless beyond a reasonable doubt. (Johnson, supra, 35 Cal.App.5th at pp. 139-140, citing Chapman, supra, 386 U.S. at p. 24.)
"'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; see People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)
We can infer Martinez has the ability to pay the fines and fees imposed upon him from probable future wages, including prison wages. (People v. Douglas (1995) 39 Cal.App.4th 1395, 1397 (Douglas).) "Prison wages range from $12 to $56 per month, depending on the prisoner's skill level. [Citations.] The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b), restitution fine. [Citations.]" (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.)
Although no hearing was held or requested, the record suggests Martinez had an ability to pay the $370. There is no indicia of indigency in the record. The fact Martinez was represented in the trial court and on appeal by appointed counsel does not necessarily demonstrate an inability to pay the fines and fees. "[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine" or other fees imposed by the trial court. (Douglas, supra, 39 Cal.App.4th at p. 1397.)
Nor is there any indication Martinez, a 32-year-old felon sentenced to prison for 16 years, is in danger of becoming indigent while imprisoned such that he lacks the future ability to pay his fees and fines. The record contains only limited information about Martinez's financial circumstances.
At the time of sentencing, Martinez informed the probation officer that "he always had a job, enjoyed working, and was always a reliable employee." He admitted that he had been out of work for months prior to the arrest. But before that he worked in a warehouse for over four years. And his educational history demonstrates he was involved in job training where he learned office, janitorial, and cleaning skills. There is no other information about Martinez's financial assets or liabilities. Nor is there evidence that any physical or mental impairment would prevent him from working. Martinez reported to the probation officer he had no current serious medical issues. He stated his hobbies were fixing bicycles and playing basketball, football, and baseball.
These facts demonstrate Martinez is physically capable of working and earning money in custody and will be able to pay a $40 court security assessment fee, a $30 court facilities assessment fee, and a $300 restitution fund fine from his future prison wages. To the extent debt remains following his release, it is not reasonable to conclude he would be unable to pay that balance. Thus, Martinez will not be without the ability to pay fees and a fine.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. GOETHALS, J.