Opinion
2d Crim. No. B197949
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. FRANK MARTIN MARTINEZ, Defendant and Appellant.
Richard Jay Moller, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Nancy G. James, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Frank Martin Martinez appeals the judgment entered after a jury convicted him of attempted second degree burglary of a vehicle (Pen. Code, §§ 664/459, 460), and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true the allegations as to both counts that Martinez personally inflicted great bodily injury upon his victim (§ 12022.7, subd. (a)). With respect to the assault charge, Martinez admitted serving a prison term for a prior conviction (§ 667.5, subd. (b)). The trial court sentenced him to a total term of eight years in state prison, consisting of the upper term of four years on the assault count, plus a three-year enhancement for the great bodily injury enhancement and an additional year for the prior prison term. He contends the court violated its sua sponte duty to instruct the jury on self-defense, and also erred in sentencing him to the upper term in violation of Cunningham v. California (2007) 549 U.S. ___ (Cunningham). We affirm.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS
On November 13, 2006, Guadalupe and Olivia Lozano visited Guadalupes brother John at his house in Baldwin Park. At approximately 9:30 p.m., Olivia went outside to make sure their car was locked when she saw someone (later identified as Martinez) trying to break the lock on the door of Juans truck. Olivia returned to the house and told Guadalupe and Juan what she saw. Guadalupe, who was unarmed, ran outside and started yelling. As he approached, Martinez turned around and stabbed him in the chest with a pair of scissors on a key chain. Martinez ran away and tried to enter a car parked down the street, but Guadalupe followed him and kicked the car door shut. Martinez continued running and threw two duffle bags he was carrying at Guadalupe to slow him down.
Guadalupe caught up with Martinez and tackled him. Martinez stabbed Guadalupe with the scissors two or three more times. As they fought, Guadalupe took the scissors from Martinez. Juan arrived shortly thereafter and helped Guadalupe restrain Martinez until the police arrived. Martinez offered them money to let him go and said he was on parole and did not want to be in jail for the holidays.
The police arrived and arrested Martinez. Guadalupe was taken to the hospital by ambulance and spent 24 hours there being treated for his injuries. Guadalupe experienced pain that required him to take pain medication for two weeks and caused him to miss eight days of work. His wounds were still visible and causing him pain at the time of trial.
DISCUSSION
I.
Failure to Instruct on Self-Defense
Martinez did not offer any evidence that he was acting in self-defense when he stabbed Guadalupe, nor did his attorney argue self-defense at trial. Counsel nevertheless requested a self-defense instruction during deliberations after the jury submitted a note asking whether self-defense could apply to the assault charge. The court rejected the request, instructing the jury that "The legal issue of self-defense is not before you for your consideration. Please refer to the courts instructions." Martinez contends that the court erred in refusing to give the self-defense instruction. We disagree.
The jurys note stated: "Can self defense be implied by the jury[?]" and "Does self defense alter the definition of assault with a deadly weapon[?]"
Trial courts have a duty to instruct on the general principles of law that are relevant to the issues raised in a criminal case. (People v. Earp (1999) 20 Cal.4th 826, 885.) However, there is no duty, either sua sponte or at the defendants request, to instruct the jury on a defense that is not supported by substantial evidence. (People v. Memro (1995) 11 Cal.4th 786, 868.) Minimal and insubstantial evidence supporting a defense theory is not enough to compel the giving of an instruction. (People v. Flannel (1979) 25 Cal.3d 668, 684, superseded on another ground as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)
The trial court did not err in refusing Martinezs request to instruct the jury on self-defense. First, "[i]t is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversarys attack or pursuit is legally justified." (In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1.) Martinez created the circumstances under which his victims initial pursuit was justified.
Besides, no reasonable juror could have found from the evidence that Martinez acted in lawful self-defense the first time he stabbed Guadalupe, i.e., that he justifiably believed that he was in imminent danger of suffering bodily injury, that he reasonably believed that the immediate use of force was necessary to defend against that danger, and that he used no more force than was reasonably necessary to defend against that danger. (People v. Jefferson (2004) 119 Cal.App.4th 508, 518; CALCRIM No. 3470.) The uncontroverted evidence establishes that Guadalupe merely approached Martinez to prevent him from continuing his attempt to steal his brothers truck when Martinez turned and stabbed him without provocation. While counsel suggested in his closing argument that Guadalupe was stabbed for the first time after he and Juan had tackled Martinez to the ground, thereby prompting the jury to wonder whether Martinez was acting in self-defense, the evidence was to the contrary. Moreover, Martinez did not testify that any of the stabbings were prompted by a fear for his imminent safety, and no other witness offered testimony in that regard. Under the circumstances, the evidence was insufficient to support the giving of a self-defense instruction. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 82.) For the same reason, Martinez fails to demonstrate that he was prejudiced by any error in the courts refusal to give the instruction. (People v. Watson (1956) 46 Cal.2d 818, 836 [no reasonable probability that error affected verdict]; Chapman v. California (1967) 386 U.S. 18, 24 [error did not affect verdict beyond a reasonable doubt]; see also People v. Salas (2006) 37 Cal.4th 967, 984 [recognizing that the court has yet to decide which harmless error standard of review applies to the failure to instruct on an affirmative defense].)
Olivia testified that she did not actually witness Martinez stab Guadalupe during the initial confrontation. In his closing argument, Martinezs attorney represented to the jury that Olivia had also testified that her view of the initial confrontation was unobstructed. Olivia actually testified that Guadalupe was partially blocking her view of Martinez as she observed the incident from across the street.
II.
Imposition of the High Term
In sentencing Martinez to the high term on the assault count, the court relied in part on the facts that Martinezs prior performance on probation and parole were unsatisfactory and that he was on parole when he committed the instant offense. Martinez contends that the court violated Cunningham by relying on these aggravating factors. We disagree. "The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]" (People v. Black (2007) 41 Cal.4th 799, 818.) Our Supreme Court has also recognized that this "prior conviction" exception should not be construed "too narrowly" and includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id., at pp. 818-820.) We have already concluded that a defendants status as a probationer or parolee and his prior unsatisfactory performance on probation or parole are factors that fall within this exception. (People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Because either one of these factors was sufficient by itself to render Martinez eligible for the upper term, the court did not violate Cunningham by relying on other factors that were not related to his recidivism. (Black, supra, at p. 812.)
The previously published case in which our colleagues in Division Eight reached the same conclusion is pending review in the Supreme Court. (People v. Brock, review granted Dec. 19, 2007, No. S157738.)
The judgment is affirmed.
We concur:
GILBERT, P.J.
COFFEE, J.