People v. Martinez

Decision Date15 May 1987
Citation237 Cal.Rptr. 219,191 Cal.App.3d 1372
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Roman Camacho MARTINEZ, Defendant and Appellant. B021687.

Frank O. Bell, Jr., Public Defender, under appointment by the Court of Appeal, Suzan E. Hier, Deputy Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., William R. Weisman, Supervising Deputy Atty. Gen. and Joan Comparet, Deputy Atty. Gen., for plaintiff and respondent.

FEINERMAN, Presiding Justice.

Defendant, Roman Camacho Martinez, was convicted by jury of one count of second degree murder (Pen.Code, § 187) and one count of assault by means of force likely to produce great bodily injury and with a deadly weapon (Pen.Code, § 245, subd. (a)(1)). An allegation that defendant had personally used a knife in commission of the murder was found to be true. (Pen.Code, § 12022, subd. (b).)

The court denied defendant's motion for a new trial and he was referred to the California Youth Authority for diagnostic study pursuant to Welfare and Institutions Code section 707.2. Probation was thereafter denied and defendant was sentenced to state prison for a period of 15 years to life for the murder, plus one year for the use allegation. He was also sentenced to the concurrent high term of four years on the assault. Pursuant to Welfare and Institutions Code section 1731.5, the defendant was ordered housed at the California Youth Authority. Defendant was credited with 745 days in custody, including 248 days good time/work time.

Defendant contends that the court erred in failing to give certain jury instructions, that there was prosecutorial misconduct and that the trial court abused its discretion in sentencing him to state prison. We affirm the judgment.

BACKGROUND

On the evening of November 14, 1984, Rosemary Villapondo (Villapondo) witnessed a fight between someone named Louie and a group of people, including the defendant. Villapondo talked to Louie and then went to a phone booth to call her mother. While trying to make the call, defendant approached her from behind and started to take the phone from her. He accused her of trying to call her friends, and put a knife behind her neck.

Villapondo started to walk away from the telephone as her fiance, John Ruiz (Ruiz), approached. When Villapondo told Ruiz what had happened, he confronted the defendant who immediately stabbed Ruiz in the heart. 1 Ruiz was unarmed and had made no striking motions toward the defendant.

After Ruiz fell to the ground, defendant and his companions started to beat and kick him. Ruiz tried to leave, but fell once more and was again assailed. Alberto Hidalgo (Hidalgo) had seen the stabbing and struck the defendant in the head with a stick. 2

After his assailants ran off, Ruiz went to a local market and collapsed. He died of his stab wound.

Sometime later, police went to the defendant's home. A uniformed officer identified himself to the defendant who was looking out a window. Defendant turned and ran towards the back of the house. When the police located him, the defendant was hiding under some blankets in an upstairs bedroom closet. Police arrested him.

In his defense, the defendant put on a witness, Rosalinda Delgadillo (Delgadillo) who testified that she had seen several people in a fight on the night Ruiz was murdered. She did not see the stabbing, but she heard an acquaintance named Solomon Hidalgo tell the others to run--that he had nailed or finished off Ruiz. 3 Delgadillo testified that defendant was lying on the ground while Solomon Hidalgo and the others were fighting.

DISCUSSION
I

Defendant contends that the trial court erred in refusing to give three of his requested jury instructions on eyewitness testimony. He argues that he was entitled to instructions which related identification to reasonable doubt and that the court had a duty to modify any objectionable parts of his proposed instructions and to give the instructions, as modified. In particular, defendant argues that the court erred in refusing to give his fifth, seventh and ninth specially requested jury instructions. 4

A. Fifth Requested Jury Instruction 5

Defendant's fifth requested instruction addresses the People's burden of proving beyond a reasonable doubt that he committed the crimes charged. The defendant essentially concedes, and we agree, that the first paragraph of the requested instruction was adequately covered in another jury instruction given by the trial court (CALJIC No. 2.91). He insists, however, that the instructions received by the jury did not substantively address the second paragraph of his requested instruction. That paragraph instructs jurors that the defendant need not prove that someone else committed the crimes charged and that reasonable doubt as to the perpetrator's identity must result in the defendant's acquittal. 6

Defendant's contention is meritless. As given by the trial court, CALJIC No. 2.90 clearly states that a defendant "is presumed innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty." This instruction further emphasizes that the presumption of innocence "places upon the State the burden of proving [the defendant] guilty beyond a reasonable doubt." Thus, the court effectively cautioned the jury that the People must prove the defendant's guilt rather than the defendant's having to prove his innocence or the guilt of another. Therefore, the second paragraph of defendant's requested instruction was repetitious of an instruction already given, and was properly refused by the trial court. (People v. McCowan (1978) 85 Cal.App.3d 675, 679-680, 149 Cal.Rptr. 611.)

B. Seventh Requested Jury Instruction 7

Defendant's seventh requested instruction advises the jury to evaluate identification testimony with respect to the witnesses' opportunity to observe, any prior inconsistent identifications or failed prior attempts to identify and the certainty of identification after cross-examination. In light of these factors, the instruction concludes by admonishing that testimony which suggests weaknesses in identification should be viewed with caution and scrutinized with care. Defendant complains that although the "factors listed in this instruction [were] alluded to in other instructions given, they [were] not specifically stated." He also insists that no other instruction included the cautionary last sentence. He urges that such a cautionary statement was especially appropriate because there were prior inconsistent identifications and/or prior failures to identify the defendant.

In reviewing the requested jury instruction, we find that each of the substantive factors listed for jury consideration were adequately addressed in one or more of the jury instructions actually given by the court: 8

1. Opportunity to Observe

CALJIC No. 2.92 reads in pertinent part that, "In determining the weight to be given eyewitness identification testimony, you should consider ... factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to ... [p ] [t]he opportunity of the witness to observe the alleged criminal act and the perpetrator of the act...." CALJIC No. 2.20 also provides in relevant part that "[i]n determining the believability of a witness you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including but not limited to ... [p ] [t]he extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness has testified...."

2. Prior Failures to Identify and/or Prior Inconsistent Identifications

CALJIC No. 2.20 provides in pertinent part that in evaluating the credibility of witnesses and the weight to be given each witness's testimony, jurors may consider "[a] statement previously made by the witness that is [consistent] [or] [inconsistent] with the testimony of the witness...." More expansively, CALJIC No. 2.13 provides that prior inconsistent statement "may be considered ... not only ... [to test] the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on ... former occasion[s]." Finally, CALJIC No. 2.21 cautioned that "[a] witness willfully false in one material part of his testimony is to be distrusted in others.... [p ] Whether a discrepancy pertains to a fact of importance or only to a trivial detail should be considered in weighing its significance."

3. Certainty of Identification After Cross-examination

CALJIC No. 2.91 reviews the People's burden of proving identity based solely on eyewitnesses. It provides that "[t]he burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged. [p ] If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the offense, you must give the defendant the benefit of that doubt and find him not guilty." In this regard, CALJIC No. 2.92 lists those factors which should be considered in proving identity by eyewitness testimony. As noted above, CALJIC No. 2.20 further instructs jurors that they are the sole judges of the believability of a witness and the weight to be afforded witness testimony. CALJIC No. 2.22 and 2.13 also admonish the jury to weigh the convincing force of conflicting testimony and to carefully evaluate prior inconsistent statements.

In sum, defendant's requested jury instructions were largely duplicative of the instructions given by the court. However, none of the court's instructions cover the concluding admonition in the defendant's seventh...

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