People v. Martinez CA4/3

Filed 2/27/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G045719

v. (Super. Ct. No. 08NF3251)

RAUL JORGE MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent. * * *

This gang confrontation and shooting case raises a single issue, centered on whether the trial court had a sua sponte duty to instruct the jury based on a recondite statement in People v. Garcia (2008) 162 Cal.App.4th 18, 31, that “an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter.” (Italics added; see also id. at p. 22 [same statement in introduction of opinion].) The answer is no. Whatever mysteries are inherent in Garcia’s “at least” comment, they have no application to the case before us. Garcia was a highly unusual case in which a gun was not used as a gun, but as a blunt instrument: the victim was hit in the face with its butt, fell to the sidewalk and died of head trauma. The Garcia court affirmed the conviction as against the defendant’s argument that he was entitled to instructions on involuntary manslaughter, but its task was made difficult by the semantic anomaly that the use of the butt of a gun as a blunt instrument made the crime, literally, an “assault . . . with a firearm,” hence an “inherently dangerous felony.” (Garcia, supra, 162 Cal.App.4th at p. 22.) This case, by contrast, presents a semantically clean set of facts: Martinez fired into a crowd. His attorney argued he was acting rashly because of the heat of passion given a sudden quarrel (the crowd was group of rival gang members intent on doing him harm), and therefore could be convicted only of voluntary manslaughter. But the jury found him guilty of second degree murder. We affirm. These facts present no Garcia issue and therefore required no Garcia instruction. BACKGROUND The salient events concerning the shooting are straightforward. Late one night in 2003,1 three Pauline Street gang members were standing near a staircase at a motel in West Anaheim. A half-dozen or so of the rival Barrio Small Town gang were in a room at the motel, partying. When members of the Small Town gang went outside to