People v. Martinez CA4/3

Filed 1/25/22 P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059724

v. (Super. Ct. No. 15CF1174)

EDGAR EDUARDO MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed as modified. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Edgar Eduardo Martinez was convicted of attempted murder for shooting at a police officer who came to his home in response to a domestic disturbance. He contends reversal is required because the prosecutor distorted both the burden and the standard of proof in his closing argument. Appellant also contends the trial court improperly amended his sentence while this appeal was pending. As respondent concedes, appellant’s latter contention has merit. Therefore, we will modify the judgment to reflect the trial court’s original sentencing decision. In all other respects, we affirm. FACTS In 2015, appellant was living in Orange with his mother, brother, and several other members of his extended family. The household was peaceful for the most part, but early one morning, appellant got into a heated argument with his mother because she refused to drive him to his girlfriend’s house. During the row, appellant brandished a gun and threatened to kill his mother, so another family member called 911. When the police arrived, they evacuated appellant’s family through the side windows and took up armed positions around the house. Then appellant came outside and began walking down the driveway, where Police Officer Nicholas Silver was positioned behind a car. When appellant noticed Silver, he exclaimed “oh, shit” and retreated to an alcove by his front door. Silver tried to talk him into surrendering, but appellant stayed by the door and smoked a cigarette. Then, without warning, appellant pulled his gun and started shooting toward Silver. That drew a barrage of return fire from the officers. Although appellant was shot and fell to the ground, he continued to reach for his gun, so the officers shot him again. All told, appellant sustained three gunshot wounds. Investigators found three spent cartridges in his gun, and they also detected an apparent bullet mark on a car that was parked behind Silver in the driveway.