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People v. Martinez

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 17, 2003
No. B161583 (Cal. Ct. App. Nov. 17, 2003)

Opinion

B161583.

11-17-2003

THE PEOPLE, Plaintiff and Respondent, v. RUBEN A. MARTINEZ, Defendant and Appellant.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General, Susan Sullivan Pithey and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.


Ruben A. Martinez was charged with murder (Count I), robbery (Count II), carjacking (Count III), kidnapping for carjacking (Count IV), criminal threats (Counts V and VI), and vandalism (Counts VII and VIII). A jury found Mr. Martinez guilty of one count of murder, one count of criminal threats, and two counts of vandalism. The court sentenced him to 25 years to life plus 25 years to life for personal firearm use on Count I, three years on Count V, one year on Count VII, and one year on Count VIII. Mr. Martinez appeals his conviction and contends the trial court erred when it admitted the writing of the license plate number on a business card as a spontaneous declaration. He also contends there was insufficient evidence to sustain his conviction of criminal threats. Finding no error here, we affirm the convictions.

Martinez also filed a petition for writ of habeas corpus, alleging ineffective assistance of trial counsel (B168552). We have summarily denied the petition by separate order.

FACTS AND PROCEEDINGS BELOW

The Murder of Marco Antonio Garcia

On July 28, 2001, Socorro Barron was working as a hostess in the Las Playas Restaurant ("restaurant"). Marco Antonio Garcia ("Marcos") also worked in the restaurant as a dishwasher. At some point during the day someone came into the front of the restaurant asking for Barrons dishwasher. Barron told the person the dishwasher could not come to talk to him because he was working. The person told Barron he needed to talk to the dishwasher urgently because he had stolen something from him. Barron testified she told the person to wait because she was going to talk to Marcos.

Barron saw the person leave through the front door of the restaurant. She then went to the back of the restaurant to talk to Marcos. When Barron was talking to Marcos, she saw the same person who had asked for her dishwasher in the front of the restaurant come in through the back door. Barron testified she then saw a second person, whom she later identified as appellant, also enter through the back door.

She testified the first person who entered the back door wanted to fight Marcos and she stood in the middle to prevent them from fighting. Barron heard a shot when the second person came in through the back door of the restaurant. Barron testified the second person was the person who shot Marcos.

After the second person shot Marcos, she saw the two men run towards a car. When Barron was asked how long the car was there after the two men got into it, she said, "They just got in and left."

Simon Monge Torres and his coworker ("unidentified individual") were working on a car outside of the restaurant when they heard a gunshot coming from the restaurant. Torres and the unidentified individual turned and looked toward the restaurant. Torres observed a male, whom Barron and Torres later identified as appellant, come out of the restaurant with a gun and run toward a vehicle parked in the restaurants parking lot. Torres was about 25 feet from appellants vehicle.

Appellant passed by Torres and the unidentified individual. The unidentified individual was next to Torres when appellant pointed the gun at both of them. Torres then heard a woman from the restaurant yell for them to take the license plate number of the vehicle.

Torres described the unidentified individual as being scared and "shaking" at this point. Torres observed the unidentified individual take a screw driver and write the license plate number on the ground as the car passed by. Torres then saw the unidentified individual transfer the license plate number of the car from the ground to a business card. Torres was not certain if any of the numbers on the business card were correct.

The unidentified individual gave the business card to Torres. Torres then handed the business card to a woman in the restaurant who later gave it to the police. Torres testified the police arrived three to four minutes after the license plate number was written on the piece of paper. The license plate number recorded on the piece of paper was 4HUL347. The license plate number on the car appellant was driving when he was later arrested was 4HUL308.

The unidentified individual asked Torres not to reveal his name because he was afraid. As a result of the unidentified individuals request, Torres never revealed his name to the police. The unidentified individual was never found and he did not testify at trial.

Criminal Threats

On July 29, 2001, Juan Martin Flores was talking to appellants uncle outside of the apartments where they live. Flores had known appellant for 14 years. Appellant asked Flores and his uncle for money. Both Flores and appellants uncle refused to give appellant money. Appellant got upset and broke the windows of Flores vehicle and his uncles vehicle.

Prior to this incident, Flores saw the police take away a vehicle appellant was driving earlier that day. The police returned after appellant smashed the windows of Flores vehicle and his uncles vehicle. Flores testified appellant told him, "that if I [Mr. Flores] pressed charges, when he [appellant] gets out of prison, he [appellant] was going to kill my [Mr. Flores] children and throw them to the gutters."

Flores testified he was afraid because he believed this could happen to his children.

On cross examination, Flores testified appellants statement regarding Flores children was made when appellant was in the back seat of the police car. He also testified, however, it did not look like the police were getting ready to drive appellant away when this statement was made to him. Flores testified appellant was outside and not in the police car when he made the statements.

On July 29, 2001, at about 11:30 a.m., Officer Quach went to the location where appellant lives to recover a stolen vehicle. An hour later, Officer Quach received another call to return to that same location. When Officer Quach arrived the second time, he spoke with Flores. Flores told Officer Quach that appellant had said, "I have gang[s]. I come back. I kill you." Officer Quach was not present when this statement was made. Officer Quach testified that at the time Flores told him this information appellant was detained in a police car. Mr. Flores also told Officer Quach appellant had smashed his car windows.

The police recovered a rifle and bullets from appellants car. The police also recovered a citation with appellants name under the seat of the car.

DISCUSSION

Appellant contends the business card containing the license plate number of the getaway vehicle did not fall within the hearsay exception for spontaneous declarations. As a result, appellant contends the trial court violated his 6th and 14th Amendments right to confront a witness when it permitted the prosecutor to present evidence that an unidentified individual wrote down the license plate number of the getaway car. Respondent responds by arguing the trial court properly admitted the business card containing the license plate number as a spontaneous declaration and the admission of this evidence did not violate appellants confrontation rights. Appellant further contends there was insufficient evidence to support his conviction for criminal threats in violation of Penal Code section 422. Respondent responds there was substantial evidence to support the jurys verdict that appellant committed criminal threats in violation of Penal Code section 422.

I. THE TRIAL COURT PROPERLY ADMITTED THE BUSINESS CARD CONTAINING THE LICENSE PLATE NUMBER AS A SPONTANEOUS DECLARATION PURSUANT TO EVIDENCE CODE SECTION 1240 .

Appellant contends the trial court erred by admitting the writing of the license plate number on the business card because it amounted to inadmissible hearsay. Specifically, he argues the unidentified individuals act of writing on the business card was not a spontaneous declaration within the meaning of Evidence Code section 1240. Appellant also contends that because the unidentified individual did not testify at trial, his 6th and 14th Amendments right to confront a witness were violated. As a result, he asserts the Chapman harmless error standard applies and the court should reverse his conviction and remand the case for retrial on the murder charge. We disagree.

Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."

Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1137, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 678. "The Sixth Amendment guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him."

Under Evidence Code section 1240, the trial court properly admitted the writing of the license plate number on the business card. In People v. Poggi, the California Supreme Court explained a spontaneous declaration exception to the hearsay rule requires satisfaction of three elements: (1) "there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstances of the occurrence preceding it."

People v. Trimble (1992) 5 Cal.App.4th 1225, 1234, citing People v. Poggi (1988) 45 Cal.3d 306, 318-319 held that, "Whether a statement satisfies the requirements of the spontaneous declaration exception is `largely a question of fact and is within the discretion of the trial court." "On appeal, the trial courts finding on this issue will not be disturbed unless those facts on which it relied are not supported by a preponderance of evidence." People v. Provencio (1989) 210 Cal.App.3d 290, 302; People v. Jones (1984) 155 Cal.App.3d 653, 660.

People v. Poggi, supra, 45 Cal.3d at page 318, citing Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468; People v. Washington (1969) 71 Cal.2d 1170, 1176.

This case is similar to People v. Gutierrez in that it involves a written document containing a license plate number. InGutierrez, the court held a written document containing a license plate number could be admitted as a spontaneous declaration. The Gutierrez court said, "In the courts view the fact that the declarant had to go through the process of obtaining paper and a writing implement, and then reduce his observation to writing, is not the kind of reflection and deliberate thought that disqualifies a writing from being a spontaneous declaration." The Gutierrez court also found a written statement could be as reliable as an oral statement, "In the courts view the act of reducing an observation to writing a short time after the exciting event makes a statement no less reliable than an identical oral statement made under the same circumstances."

People v. Gutierrez (2000) 78 Cal.App.4th 170.

People v. Gutierrez, supra, 78 Cal.App.4th at page 181.

People v. Gutierrez, supra, 78 Cal.App.4th at page 181.

People v. Gutierrez, supra, 78 Cal.App.4th at page 181.

In this case, the unidentified individual wrote the license plate number on the ground almost simultaneously with observing the event. He then transferred that number to the business card immediately after. People v. Garcia held the length of time from the time the declarant observed the event to when he made the statement is an important factor because the declarant must still be under the influence of the excited event. In Gutierrez, the declarant (unidentified witness) gave the victim the piece of paper containing the license plate number three to four minutes after the robbery occurred. In this case, Torres, who was present when the unidentified individual wrote the license plate number both on the ground and on the business card, testified the police arrived only three to four minutes after the unidentified individual wrote the license plate number on the piece of paper. He further testified the declarant initially wrote the license number on the ground only moments after appellant threatened the two of them with a gun and as the car was speeding away.

People v. Garcia (1986) 178 Cal.App.3d 814, 820; People v. Washington, supra, 71 Cal.2d at page 1176-1177; Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d at page 469; Wiley v. Easter (1962) 203 Cal.App.2d 845, 854.

People v. Gutierrez, supra, 78 Cal.App.4th at page 176.

People v. Brown held the crucial element in determining whether a declaration is spontaneous is the mental state of the speaker. The court explained the nature of the utterance (how long it was made after the startling event) may be important, but solely as an indicator of the mental state of the declarant. In that case, the court held the declarants statement qualified as a spontaneous declaration because he was crying, shaking and visibly upset. In this case, Torres testified the unidentified individual appeared to be scared and shaking. Having heard shots and had a gun pointed at him moments earlier, it is not surprising to learn the declarant was in an excited state when he observed and wrote down the license number. Torres also testified the unidentified individual asked him not to reveal his name because he was scared.

People v. Brown (2003) 31 Cal.4th 518, 541.

People v. Brown, supra, 31 Cal.4th at page 541.

People v. Brown, supra, 31 Cal.4th at page 541.

This case is even a stronger case than Gutierrez for finding the note containing the license plate number qualified as a spontaneous statement. Here the unidentified individual first recorded the license plate number on the ground and then transferred it to the business card. Appellant pointed a gun at the unidentified individual only a few seconds before that individual wrote the license plate number on the ground and shortly thereafter copied it on the business card. There was a reasonable basis to conclude the unidentified individual was under terrible stress both when he wrote the license plate number on the ground and when he transferred it to the business card. He previously had heard a gunshot coming from the restaurant, saw appellant running out with a gun, and then saw appellant point the gun at him and heard a woman from the restaurant shout someone should take down the license plate number. Thus, there can be no doubt declarant was still under the influence of the excited event when he transferred the license plate number to the business card.

People v. Phillips held the declarant must have personally observed the event in order for the spontaneous declaration to be admissible. In this case, Torres testified the unidentified individual perceived the event because he was standing right next to him when he saw appellant running out of the restaurant with a gun towards the car. Torres personally observed the unidentified individual write down the license plate number on the ground and on the business card right after appellants car passed by them.

People v. Phillips (2000) 22 Cal.4th 226, 235.

Appellants 6th and 14th Amendments right to confront a witness was not violated because the writing of the license plate number on the business card fell within the hearsay exception for spontaneous declarations. Ohio v. Roberts held that in order for hearsay evidence to satisfy the confrontation clause of the 6th Amendment, it must show a sufficient indicia of reliability. Hearsay evidence shows a sufficient indicia of reliability if: (1) the evidence falls within a firmly rooted hearsay exception, or (2) there is a showing of particularized guarantee of trustworthiness. The U.S. Supreme Court has held the spontaneous declaration exception qualifies as a firmly rooted hearsay exception for constitutional purposes. Thus, a spontaneous declaration satisfies the 6th Amendment confrontation clause requirements.

Ohio v. Roberts (1980) 448 U.S. 56, 66.

Idaho v. Wright (1990) 497 U.S. 805, 816.

White v. Illinois (1992) 502 U.S. 346, 355-356, footnote 8.

Because the trial court correctly found the writing of the license plate number on the business card was a spontaneous declaration, which is a firmly rooted hearsay exception, there is no violation of appellants confrontation rights under the 6th and 14th Amendments.

II. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT APPELLANTS CONVICTION OF CRIMINAL THREATS IN VIOLATION OF PENAL CODE SECTION 422.

Appellant contends there is insufficient evidence to support his conviction of criminal threats under Penal Code section 422. Specifically, he argues there is no substantial evidence to show the act was "so unequivocal, unconditional, immediate, and specific as to convey the prospect of an immediate execution of the threat" and there is no evidence that Mr. Flores sustained fear for his own safety or his immediate familys safety. We disagree.

Penal Code section 422 provides in part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it was made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in state prison."

Appellant does not dispute the evidence as to the other three elements of section 422, i.e., (1) appellant willfully threatened to commit a crime which would result in death, (2) appellant made the threat with the specific intent that the statement was to be taken as a threat, even if there was no intent of actually carrying it out, and (3) victims fear was reasonable under the circumstances.

The record is unclear as to whether appellant made two separate threats to Flores (before the police arrived and/or after the police arrived). Appellant contends the threat regarding Flores children occurred after the police arrived, while appellant sat in the back seat of the police car. Other evidence suggests appellant may have made two threats, an earlier one before the police arrived and another while appellant was in the police car. Because of this ambiguity we will assume appellant was in the back seat of the police vehicle when he threatened Flores.

People v. Toledo held that in order to prove a defendant violated Section 422, the prosecution must prove the following five elements: "(1) that the defendant `willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant makes the threat `with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat — which may be `made verbally, in writing, or by means of an electronic communication device — was `on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened `to be in sustained fear for his or her own safety or for his or her immediate familys safety, and (5) that the threatened persons fear is `reasonabl[e] under the circumstances."

People v. Toledo (2001) 26 Cal.4th 221, 227-228, citing People v. Bolin (1998) 18 Cal.4th 297, 337-340, footnote 13.

In re Ryan D. held "When the sufficiency of the evidence is challenged on appeal, [we must] review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.

In re Ryan D. (2002) 100 Cal.App.4th 854, 859, citing People v. Johnson (1980) 26 Cal.3d 557, 578; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.

Appellant contends the statement, "if [Mr. Flores] pressed charges, when [appellant] gets out of prison, he was going to kill [Flores] children and throw them to the gutters" is not a threat under section 422 because it is conditional on Flores pressing charges. However, as pointed out in People v. Brooks "conditional threats are `true threats if their context reasonably conveys to the victim that they are intended ..." Moreover, the Supreme Court has explained Section 422 does not require an unconditional threat of death or great bodily injury. "A threat which may appear conditional on its face can be unconditional under the circumstances..." Our highest court further observed, "A seemingly conditional threat contingent on an act highly likely to occur may convey to the victim a gravity of purpose and immediate prospect of execution."

People v. Brooks (1994) 26 Cal.App.4th 142, 149.

People v. Bolin, supra, 18 Cal.4th at page 338.

People v. Bolin, supra, 18 Cal.4th at page 340.

People v. Bolin, supra, 18 Cal.4th at page 340, citing People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158.

In this case, the condition was if Mr. Flores pressed charges, appellant would carry out the threat. However, People v. Stanfield held that, "The use of the word `if in defendants threat does not absolve defendant from liability..." Assuming the threat was made when appellant was in the back seat of the police car, it was reasonable to conclude appellant believed Flores called the police on him and pressed charges. As a result, Flores believed appellant would carry out his threat because Flores pressed charges. Flores also testified he was afraid because he believed the threatened harm could happen to his children.

People v. Stanfield, supra, 32 Cal.App.4th at page 1162.

There is substantial evidence, even assuming the threat was made while appellant was sitting in the back seat of the police car, that the threat was immediate, and it conveyed the prospect of an immediate execution of the threat. The person making the threat need not have the immediate ability to carry out the threat. People v. Gaut held a threat is not insufficient simply because it does not communicate a time. The Gaut court held the defendant violated section 422 when he was calling and threatening his former girlfriend while he was in jail. In that case it was reasonable for her to believe defendant was going to be released from prison soon or he would have someone else harm or kill her. In this case, Flores testified it did not appear the police were getting ready to drive appellant away when this statement was made to him. Flores did not know if appellant was going to prison or jail (for the vandalism charge), how long he would be there, or if he would send somebody else to carry out the threat.

People v. Lopez (1999) 74 Cal.App.4th 675, 679, citing In re David L. (1991) 234 Cal.App.3d 1655, 1660.

People v. Gaut (2002) 95 Cal.App.4th 1425, 1432, citing People v. Butler (2000) 85 Cal.App.4th 745, 752, quoting In re David L. (1991) 234 Cal.App.3d 1655, 1660.

People v. Gaut, supra, 95 Cal.App.4th at page 1431.

People v. Gaut, supra, 95 Cal.App.4th at page 1432.

In People v. Franz the defendant made a threat to the victims while the victims were talking to the police. The court in that case found the victims did not know when they would next see the defendant at the time of the threat. The court in that case further found the immediacy factor was present in the surrounding circumstances because the defendant was in a rage and hit the victims prior to the threat. In this case, the surrounding circumstances also show appellant was in a rage when he smashed Flores windows and his uncles windows after Flores and his uncle refused to give him money.

People v. Franz (2001) 88 Cal.App.4th 1426, 1448-1449.

People v. Franz, supra, 88 Cal.App.4th at page 1449.

People v. Franz, supra, 88 Cal.App.4th at page 1449.

In Ricky T., the court held the threat was not sufficiently "immediate" because the victim did not call the police until the following day. Also, there was no evidence the defendant in that case caused damage to any property or engaged in any other violent act. In this case, on the other hand, Flores called the police a second time after appellant broke Flores and his uncles car windows.

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1138.

In re Ricky T., supra, 87 Cal.App.4th at page 1138.

There is ample evidence Flores was in "sustained fear" for himself and his family. People v. Allen defined "sustained fear" as "[A] period of time that extends beyond what is momentary, fleeting or transitory." In Allen, the court found the victim experienced sustained fear even though the defendant was arrested 15 minutes after he made the threat. Moreover, In re Ricky T. held that, "The phrase `to cause[] that person reasonably to be in sustained fear for his or her own safety has a subjective and an objective component." The court explained, "A victim must actually be in sustained fear, and the sustained fear must be reasonable under the circumstances." Even if the threat was made after the police arrived (when appellant was seated in the back seat of the police car), there is sufficient evidence Flores experienced sustained fear. He testified he was afraid and it was also reasonable for Flores to be in sustained fear because he did not know if the police were going to take appellant away or how long he would remain in custody. Flores testified it did not appear to him the police were getting ready to drive appellant away when appellant threatened him.

People v. Allen (1995) 33 Cal.App.4th 1149, 1156.

People v. Allen, supra, 33 Cal.App.4th at page 1156.

In re Ricky T., supra, 87 Cal.App.4th at page 1140.

In re Ricky T., supra, 87 Cal.App.4th at page 1140.

Consequently, we conclude appellants statement he would kill Flores children if Flores pressed charges against him satisfied all elements of the crime of criminal threat as defined in section 422.

DISPOSITION

The judgment is affirmed.

We concur: PERLUSS, P.J. WOODS, J.


Summaries of

People v. Martinez

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 17, 2003
No. B161583 (Cal. Ct. App. Nov. 17, 2003)
Case details for

People v. Martinez

Case Details

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

Court:Court of Appeals of California, Second Appellate District, Division Seven.

Date published: Nov 17, 2003

Citations

No. B161583 (Cal. Ct. App. Nov. 17, 2003)