Filed 11/14/13 P. v. Martinez CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B240371

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. YA075442)
         v.

BRAYON MARTIN MARTINEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Stuart
M. Rice, Judge. Affirmed.
         Fay Arfa, a Law Corporation, and Fay Arfa for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II,
Supervising Deputy Attorney General, and Marc A. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.


                                     _____________________________
       Defendant and appellant Brayon Martin Martinez appeals from the judgment
entered after two trials. Prior to the first trial, defendant pled guilty on count 5 to
possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)).1 The jury
convicted defendant in count 4 of evading an officer (Veh. Code, § 2800.2, subd. (a)).
The trial court declared a mistrial after the jury deadlocked on counts 1-3 and 6-7.
       After the information was amended, defendant was convicted in the second trial
on counts 6 and 7 of assault on a peace officer with a semiautomatic firearm (§ 245, subd.
(d)(2)) and on count 8 of assault with a semiautomatic firearm on an unidentified victim
(§ 245, subd. (b)). The jury found true the allegations defendant used a firearm within
the meaning of section 12022.53, subdivisions (b) and (c), as to counts 6 and 7, and he
used a firearm within the meaning of section 12022.5, subdivisions (a) and (d), as to all
three counts.
       The trial court sentenced defendant to 33 years 8 months in state prison.
       Defendant contends insufficient evidence, instructional error, improper exclusion
of evidence, and cumulative error require reversal of the judgment. We affirm.


                                           FACTS


       At approximately midnight on June 27, 2009, Redondo Beach Police Officers
John Anderson and Brian Long were on patrol in an unmarked car. The officers were in
standard police uniform and wore badges, reflective patches, and utility belts. The
officers observed defendant, one other man, and two women in the street. Defendant was
holding his waistband as if he had a gun. The officers drove past the group and then
returned to investigate. A BMW was stopped in the middle of the street. The officers
observed a man run from the sidewalk to the passenger side door of the BMW.
Defendant immediately exited from the driver’s side door, extended his arm over the
vehicle, and fired a semiautomatic weapon at the man, who was standing right next to the


       1   All further statutory references are to the Penal Code unless otherwise stated.


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car facing defendant. The man fled away from the vehicle, and defendant repositioned
himself behind the BMW and fired at him a second time.
       The officers stopped their car. Officer Anderson exited and yelled, “Hey, police.”
Defendant turned toward Officer Anderson and immediately fired at him. Officers
Anderson and Long fired numerous shots at defendant. Defendant returned fire and then
fled in the BMW.
       Defendant led the officers on a high speed chase. Other marked patrol cars
pursued defendant with lights and sirens activated, but he continued to evade arrest.
Finally, defendant drove back to the scene of the shooting and surrendered. Defendant
was arrested and transported to the hospital.
       Defendant’s gun was found lying in the street on the path he used to escape. The
serial number had been defaced and was illegible.
       Defendant presented evidence that it was dark at the time of the shooting.
       An expert for the prosecution testified the photographs presented by the defense
did not accurately depict the lighting conditions at the time of the shooting.


                                      DISCUSSION


Sufficiency of the Evidence


       The Fifth and Sixth Amendments, which apply to the states through the Fourteenth
Amendment, require the prosecution to prove all elements of a crime beyond a reasonable
doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-78.) A conviction supported by
insufficient evidence violates the Due Process Clause of the Fourteenth Amendment and
must be reversed. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “‘In reviewing
the sufficiency of evidence . . . the question we ask is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”’ [Citations.]
. . . ‘In determining whether a reasonable trier of fact could have found defendant guilty


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beyond a reasonable doubt, the appellate court “must . . . presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.”’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175.) “The record
must disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327,
357.) The reviewing court does not reweigh the evidence, evaluate the credibility of
witnesses, or decide factual conflicts, as these are the province of the trier of fact.
(People v. Culver (1973) 10 Cal.3d 542, 548; In re Frederick G. (1979) 96 Cal.App.3d
353, 367.)


Defendant Knew Or Should Have Known the Victims Were Peace Officers

       Defendant’s contention there was insufficient evidence to support his convictions
on the basis that he knew or should have known that Officers Anderson and Long were
peace officers engaged in the performance of their duties is without merit.
       Pursuant to section 245, subdivision (d)(2), “Any person who commits an assault
upon the person of a peace officer or firefighter with a semiautomatic firearm and who
knows or reasonably should know that the victim is a peace officer or firefighter engaged
in the performance of his or her duties, when the peace officer or firefighter is engaged in
the performance of his or her duties, shall be punished by imprisonment . . . .”
       Evidence was presented that the officers were in full uniform. Officer Anderson
identified himself and Officer Long by yelling, “Hey, police” before defendant turned in
their direction and fired at them. The jury could have reasonably inferred that defendant
heard the officer identify himself, saw the officers in standard, full uniform and fired
nonetheless. Thus, substantial evidence supports the jury’s finding that defendant either
knew or should have known that Officers Anderson and Long were police officers
engaged in the performance of their duties.




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Sufficient Knowledge of the Facts to Know Defendant’s Acts Would Probably and
Directly Result in Injury

       Defendant’s contention the evidence was insufficient to support the finding that he
intended to shoot the unidentified man also fails.
       “‘Any person who commits an assault upon the person of another with a
semiautomatic firearm shall be punished by imprisonment in the state prison . . . .’
(§ 245, subd. (b).) ‘An assault is an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.’ (§ 240.) Assault requires the willful
commission of an act that by its nature will probably and directly result in injury to
another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act
by its nature will probably and directly result in such injury.” (People v. Miceli (2002)
104 Cal.App.4th 256, 268-269.)
       The record belies defendant’s assertion that no evidence was presented regarding
how close defendant was to the unidentified man when defendant shot at him. Officer
Anderson observed an unidentified man run to the passenger’s side of a BMW and
defendant “immediately” jump out of the driver’s side door, extend his arm over the
vehicle, and shoot in the man’s direction. He clarified that the unidentified man was
“right up on the car” facing it when defendant shot at him from the driver’s side. As the
man fled, defendant repositioned himself behind the vehicle and shot at him again from
approximately 15 feet away. Likewise, Officer Long observed that “as soon as [the
unidentified man] got to the front passenger door, the driver stepped out, . . . reached over
the hood of his car, and shot one round at [the unidentified man].” Officer Long
confirmed that defendant went to the back of the vehicle and shot at the man again as he
fled. The evidence that defendant fired two rounds at the unidentified man at close range
and repositioned himself in between firing to get a better shot supports the jury’s finding
that defendant had knowledge of the facts sufficient to establish his acts would probably
and directly result in injury.




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Lawfulness Instruction


       The crime of aggravated assault on a peace officer requires that the officer be
“engaged in the performance of his . . . duties” at the time of the assault. (§ 245,
subd. (d)(2).) The officer must be acting lawfully. If the officer used excessive force or
detained the defendant without justification, the defendant may be found guilty only of
the lesser offense of simple assault. (People v. White (1980) 101 Cal.App.3d 161, 166.)
The trial court has a sua sponte duty to instruct on lawfulness if there is sufficient
evidence the officer was not lawfully performing his or her duties. (People v. Gonzalez
(1990) 51 Cal.3d 1179, 1217 [“disputed facts bearing on the issue of legal cause must be
submitted to the jury considering an engaged-in-duty element”], superseded by statute on
another point as explained in In re Steele (2004) 32 Cal.4th 682, 690.)
       Here, no facts were presented that would necessitate giving Judicial Council of
California Criminal Jury Instructions (2009-2010) CALCRIM No. 2670 (Lawful
Performance, Peace Officer), as defendant contends. It is undisputed defendant fired on
the unidentified man twice and then turned and fired on the officers immediately after
Officer Anderson identified them as policemen, and before either of the officers fired a
single shot. The officers could not have been using excessive force when defendant
assaulted them, nor were they detaining him without justification.


Exclusion of Evidence


       Pursuant to Evidence Code section 1240, “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.” “‘“To render [statements] admissible [under the spontaneous declaration
exception] it is required that (1) there must be some occurrence startling enough to
produce this nervous excitement and render the utterance spontaneous and unreflecting;


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(2) the utterance must have been before there has been time to contrive and misrepresent,
i.e., while the nervous excitement may be supposed still to dominate and the reflective
powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the
occurrence preceding it.” [Citations.]’ [Citation.]” (People v. Thomas (2011) 51 Cal.4th
449, 495 (Thomas).) “‘Such declarations are admissible only when they are “ ‘made at a
time when there was no motive to deceive.’”’ [Citation.]” (People v. Ervine (2009) 47
Cal.4th 745, 779.) “‘Whether the requirements of the spontaneous statement exception
are satisfied in any given case is, in general, largely a question of fact. [Citation.] The
determination of the question is vested in the court, not the jury. [Citation.] . . .
[Citation.]’” (Thomas, supra, at p. 495.) “‘[T]he discretion of the trial court is at its
broadest’ when it determines whether an utterance was made while the declarant was still
in a state of nervous excitement.” (Id. at p. 496.)
       During defendant’s first trial, Officer Justin Korte testified that he handcuffed
defendant and accompanied him to the hospital. The trial court held an Evidence Code
section 402 hearing regarding admission of statements defendant made to Officer Korte
during that time. Officer Korte stated that some time after they arrived at the hospital,
defendant said that he had been robbed and “they” were jealous of him. The officer
could not recall if defendant had been drugged or treated at that time but did recall the
statement was made after some time had passed at the hospital. Defense counsel
requested the statement be admitted as a spontaneous statement. Judge Rand Rubin, who
presided over the first trial, excluded the evidence, finding insufficient evidence that
defendant made the statement while under the stress of the event, or that the statement
purported to describe the shooting, rather than events that occurred before the shooting.
       During Officer Korte’s testimony in the second trial, defense counsel again
requested the statement be admitted as a spontaneous statement. No further evidence was
offered. The trial court agreed with the reasoning of the prior trial judge and excluded
the evidence as self-serving hearsay.
       Defendant contends the trial court abused its discretion and violated his federal
constitutional rights in excluding the evidence. He argues the statement was admissible


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both as a spontaneous statement (Evid. Code, § 1240) and as state of mind evidence (id.,
§ 1250).
       Defendant failed to object to the exclusion of the statement on constitutional
grounds or as state of mind evidence and has therefore forfeited those arguments. (See,
e.g., People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10 [failure to articulate state of
mind as theory of admissibility forfeited argument on appeal].) Additionally, defendant’s
constitutional argument is forfeited because he did not support his assertion with
substantive argument. (People v. Hovarter (2008) 44 Cal.4th 983, 1010 [“The ‘routine
application of state evidentiary law does not implicate [a] defendant’s constitutional
rights.’ [Citation.] As defendant provides no elaboration or separate argument for these
constitutional claims, we decline to address further these boilerplate contentions.”].)
       With respect to defendant’s contention that the statement should have been
admitted as a spontaneous statement under Evidence Code section 1240, the trial court
did not abuse its discretion. As the prosecution aptly argued at the Evidence Code
section 402 hearing, defendant made the statement after waiting in the emergency room
for a while with Officer Korte. Prior to making the statement, he had engaged in a car
chase, discarded his weapon, been arrested, and been taken to the hospital in an
ambulance. The facts support the trial court’s determination that the statement was not
spontaneous because defendant had ample time for reflection and a motive to deceive.


Cumulative Error


       Finally, defendant contends that cumulative errors at trial deprived him of due
process. As we have concluded that the trial court did not err, the contention necessarily
fails. (See People v. Hines (1997) 15 Cal.4th 997, 1062.)




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                                 DISPOSITION


     The judgment is affirmed.




             KRIEGLER, J.




We concur:




             TURNER, P. J.




             MOSK, J.




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