People v. Martinez, F055977 (Cal. App. 12/18/2009)

• Decision Date: 18 December 2009
• Docket Number: F055977.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH MARTINEZ et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH MARTINEZ et al., Defendants and Appellants.

F055977.

Court of Appeals of California, Fifth Appellate District.

December 18, 2009.

Appeal from a judgment of the Superior Court of Stanislaus County, Nos. 1102019 & 1102574, Donald E. Shaver, Judge.

Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Joseph Martinez.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Pablo Lopez III.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in Official Reports

OPINION

ARDAIZ, P.J.

Appellants Daniel Joseph Martinez and Pablo Lopez III were charged, by first amended information, with premeditated murder of Jefte Garcia (Pen. Code,¹ § 187; count I), attempted premeditated murder of Jair Garcia (§§ 187, 664; count II), and active participation in the Norteno criminal street gang (§ 186.22, subd. (a); count III). As to counts I and II, it was alleged that Lopez personally and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subd. (d)), that both used a firearm and the crime was committed for the benefit of or in association with a criminal street gang (§ 12022.53, subd. (e)(1)), and that both committed the offense for the benefit of or in association with the Norteno criminal street gang (§ 186.22, subd. (b)). As to count III, it was alleged that Lopez personally used a firearm (§ 12022.5, subd. (a)).

Following a jury trial, Lopez was convicted of first degree murder in count I, acquitted of count II, and convicted of count III. The murder was found to have been premeditated, and all of the special allegations as to counts I and III were found to be true. Martinez was convicted of second degree murder in count I, acquitted of count II, and convicted of count III, and section 186.22, subdivision (b) and 12022.53, subdivision (e)(1) of the allegations were found to be true as to count I.² Martinez's new trial motion was denied, and he was sentenced to an aggregate term of 40 years to life in prison. Lopez's new trial motion was similarly denied, and he was sentenced to an aggregate term of 50 years to life in prison. Both filed timely notices of appeal.³

FACTS

As of December 8, 2005, Kristian Sandoval had been residing at 1309 Alamo Street, Modesto, for approximately four months. The neighborhood was "gang infested," and included both residents claiming Norteno membership and those claiming Sureno membership.⁴ Sandoval became acquainted with the mother of the Garcia family, which lived across the street at 1310 Alamo. Two of her sons, who were about 17 or 18 years old, were Surenos. They bragged about their gang involvement to Sandoval, and one — Jefte Garcia — showed him the San Diego tattoo on his back.⁵

Martinez lived two doors down from Sandoval. Sandoval first met him about two weeks after moving to 1309 Alamo, and they became good acquaintances. Sandoval saw Martinez "hanging out" with Lopez every day. Martinez and Lopez often wore red items of clothing, and they claimed Norteno.

Around 6:00 p.m. on December 8, Sandoval was inside his house with his friend, Lounny Manivong. They were in the kitchen when appellants knocked on Sandoval's door. Referring to the Garcia brothers, one said that the guys were over there, that something was going to happen, and that they had gone and gotten a gun or something like that. Sandoval did not hear any commotion, but Martinez asked him for "the gauge." Sandoval knew him to be referring to the pump-action, sawed-off shotgun appellants had left at Sandoval's house approximately two days earlier. Sandoval knew the gun was loaded; while appellants were showing it to him when they first brought it over, someone had put shells into it.

Sandoval retrieved the firearm, unwrapped it, and handed it to Lopez, who was standing right next to Martinez. Sandoval still did not hear any commotion outside, but warned that he did not want anything stupid happening in front of his house. Appellants then walked down the driveway. Lopez put the gun behind his back, under his sweatshirt.

As appellants walked down the driveway with Sandoval and Manivong following, they started exchanging words with the Garcia brothers, who were across the street on the sidewalk in front of their house. One of the Garcias — Sandoval believed it was Jefte — was accusing appellants of having tagged "YGL" on their sidewalk.⁶ His tone of voice was angry. Martinez responded with an obscenity and forcefully denied that he or Lopez had done it.

Appellants stopped about halfway down the driveway, next to Manivong's car. The exchange between appellants and the Garcia brothers lasted approximately two to three minutes, during which time Lopez was just holding the shotgun behind his back.

Sandoval told the Garcia brothers to get back in their house and not be little kids, and he told appellants to take "their shit" somewhere else, but things escalated. Jefte was extremely angry. He walked into the middle of the street, took off his shirt, and started saying he was a grown man and all tatted up. He turned the "SD" tattoo on his back toward appellants, Sandoval and Manivong, and said "`this is San Diego'" or something, and something Surenos. He pointed at his back and also held up a blue San Diego hat. Sandoval considered this a gang challenge or gang call-out. He saw no weapons on or about the person of either Jefte or Jair. It appeared to him that Jefte wanted to have a fist fight.

Martinez yelled back his gang set, saying, "`This is YGL.'" Jair, who was standing behind Jefte, said, "`I'll peel your guys' cap back,'" meaning he was going to shoot the other group's way or shoot somebody. Sandoval interpreted the statement as a death threat against everyone in the group by Sandoval's house. Jair, who had on a shirt, reached one hand behind his back. Lopez pulled out the shotgun from under his sweatshirt and pointed it forward. Martinez told Lopez, "`Just do it.'" Seconds later, which was a matter of seconds after Jair had made the verbal threat, Sandoval heard a single gunshot from Lopez's direction. By this time, Lopez was outside Sandoval's fence, adjacent to the mailbox in front of the sidewalk. Everyone ran; Sandoval told Manivong to get out of there, then Sandoval ran back inside his house. He did not know anybody had been shot at this point, but when he looked out, he saw a person he believed to be Jair, squatting down inside the fence in the middle of the Garcia yard and talking on his phone. Sandoval could not see Jefte's body, because it was dark.

Sandoval went up into his attic. He did not call 911. The SWAT team extracted him about an hour later.

Portions of Manivong's account of events differed from Sandoval's version. Manivong had been present at Sandoval's house on several occasions when one or both appellants were there. Sometimes, Lopez would talk about how some of the neighbors were "scraps." Manivong understood this to be a derogatory term for Surenos. A couple of weeks before the shooting, Manivong was at Sandoval's house when Sandoval produced what appeared to be the weapon subsequently fired by Lopez. Sandoval said he was using it for protection.

Manivong arrived at Sandoval's house between 5:00 and 6:00 p.m. on December 8, and he and Sandoval smoked some marijuana. Manivong smoked half a blunt, which is a cigar filled with marijuana. He described himself as being only a little high.

After appellants came to the door, Manivong walked out of the house before Sandoval. When Sandoval came outside, he was carrying some sort of bag over his shoulder. Manivong could not tell what it was and did not see what Sandoval did with it.

The only words Manivong heard spoken by Jair were at the outset.⁷ When Manivong walked out of the house, Jair was the first one to talk about the graffiti and disrespect. Manivong saw no weapons about his person, nor did he ever hear any threats to shoot, or any references to firearms, from either brother. At no time did Manivong believe the brothers were going to shoot at him. However, once Jefte pulled off his shirt, Manivong's attention was focused exclusively on him, and he did not know where Jair was or what he was doing.

After taking off his shirt, saying he was from San Diego, and flipping his hat back, Jefte said, "`Let's fight. Let's go. Let's down.'" Manivong saw no weapon in Jefte's hands or on his person. He did not hear Martinez say anything after Jefte started walking toward the middle of the street. However, Lopez suggested a couple of times that they go to the corner. Lopez had his hands behind his back when he said this. Jefte responded, "`No, let's fight right here.'" When Lopez produced the sawed-off shotgun from behind his back and held it against his hip, Jefte turned and ran. Manivong did not hear either brother, or either appellant, say anything. No more than two to three minutes elapsed from the time Jefte walked to the middle of the street and took off his shirt to when Lopez pulled out the shotgun. During those minutes, Jefte was verbally challenging them to fight. Lopez pulled out the shotgun very shortly after the final time he suggested going to the corner. He pumped the shotgun and fired it almost immediately after pulling it out. He fired just one shot, at Jefte. Sandoval and appellants then ran toward the house; Manivong got in his car and drove off.

Stanislaus County Sheriff's Deputy Alves was dispatched to the 1300 block of Alamo at about 7:00 p.m., in response to a call that someone had been shot. He found a body near the front entrance of the residence at 1310 Alamo. The person appeared to have one gunshot wound to the arm and one to the eye. Alves saw no weapons on or around the person, and...