People v. Martinez CA4/1

Filed 12/19/22 P. v. Martinez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079544
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1103343)
JORGE ALEJANDRO MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Mark E. Johnson, Judge. Affirmed as modified, with directions.
Anthony J. Dain, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Eric A. Swenson, Junichi P. Semitsu and Marvin E. Mizell,
Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Jorge Alejandro Martinez of first degree murder (Pen.
Code, § 187, subd. (a); count 1) and found true allegations that in committing
the offense he personally used a deadly and dangerous weapon, a rock, within
the meaning of Penal Code sections 12022, subdivision (b) and 1192.7,
subdivision (c)(23). The court sentenced him to 25 years to life on count 1
plus a one-year enhancement for the personal use of a weapon.
Martinez contends his counsel was constitutionally ineffective for
failing to ask the court to instruct the jury with CALCRIM No. 522 that
evidence of provocation may reduce a first degree murder conviction to second
degree murder. He maintains while his counsel made a reasonable tactical
choice to advocate in favor of a complete acquittal because the evidence did
not establish he was involved in the victim’s death, it was nevertheless
unreasonable not to request CALCRIM No. 522 in the likely event the jury
found him guilty of murder, and thus we should reverse his conviction.
Martinez also contends, and the People concede, his abstract of judgment
should be amended to (1) reflect the court properly awarded him 3,647 days
of presentence custody credit for actual time served and (2) state he was
convicted by a jury. We agree with the People’s concession, modify the
judgment, and direct the court to amend the abstract accordingly. We
otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2011, the dead body of Sergio Corona was found in bushes off
the side of a road in a commercial area of Perris. Corona was on his back,
with an extremely large amount of blood around his head and a sock and
shoelace wrapped around his neck. He had sustained trauma to his forehead
and had post-mortem burns to the left side of his body. Corona was
unclothed from the waist down. He was wearing a partially-burned shirt and
had a pair of shorts resting on top of his genitals. A piece of asphalt and rock,
covered in Corona’s blood, was found next to the body. A stick lodged in
Corona’s throat had knocked one of his teeth loose and caused injuries to his
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palate. A pathologist determined Corona died from a combination of blunt-
impact injuries to his head and ligature strangulation.
Investigators found several items near Corona’s body: a Pala Casino
employee badge, an empty snack food bag, two foam cups, a belt buckle, a can
of beer, and a beer bottle inside a paper bag.
A waitress at a nearby restaurant later told police that on the previous
Saturday before Corona’s body was found, she saw Corona leave the
restaurant with another man who looked like Martinez. Both men left with
beer-filled foam cups, which matched the cups found near Corona’s body.
In early July 2011, police searched Martinez’s residence, which was the
garage of a house. They found a pair of shoes that later was determined to
have Corona’s DNA on them.
Blood found on one of the foam cups matched Corona’s DNA, and a
criminalist determined Martinez’s fingerprint was on that cup. Blood on the
shoelace tied around Corona’s neck, the rock, and the chunk of asphalt
matched Corona’s DNA.
A Pala Casino employee testified that his employee badge was stolen
from his vehicle while he was attending an Alcoholics Anonymous meeting in
Perris. Martinez’s niece, who lived in the house where Martinez was living,
testified that in 2011, she and Martinez attended Alcoholics Anonymous
meetings in Perris. She told investigating police that she had recently seen
Martinez putting new shoelaces in his everyday shoes. According to her,
Martinez drank beers with Corona; Corona was Martinez’s drinking buddy,
but he referred to Martinez as a homosexual in derogatory Spanish terms.
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DISCUSSION
I. Claim of Ineffective Assistance of Counsel
A. Background
During trial, the court discussed jury instructions with counsel and
offered that it seemed that instructions on the degrees of murder—first
degree, second degree, voluntary and involuntary manslaughter—“should be
given all the way down.” Martinez’s counsel responded: “I think only if that’s
sua sponte, your Honor. But our position was it wasn’t us.” When the court
questioned the answer, counsel again stated: “It wasn’t us. We didn’t do it.
We weren’t there.” The court asked what counsel wanted in terms of lesser
offense instructions, and counsel replied: “I think those are appropriate
lesser [offense instructions]. We’re not requesting lessers.” After the court
observed it liked to err on the side of giving the jury lesser offense
instructions and trusting jurors’ ability to decide, counsel reiterated: “. . .
[W]e’re not requesting any lessers. And if the lessers were given, I would
include in my argument—in my closing argument that the lessers are
inapplicable because [of] the nature of our defense.”
After the close of evidence, the court revisited the issue, specifically
asking defense counsel to weigh in: “I’ve been trying to figure out what
[murder instructions] I should give, obviously first and second degree
murder. But I see no evidence of a voluntary [manslaughter], heat of passion,
or any of the other grounds. Is anybody asking for an involuntary
[manslaughter instruction]? [¶] . . . “I mean, sometimes I just give a bunch
of lesser [offense instructions]. But I don’t know here. [¶] Defense, do you
want involuntary manslaughter?”
Defense counsel stated: “Your Honor, strategically we cannot ask for a
lesser [offense instruction] given our state of our defense. We would in fact
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argue against a lesser due to the nature of our defense or argue against the
murders and their lessers in their entirety.”
The court responded: “So I would just give first and second degree
murder. That kind of seems like it. When you have a strangulation and a
rock on the head, it’s not sounding like an involuntary manslaughter to me.”
The People argued to the jury that Martinez premeditated and
deliberated Corona’s murder; that while the murder was probably driven by
some amount of anger and name-calling, it became an act of deliberation
given the number of blows to Corona’s head and Martinez’s use of two
ligatures, including a double-knotted shoelace—to strangle Corona. The
People emphasized that Martinez did not have to start the night wanting to
kill Corona, it was only necessary that at some point he decided he was going
to kill him, then did so.
Pointing out there were no eyewitnesses and no physical or evidentiary
connection to Martinez, defense counsel argued the People did not have proof
beyond a reasonable doubt that Martinez committed the murder. He argued
all of the evidence raised reasonable doubt, characterizing it as speculative
and blaming the case on an inadequate investigation and prosecution.
Defense counsel challenged whether the evidence proved beyond a reasonable
doubt that the death was even a homicide at all, or if it was, that Martinez
did it.
B. Contentions
Martinez contends his first degree murder conviction must be reversed
for prejudicially ineffective assistance because his counsel did not request
that the jury be instructed with CALCRIM No. 522 as to the effect of
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provocation on reducing the degree of murder to second degree.1 Martinez
points out “the record affirmatively illuminates why defense counsel did not
request CALCRIM No. 522 or any other instructions on potential lesser
offenses. Specifically, defense counsel was repeatedly asked about
instructions on lesser offenses, and . . . repeatedly said he was not requesting
any such instructions because he intended to argue appellant was not
involved in the offense in any manner and he wished to force the jury into an
all-or-nothing choice on the murder charge.” Martinez acknowledges his
counsel’s decision to advocate in favor of a complete acquittal was a
reasonable tactical choice. However, he maintains given the “slim to none”
likelihood the jury would find he did not kill Corona, it was patently
unreasonable for counsel not to request the jury be given CALCRIM No. 522
in the event it did determine he was guilty of killing Corona.
The People point out that, as Martinez concedes, his counsel had an
obvious tactical reason for choosing not to request CALCRIM No. 522, namely
that counsel relied on the defense that Martinez was not the killer, and thus
the decision does not constitute deficient performance. They argue: “Given
that [Martinez] was seeking a full acquittal, defense counsel had an obvious
reason not to highlight whether he felt provoked when he killed Corona. If
defense counsel had done so, he would have lost a great deal of credibility
with the jury because that argument would have directly conflicted with his
primary defense that appellant was not the killer.”
1 In part, CALCRIM No. 522 provides: “Provocation may reduce a
murder from first degree to second degree . . . . The weight and significance
of the provocation, if any, are for you to decide. [¶] If you conclude that the
defendant committed murder but was provoked, consider the provocation in
deciding whether the crime was first or second degree murder.”
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In reply, Martinez maintains the People have misconstrued his
argument. He asserts that contrary to their suggestion, his counsel did not
need to inconsistently argue in favor of a provocation defense, only to ask the
court to instruct the jury with CALCRIM No. 522 in the event the jury
determined Martinez was the killer. According to Martinez, the instruction
would not have highlighted the People’s case any more than instructing the
jury on first and second degree murder. Martinez argues that having the
jury in this case be instructed with CALCRIM No. 522 was required by
minimum Sixth Amendment standards of effective representation.
C. Standard of Review
We apply well-settled standards to Martinez’s claim of ineffective
assistance of counsel. (People v. Stanley (2006) 39 Cal.4th 913, 954.) “A
defendant must demonstrate that: (1) his attorney’s performance fell below
an objective standard of reasonableness; and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been more favorable to the defendant. [Citation.] A
reasonable probability is a probability sufficient to undermine confidence in
the outcome. [Citation.] ‘ “Reviewing courts defer to counsel’s reasonable
tactical decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a ‘strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’ ” [Citation.]
“[W]e accord great deference to counsel’s tactical decisions” [citation], and we
have explained that “courts should not second-guess reasonable, if difficult,
tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors
are generally not deemed reversible, and counsel’s decisionmaking must be
evaluated in the context of the available facts.” ’ ” (Ibid.; see Strickland v.
Washington (1984) 466 U.S. 668, 694.)
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D. Analysis
Martinez concedes his counsel’s choice not to argue provocation to the
jury was reasonable. Thus, in our view, Martinez’s arguments necessarily
acknowledge that his counsel’s failure to request the giving of CALCRIM No.
522 was part of the same conscious strategic assessment. Informed strategic
choices are “virtually unchallengeable . . . .” (Strickland v. Washington,
supra, 466 U.S. at p. 690; see also In re Gay (2020) 8 Cal.5th 1059, 1076
[quoting Strickland].) Under these circumstances, we are unpersuaded by
Martinez’s assertion that his counsel’s related decision not to request the
provocation instruction was professionally indefensible.
In light of the fact that we must accord great deference to counsel’s
tactical decisions (People v. Stanley, supra, 39 Cal.4th at p. 954; People v.
Mickel (2016) 2 Cal.5th 181, 198), on this record we cannot say no reasonable
attorney could have concluded that the giving of CALCRIM No. 522—in effect
offering the jury a compromise alternative—might weaken the argument for
acquittal. (See People v. Wader (1993) 5 Cal.4th 610, 643 [not ineffective
assistance for counsel to forego instruction on voluntary intoxication when
instruction was inconsistent with defendant’s theory of the case].) As such,
counsel’s actions did not fall “outside the wide range of professionally
competent assistance” (Strickland v. Washington, supra, 466 U.S. at p. 690)
under prevailing professional norms. (People v. Arredondo (2019) 8 Cal.5th
694, 711; People v. Mai (2013) 57 Cal.4th 986, 1009.)
When counsel exercises such reasonable professional judgment, it is not
for us to second-guess it in hindsight. (People v. Woodruff (2018) 5 Cal.5th
697, 762 [“ ‘A reviewing court will not second-guess trial counsel’s reasonable
tactical decisions’ ”].) In sum, Martinez’s defense counsel did not render
ineffective assistance. We need not address prejudice.
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II. Corrections to Abstract of Judgment
Martinez asks that his abstract of judgment be modified to correct
errors with respect to his presentence custody credits and the basis for his
conviction. The People concede both suggested corrections should be made,
and we agree.
A. Presentence Custody Credits
At sentencing and without objection from the People, the trial court
awarded Martinez 3,647 days of presentence credit, consisting of 1,434 days
of presentence custody in the state hospital2 and 2,213 actual days for local
time served. Given Martinez’s murder conviction, the court was prohibited
from awarding conduct credits. (Pen. Code, § 2933.2, subd. (a) [“any person
who is convicted of murder, as defined in [Penal Code s]ection 187, shall not
accrue any credit, as specified in [Penal Code s]ection[s] 2933 or . . .
2933.05”].) The abstract of judgment, however, reflects only 2,213 days of
presentence credit for actual time served. The court’s oral pronouncement
controls (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Whalum
(2020) 50 Cal.App.5th 1, 15), so we will modify the judgment and direct the
trial court to correct the abstract of judgment accordingly. (Accord, In re
Marquez (2003) 30 Cal.4th 14, 26; People v. Pettigrew (2021) 62 Cal.App.5th
2 In August 2013, the trial court declared a doubt about Martinez’s
competency to stand trial and suspended proceedings. In May 2015, it
ordered Martinez committed to a state hospital and the probation report
indicates he was sent there on June 9, 2015. The court reinstated criminal
proceedings in 2018, after finding Martinez was malingering and mentally
competent for trial, and he was released from the state hospital on May 13,
2019. The People correctly agree that credit for actual time served includes
time spent in a state hospital while mentally incompetent to stand trial. (See
People v. Mendez (2007) 151 Cal.App.4th 861, 864.)
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477, 502 [Court of Appeal may correct error in presentence custody credits in
the first instance].)
B. Conviction by Jury
We additionally direct the trial court to correct the abstract of
judgment—which by check mark erroneously indicates Martinez was
convicted by guilty plea—to reflect that Martinez was convicted by a jury.
DISPOSITION
The judgment is modified to reflect an award of 3,647 days of
presentence custody credit and to reflect that Martinez was convicted by a
jury. The trial court is directed to prepare an amended abstract of judgment
reflecting these custody credits and correcting the other error, and to send a
certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
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