P. v. Martinez CA4/1 ( 2013 )

Filed 7/19/13 P. v. Martinez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062309
Plaintiff and Respondent,
v. (Super. Ct. No. SCS246652)
ROBERT MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Ana
Espãna, Judge. Affirmed.
Therese Osterman Stevenson for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.\
INTRODUCTION
A jury found Robert Martinez guilty of mayhem (Pen. Code,1 § 203) and battery
causing serious bodily injury (§ 243, subd. (d)), both as lesser included offenses of
aggravated mayhem (§ 205; count 1). The jury also found Martinez guilty of assault by
means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2) and found true
an allegation he personally inflicted the great bodily injury (§§ 1192.7, subd. (c)(8) &
12022.7, subd. (a)). Martinez additionally admitted having a prior prison commitment
conviction (§ 667.5, subd. (b)). The court subsequently set aside the battery with great
bodily injury conviction and sentenced him to a total term of nine years in prison.
Martinez appeals, contending the court erroneously admitted cumulative and
prejudicial identification evidence, there was insufficient evidence of disfigurement or
disability to support the mayhem conviction, the court erroneously failed to instruct the
jury on multiple causation, the court erroneously imposed an excessive fine and fee, and
the abstract of judgment does not conform to the court's oral pronouncement of judgment.
The People concede the latter two errors and we shall direct the court to modify
the abstract of judgment to correct them. We affirm the judgment in all other respects.
1 Further statutory references are also to Penal Code unless otherwise stated.
2
BACKGROUND
Sammy Thomas, a jail inmate, sucker punched another jail inmate in the jaw,
causing the inmate to fall down. Martinez, also a jail inmate, then joined Thomas in
punching, kicking, and stomping on the victim as the victim lay on the ground covering
his face with his hands and arms. Thomas and Martinez initially ignored a responding
prison guard's verbal commands to stop fighting. After another prison guard arrived with
a pepper ball launcher, they stopped their attack and retreated to their respective cells.
When the guards went to Martinez's cell to get him, the guards noticed Martinez was
breathing hard and his knuckles were red. After the incident, one of the guards reviewed
a video recording of the attack and confirmed Martinez was one of the attackers.
As a result of the assault, the victim's jaw was fractured on both sides of his face.
In addition, he suffered a fractured forearm, fractured ribs on both sides of his chest, a
crushed or lacerated spleen, and punctured and collapsed lungs. The victim had surgery
to repair his broken jaw, after which his lower jaw protruded, changing his appearance
and causing a speech impairment. He also lost feeling in his chin causing him to drool.
Defense Evidence
While two prison guards identified Martinez as one of the assailants, neither guard
noticed Martinez had tattoos on the underside of his forearms. The parties stipulated
Martinez had the tattoos on the date of the incident.
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DISCUSSION
I
Failure to Exclude Video Stills
A
After playing a video recording of the attack, the prosecutor began introducing 30
still images taken from the video. For each image, the prosecutor had one of the prison
guards who witnessed the attack identify the individuals depicted in it and what they were
doing. After the tenth image, defense counsel objected to the presentation of any
additional images as cumulative under Evidence Code section 352. The court overruled
the objection.
B
Martinez contends the additional images were cumulative to the testimony of the
two prison guards who witnessed the attack and to the videotape of the attack shown to
the jury. He further contends the additional images were more prejudicial than probative
because they artificially bolstered otherwise weak identification evidence. Consequently,
he contends the admission of the additional images deprived him of his state and federal
constitutional right to a fair trial. We disagree.
Evidence Code section 352 permits a court to "exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury." " 'A trial court's exercise of discretion in
admitting or rejecting evidence pursuant to Evidence Code section 352 "will not be
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disturbed on appeal unless there is a manifest abuse of that discretion resulting in a
miscarriage of justice." [Citation.]' [Citation.]" (People v. Thomas (2011) 51 Cal. 4th
449, 485.)
Even when photographs are offered to prove facts already established by other
evidence, a court is not required to exclude them as cumulative if the photographs are
relevant and can assist the jury in understanding and evaluating the testimony. (People
v. Pollock (2004) 32 Cal. 4th 1153, 1170-1171; People v. Heard (2003) 31 Cal. 4th 946,
977-978; People v. Michaels (2002) 28 Cal. 4th 486, 532; People v. Price (1991) 1
Cal. 4th 324, 441.) Here, the photographs were unquestionably relevant because they
depicted the assault and the assailants. Moreover, the jury was tasked with deciding not
just whether Martinez was one of the assailants, but numerous other issues including
Martinez's intent, whether he personally used force, and whether the force he used was
likely to produce great bodily injury. (CALCRIM Nos. 800, 801, 875, 925, and 3160.)
The video stills provided the jury an opportunity to study the attack on essentially a
frame-by-frame basis. Thus, the video stills could have assisted the jury in understanding
and evaluating both the testimony of the two prison guard eyewitnesses and the videotape
of the attack.
Further, the record does not show admission of the video stills necessitated an
undue consumption of time, confused issues, or misled the jury. Although Martinez
asserts admission of the video stills unduly prejudiced him, "[p]rejudice for purposes of
Evidence Code section 352 means evidence that tends to evoke an emotional bias against
the defendant with very little effect on issues . . . . " (People v. Crew (2003) 31 Cal. 4th
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822, 842.) It does not include evidence probative of a defendant's guilt. (Ibid.)
Accordingly, Martinez has not established the court manifestly abused its discretion in
declining to exclude the video stills under Evidence Code section 352.
II
Sufficiency of Evidence of Mayhem Conviction
Martinez contends there was insufficient evidence the victim sustained a disabling
or disfiguring injury to support his mayhem conviction. In deciding claims of insufficient
evidence in criminal cases, " 'we review the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—that is, evidence
that is reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of
review is the same in cases in which the People rely mainly on circumstantial evidence.
[Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances
reasonably justify the trier of fact's findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment." ' [Citations.]" [Citation.]' [Citations.] The
conviction shall stand 'unless it appears "that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012)
53 Cal. 4th 500, 507-508.)
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The crime of mayhem is codified in section 203, which "provides: 'Every person
who unlawfully and maliciously deprives a human being of a member of his body, or
disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an
eye, or slits the nose, ear, or lip, is guilty of mayhem.' [Citations.] Section 203 generally
prohibits six injurious acts against a person, three that specify a particular body part and
three that do not: (1) dismembering or depriving a part of someone's body; (2) disabling
or rendering useless a part of someone's body; (3) disfiguring someone; (4) cutting or
disabling the tongue; (5) putting out an eye; and (6) slitting the nose, ear or lip.
[Citation.]" (People v. Santana (2013) 56 Cal. 4th 999, 1003.) The rationale for the
crime is " ' "the preservation of the natural completeness and normal appearance of the
human face and body." ' " (Id. at p. 1004.)
Among the types of injuries that will support a mayhem conviction are severe
facial trauma requiring the implanting of metal plates to provide structure to facial bones,
impaired upper lip sensation, and a broken ankle not completely healed after more than
six months. (People v. Santana, supra, 56 Cal.4th at p. 1004; People v. Newby (2008)
167 Cal. App. 4th 1341, 1348; People v. Hill (1994) 23 Cal. App. 4th 1566, 1571; People v.
Thomas (1979) 96 Cal. App. 3d 507, 512, disapproved on another point in People v.
Kimble (1988) 44 Cal. 3d 480, 496 & fn. 12.) In this case, the evidence shows the victim
suffered substantially similar injuries. More than a year after the attack, his broken arm
had calcium build up and could not bear much weight. In addition, doctors used metal
plates and screws to repair his jaw with only partial success. His bottom jaw now
protrudes causing a slight speech impairment and he lost sensation in his chin causing
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him to drool. He testified he did not have these problems before the attack. He also
testified his jaw was a noticeably different shape after the attack.
The trauma surgeon who treated the victim after the attack confirmed a person
with the type of arm injury the victim had could develop decreased strength and a
decreased ability to rotate his arm at the elbow. The surgeon also confirmed a person
with the type of jaw injury the victim had could develop slurred speech, facial numbness,
and facial deformity. We, therefore, conclude there is sufficient evidence of permanent
disability or disfigurement to support the mayhem conviction.
The surgeon's testimony about the victim's prior facial injuries does not alter our
conclusion. The surgeon noted the victim had previously fractured his skull, his nose,
and other bones on the upper front and side of his face. Although the surgeon was not
involved in the treatment of those injuries, he testified he did not believe they would have
affected the victim's speech because they involved a different part of the victim's face and
were healed by the time of the attack. Even if the victim had a pre-existing speech
impediment from the prior injuries, the victim's other attack-related injuries were
sufficient to support the mayhem conviction.
III
Refusal to Instruct on Multiple Causation
A
The court instructed the jury on causation with CALCRIM No. 240. The
instruction informed the jury, "An act causes injury if the injury is the direct, natural, and
probable consequence of the act and the injury would not have happened without the act.
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A natural and probable consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a consequence is natural
and probable, consider all the circumstances established by the evidence."
Because the trauma surgeon testified the victim had prior facial injuries, defense
counsel requested the court also instruct the jury on multiple causation. The instruction
would have informed the jury: (1) there may be more than one cause of injury; (2) an act
causes injury only if it is a substantial factor in causing the injury; (3) a substantial factor
is more than a trivial or remote factor; and (4) a substantial factor does not have to be the
only factor that causes the injury. (CALCRIM No. 240.) The court declined to provide
the multiple causation instruction, finding there was not substantial evidence to support it.
B
Martinez contends the court's refusal to instruct on multiple causation requires
reversal of his mayhem conviction because it deprived him of his due process right to a
fair trial. We disagree.
" ' "[T]he trial court normally must, even in the absence of a request, instruct on
general principles of law that are closely and openly connected to the facts and that are
necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant
has a right to an instruction that pinpoints the theory of the defense. . . ." ' [Citation.]
The court, however, 'may properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially confusing
[citation], or if it is not supported by substantial evidence [citation]." ' [Citation.]"
(People v. Bivert (2011) 52 Cal. 4th 96, 120.)
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In this case, there was no evidence the victim's prior injuries wholly or partially
caused the speech impairment he suffered from the attack.2 The victim testified he did
not have a speech impairment before the attack. In addition, the trauma surgeon testified
he did not believe the prior injuries could have caused a speech impairment because the
injuries involved a different part of the victim's face. Accordingly, the court correctly
concluded there was not substantial evidence to support the multiple causation
instruction.
IV
Restitution Fine Amount
As part of the sentence, the court ordered Martinez to pay the maximum restitution
fine of $10,000. Martinez contends the court abused its discretion by imposing the
maximum fine without considering his ability to pay.
Martinez has forfeited this issue on appeal by failing to object to the fine below.
"By 'failing to object on the basis of his [ability] to pay,' defendant forfeits both his claim
of factual error and the dependent claim challenging 'the adequacy of the record on that
point.' [Citations.]" (People v. McCullough (2013) 56 Cal. 4th 589, 597.) Even if
Martinez had not forfeited this issue, he has not established an abuse of discretion.
2 Defense counsel did not ask the surgeon whether the prior facial injuries could
have caused any of the other disabilities underlying the mayhem charge.
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"In every case where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).)
Where, as here, a defendant is convicted of a felony on or after January 1, 2012, but
before January 1, 2013, the fine shall be set between $240 and $10,000, commensurate
with the seriousness of the offense. (§ 1202.4, subd. (b)(1).)
In setting the fine above the minimum "the court shall consider any relevant
factors, including, but not limited to, the defendant's inability to pay, the seriousness and
gravity of the offense and the circumstances of its commission, any economic gain
derived by the defendant as a result of the crime, the extent to which any other person
suffered any losses as a result of the crime, and the number of victims involved in the
crime." (§ 1202.4, subd. (d).) The court may not consider a defendant's inability to pay a
compelling and extraordinary reason not to impose a restitution fine. It may only
consider the defendant's ability to pay in increasing the fine above the statutory
minimum. (§ 1202.4, subd. (c).)
Moreover, a court is not required to make express findings as to the factors
bearing on the amount of the fine (§ 1202.4, subd. (d)), and because the defendant has the
burden of demonstrating an inability to pay, the defendant is impliedly presumed to have
an ability to pay unless the defendant adduces contrary evidence. (People v. Romero
(1996) 43 Cal. App. 4th 440, 448-449.) As Martinez did not adduce contrary evidence, he
did not rebut this presumption.
11
Although the probation officer's report indicated Martinez has limited education
and work experience, these circumstances do not compel a conclusion Martinez
necessarily lacks the ability to pay the maximum fine. Martinez was 26 years old at the
time of sentencing and nothing in the record suggests he is physically, mentally or
emotionally incapable of finding and maintaining productive employment once his
sentence is completed. (§ 1202.4, subd. (d) [consideration of inability to pay may include
consideration of a defendant's future earning capacity].) Accordingly, Martinez has not
shown the court abused its discretion by imposing the maximum restitution fine.
As we have addressed the merits of this issue, we need not address Martinez's
contention his trial counsel provided ineffective assistance of counsel by failing to object
to the imposition of the maximum fine.
V
Excessive Fee and Assessment
As part of Martinez's sentence, the court imposed a $160 court security fee and a
$120 criminal conviction assessment. Martinez contends, the People concede, and we
agree these amounts are excessive.
Section 1465.8, subdivision (a)(1), requires a court to impose a $40 court security
fee for every criminal conviction. Similarly, Government Code section 70373,
subdivision (a)(1) requires a court to impose a $30 criminal conviction assessment for
every felony conviction. Since the court set aside Martinez's conviction for battery
causing great bodily injury, Martinez was only convicted of two crimes and the court was
only authorized to impose an $80 court security fee and a $60 criminal conviction
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assessment. We shall direct the court to modify the abstract of judgment accordingly.
(People v. Smith (2001) 24 Cal. 4th 849, 854 [appellate court may correct an unauthorized
sentence without remand].)
VI
Discrepancy Between Oral Pronouncement and Abstract of Judgment
Although the court set aside Martinez's conviction for battery with serious bodily
injury at the sentencing hearing, the abstract of judgment nonetheless states Martinez's
count 1 conviction was for violating sections "203/243(d)," described as
"Mayhem/Battery w/Serious Bodily Injury LIO." (Italics added.) As the abstract of
judgment is inconsistent with the court's oral pronouncement, Martinez contends, the
People concede, and we agree the abstract of judgment must be modified to correct the
discrepancy. We, therefore, shall direct the court to modify the abstract of judgment to
reflect mayhem under section 203 as the sole basis for Martinez's conviction in count 1.
(People v. Mitchell (2001) 26 Cal. 4th 181, 185 [appellate court may order correction of
an abstract of judgment that does not accurately reflect the oral pronouncement of
judgment].)
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DISPOSITION
The court is directed to modify the abstract of judgment to reduce the court
security fee to $80, to reduce the criminal conviction assessment to $60, and to show
mayhem under section 203 as the sole basis for the count 1 conviction. In all other
respects, the judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
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