Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA036245, Hayden A. Zacky, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Roger Martinez of first degree murder and use of a firearm causing great bodily injury or death, for the benefit of or at the direction of a criminal street gang. Martinez was sentenced to 120 years to life in prison. Martinez appeals, arguing that remarks during closing argument constituted prosecutorial misconduct. We affirm.
BACKGROUND
An information filed April 27, 2007 charged Martinez with one count of murder in violation of Penal Code section 187, subdivision (a) (count 1), and two counts of attempted willful, deliberate and premeditated murder, in violation of sections 664 and 187, subdivision (a) (counts 2 and 3). As to counts 1 and 2, the information also alleged that Martinez personally and intentionally used a firearm which caused great bodily injury or death within the meaning of section 12022.53, subdivisions (b), (c), and (d); as to count 3, the allegation was that Martinez personally and intentionally used a firearm within the meaning of section 12022.53, subdivisions (b) and (c). The information also alleged that counts 1, 2, and 3 were committed for the benefit of, at the direction of, and in association with a criminal street gang in violation of section 186.22 subdivision (b)(1)(C).
All future statutory references are to the Penal Code.
Martinez pleaded not guilty and denied the special allegations. After trial, the jury convicted Martinez of first degree murder (count 1) and attempted premeditated murder (counts 2 and 3). The jury also convicted Martinez of all the special allegations, with the exception of the allegation in count 2 that Martinez intentionally discharged a firearm causing great bodily injury or death to Oscar Flores, which the jury found not true.
The trial court sentenced Martinez to a total of 120 years to life in prison: 50 years to life in count 1, 35 years to life in count 2, and 35 years to life in count 3. Martinez was ordered to pay restitution and fines totaling $27,020, and was granted 666 days of presentence custody credit.
Martinez timely appealed.
FACTS
Evidence was presented at trial that on July 10, 2006, Oscar Flores was playing handball with Ezekiel Gonzalez at McAdam Park in Lancaster. Gonzalez was a member of the Young Boys Rifa (YBR) gang. Flores, Gonzalez and Ivan Sanchez (who was also a member of YBR) left the park around 10:00 p.m. in Flores’s white Nissan Sentra, with Flores driving, Gonzalez in the passenger seat, and Sanchez in the back seat.
Flores testified at trial under a grant of immunity from future criminal prosecution.
As Flores drove home on Avenue R, he and Gonzalez noticed a white Ford Festiva from which someone had screamed “TNB” and fired shots at Flores and Gonzalez back in May, leaving three bullet holes in the Sentra. Flores recognized the driver of the Festiva as Ricardo Valenzuela, who had been driving the Festiva in the May incident. Flores followed the Festiva out of “curiosity”, and saw Valenzuela get on a cell phone; there was a passenger in the Festiva’s front seat.
As Flores turned on to 10th Street following the Festiva, a black car driven by Martinezpulled up alongside the driver’s side of Flores’s car; Martinez was alone in the car. Around that time, Gonzalez pulled a gun out of his boot. Flores then noticed that the Festiva was no longer in front of him, but was on the passenger side of his car. Flores looked back at the black car, saw the flash of a gun, and felt a burning sensation in his left forearm. He did not know how many shots came from the black car; shots also came from the Festiva at about the same time.
Flores lost control and crashed the Sentra, which caught on fire, into another car. He managed to get out of the car. Sanchez and others pulled Gonzalez out of the car and left him on the grass in front of a house; Sanchez left, and Flores panicked and also left, flagging down a car to take him to a hospital.
Gonzalez died at the scene from a bullet wound to the chest. No bullet was recovered at the autopsy. The medical examiner from the coroner’s office testified that the wound was consistent with a number of possible positions of the firearm, depending on the rotation of Gonzalez’s body at the time of the shooting. Flores didn’t know which side the shots that killed Gonzalez came from. The Sentra had damage from bullets on the driver’s side and the passenger’s side. A.380-caliber pistol was found inside Flores’s burned out Sentra, in a locked-back position indicating that all the shells had been fired. The driver’s side door of the car also had damage from three bullets, and a.380 bullet and a cartridge were recovered from inside the door. The cartridge had not been fired by the pistol found inside the Sentra. A bullet recovered from the front passenger door of Martinez’s car had been fired from the recovered.380 pistol.
In interviews by the police after the shooting and played to the jury, Martinez first denied he was present and then admitted he drove to the scene of the shooting after he got a call from Valenzuela, telling Martinez he was being followed and asking Martinez to come and bring a gun. He claimed a passenger in his car did the shooting. Martinez told the police that he used to be a member of the gang TNB. Police found a photograph in Martinez’s home of him with Valenzuela, making gang hand signs.
A gang expert, Los Angeles Sheriff’s Deputy Joseph Fender, testified that TNB was “Trust No Bitch,” a gang of about 30 members also identified by the numbers 862 and specializing in car theft. Martinez had the numbers “862” tattooed on his lower back. Deputy Fender’s opinion was that Valenzuela and Martinez were members of TNB. YBR, the gang Gonzalez belonged to, was a rival gang to TNB, with Avenue R as a border area between the two gangs’ territories. Given a hypothetical with facts similar to those in this case, Deputy Fender opined that the shooting was committed for the benefit of a gang.
After the close of testimony, the trial court gave jury instructions, including instructions on self-defense and mutual combat, without defense objection. In closing argument, the prosecution argued that the shooting arose out of a gang rivalry and that Valenzuela called Martinez to come do the job of killing Gonzalez, a YBR member. The killing was not self-defense or defense of another, but mutual combat between rival gangs.
The defense argued that Flores was pursuing Valenzuela to retaliate for the earlier shooting incident in May. Martinez pulled up, and shots were exchanged, but the shot that killed Gonzalez could have come from a number of possible sources. “[I]n that gang culture, when that A car is being followed by that B car, it wasn’t to invite him out to the theater. That B car was out to blow the brains out of anybody in that A car. Pure and simple.” Given that “[g]angsters... don’t go to the police for help. They are involved in self-help, for better or worse,” the defense argued that Martinez may reasonably have believed that “there was a guy in car B, or car no. 2, whatever you want to call it, who was going to blow the brains out of his buddy in car no. 1.” Martinez “reacted to a self-defense or, more precisely, a defense of other situation. And as rotten as that sounds, it’s reality.” Whether or not Martinez was a gang member, the shooting could have been a case of self-defense or defense of others.
In rebuttal, the prosecution pointed out that Martinez never said anything about defending Valenzuela. Seizing on the defense’s mention of “self-help,” the prosecution argued that the self-help in this case was not self-defense but mutual combat. The elements of self-defense were not met by the evidence, and Martinez himself did not believe that he acted in self-defense or in defense of another gang member.
DISCUSSION
Martinez argues that the prosecutor committed misconduct by making two statements that according to Martinez, urged the jury to convict him not on the evidence, but to send a message that society would not tolerate gangster shoot-outs in the middle of the street, thus inciting the passions and prejudices of the jury. We disagree.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s conduct ‘“‘that does not render a criminal trial fundamentally unfair’”’ violates California law ‘“‘only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’’”’ [Citation.]” (People v. Monterroso (2004) 34 Cal.4th 743, 785.) In closing argument, “‘[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.’ [Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 768.)
I. Closing argument
The first statement that Martinez claims constitutes prosecutorial misconduct was during the prosecutor’s closing argument:
“In the old days, it was pistols at ten paces. They would go out in the woods, back to back, go out ten paces, turn and fire. Someone got shot, no big deal. Nobody got hurt. If they wanted to go out and shoot themselves, fine. [¶] We have the old West. Meet in the middle of the street at high noon. Two gunfighters out in the street. Everybody is kind of standing around watching. Not really much of a danger to anybody else. [¶] Today, things are a little different. We have assault rifles. We have semi-automatic firearms. We have cars driving at high rates of speed. We’ve got people everywhere. We have no control where those bullets go. [¶] We, as a society, want to say, look, no more of these shoot-outs in the middle of the street. No more of these pistols at ten paces. We don’t want you to go out there, get yourself in a gang, make 100 enemies, or 30 enemies, or however many enemies you are going to make—.”
The defense objected that the prosecutor was not commenting on the evidence, and the court stated “I think he is explaining the self—mutual combat instruction, so just remember, ladies and gentlemen, statements of counsel, it’s not evidence. The instructions contain the law,” and allowed the closing argument to proceed. The prosecutor continued: “So we have this law of mutual combat which basically says, look, if you are going to go out and engage in mutual combat, don’t come to us and plead self-defense. If you want to get in a mutual combat and somebody gets killed, you are not going to be able to come in here and use self-defense as an excuse or justification, unless there are certain criteria, none of which—you have to make it clear you don’t want to fight any more. None of those criteria you will find were present in this case. [¶] So, mutual combat, if it’s mutual combat, no self-defense.”
This was not an argument that rendered the trial unfair, nor was it a deceptive or reprehensible attempt to influence the jury. The jury had before it CALCRIM No. 3471, an instruction on mutual combat, which stated: “A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [¶] (1) He actually and in good faith tries to stop fighting; AND [¶] (2) He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.” Mutual combat “‘has been in general use to designate the branch of the law of self-defense relating to homicides committed in the course of a duel or fight begun or continued by mutual consent or agreement, expressed or implied. [Citations.]’ (Italics added.) In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1045.) The evidence in this case supported the inference that the shootout was begun or continued by mutual agreement, when Martinez arrived with a preexisting intention to fight, ready to exchange gunshots with Flores and Gonzalez.
During deliberations, the jury asked for a definition of mutual combat, and the court referred the jury to CALCRIM No. 3471.
The prosecutor did stray from legitimate comment on the evidence in stating “We have no control where those bullets go. [¶] We, as a society, want to say, look, no more of these shoot-outs in the middle of the street... We don’t want you to go out there, get yourself in a gang, make 100 enemies, or 30 enemies, or however many enemies you are going to make—.” This urged the jury to consider the public’s safety in gang territory rather than solely Martinez’s guilt or innocence. The reference was brief, however, and after defense counsel promptly objected, the court instructed the jury that the prosecutor’s statements were not evidence. “We therefore find no reasonable possibility of a different result if these comments had not been made.” (People v. Monterroso, supra,34 Cal.4th at p. 787.)
Given that there was evidence that Martinez engaged in an exchange of shots between three cars all traveling side-by-side on a public street, and that one car then caught on fire and crashed into another, the prosecutor’s argument was a reasonable application of the mutual combat instruction to the facts of the case. It was permissible to argue to the jury that the law of mutual combat applied to situations involving more than two participants. As the prosecutor explained later: “We get into this idea of mutual combat, and why we don’t want mutual combat and when we are going to allow people to use self-defense. One of the reasons is we don’t want people getting in running gun battles down the middle of a public street. This is why. [¶] We don’t want people driving down the street shooting at each other unless it’s absolutely necessary and it falls under the law of self-defense. And this is exactly why we don’t want that happening, because inevitably, some poor innocent person gets caught up in the cross fire. And this is exactly what happened in this case. [¶] Fortunately, I mean—you look at these cars. It’s actually a miracle nobody else was killed.” This was a fair comment on the evidence which did not, in context, overemphasize Martinez’s gang affiliation so as to inflame the passions of the jury.
II. Rebuttal argument
The second statement Martinez claims shows misconduct was during the prosecution’s rebuttal. The prosecutor responded to an argument made by the defense in closing:
“And then [defense counsel] made an argument, which I think is correct. And unfortunately for Mr. Martinez, what it leads you to is the whole mutual combat argument, which the defense did not mention and did not address at all in their argument. And what he said was that these gang members engage in self-help. They resolve these situations in the street. [¶] And that’s exactly what we don’t want, folks. That’s exactly why we have this law of mutual combat because we don’t want gangsters going out and engaging in self-help because we wind up with innocent vehicles being involved in head-on collisions. [¶] That’s what we don’t want. We don’t want them going out and engaging in self-help. That’s why we have this mutual combat instruction that talks about what happens when we have gang warfare and gang members going out and shooting at each other and trying to kill each other. We want them not to be able to say, self-defense. [¶] So yes, they engage in self-help. Yes, self-help is what was going on here. [¶] No, that is not a justification in this case. That is not self-defense. That’s mutual combat. You don’t get to use self-defense, if it’s mutual combat, unless you do these certain things that we talked about earlier, none of which were present in this case. [¶] And that’s the whole problem. That’s exactly what the problem is in this case. And that is that gangsters are going out and using self-help to solve their problems, and we do not want to encourage that. That’s why we have this mutual combat instruction.”
Defense counsel objected, but the court allowed the argument to continue. The prosecutor argued that the evidence did not show that Martinez acted out of self-defense and even Martinez himself “doesn’t believe he acted in self-defense or defense of another.”
Later, on the record and during a sidebar, the defense argued that the prosecutor had said “we don’t want gang members doing this. This is why we have the law,” in a conscious or unconscious effort to stir the prejudices of the jury because Martinez was a gang member. The prosecutor responded that he was trying to explain the law of mutual combat and how it applied in this case. The court noted that it did admonish the jury that the statements of the lawyers were not evidence, and concluded that the prosecution was attempting to give its interpretation of the law.
This second statement also did not constitute misconduct. Defense counsel’s closing argument emphasized that the jury was dealing with gang culture and retaliation for the first shooting incident in May. “[T]he reality is that these are gangsters. Gangsters operate in a certain way under a certain culture, and they don’t go to the police for help. They are involved in self-help, for better or for worse.[¶]... [¶] Your homey, your buddy, your friend, your pal, your crimey, whatever you want to call him, he is being chased by an assassin at the moment—perhaps two assassins—with a specific purpose. And you don’t have to have him tell you what it’s for, because Deputy Fender [the gang expert] did.” In rebuttal, the prosecutor was within the wide latitude afforded him to echo the defense concession that “gangsters” engage in self-help, and to argue that the self-help which the defense claimed Martinez was engaged in was not self-defense, but mutual combat, for which there was an appropriate instruction.
The comments by the prosecutor did not constitute misconduct.
DISPOSITION
The judgment of conviction is AFFIRMED.
We concur: MALLANO, P. J. CHANEY, J.