People v. Martinez CA2/2

Filed 1/15/14 P. v. Martinez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B246488

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA077857) v.

EDWARD JACK MARTINEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven R. Van Sicklen, Judge. Affirmed as modified.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________________________________

A jury convicted defendant Edward Jack Martinez of second degree murder. (Pen. Code, § 187, subd.(a).)1 The trial court found true four of defendant’s prior strike conviction allegations and four prior serious felony conviction allegations, which resulted from three separate cases. (§ 1170.12, subds. (a)–(d); 667, subds. (b)–(i); 667, subd. (a).) The trial court sentenced defendant to state prison for 45 years to life for the murder, consisting of 15 years to life tripled due to defendant’s prior strike convictions. In addition, the trial court imposed five years in each of the three cases in which defendant suffered a conviction for a serious felony. (§ 667, subd. (a).) Defendant’s total sentence was 15 years plus 45 years to life. Defendant appeals on the ground that the trial court erred in failing to instruct sua sponte on the heat of passion theory of voluntary manslaughter. FACTS Prosecution Evidence Daniel Vigil lived at the Torrance Motel in the City of Torrance. He was good friends with Timothy Hillis, who also lived at the Torrance Motel. Vigil knew defendant only slightly. Vigil knew that Hillis had been married to defendant’s sister at one time. Hillis walked with a limp and used a walking stick. It looked like a branch of a tree— smaller at the bottom and larger at the top. On April 20, 2010, during a conversation at Hillis’s doorway, Hillis mentioned to Vigil that he had had a fight with defendant earlier. As Hillis spoke, Vigil noticed defendant approaching. Defendant said to Vigil, “You better get out of the way.” Defendant told Hillis, who was not wearing a shirt, to get dressed and meet him in the alley. Hillis approached defendant, and the two men began yelling at each other. They got each other into semi-headlocks and began punching each other. After a few minutes of this tussling, Hillis went back into his room and came back out carrying his walking stick like a bat. He hit defendant with it several times in the shoulder, neck, and head area. Hillis was very angry. Defendant backed up a bit and then came back towards