People v. Martinez CA2/8

Filed 6/30/14 P. v. Martinez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B249606

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA065686) v.

WILFREDO MARTINEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dalila C. Lyons, Judge. Affirmed.

Donna L. Harris, 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, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

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We affirm defendant Wilfredo Martinez’s convictions for first degree murder and being a felon in possession of a firearm. We reject his arguments that the jury instructions reflected numerous errors and that the court erred in ordering he serve his sentences for both crimes consecutively. FACTS AND PROCEDURE Interpreting the evidence in the light most favorable to the verdict, the record shows that defendant and Jose Carabantes were both members of the Mara Salvatrucha (MS) gang. On June 28, 2009, in the afternoon, defendant and Carabantes were talking at a residence in Arleta. Defendant said that he had been beaten up by the Pacoima gang. In response, defendant shot at the windshield of a Pacoima gang member’s car. Carabantes described defendant’s actions as childish, and his criticism upset defendant. Defendant left the residence. Later that evening defendant returned to the residence with Maria Garcia. Carabantes was there drinking with his friends and several members of the MS gang were at the residence. Defendant and Carabantes argued for about 15 minutes. Defendant was offended when Carabantes said “nowadays anybody can call themselves a gangster.” Defendant told Carabantes that he felt disrespected. Carabantes believed he should be respected because he was older and identified himself as an original gangster. Carabantes offered to fight defendant in a fistfight in the same manner gang members often resolve disputes. Defendant said, “this fool.” Defendant then shot Carabantes multiple times, killing him. Defendant fled. Prior to the shooting, defendant had been drinking. He started drinking at Garcia’s house and continued drinking at the Arleta residence. Garcia was very drunk that night.1