People v. Marta CA4/3

Filed 6/28/16 P. v. Marta CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G050716

v. (Super. Ct. No. 10CF2948)

CESAR GERARDO MARTA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. * * *

INTRODUCTION A jury convicted Cesar Gerardo Marta of the second degree murder of Cesar Daniel Hernandez-Gutierrez (Gutierrez) and acquitted Marta of first degree murder. (Pen. Code, §§ 187, 189.) The trial court found true the allegations that Marta had previously been convicted of a serious felony (id., § 667, subd. (a)(1)) and had been convicted of a serious and violent felony (id., §§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)). The court struck the prior serious and violent felony conviction for purposes of sentencing and sentenced Marta to a term of 20 years to life in prison. The one claim of error asserted by Marta is the trial court should have granted his motion for a mistrial. Marta’s motion for a mistrial was based on the court’s decision to admit for a limited purpose, and later to strike, testimony from a witness that, on the evening of the murder, Marta’s nephew stated, “we’re going to go to [the victim’s] house and F him up.” We conclude the trial court did not err by denying the motion for a mistrial and therefore affirm.