People v. Martinez CA2/6

Filed 3/3/14 P. v. Martinez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B247850 (Super. Ct. No. 2011030533) Plaintiff and Respondent, (Ventura County)

v.

FRANCISCO XAVIER MARTINEZ,

Defendant and Appellant.

Francisco Xavier Martinez has a long history of dangerous driving and driving under the influence of alcohol (DUI). He did so again on August 24, 2011, with a catastrophic result. Appellant "rear-ended" a family in a Nissan Altima stopped at a red light. Driving 42 miles per hour, appellant smashed his truck into the back of the Nissan, lifted it up, and pushed it through the intersection. The collision injured the driver, Agha Mirza, his wife Khadija Mirza, and their one-year-old son Zayd Mirza. Khadija was 20 weeks pregnant. The blunt force trauma shattered Khadija's pelvis and killed her fetus. Appellant fled the scene and was found hiding in the bushes behind a Rite-Aide. He had a blood alcohol content of .247 percent. The jury convicted appellant of second degree murder (count 1; Pen. Code § 187, subd. (a)), driving under the influence causing injury (count 2; Veh. Code, §

1 23153, subd. (a)) , driving with a .08 percent blood alcohol level causing injury (count 3; § 23153, subd. (b)), and leaving the scene of an accident (count 4; § 20001, subd. (a)). The jury found that appellant had two prior DUI convictions, and on counts 2 and 3, found that he inflicted great bodily injury on Khadija, caused bodily injury to more than one victim, and was driving with a blood alcohol of .15 percent or more (§§ 12022.7; 23558; 23578). The trial court sentenced appellant to an intedeterminate term of 15 years to life plus eight years eight months state prison. Appellant appeals, contending that the evidence does not support a finding of malice for second degree murder. We affirm the convictions but reduce the sentence to 23 years to life state prison. The judgment will be modified to reflect the following sentence calculation: 15 years to life on count one for second degree murder. A consecutive full determinate term of eight years based on a count 2 principal term of three years, plus a three year enhancement (§12022.7), plus a one year enhancement (§ 23558), plus one year on count 4 (§ 200001, subd. (a); one-third the three year midterm). The three year sentence on count 3 (driving with a .08 percent blood alcohol level causing injury; § 23153, subd. (b)), is stayed pursuant to Penal Code section 654. Facts It is uncontroverted that appellant struck the victim's Nissan traveling 42 miles per hour. He left no skid marks. Appellant had a blood alcohol content of .247 percent, which required that he consume 16 beers before he got into the truck. A surveillance camera at a nearby service station filmed appellant striking the Nissan and fleeing. The impact was strong enough to burst the tire on the truck and deploy the airbag. Appellant sped off to a Rite-Aid as the tire melted on the wheel rim. Appellant threw the truck keys into the bushes before he was arrested. The evidence further shows that appellant suffered four prior DUI convictions, all involving dangerous driving. August 28, 1998 DUI