California Court of Appeal Jun 30, 2022 No. E076498Unpublished
Filed 6/30/22 P. v. Martin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E076498
v. (Super.Ct.No. RIF1506112)
BRANDON WILLIE MARTIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz,
Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Amanda
Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Brandon Willie Martin guilty of three
counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189, subd. (a))1; evading a
2 CALCRIM No. 3428 provides, “You have heard evidence that the defendant may have suffered from a mental (disease[,]/ [or] defect[,]/ [or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime. “The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state, specifically: _______________<insert specific intent or mental state required, e.g., ‘malice aforethought,’ ‘the intent to permanently deprive the owner of his or her property,’ or ‘knowledge that . . .’>. If the People have not met this burden, you must find the defendant not guilty of _______________ <insert name of alleged offense>. “<Repeat this paragraph for each offense requiring specific intent or a specific mental state.> “[Do not consider evidence of mental (disease[,]/ [or] defect[,]/ [or] disorder) when deciding if ________________ <insert name of nontarget offense> was a natural and probable consequence of ________________ <insert name of target offense>.]”
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When determining whether the trial court erred by refusing a requested
instruction, we apply the de novo standard of review. (People v. Brugman (2021) 62
Cal.App.5th 608, 622, fn. 3.) There is evidence of defendant suffering mental distress.
Defendant may have been given medication for anger issues, and he may not have been
taking that medication. Defendant was detained under Welfare and Institutions Code
section 5150. During that detainment, defendant was given medication for depression.
When defendant was trying to evade the police, he jumped out of a second story
window because he felt suicidal.
Although one could conclude that defendant was in mental distress, there was
nothing indicating that the distress would have affected defendant’s premeditation or
deliberation. For example, there is no evidence that defendant’s depression or anger
caused dissociative states and that such states prevent people from deliberating. (See
People v. Cortes, supra, 192 Cal.App.4th at pp. 909-911.) Because there is no evidence
indicating that defendant’s mental distress may have negated any actual deliberation and
premeditation, the trial court properly refused to instruct with CALCRIM No. 3428.
Defendant asserts the trial court’s denial of his request for CALCRIM No. 3428
violated his constitutional rights of due process and to present a defense. There is “no
authority creating a constitutional right to have the jury instructed on theories
unsupported by evidence.” (People v. Ayala (2000) 23 Cal.4th 225, 283} As explained
ante, the evidence did not support instructing the jury with CALCRIM No. 3428. Thus,
defendant’s constitutional rights were not violated by the trial court denying defendant’s
request for CALCRIM No. 3428.
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B. VOLUNTARY MANSLAUGHTER
1. PROCEDURAL HISTORY
Before defendant was released from the Welfare and Institutions Code section
5150 facility, the doctor at the facility told defendant that defendant’s mother did not
want defendant to live at the House. Defendant said he went to the House on September
17, 2015, to gather his belongings and move out.
Defendant’s bus ride to Corona lasted 37 minutes. The walk from the Corona
bus stop to the House lasted 50 to 60 minutes. The family planned to tell defendant that
he had to enter a drug treatment program or leave the House. In regard to that
ultimatum, Cousin testified as follows:
“[Prosecutor]: On the 17th of September when you spoke to [Uncle], any one of
those times do you remember, did you express to [Uncle] the Salvation Army drug
abuse treatment program, that [defendant] should go into it?
“[Cousin]: Yes, I did.
“[Prosecutor]: Okay. And when you spoke to [Uncle], did he tell you whether
[defendant] had come home?
“[Cousin]: Yes, he did.”
“[Prosecutor]: And did [Uncle] tell you whether he expressed to [defendant]
about some sort of ultimatum?”
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“[Cousin]: Yes, he did.”3
“[Prosecutor]: [S]o the ultimatum was enter this drug and alcohol rehab program
or leave the house?
“[Cousin]: Yes, sir.”
2. ANALYSIS
Defendant contends the trial court erred by not sua sponte instructing on the
lesser included offense of heat of passion voluntary manslaughter. (§ 192, subd. (a);
CALCRIM No. 570.)
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” [Citation.] That obligation has
been held to include giving instructions on lesser included offenses when the evidence
raises a question as to whether all of the elements of the charged offense were present
[citation], but not when there is no evidence that the offense was less than that charged.
[Citations.] The obligation to instruct on lesser included offenses exists even when as a
3 The People correctly note that one cannot determine from the record if Uncle gave defendant the ultimatum due to the way the prosecutor worded his questions. The prosecutor asked if Uncle told Cousin “whether [Uncle] expressed to [defendant] about some sort of ultimatum.” (Italics added.) Cousin replied, “Yes, he did.” From that line of questioning, we can only determine that Uncle discussed whether he did or did not deliver the ultimatum.
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matter of trial tactics a defendant not only fails to request the instruction but expressly
objects to its being given.” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
Thus, in a murder case, the court has a sua sponte duty to instruct on voluntary
manslaughter if there is “substantial evidentiary support” for that theory of the killing.
(People v. Breverman, supra, 19 Cal.4th at p. 160.) “ ‘Substantial evidence’ in this
context is ‘ “evidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Id. at p.
162.) “We review de novo the trial court’s failure or refusal to instruct on a lesser-
included offense.” (People v. Vasquez (2018) 30 Cal.App.5th 786, 793.)
Voluntary manslaughter “is the unlawful killing of a human being” “upon a
sudden quarrel or heat of passion.” (§ 192, subd. (a).) “A heat of passion theory of
manslaughter has both an objective and a subjective component. [Citations.] [¶] ‘ “To
satisfy the objective or ‘reasonable person’ element of this form of voluntary
manslaughter, the accused’s heat of passion must be due to ‘sufficient provocation.’ ”
. . . The provocative conduct by the victim may be physical or verbal, but the conduct
must be sufficiently provocative that it would cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection. [¶] . . . ‘ “However,
if sufficient time has elapsed between the provocation and the fatal blow for passion to
subside and reason to return, the killing is not voluntary manslaughter.” ’ ” (People v.
Moye (2009) 47 Cal.4th 537, 549-550.)
The record indicates that defendant was told by the doctor at the facility that
defendant’s mother no longer wanted defendant to live at the House. As a result,
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defendant intended to move out of the House. Defendant’s trip to the House took
approximately 90 minutes. When defendant arrived at the House, he saw the locks had
been changed. Additionally, Uncle may have told defendant that defendant needed to
move out or enter a drug rehabilitation facility.
A reasonable person would not react without reflection after being told that he
needed to move out of his parents’ house. However, to the extent a person might act
rashly after receiving such news, 90 minutes is sufficient time for such passion to
subside. Further, if a reasonable person arrived at their parents’ house and saw the
locks were changed, a reasonable person might be upset that such measures were being
taken, but it is not the type of provocation that would cause a reasonable person to react
without reflection. Moreover, if an ultimatum to move out or attend substance abuse
treatment were made, that too would not cause a rational person to act without due
deliberation particularly when a doctor had previously provided similar information
about having to move out. Accordingly, the trial court did not have a sua sponte
obligation to instruct the jury on voluntary manslaughter because the provocation was
not the type that would cause an ordinary person of average disposition to act rashly or
without due deliberation and reflection.
Defendant asserts that his family had him hospitalized, told him to move out of
the House, and changed the locks. Defendant asserts those events would provoke a
reasonable person to act rashly. Heat of passion can arise from a “ ‘series of events over
a considerable period of time.’ ” (People v. Berry (1976) 18 Cal.3d 509, 515.) If the
acts listed by defendant are aggregated and if there had been no reasonable basis for
19
those acts, then perhaps a person might react with passion due to a perceived injustice of
being detained and told leave their home. However, defendant had a history of violent
behavior with his mother.
On the day defendant was detained under Welfare and Institutions Code section
5150, he had a violent episode. If a reasonable person had a violent episode, was
detained, was told to move out, and noticed that the locks were changed, then the
reasonable person would understand that those were the consequences of violent
behavior. A reasonable person would not respond with such passion that he acted
without judgment. (See People v. Beltran (2013) 56 Cal.4th 935, 953 [“react from that
passion and not from judgment”].) In other words, defendant was violent, and his
family reacted to defendant’s violence by protecting themselves. A reasonable person
would not respond to such protective measures without reflection.
Defendant contends the failure to instruct sua sponte on voluntary manslaughter
violated his federal constitutional rights to a jury trial and due process. “Defendants
have a constitutional right to have the jury determine every material issue presented by
the evidence, and a trial court’s failure to instruct on lesser included offenses denies
them that right.” (People v. Cash (2002) 28 Cal.4th 703, 736.) As explained ante, a
voluntary manslaughter instruction was not supported by the record because there was
no evidence that a reasonable person would have responded to the alleged provocation
without reflection and due deliberation. Because there was no evidence to support a
voluntary manslaughter instruction, defendant’s constitutional rights were not violated.
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C. PROSECUTORIAL MISCONDUCT
1. PROCEDURAL HISTORY
During closing argument, the prosecutor said, “[Defense counsel] stated that it
doesn’t appear that [defendant] has the ability to reflect, basically, the ability to
deliberate, to make a careful consideration, to weigh the consequences. So I’d like to
talk about that. And he mentioned that he sounded like an eight- to a ten-year-old in
that interview. The evidence is for you to consider. So if you think that he sounded like
an eight- to ten-year old, then I’ve got nothing for that. But the evidence is the
evidence.
“But I will tell you this: That as young as [defendant] was in 2015, 22 years of
age, as we learned, what was he able to do before that? He signed an $860,000 contract.
I don’t know about you, but that sounds like a lot of money, and I think it still is a lot of
money today. An $860,000 contract to play professional baseball.
“Now, what’s important about that? There’s a couple things. One, well, he was
able to do that just fine. He was able to get that money and actually blow through it in a
few years. Okay? But he can’t be able to be found guilty of murder because he cannot
have the ability to really consider or weigh his decision-making?
“All right. Well, what about the fact that he’s a professional baseball player?
What do professional baseball players have to do when they’re at bat, when that 90-
mile-per-hour ball comes barre[ling] down to the plate? They have literally a split
second to decide whether they’re going to swing or not swing. This is a professional
athlete whose job is to deliberate, to make decisions.
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“Now, think of it this way: When [defendant] comes to the house, he has to
make that decision to pick up the baseball bat. And what are the reasons why you’re
going to use a baseball bat? Either to play baseball or hurt somebody. So he picks up
that baseball bat, goes over to [Uncle] and, by surprise, crushes the back of his skull.
That takes a lot of deliberation in that you have to consider that you’re picking up that
bat and you’re going to swing it at the most vulnerable place on a human body. He
didn’t hit him in the back. He didn’t hit him in the stomach. He didn’t hit him in the
legs or the arms. He hit him in the back of his skull.
“And then, as [Uncle] fell, now either on the ground or near the ground, over and
over again to the most vulnerable place on a human body, to their head. So assuming
that—let’s give him that first hit . . . . Let’s give him that, that that was a rush decision.
It wasn’t cold and calculated. Okay? What about the additional blows after blow after
blow? Not just to the back of the head, but to his throat, and the pain that would have
caused [Uncle] as his hyoid broke. His own uncle. So even if we give him that first
strike, not deliberating at that or premeditation, each and every blow to the most
vulnerable part of the human body is.”
2. ANALYSIS
a. Forfeiture
Defendant contends the prosecutor committed misconduct by “comparing the
elements of premeditation and deliberation to the decision to swing at a pitch in
baseball.” Defendant contends that the distance from the pitcher to the batter, combined
with a ball traveling 90 miles per hour, means that a batter “has to make the decision of
22
whether to swing in about a quarter of a second.” Defendant asserts that the jury likely
understood the prosecutor’s argument as asserting “that, since [defendant] must have
thought about it for at least a split second, he must have acted with the premeditation
and deliberation necessary for first degree murder.” Defendant asserts such an
understanding would be incorrect because “[p]remeditation and deliberation requires
substantial pre-existing reflection.”
The People contend defendant forfeited this issue by failing to object in the trial
court. “ ‘ “[A] defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.” ’ ” (People v. Pearson (2013) 56 Cal.4th 393, 426.) We conclude
defendant forfeited this issue by failing to object in the trial court.
b. Ineffective Assistance
Defendant contends that, if the issue was forfeited, then his trial counsel was
ineffective for failing to object.
“A defendant whose counsel did not object at trial to alleged prosecutorial
misconduct can argue on appeal that counsel’s inaction violated the defendant’s
constitutional right to the effective assistance of counsel. The appellate record,
however, rarely shows that the failure to object was the result of counsel’s
incompetence; generally, such claims are more appropriately litigated on habeas corpus,
which allows for an evidentiary hearing where the reasons for defense counsel’s actions
or omissions can be explored. [Citation.]
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“ ‘In order to establish a claim of ineffective assistance of counsel, defendant
bears the burden of demonstrating, first, that counsel’s performance was deficient
because it “fell below an objective standard of reasonableness [¶] . . . under prevailing
professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall
presume that “counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or
failed to act in the manner challenged,” an appellate claim of ineffective assistance of
counsel must be rejected “unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.” [Citations.]
If a defendant meets the burden of establishing that counsel’s performance was
deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that
is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” ’ ” (People v. Lopez (2008) 42 Cal.4th 960,
966.)
“In the context of first degree murder, premeditation means ‘ “considered
beforehand” ’ [citation] and deliberation means a ‘ “careful weighing of considerations
in forming a course of action . . . .” ’ [Citation.] ‘The process of premeditation and
deliberation does not require any extended period of time.’ [Citation.] ‘ “Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at
The prosecutor did not argue that the deliberation required for first degree
murder was the same deliberation required for playing baseball. Rather, the prosecutor
argued that defendant was capable of making quick decisions.
The prosecutor asserted, “Well, what about the fact that he’s a professional
baseball player? What do professional baseball players have to do when they’re at bat,
when that 90-mile-per-hour ball comes barre[ling] down to the plate? They have
literally a split second to decide whether they’re going to swing or not swing. This is a
professional athlete whose job is to deliberate, to make decisions.” The prosecutor’s
argument was focused on defendant and his ability to make decisions—not the law of
deliberation. Given that the prosecutor was not discussing the law, it was within the
wide range of professional competence for defendant’s trial counsel to not object.
Accordingly, defense counsel’s performance did not fall below an objective standard of
reasonableness.
Moreover, even if we were to conclude trial counsel erred by not objecting, the
error would not be prejudicial because the jury was given correct instructions on
premeditation and deliberation. The jury was informed, “The defendant acted
deliberately if he carefully weighed the considerations for and against his choice and,
knowing the consequences, decided to kill. The defendant acted with premeditation if
he decided to kill before completing the acts that caused death. [¶] The length of time
the person spends considering whether to kill does not alone determine whether the
killing is deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A
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decision to kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated decision to kill can
be reached quickly. The test is the extent of reflection, not the length of time.”
(CALCRIM No. 521}
Thus, the jury was informed that there had to be evidence of reflection and a
careful weighing of “the considerations for and against” killing. To the extent the jury
thought that the prosecutor was using the story of playing baseball to describe the legal
requirement for deliberation in a first degree murder case, the instruction clarified the
legal requirements, e.g., careful consideration and reflection. Therefore, prejudice has
not been demonstrated.
D. CUMULATIVE ERROR
Defendant contends that when the prejudice from the foregoing three alleged
errors is amassed, it requires the judgment to be reversed. We have not found any
errors. As a result, there is no prejudice to cumulate. (People v. Duff (2014) 58 Cal.4th
527, 562.)
E. CONSECUTIVE LWOP TERMS
1. PROCEDURAL HISTORY
The three murders comprised Counts 1, 2, and 3. When sentencing defendant,
the trial court said, “At this time the Court will sentence the defendant on Count[s] 1, 2,
and 3 to life without the possibility of parole. As to each of those counts attached is
Penal Code [section] 12022(b)(1), which is for the weapon that was utilized. As to each
count, the Court will impose one year consecutive to one another for a total determinate
26
term in those three counts of three years in state prison.” When the trial court
pronounced defendant’s total sentence, it said, “. . . making the total determinate term
seven years and four months with three life-without-the possibility-of-parole sentences.”
2. ANALYSIS
Defendant contends the sentencing minute order and abstract of judgment should
be corrected to reflect the trial court did not order the three LWOP terms to be served
consecutively.
“The procedure for sentencing a person convicted of two or more felonies does
not contemplate imposing an enhancement separately from the underlying crime.”
(People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.) Therefore, the substantive
offense and the enhancement, together, are ordered to be served either consecutive to or
concurrent with a prison term from another count. (Id. at p. 1311 [imposing a
concurrent term for the substantive offense and a consecutive term for the related
enhancement is an unauthorized sentence].)
In the instant case, the trial court ordered that the three one-year sentences for the
weapon enhancements (§ 12022, subd. (b)(1)) in Counts 1 through 3 be served
consecutively. Because the substantive offense and the enhancement cannot be
separated, by ordering the enhancement sentences to be served consecutively, the trial
court impliedly ordered the LWOP terms for the murders to be served consecutively.
That implied sentence is confirmed by the trial court’s statement about “three life-
without-the possibility-of-parole sentences,” when stating the total sentence. If the trial
court had intended to have the LWOP terms served concurrently, then it would have
27
said “one LWOP term,” rather than three LWOP terms. Accordingly, we conclude the
sentencing minute order and abstract of judgment do not require correction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court properly refused to instruct the jury on mental impairment (CALCRIM No. 3428) and voluntary manslaughter because there was no substantial evidence that the defendant suffered from a mental disorder affecting his ability to deliberate or that he acted under sufficient provocation.
Issues
Did the trial court err by refusing to instruct the jury on mental disease or disorder (CALCRIM No. 3428)?
Did the trial court err by failing to sua sponte instruct on the lesser included offense of voluntary manslaughter?
Did the prosecutor commit misconduct by misstating the law of premeditation and deliberation?
Were the alleged errors cumulatively prejudicial?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“There is “no authority creating a constitutional right to have the jury instructed on theories unsupported by evidence.””
“Because there is no evidence indicating that defendant’s mental distress may have negated any actual deliberation and premeditation, the trial court properly refused to instruct with CALCRIM No. 3428.”