People v. Martinez

• Decision Date: 17 November 2003
• Docket Number: No. G026941.,G026941.
• Citation: 7 Cal.Rptr.3d 49,113 Cal.App.4th 400
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eddie Felix MARTINEZ, Defendant and Appellant.

7 Cal.Rptr.3d 49

113 Cal.App.4th 400

The PEOPLE, Plaintiff and Respondent, v. Eddie Felix MARTINEZ, Defendant and Appellant.

No. G026941.

Court of Appeal, Fourth District, Division 3.

November 17, 2003.

Review Denied February 18, 2004.

Diane E. Berley, under appointment by the Court of Appeal, Woodland Hills; Amanda F. Doerrer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Warren P. Robinson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, J.

After his first trial ended in a hung jury, defendant Eddie Felix Martinez was retried and convicted of the following: one count of first degree murder (count 1), two counts of attempted murder (counts 2 and 3), two counts of shooting at a motor vehicle (counts 4 and 5), and three counts of assault with a semiautomatic handgun (counts 6 through 8). The jury found true the allegations that the attempted murders were committed with deliberation and premeditation and that defendant personally used a firearm to commit the murder, attempted murders, and assaults. The trial court sentenced defendant to consecutive indeterminate terms of 25 years to life on count 1, two terms of life with the possibility of parole on counts 2 and 3, plus a determinate term of 25 years and four months on counts 4, 5, and 8. The court stayed sentence on counts 6 and 7.

Defendant contends his constitutional rights were violated because, after the preliminary hearing testimony of a nontestifying accomplice, Frank Fierro, was admitted into evidence, the court also permitted the jury to hear a recording of Fierro's statement to the police. Defendant further argues insufficient evidence existed to show the murder and attempted murders were premeditated and deliberated and that the trial court erred by allowing a gang expert to testify "about `rats' and the concept of `payback'" in relation to gang culture. The Attorney General contends Fierro's statement was properly admitted under Evidence Code section 1294 and, if not, any error was harmless. The Attorney General further asserts there is substantial evidence to support defendant's convictions for murder and attempted murder and that the gang expert's testimony was properly admitted.

We agree with the Attorney General's latter assertions, and while we conclude the trial court erred in admitting Fierro's statement, we find the error was harmless and affirm the judgment.

FACTS

One afternoon, Fierro agreed to give defendant a ride home from work. Along the way they stopped at a gas station to purchase some beer. Defendant accompanied Fierro into the mini-market. The cashier noticed that defendant "kept pacing back and forth ... [and] kept looking outside the window" while Fierro paid for the beer. As the men walked back to Fierro's Honda, two carloads of young Hispanic males pulled into the gas station.

Henry Lopez, the driver of a white vehicle, pulled up to the gas pump opposite Fierro's Honda. Lopez heard someone say, "Where are you guys from?" He looked over to the passenger side window and saw a chrome gun "pointed straight at [them]." Lopez slapped at the gun, and grabbed his front passenger, Martin Gomez, and pulled him out of the car. The shooting started as they ran from the vehicle; a bullet nicked Lopez's left knee.

Francisco Blancas and his 14-year-old brother Augustin were seated in the back seat of Lopez's car. Blancas heard someone ask if they were from "Jeffrey" and saw the person outside the passenger window point a gun at Gomez's head and pull the trigger; the gun did not fire. As the gunman again pulled back the slide on the weapon, Blancas and the others ran from the car. Blancas heard two shots fired, and when he looked back he saw his brother lying on the ground next to the car; Augustin died from a gunshot wound to the head. Blancas later testified he saw the gunman get into the Honda before it drove away.

Gomez, an admitted member of the Jeffrey Street gang, saw two males standing next to the gas pump when Lopez's car pulled into the station. One of the males walked up to Lopez's car and said, "I know you vattos [sic]." The person also said, "You guys are from Jeffrey." He pointed the gun within six inches of Gomez's face and pulled the trigger, but it did not fire. Gomez heard shots being fired as he ran from the car.

Lopez's friend, Raul Ramirez, drove a gray car into the gas station. Ramirez saw a man standing beside a gas pump and another man coming out of the mini-market with a bag. He noticed that the person standing next to the gas pump was "mad dogging" his friends. The person pointed a gun at Gomez, and Ramirez heard shots being fired as he ducked down.

Eyewitnesses gave conflicting descriptions of the shooter's physical characteristics which, coupled with other evidence, either raised the inference or implied that either defendant or Fierro, or both, were culpable. Lopez described the gunman as Hispanic, with short hair, and possibly having a black mole on the left side of his face above his lip. The gunman wore "a gray shirt with a collar" and a logo; he was approximately five feet, 11 inches tall, and weighed between 180 to 200 pounds. Lopez selected defendant's photograph from a book of police photos, and he also identified defendant in court as the shooter even though Lopez did not see a mole or birthmark on defendant's face. The absence of a mole caused Lopez to have a slight doubt as to defendant's identity as the shooter, but Lopez also testified that he was "sure because of the eyes."

The other witnesses gave somewhat different descriptions of the gunman. Gomez described him as five feet, nine inches to six feet tall, weighing approximately 160 pounds, light-skinned, with short hair, and wearing a gray "Ben Davis" shirt. The gunman also had a scar on his face. Gomez was "certain" defendant was not the gunman.

Blancas described the gunman as five feet, six inches tall, weighing 140 pounds, and wearing gray pants and a muscle shirt. Blancas had identified defendant from a photograph and also identified him in court. Ramirez testified the shooter wore dark clothing, was approximately six feet tall, weighed 160 pounds, and had a three-inch scar on his face. He previously had selected defendant's photograph, but indicated to the police that he was not certain that person was the shooter. Later at trial, Ramirez testified that defendant was not the shooter. Francisco Diaz, who was in the gray car along with Ramirez, described the gunman as wearing a short sleeve shirt with a logo, like a uniform shirt, five feet, seven or eight inches tall, and with short, dark hair. Diaz could not identify defendant at trial.

A female customer present during the shooting noticed "a group of boys standing around a white vehicle, and a man pointing what looked to me like ... a gun inside of the white vehicle." She described the gunman as a Hispanic male with very short hair, five feet seven to eight inches tall, clean shaven, and wearing a white t-shirt."

At the time of his arrest, defendant was five feet, seven inches tall and weighed 170 pounds. He did not have a noticeable scar on his face. Fierro, however, was slightly taller and had a visible scar in the area of his sideburns that was over an inch long. Defendant had been wearing gray pants and a gray shirt with his employer's logo on it. Fierro had been wearing a white tank top and jeans.

Two different calibers of shell casings were recovered from different areas at the crime scene, indicating that more than one gun may have been fired during the incident. A forensic scientist testifying for the prosecution determined that all five of the .25 caliber casings had been fired from the same gun, while the .380 caliber casing had been fired from a different gun. A gunshot residue test on Fierro's hands revealed one particle of residue on his left hand and two particles on his right. Defendant, who was arrested the day after the shooting, had no gunshot residue on his hands. However, the optimum time for administering the test is within five to six hours after a shooting since the ability to detect gunshot residue diminishes with time.

Cosme Viramontes, an admitted member of the Compton Vario 132nd Street gang, was questioned as a possible witness. Initially he told police he knew nothing about the shooting. He later testified that he lied because he had been afraid of "[g]etting killed." But after his arrest for an unrelated crime in 1999, Viramontes contacted a deputy at the jail and said he had information about the shooting. Viramontes testified he was riding a bicycle past the gas station when the shooting took place and recognized defendant as the shooter. He admitted he offered to testify because he wanted "[a] deal" and hoped to get out of jail. A few weeks before trial, Viramontes was released from jail on his own recognizance.

The police searched defendant's home and recovered a shoe box containing a 9mm gun and various items marked with gang writings, i.e., "CV" and "132nd S/t," meaning "Compton Vario, and 132nd Street." A box recovered from the garage held ammunition, including some .25 caliber bullets. An empty gun case was discovered in an attic space.

Defendant denied firing a weapon or shooting anyone at the gas station. He testified that he was putting the beer in the trunk of Fierro's car and took off running when the shooting started. At trial, he claimed that a third companion, Juan Garcia, was the person who had been standing next to the gas pump when the victims drove up, implicating Garcia as the shooter. But defendant had not mentioned a third person when he was initially interviewed by the police. Defendant also testified that he was warned by Garcia the day after the shooting not to say anything to the police. Kevin Carlson, a...