California Court of Appeal Jul 17, 2015 No. E060393Unpublished
Filed 7/17/15 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E060393
v. (Super.Ct.No. FSB050723)
JOSHUA MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Defendant Joshua Martinez gave Christopher Powers some methamphetamine in
exchange for a beat-up old pickup truck. Defendant then enlisted Ravenna Waters to help
him sell the truck. Thus, Waters was present when Powers admitted to defendant that he
did not have the pink slip to the truck and, minutes later, when defendant shot Powers,
“Under Miranda and its progeny, ‘a suspect [may] not be subjected to custodial
interrogation unless he or she knowingly and intelligently has waived the right to remain
3 According to the transcript of the interview, defendant said the guy looked Mexican. Nevertheless, the testimony at trial was that defendant described him as “some [W]hite guy,” “he could have been Hispanic or [W]hite.”
13
silent, to the presence of an attorney, and, if indigent, to appointed counsel.’ [Citation.]
If at any point in the interview the suspect invokes the right to remain silent or the right to
counsel, ‘the interrogation must cease.’ [Citations.]” (People v. Bacon (2010) 50 Cal.4th
1082, 1104-1105.)
“The prohibition against further questioning in these circumstances is not a
constitutional requirement, but rather a prophylactic rule ‘“designed to prevent police
from badgering a defendant into waiving his previously asserted Miranda rights.”’
[Citation.]” (People v. Nelson (2012) 53 Cal.4th 367, 376.)
A suspect’s invocation of the right to silence must be “unambiguous and
unequivocal.” (People v. Nelson, supra, 53 Cal.4th at p. 377.) “‘[I]f an ambiguous act,
omission, or statement could require police to end the interrogation, police would be
required to make difficult decisions about an accused’s unclear intent and face the
consequence of suppression “if they guess wrong.”’ [Citation.] In such circumstances,
suppression of a voluntary confession ‘would place a significant burden on society’s
interest in prosecuting criminal activity.’ [Citation.]” (Id. at p. 378.)
“A defendant . . . ‘may indicate an unwillingness to discuss certain subjects
without manifesting a desire to terminate “an interrogation already in progress.”’
[Citation.]” (People v. Thomas (2012) 211 Cal.App.4th 987, 1005.) “A defendant has
not unambiguously and unequivocally invoked his right to remain silent when his
statements . . . amount only to a refusal to discuss a particular subject. [Citations.]” (Id.
at pp. 1005-1006.)
14
For example, in People v. Silva (1988) 45 Cal.3d 604, the defendant was
Mirandized. He answered some questions, but when asked if he was driving the truck
involved in the homicide (see id. at p. 615), he said, “I really don’t want to talk about
that.” (Id. at p. 629.) The interview continued, and he did answer some questions, but he
avoided answering questions that “concentrat[ed] [on] the[] homicide.” (Ibid.) The
Supreme Court held that the defendant had not refused to continue the interrogation, and
thus he had not exercised his privilege against self-incrimination. (Ibid.) It observed: “A
defendant may indicate an unwillingness to discuss certain subjects without manifesting a
desire to terminate ‘an interrogation already in progress.’ [Citation.]” (Id. at pp. 629-
630.)
Here, defendant’s statement, “if this isn’t pertain to . . . my parole then I really
don’t have nothing to say to anybody,” was merely a refusal to discuss certain subjects.
By necessary implication, it meant that, if the interrogation did pertain to defendant’s
parole, defendant did not want to end it. Hence, the officers were not required to
terminate the interrogation at that point.4
4 Under Doyle v. Ohio (1976) 426 U.S. 610, the fact that a defendant who received Miranda warnings remained silent cannot be used to impeach the defendant’s testimony at trial.
Some federal courts have held that, for purposes of Doyle, a defendant’s post- warning silence on some but not all subjects cannot be used to impeach him or her. (E.g., Hurd v. Terhune (9th Cir. 2010) 619 F.3d 1080, 1087-1088; United States v. Harrold (10th Cir. 1986) 796 F.2d 1275, 1279, fn. 3.)
These cases are not controlling here. The United States Supreme Court has emphasized the need for bright-line rules on when questioning must cease: “A [footnote continued on next page]
15
Separately and alternatively, even assuming the continued interrogation was
unconstitutional, the admission of defendant’s subsequent statements was harmless
beyond a reasonable doubt. The statements that were admitted were to the effect that (1)
defendant lived at 2455 Second Avenue in Muscoy, (2) defendant gave a quarter of an
ounce of methamphetamine to a person meeting Powers’s description in exchange for a
gray truck, and (3) the truck was parked behind defendant’s house.
However, in the jailhouse phone call with his girlfriend — which was audiotaped
and played for the jury — defendant made essentially identical statements. He said, “I
bought a truck for some dope.” “I gave em . . . they wanted . . . they wanted a quarter
ounce for it right?” He indicated that it was Waters who “brings this dude over,” and the
two of them “want to sell this truck.” He also said, “It was there the night I got busted.
. . . [I]t was parked in the back.” Finally, there was ample other evidence, including the
testimony of defendant’s ex-girlfriend, that he was staying at 2455 Second Avenue.
[footnote continued from previous page] requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’ [Citation.] Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. [Citations.]” (Berghuis v. Thompkins (2010) 560 U.S. 370, 381-382.) Accordingly, even if a defendant’s partial silence or refusal to answer particular questions is deemed an invocation of the right to remain silent for purposes of Doyle, it does not necessarily require the police to terminate questioning at that time. (Hurd v. Terhune, supra, 619 F.3d at p. 1088.)
16
Accordingly, the statements assertedly admitted in violation of Miranda added nothing to
the other evidence at trial.
It could be argued that, once defendant made statements to the police, he felt that
he had to use the jailhouse phone call to explain those statements. He has never argued,
however, that the jailhouse phone call was the product of the asserted Miranda violation.
He never objected to nor moved to suppress the jailhouse phone call; his motion to
suppress was directed exclusively toward his statements to the police.
Finally, we may assume, without deciding, that defendant’s statements, “[C]an I
get a lawyer?” and “Man, I need a lawyer” were clear and unequivocal invocations of his
right to counsel. However, none of the statements that defendant made after that point
were admitted at trial. Accordingly, even if the trial court erred by finding that defendant
did not unequivocally invoke the right to counsel, the error was plainly harmless.
III
THE SUFFICIENCY OF THE EVIDENCE
TO SUPPORT THE GANG ENHANCEMENT
Defendant contends that there was insufficient evidence to support the gang
enhancement to count 2 (dissuading a witness).
“‘In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence — that is, evidence that is reasonable,
credible, and of solid value — from which a reasonable trier of fact could find the
17
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] “A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” [Citation.]’ [Citation.]”
(People v. Livingston (2012) 53 Cal.4th 1145, 1170.)
One of the elements of a gang enhancement is that the underlying crime was
“committed for the benefit of, at the direction of, or in association with a[] criminal street
gang” (the benefit/direction/association element). (Pen. Code, § 186.22, subd. (b)(1).)
Another element is that the defendant committed the underlying crime “with the specific
intent to promote, further, or assist in any criminal conduct by gang members” (the
specific intent element). (Ibid.)5
“‘Expert opinion that particular criminal conduct benefited a gang’ is not only
permissible but can be sufficient to support the Penal Code section 186.22, subdivision
(b)(1), gang enhancement. [Citation.]” (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
With respect to the benefit/direction/association element, the gang expert testified
that defendant’s crime of dissuading a witness was committed for the benefit of the gang.
5 Defendant’s briefs tend to lump these two elements together. Thus, for example, he asserts that there was insufficient “proof of the defendant’s specific intent to benefit a gang by committing the crime.”
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He explained that gang members “want the public or the community that they occupy or
frequent to fear and respect them. And a lot of times they glean or garner that respect
through intimidation.” He added that instilling fear and intimidation in victims also tends
to prevent the prosecution of gang members.
Defendant contends that the expert’s opinion lacked support in the evidence. The
only evidence that he claims was missing, however, was (1) evidence that Waters knew
that defendant was a gang member and (2) evidence that the people in the other cars were
gang members.
Admittedly, Waters did testify that she did not know defendant was a gang
member “until after the fact.” However, the jury did not have to believe her. The gang
expert testified that defendant had multiple North Side Colton tattoos, including at least
two that were readily visible — “NSC” on his middle finger and “NS Colton” on his
forearm. Dedrick testified that he did not believe the police could protect him from
defendant “[b]ecause of the ties he has with certain people.” Waters’s two adult sons
were friendly with defendant. Waters knew defendant by his gang moniker, Cartoon.
The gang expert testified that “the fact [Waters] knew [defendant] by Cartoon leads me to
believe there was . . . knowledge of him in regards to a gang capacity.” This was
sufficient evidence that Waters actually knew that defendant was a gang member.
There was also sufficient evidence that the people in the other cars were members
of North Side Colton. The gang expert testified, “Gangs work in groups. That is how
they have strength in numbers.” In any event, it seems pretty obvious that a gang member
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in need of five or six accomplices to help him intimidate a witness would turn to his
fellow gang members.
Separately and alternatively, even leaving aside whether the crime was committed
for the benefit of the gang, there was also substantial evidence that the crime was
committed in association with the gang. As just discussed, it was reasonably inferable
that the people in the other cars were gang members. “[T]he jury could reasonably infer
the requisite association from the very fact that defendant committed the charged crimes
in association with fellow gang members.” (People v. Morales (2003) 112 Cal.App.4th
1176, 1198 [Fourth Dist., Div. Two].)
With respect to the specific intent element, “specific intent to benefit the gang is
not required. What is required is the ‘specific intent to promote, further, or assist in any
criminal conduct by gang members . . . .’” (People v. Morales, supra, 112 Cal.App.4th at
p. 1198.) Moreover, “[Penal Code] section 186.22(b)(1) encompasses the specific intent
to promote, further, or assist in any criminal conduct by gang members — including the
current offenses — and not merely other criminal conduct by gang members.” (People v.
Albillar (2010) 51 Cal.4th 47, 65; see also id. at pp. 65-66.)
Here, defendant and some accomplices, who were all inferably members of the
same gang, circled Waters for the evident purpose of dissuading her from reporting
defendant’s prior crime. They were all committing a crime together. “‘Commission of a
crime in concert with known gang members is substantial evidence which supports the
inference that the defendant acted with the specific intent to promote, further or assist
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gang members in the commission of the crime.’ [Citations.]” (People v. Miranda (2011)
192 Cal.App.4th 398, 412.)
We therefore conclude that there was sufficient evidence to support the gang
enhancement.
IV
THE REFUSAL TO BIFURCATE THE GANG ENHANCEMENT
Defendant contends that the trial court erred by denying his motion to bifurcate the
trial of the gang enhancement.
A. Additional Factual and Procedural Background.
In its trial brief, the prosecution argued that it should be allowed to introduce
evidence that witnesses were afraid of retaliation. The prosecution asserted that Waters
and Dedrick knew that defendant was a gang member.
Defense counsel disputed this, claiming there would be no evidence that any of the
witnesses knew that defendant was a gang member. He then asked the trial court to
bifurcate the trial of the gang allegations.
The trial court denied the bifurcation request. It explained: “Well, don’t forget
352 does not prohibit prejudicial information. . . . The question is whether it is illegally
prejudicial, unduly prejudicial . . . . It is a balancing act, not whether it is harmful to the
defendant. It is whether or not it is somehow untoward.
“In this case it appears that it is inexorably tied to the underlying offense, the
underlying conduct of the defendant, and the underlying conduct of the witnesses. . . . I
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think it would be a misleading view of the facts to try to separate the sterile facts from the
gang involved facts.”
B. Discussion.
The trial court has the authority to bifurcate the trial of a gang enhancement in an
appropriate case. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) The defendant
has the “burden ‘to clearly establish that there is a substantial danger of prejudice
requiring that the charges be separately tried.’ [Citation.]” (Id. at p. 1051.)
However, “the trial court’s discretion to deny bifurcation of a charged gang
enhancement is . . . broader than its discretion to admit gang evidence when the gang
enhancement is not charged. [Citation.]” (People v. Hernandez, supra, 33 Cal.4th at
p. 1050.) A “criminal street gang enhancement is attached to the charged offense and is,
by definition, inextricably intertwined with that offense. So less need for bifurcation
generally exists with the gang enhancement than with a prior conviction allegation.
[Citation.]” (Id. at p. 1048.) “Even if some of the evidence offered to prove the gang
enhancement would be inadmissible at a trial of the substantive crime itself — for
example, if some of it might be excluded under Evidence Code section 352 as unduly
prejudicial when no gang enhancement is charged — a court may still deny bifurcation.”
(Id. at p. 1050.)
We review the denial of a motion to bifurcate for abuse of discretion. (See People
v. Hernandez, supra, 33 Cal.4th at p. 1048.)
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Here, the gang evidence was relevant to the underlying charge of dissuading a
witness. As already discussed (see part III, ante), there was substantial evidence that
Waters knew that defendant was a gang member; there was also substantial evidence that
the people in the other cars were defendant’s fellow gang members. The gang expert
testified that gang members may threaten a witness by surrounding him or her, without
making any verbal threat. Waters’s awareness that defendant and his accomplices were
gang members would make the threat more potent. Thus, the gang evidence was relevant
to show the intent to dissuade. (See People v. Navarro (2013) 212 Cal.App.4th 1336,
1347.) It was also relevant to show that the attempted dissuasion was carried out by
means of an implied threat of force or violence. (See Pen. Code, § 136.1, subd. (c)(1).)
At the same time, the gang evidence was not particularly inflammatory. There was
no evidence that defendant was an “OG” or a “shot-caller.” Defendant’s home had been
searched, but no gang paraphernalia had been found there. The gang expert testified to
convictions for five predicate offenses — a carjacking, three assaults with a deadly
weapon, and unlawful taking or driving of a vehicle. They were not described in detail.
The expert specifically testified that they did not involve defendant.
We therefore conclude that the trial court did not abuse its discretion by declining
to bifurcate the gang allegation.
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V
THE AMOUNT OF THE RESTITUTION FINE
Defendant contends that the trial court erred by imposing the maximum $10,000
restitution fine under Penal Code section 1202.4 without considering his ability to pay.
Under California Supreme Court authority directly on point, defense counsel
forfeited this contention by failing to raise it at trial. (People v. Nelson (2011) 51 Cal.4th
198, 227.)
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for first-degree murder and witness dissuasion, holding that the trial court did not err in its Miranda rulings or in finding sufficient evidence to support the gang enhancement.
Issues
Whether the trial court erred in admitting statements made after the defendant allegedly invoked his right to remain silent and right to counsel.
Whether there was sufficient evidence to support the gang enhancement for the witness dissuasion conviction.
Whether the trial court erred by denying the motion to bifurcate the trial of the gang enhancement.
Whether the trial court erred by imposing a restitution fine without considering the defendant's ability to pay.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“A suspect’s invocation of the right to silence must be “unambiguous and unequivocal.””