People v. Martinez CA2/4 ( 2021 )

Filed 4/19/21 P. v. Martinez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305289
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.BA481185)
v.
FRANCISCO MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard S. Kemalyan, Judge. Affirmed.
A.William Bartz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Francisco Martinez appeals from his conviction
for robbery. He contends the court erred by denying his request
to sanitize his prior robbery conviction to omit the fact that it was
the same crime as the charged offense. He also argues that there
was insufficient evidence to support giving a jury instruction on
flight. We affirm.
PROCEDURAL HISTORY
An information filed in 2019 charged appellant with the
second degree robbery of B. Perez (Pen. Code § 2111). The
information further alleged appellant suffered a prior conviction
of a serious or violent felony, a 2011 robbery (§§ 667, subds. (a)(1)
and (d), 1170.12, subd. (b)) and a prior felony conviction for
spousal abuse in 2016 (§ 273.5, subd. (a)2
On December 19, 2019, the jury found appellant guilty of
second degree robbery. Appellant admitted his prior robbery
conviction and the court found the related allegations to be true.
The court sentenced appellant to the upper term of five years,
doubled for the prior strike conviction, for a total of ten years in
state prison. The court struck the five-year enhancement
allegation under section 667, subdivision (a)(1). Appellant timely
appealed.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The information further alleged that during the
commission of the offense, appellant inflicted great bodily injury
upon the victim within the meaning of section 12022.7,
subdivision (a). The prosecution withdrew this allegation during
trial.
2
FACTUAL BACKGROUND
I. Prosecution Evidence
G. Rosas testified that she was walking from her home to
the store with her sister around 7:45 p.m. on September 7, 2019.
As they walked south on Broadway in Los Angeles, they saw
appellant, their neighbor, and stopped to say hello. During this
conversation, another man walked up to them, whom Rosas did
not know. Rosas did not remember whether the other man said
anything when he walked up. Rosas and her sister then resumed
walking to the store. On her way home from the store, she saw
the other man again and he appeared to be injured.
B. Perez, the victim, testified that he was walking home
from a friend’s house on the evening of September 7, 2019. He
had been drinking alcohol earlier that day, but denied drinking
at the time of the incident. Perez was carrying a speaker and a
container of juice. After defense counsel showed video
surveillance footage of the incident taken from a nearby store,
Perez acknowledged that he stopped for a moment next to
appellant and two women, but he did not remember saying
anything to them. He did lift his right arm and gesture while
standing next to the group, as shown in the video, but testified
that he did not remember why he did so.
After Perez resumed walking down Broadway, Perez
testified that appellant approached him on a bicycle. Appellant
told Perez he wanted the speaker Perez was carrying; Perez said
“no.” Perez testified that he tried to hold onto the speaker, but
appellant “took it.” Appellant hit him, causing him to lose
consciousness. He fell to the ground, scraping his face and
injuring his eye. When he regained consciousness, the police
were there and his speaker was gone.
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Perez told a police officer at the scene that his first
encounter with appellant was when appellant came at Perez from
behind and tried to reach into his pocket where he keeps his
wallet. Perez acknowledged that this was not visible from the
surveillance video. He also told police that while he was on the
ground, appellant continued to try to take his wallet, but Perez
pushed him away.
Perez met with Los Angeles Police Department (LAPD)
Detective Gabriel Nily approximately a week after the incident.
Perez told Nily that he had been hit in the face and lost
consciousness, and that the assailant took his portable speaker.
Perez acknowledged that he did not mention the speaker to the
police at the scene immediately after the incident. At trial, Perez
identified on the video where he was holding the speaker in his
left arm before the incident. Perez also testified that he recalled,
and the video showed, that appellant “took the speaker . . . then
hit me.”
LAPD Officer Chad Fillinger testified that he arrived at the
scene on September 7, 2019 after being flagged down by a
passerby. Fillinger spoke with Perez in English, although Perez
seemed to speak primarily Spanish. Perez was sitting on the
ground with injuries to his face; he appeared dazed. Fillinger
testified that Perez also appeared “potentially” intoxicated
because he had difficulty speaking, his speech was slurred, and
he was unable to stand or focus. Perez had his wallet and cell
phone. Fillinger did not see any other personal items nearby.
With assistance in Spanish from a passerby, Perez told Fillinger
that a man came up from behind and tried to grab his wallet out
of his pocket, but he stopped the suspect and turned toward him,
then the suspect punched him three times in the face with his
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fist.
Detective Nily testified that he retrieved video surveillance
footage from two cameras at a bicycle shop near the incident. He
reviewed and discussed the video footage at trial, including the
portion where it appeared the victim was struck by the assailant.
He described the video as showing appellant grabbing the
speaker and Perez pulling it back, then appellant punching Perez
in the face. Afterward, appellant walked with his bicycle
northbound on Broadway. Nily noted that the video did not show
the victim on the ground, except for one of his feet, which
twitched and then remained motionless for several minutes.
Afterward, the video showed the victim getting up. Nily also
testified that he did not see on the video anyone other than the
assailant get close enough to take anything from the victim while
he was on the ground.
II. Defense Evidence
Appellant testified that just before the incident he was
walking home northbound on Broadway. He stopped to talk to
Rosas and her sister. During the conversation, he noticed Perez
out of the corner of his eye. He heard Perez say “muchachitas” in
Spanish to the girls, which he understood to mean Perez was
trying “to hit on them” in a “sexual way.” This made appellant
“really mad” because one of the girls was underage.
Perez started walking northbound and appellant began to
follow him, planning “just to hit him because he sa[id] something
bad or disrespectful to the girls.” Perez was holding two objects
and appellant thought Perez was going to hit him with one of
them, so appellant “grabbed it so I could start a fight” and to
ensure a “fair fight.” He did not remember what the object was.
As he tried to pull the object away from Perez, Perez resisted.
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Then appellant hit Perez one time, knocking Perez down. After
that, appellant retrieved his bicycle and began to walk home. As
he passed Perez, appellant bent down and told him “don’t talk to
the girls like that.” Appellant denied taking anything from
Perez. When the prosecutor showed portions of the surveillance
video during trial, appellant denied that the video showed him
picking anything up off the ground after hitting Perez; he claimed
that was when he bent down to speak to Perez. After the
incident, appellant went home.
Appellant was arrested on September 13, 2019. After his
arrest, he denied to police that he had punched Perez. Appellant
admitted at trial that he was convicted of felony robbery in 2011
and felony spousal abuse in 2016.
DISCUSSION
I. Evidence of Prior Conviction
Appellant contends the trial court erred in refusing his
request to sanitize his prior robbery conviction, which the
prosecution used to impeach him at trial. We find no abuse of
discretion and therefore affirm.
A. Background
In anticipation of appellant’s testimony, the prosecutor
sought to introduce evidence of two of appellant’s prior felony
convictions for purposes of impeachment: the 2011 robbery and
the 2016 spousal abuse conviction. Defense counsel conceded
that they were crimes of moral turpitude and felonies, but
requested that they be sanitized to eliminate mention of the
specific felony. Defense counsel argued that telling the jury
about a prior robbery by appellant would be more prejudicial
than probative, as “it might lead the jury to believe that he is
guilty of this crime simply because he has a propensity to commit
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robberies.” Defense counsel also argued that identifying the
specific crime would not “help the jury determine whether or not
my client was being truthful or credible,” and suggested that the
prosecutor could refer to the prior convictions as “crimes of moral
turpitude.”
The prosecutor responded with concern that the jury might
not understand the meaning of “a crime of moral turpitude.” The
prosecutor also argued that “some felonies reflect more on
someone’s credibility than others, and I think robbery is one of
those,” and further noted that many jurors did not know which
crimes are felonies.
The court found that defense counsel’s proposal would not
“give the jury any guidance” in evaluating the crimes as relevant
to appellant’s credibility or veracity; instead, it would be
“information in a vacuum.” The court concluded that the
prosecution was “entitled to present these crimes of moral
turpitude for purposes of impeachment.” After weighing any
potential prejudice against the probative value of identifying the
precise offenses, the court excluded any reference to the
underlying facts of the priors. However, the court found it was
not “sufficient to tell the jury they’re crimes of moral turpitude,
and that is because there’s nowhere in the jury instructions . . .
that gives the jury any understanding of what a crime of moral
turpitude is.” The court concluded that “to the extent that the
description of the offenses goes to the jury understanding
information that is admissible, the court believes that the People
should be entitled to note the nature of [the] offenses.” The court
also noted that it would instruct the jury with CALCRIM No.
316, which states that if the jury found a witness had been
convicted of a felony, it could “consider that fact only in
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evaluating the credibility of the witness’s testimony.”
B. Legal framework
A prior felony conviction involving moral turpitude is
admissible to impeach a witness. (Cal. Const., art. I, § 28, subd.
(f)(4); Evid. Code, § 788; People v. Anderson (2018) 5 Cal.5th 372,
407.) “‘Evidence of prior felony convictions offered for this
purpose is restricted to the name or type of crime and the date
and place of conviction.’” (People v. Gutierrez (2018) 28
Cal.App.5th 85, 88–89 (Gutierrez), quoting People v. Allen (1986)
42 Cal.3d 1222, 1270.)
The admission of a prior felony conviction for impeachment
purposes is subject to the trial court’s discretion to exclude
evidence as more prejudicial than probative under Evidence Code
section 352. (Gutierrez, supra, 28 Cal.App.5th at p. 89, citing
People v. Anderson, supra, 5 Cal.5th at p. 407.) “When
determining whether to admit a prior conviction for impeachment
purposes, the court should consider, among other factors,
whether it reflects on the witness’s honesty or veracity, whether
it is near or remote in time, whether it is for the same or similar
conduct as the charged offense, and what effect its admission
would have on the defendant’s decision to testify.” (People v.
Clark (2011) 52 Cal.4th 856, 931 (Clark).)
We review the trial court’s ruling for an abuse of discretion.
(People v. Anderson, supra, 5 Cal.5th at p. 407.) “Because the
court’s discretion to admit or exclude impeachment evidence ‘is as
broad as necessary to deal with the great variety of factual
situations in which the issue arises’ [citation], a reviewing court
ordinarily will uphold the trial court’s exercise of discretion.”
(Clark, supra, 52 Cal.4th at p. 932.)
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C. Analysis
Appellant does not dispute that the two convictions
admitted involved moral turpitude. He argues that the trial
court abused its discretion in refusing to sanitize his robbery
conviction, because the fact that it was a robbery had minimal
probative value but a high degree of prejudicial similarity to the
charged crime.3
We find no abuse of discretion here. The court expressly
engaged in the appropriate balancing analysis under Evidence
Code section 352. It allowed the prosecution to use only two prior
felony convictions reflecting crimes of moral turpitude, and
further limited their introduction to the name and the date of
each conviction. The court considered the potential prejudice
arising from the similarity between the prior robbery conviction
and the charged crime, but agreed with the prosecution that
describing the conviction only as a “crime of moral turpitude”
could have confused the jury. The trial court also properly found
that evidence of the prior robbery conviction was relevant to the
jury’s ability to evaluate appellant’s credibility. (See People v.
Mendoza (2000) 78 Cal.App.4th 918, 925 [prior convictions for
burglary, robbery, and other theft-related crimes are probative of
credibility]; Clark, supra, 52 Cal.4th at p. 932.)
We reject appellant’s assertion that the court should have
weighed the similarity between the offenses more heavily.
“‘Although the similarity between the prior convictions and the
charged offenses is a factor for the court to consider when
balancing probative value against prejudice, it is not dispositive.’”
(People v. Edwards (2013) 57 Cal.4th 658, 722; see also Clark,
3Appellant does not challenge on appeal the denial of his
request to sanitize his other prior conviction for spousal abuse.
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supra, 52 Cal.4th at p. 932 [finding no abuse of discretion in
permitting the prosecutor to impeach the defendant with prior
robbery convictions that were identical to the charged offenses];
People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 [holding that a
prior conviction for assault with a deadly weapon on a peace
officer was admissible to impeach a defendant charged with
attempted murder of a police officer].)
Notably, none of the cases appellant cites finds error
arising from a trial court’s refusal to sanitize a prior conviction.
Instead, each reflects the trial court’s broad discretion to balance
the competing factors at issue. (See People v. Massey (1987) 192
Cal.App.3d 819, 825 [rejecting appellant’s argument that
admission of sanitized convictions was prejudicial because jury
might speculate as to the nature of prior offenses]; People v.
Foreman (1985) 174 Cal.App.3d 175, 182 [upholding use of
sanitized identical prior convictions, but also noting that “we
would have upheld the admission of the prior burglary as a
burglary”].)
The court also mitigated any potential prejudice by
instructing the jury that it could consider the prior convictions
only in evaluating appellant’s credibility. “‘Any prejudice that
the challenged information may have threatened must be deemed
to have been prevented by the court's limiting instruction to the
jury. We presume that jurors comprehend and accept the court's
directions.’” (Gutierrez, supra, 28 Cal.App.5th at p. 91, quoting
People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Finally, in the absence of any error under Evidence Code
section 352, we also reject appellant’s constitutional claims. The
routine and proper application of state evidentiary law does not
impinge on a defendant's due process rights. (People v. Hovarter
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(2008) 44 Cal.4th 983, 1010.)
II. Flight Instruction
Appellant contends it was error to instruct the jury
regarding flight, arguing there was insufficient evidence that he
fled after the incident. We disagree.
A. Background
During discussion of the jury instructions, appellant
objected to the use of CALCRIM No. 372 regarding use of
appellant’s flight as evidence of his guilt. The court overruled the
objection, explaining: “I thought about that when I was doing the
[jury instruction] packet I had, and the facts are a little bit
different than some cases we see where, you know, something
happens, and people run out of the surveillance film. And this is
more of a departure as opposed to a flight, but out of an
abundance of caution, I think it should be given.”
The court instructed the jury with CALCRIM No. 372 as
follows: “If the defendant fled immediately after the crime was
committed, that conduct may show that he was aware of his guilt.
If you conclude that the defendant fled, it is up to you to decide
the meaning and importance of that conduct[.] However, evidence
that the defendant fled cannot prove guilt by itself.”
B. Legal framework
“‘In general, a flight instruction “is proper where the
evidence shows that the defendant departed the crime scene
under circumstances suggesting that his movement was
motivated by a consciousness of guilt.”’ [Citations.] Evidence
that a defendant left the scene is not alone sufficient; instead, the
circumstances of departure must suggest ‘a purpose to avoid
being observed or arrested.’” (People v. Bonilla (2007) 41 Cal.4th
313, 328 (Bonilla), quoting People v. Crandell (1988) 46 Cal.3d
11833, 869; see also People v. Bradford (1997) 14 Cal.4th 1005, 1055
[noting that “‘[F]light requires neither the physical act of running
nor the reaching of a far-away haven,’” but does require “‘a
purpose to avoid being observed or arrested’”]; § 1127c.) “To
obtain the instruction, the prosecution need not prove the
defendant in fact fled, i.e., departed the scene to avoid arrest,
only that a jury could find the defendant fled and permissibly
infer a consciousness of guilt from the evidence.” (Bonilla, supra,41 Cal.4th at p. 328, citing People v. Turner (1990) 50 Cal.3d 668,
694–695.)
We review the trial court’s decision to give a flight
instruction for substantial evidence. (See People v. Boyette (2002)
29 Cal.4th 381, 438-439; see also People v. Turner, supra, 50
Cal.3d at pp. 694–695.)
C. Analysis
Appellant contends there was insufficient evidence that he
fled, meaning that he “took action to avoid detention or arrest”
following his confrontation with Perez. In support, appellant
points to the trial court’s comment that his conduct was “more of
a departure as opposed to a flight.”
We conclude that substantial evidence supports the flight
instruction. The undisputed evidence showed that appellant
immediately left the scene following his confrontation with Perez.
There was also evidence from which the jury could conclude that
he did so immediately after taking the speaker from Perez. After
rendering Perez unconscious, appellant did not attempt to aid
him or call for assistance. These circumstances surrounding
appellant’s departure could give rise to an inference of
consciousness of guilt. (See Bonilla, supra, 41 Cal.4th at p. 329
[finding the circumstances supported flight instruction where the
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defendant immediately left the scene and during the attack on
the victim, the defendant “did not call out to him, attempt to aid
him, or call for or go for assistance (acts that might have led to
Bonilla’s detection at the scene or otherwise connected him with
the attack)”]; People v. Jurado (2006) 38 Cal.4th 72, 126 [failure
to use call box to summon assistance at crime scene before
leaving supported flight instruction].) Whether termed as a
“departure” or a “flight,” the evidence here supported an
inference that appellant left the scene to avoid detection or
arrest. (See People v. Turner, supra, 50 Cal.3d at p. 694 [“A flight
instruction is proper whenever evidence of the circumstances of
defendant’s departure from the crime scene or his usual environs,
or of his escape from custody after arrest, logically permits an
inference that his movement was motivated by guilty
knowledge.”].) As such, the instruction was warranted,
regardless of whether the jury could have reached the opposite
conclusion that appellant simply left to return home.4
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
4Because we find no error, we reject appellant’s argument,
asserted in his reply brief, regarding cumulative error.
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