California Court of Appeal Jul 17, 2013 No. E054066Unpublished
Filed 7/17/13 P. v. Martinez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054066
v. (Super.Ct.No. RIF148701)
GERARDO MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Sharon L.
Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION1
A jury convicted defendant Gerardo Martinez of the first degree murder of his
uncle, David Martinez. (§ 187, subd. (a).) The jury found that defendant had not
personally or intentionally discharged a firearm, causing great bodily injury or death,
counsel did not have to make meritless objections. (People v. Constancio (1974) 42
Cal.App.3d 533, 546.)
In additional support of his IAC claim, defendant argues that the substitution of
Donath for Markson during the brief conference on the jury’s question about “cause” was
IAC because Markson, as the trial attorney, should have been present. Furthermore, if
defendant’s presence had not been waived, he might have alerted Donath, the substitute
lawyer, to the implications of the court’s reference to defendant acting “alone, or with
others.” Additionally, defendant contends the instruction was misleading and wrong
because it suggested defendant’s “intent” could occur after David’s death.
Defendant’s courtroom appearance for the discussion of the jury’s questions was
not constitutionally mandated. (People v. Kelly (2007) 42 Cal.4th 763, 781-782.)
Furthermore, defendant has not shown that Donath acted unprofessionally. The subject
instruction accurately explained that defendant could have caused David’s death, even if
defendant acted in concert with others. The reference to acting “alone or with others” did
not invoke a theory of aiding and abetting, requiring additional instruction. (People v.
Lopez (1982) 131 Cal.App.3d 565, 571.) Instead, it simply acknowledged that defendant
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may not have acted alone. Defense counsel actually proposed this possibility when he
argued that someone else, other than defendant, killed David. However, defendant was
convicted for his own conduct, not as an aider or abettor. (See People v. Singleton (1987)
196 Cal.App.3d 488, 493.) Additionally, it is certainly true, as the court said, that
defendant would not be guilty for post-homicide conduct, if, for example, he moved
David’s body after he was killed by another person. Because Markson had no legal
reason to object to this instruction, Donath may not be faulted for not doing so.
Not only does defendant fail to show unprofessional conduct but he does not show
prejudice. Based on substantial evidence, the jury found that defendant committed first
degree murder even if it also found he did not use a firearm. We agree this apparent
inconsistency could demonstrate lenity, compromise, or mistake, which was unwarranted
by the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 656; People v. Federico (1981)
127 Cal.App.3d 20, 33.) The jury may have decided that defendant killed David but
should not receive the enhancement. Defendant benefitted from the fact that the jury did
not make a true finding on the enhancement. However, inconsistent verdicts of this type–
involving a “not true” finding on a firearm enhancement and a guilty verdict on a
substantive charge–are allowed to stand if otherwise supported by substantial evidence.
(People v. Miranda (2011) 192 Cal.App.4th 398, 405-406, Federico, at pp. 32-33.)
Defendant’s IAC claim fails.
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V
MOTION TO SUPPRESS THE SEARCH WARRANT
Jurisdiction for murder is set in the county where a body is found (§ 790, subd.
(a)) or in either county when a crime is committed within 500 yards of the two counties’
boundaries. (§ 782.) The search warrant was issued in San Bernardino because David’s
body was found in San Bernardino County and the criminal investigation was conducted
by detectives in the San Bernardino County Sheriff’s Department.
On appeal, defendant renews an argument–that he had apparently abandoned
earlier in making his motion to suppress–that the San Bernardino court could not issue a
search warrant for property in Riverside County. Defendant also argues that the
informant’s information did not establish probable cause for the search warrant.
A. The Search Warrant
After detectives notified David’s brother and sister of his death, David’s sister
suggested contacting his nephew, defendant, who lived at 3515 Spruce Street in
Riverside, about two miles from where David’s body was found. David’s sister-in-law
directed detectives to David’s girlfriend, Veronica Webb, who was in jail at the time.
Webb told detectives she and David lived in the back house and defendant and his
family lived in the main house on Spruce Street. Webb said that defendant drove two
vehicles—a black Chevrolet Suburban and a beige Chevrolet truck—and David and
Webb drove a Lincoln Continental. All the vehicles were usually parked in the driveway.
Webb had seen defendant in possession of a nine-millimeter pistol. David had said
defendant also had a .38 revolver, although Webb had never seen it. Webb identified
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defendant as a member of the North Side Riverside gang. He was a drug dealer who
supplied heroin to David. David also sold drugs and performed other drug- or gang-
related chores for defendant. When he was younger, David had been an East Side
Riverside gang member. He was no longer active but he still associated with defendant
and other gang members because of his drug habit.
Webb remembered that David had been arrested on June 14, 2008. Two days
later, Webb argued with defendant and left the Spruce Street address. She was arrested
on July 1, 2008. David was released from custody on July 5, 2008. She received a letter
from David, dated July 7, in which he said he was homeless but he was trying to raise
bail money of $1,000 for her. She surmised defendant and David must have had a
dispute about drugs. She thought David would sell drugs or commit robbery to raise the
bail.
When the detectives first visited the Spruce Street address on July 18, 2008, no
one responded. Because Spruce Street was David’s last known residence, detectives
expected they might find property and information which was relevant to defendant’s
death. If David had been killed in a dispute with defendant and the body transported to
the railroad tracks, there was reasonable cause to believe a murder may have been
committed in San Bernardino. Therefore, the detectives sought a search warrant from the
San Bernardino court.
After executing the search warrant on July 19, 2008, the detectives recovered
documents and keys for the Lincoln, two computers, two gun holsters, drug-related
materials, bloody clothing, shovels, gun-cleaning materials, .22- and .45-caliber
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cartridges, and the handwritten checklist for murder. The detectives also saw blood, later
determined to be David’s, in defendant’s truck bed.
B. Motion to Suppress
In the trial court, defendant made a motion to suppress evidence obtained with the
search warrant for lack of probable cause. His current argument that the San Bernardino
court could not issue a search warrant for property located in Riverside county was
waived because it was not properly asserted below. (People v. Easley (1983) 34 Cal.3d
858, 869.) In any case, it lacks merit because, based on probable cause, the San
Bernardino court had the authority to issue a search warrant for another county. (People
v. Fleming (1981) 29 Cal.3d 698, 704.)
Probable cause certainly existed to issue the search warrant: “As we stated in
People v. Terrones (1989) 212 Cal.App.3d 139, 146: ‘The standard by which a
magistrate must determine whether an affidavit is sufficient to establish probable cause
. . . is explained in Illinois v. Gates (1983) 462 U.S. 213, 238-239: “The task of the
issuing magistrate is simply to make a practical, commonsense decision whether, given
all the circumstances set forth in the affidavit before him, including the ‘veracity’ and
‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular place.”’ (Italics
added.)
“Probable cause ‘is a fluid concept–turning on the assessment of probabilities in
particular factual contexts–not readily, or even usefully, reduced to a neat set of legal
rules.’ (Illinois v. Gates (1983) 462 U.S. 213, 232.) It is less than proof beyond a
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reasonable doubt (id. at p. 235); less than a preponderance of the evidence (ibid.); and
less than a prima facie showing (ibid.).
“Probable cause is a ‘particularized suspicion’ (Texas v. Brown (1983) 460 U.S.
730, 742; it is ‘facts that would lead a man of ordinary caution . . . to entertain . . . a
strong suspicion that the object of the search is in the particular place to be searched’
(Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564; italics added); ‘probable cause
requires only a . . . substantial chance.’ (Illinois v. Gates, supra, 462 U.S. at p. 243, fn.
13.)” (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1782-1783.)
The reviewing court conducts a deferential review to determine whether
substantial evidence supports the magistrate’s findings. (People v. Tuadles, supra, 7
Cal.App.4th at p. 1784.) Here two witnesses implicated defendant. The supporting
evidence for the search warrant included the information that David and defendant lived
at the same Spruce Street address. According to David’s live-in girlfriend, both men
were involved in criminal activity and associated with gangs. The men had experienced
conflicts with one another and defendant owned guns. David was found dead of a
gunshot wound to the forehead in San Bernardino County only two miles from the Spruce
Street address in Riverside County. Defendant did not respond when the detectives first
tried to contact him.
As the trial court found, the totality of circumstances provided substantial
evidence of probable cause. It was reasonable for the magistrate to conclude that
evidence of drug activity and firearms would be relevant to the murder and could be
located in the two houses and the vehicles on the Spruce Street property.
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We reject defendant’s effort to characterize Webb as an unreliable jailhouse
informant. There is no indication from the record that she offered any information in
exchange for favorable treatment in her own case. She was not an informant. Instead, as
David’s girlfriend, she was a reliable witness or “citizen informant.” (People v. Ramey
(1976) 16 Cal.3d 263, 268-269; People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504.)
She had lived with David at Spruce Street for many years until they both were arrested in
June and July 2008. She knew defendant and the nature of his relationship with David.
There was no reason to regard her information as unreliable, stale, or untrustworthy. The
trial court properly denied defendant’s motion to suppress the search warrant which was
based on probable cause.
VI
DISPOSITION
Probable cause supported the search warrant. Sufficient evidence proved that
defendant murdered his uncle in the first degree. The court did not commit instructional
error in its replies to the jury’s questions. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's first-degree murder conviction, holding that sufficient evidence supported the verdict and that the trial court did not commit instructional error or err in denying the motion to suppress evidence.
Issues
Whether there was sufficient evidence to support the conviction for first-degree murder.
Whether the trial court committed instructional error in its responses to jury questions.
Whether the search warrant was supported by probable cause and properly issued by a San Bernardino court for property in Riverside County.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Based on a deferential review of the record in the light most favorable to the judgment, we conclude there is ample evidence on these points.”
“The trial court properly denied defendant’s motion to suppress the search warrant which was based on probable cause.”
“We conclude sufficient evidence allowed a reasonable jury to conclude that defendant killed his Uncle David.”