Filed 3/17/14 P. v. Martinez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B243221
                                                                           (Super. Ct. No. KA091026)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

PEDRO MARTINEZ,

     Defendant and Appellant.




                   Pedro Martinez appeals the judgment entered after a jury convicted him on
two counts of first degree murder (Pen. Code,1 §§ 187, subd. (a), 189), and one count of
attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664). The jury
also found true allegations that appellant committed multiple murders (§ 190.2, subd.
(a)(3)), and that a principal personally used and intentionally discharged a firearm, which
proximately caused great bodily injury or death (§ 12022.53, subds. (b) - (e)). On the
murder charges, the trial court sentenced appellant to two consecutive terms of life
without the possibility of parole, plus two consecutive terms of 25 years to life for the
firearm enhancements pursuant to section 12022.53, subdivision (d). Appellant was
sentenced to a concurrent term of life plus 25 years for the attempted murder and

         1 All further undesignated statutory references are to the Penal Code.
attendant firearm enhancement allegation (§ 12022.53, subd. (d)). He was also ordered to
pay various fines and fees including a $240 parole revocation restitution fine (§ 1202.45),
which was stayed, and was awarded 752 days of presentence custody credit.2 Appellant
raises claims of prosecutorial misconduct and instructional and sentencing error. He also
contends (1) the court erred in imposing a parole revocation restitution fine; and (2) he is
entitled to an additional 33 days of presentence custody credit. The People concede the
latter point, and we shall order the judgment modified accordingly. We also order the
parole revocation restitution fine stricken. Otherwise, we affirm.
                                STATEMENT OF FACTS
              Robert Ollie bought marijuana from appellant several times in March and
April of 2010. Ollie initiated each transaction by calling appellant and telling him how
much marijuana he wanted, which was usually $10 to $20 worth. Ollie then drove to the
front of a mobile home park in Pomona, where appellant met him on a bicycle. After
taking Ollie's money, appellant rode his bike into the mobile home park and returned with
the marijuana.
              At around 10:00 p.m. on April 29, 2010, Ollie called appellant, whom he
knew as "P-Dog," and said he wanted to buy $10 worth of marijuana. After appellant
agreed to the purchase, Ollie was picked up by his friend Michael McCall. Allen
Alexander, whom Ollie did not know, was sitting in the front passenger seat. Ollie got in
the back seat and directed McCall to the mobile home park where the transaction was to
take place.
              Appellant was waiting for them when they arrived. After Ollie handed
appellant a $10 bill, appellant rode away and returned a few minutes later with a bag of
marijuana that was much smaller than Ollie's previous purchases. Appellant told Ollie,
"It's 'AZ,'" which is the name of a higher-quality marijuana from Arizona. Ollie said,
"No, this ain't gon' work" and asked appellant to give him $5 back. Appellant told Ollie
to wait and rode back into the mobile home park with the bag of marijuana.

       2 Appellant's codefendant Maximillian Hernandez pled guilty during trial and is
not a party to this appeal.
                                             2
              After several minutes, Ollie called appellant and asked where he was.
Appellant replied, "I'll be out" and hung up. Shortly thereafter, Ollie heard what he
initially thought were firecrackers. Ollie got out of McCall's car and saw appellant
shooting at him from the front of the car. Ollie was shot in the back and the leg. He ran
to the back of the car, where he fell and lost consciousness.
              Police arrived at the scene at about 10:40 p.m. in response to calls reporting
that shots had been fired. Ollie was lying face down behind McCall's car and was alive
but unresponsive. McCall and Alexander were inside the car and were both dead from
gunshot wounds to the torso. Two bullet holes were visible in the windshield, and four
.30-30 caliber shell casings were found lying in the street.
              Ollie spent a month in the hospital. As a result of his injuries, he is unable
to walk and one of his lungs had to be removed. When he was interviewed on May 11,
2010, he was afraid to tell the detective everything that had happened on the night of the
shootings. He reported that he went to the location to buy marijuana from "P-Dog," but
claimed he did not know who had shot him. At trial, however, he acknowledged
knowing at the time that "P-Dog" was the shooter. Ollie also lied when he said he did not
recognize appellant from a six-pack photographic lineup. He did so because he did not
want to be a "snitch" and put his family in danger.
              A few hours after the shootings, appellant and codefendant Hernandez
picked up their friend Jesus Diaz in Los Angeles after his release from jail. When they
arrived at the mobile home park where the shootings took place, the street was blocked
by the police. Diaz asked if they knew why the street was blocked. Appellant and
Hernandez looked at each other and laughed, then told Diaz that three people had been
shot. Diaz asked who had done it, and appellant and Hernandez told him it was better if
he did not know.
              After appellant and Hernandez were arrested, they were placed together in a
cell that was wired to record their conversations. Hernandez told appellant that he was
terminally ill and that doctors said he would die within a year. At one point, appellant
and Hernandez agreed that they would tell the police everything in exchange for a 20-

                                              3
year prison sentence. Appellant later told Hernandez that since Hernandez only had a
year to live, appellant was going to tell the police that Hernandez shot the victims and
that appellant was just in the car and did not know what was happening. Hernandez
agreed that he would also tell this to the police.
              Appellant offered a different account when he testified at trial in his own
defense. He admitted firing the shots that killed Alexander and McCall and wounded
Ollie. At the time of the shootings, he had been up for three to four days under the
influence of methamphetamine. Prior to the shootings, he had sold Ollie "cools"
(cigarettes dipped in PCP) on 10 to 20 different occasions. He denied ever selling
marijuana to Ollie, even though he had previously admitted doing so.
              On the night of the shootings, Ollie called appellant and arranged to
purchase a "cool" from him. From their prior dealings, Ollie knew that one cool cost
$10. Appellant got one foil-wrapped cool and rode his bicycle to a car that was parked at
the front of the mobile home park where he lived. Ollie was sitting in the back seat.
When appellant started to hand Ollie the cool, Ollie gave him a one-dollar bill. Appellant
did not hand Ollie the cool, and the car drove away.
              Appellant went into a neighbor's trailer and began smoking
methamphetamine. Ollie called appellant several times and said he wanted his dollar
back. During one of the calls, appellant heard voices in the background saying, "fuck
that fool." Appellant agreed to return the dollar. He got his .30-30 Winchester rifle
because Ollie had never tried to short-change him before and appellant did not know the
two men who were with Ollie.
              Hernandez drove appellant to the front of the trailer park, and appellant hid
the rifle by his side. He got out and walked toward Ollie, who was standing outside of
McCall's car looking around. Ollie turned, and appellant saw something shiny in Ollie's
hand and thought it was a gun. Appellant fired the rifle at Ollie, then saw McCall and
Alexander moving around inside the car. Appellant thought they had guns too, so he shot
at them. Appellant returned to Hernandez's car and said, "Let's go pick up Jesse."
Appellant and Hernandez then drove to Los Angeles and picked up Diaz.

                                               4
              Appellant claimed that what he told Hernandez in the jail cell was not true.
He lied because he was scared and wanted to avoid a life sentence.
                                       DISCUSSION
                                              I.
                                 Prosecutorial Misconduct
              Appellant contends the prosecutor committed misconduct when he told the
jury during closing argument that the instruction on voluntary intoxication (CALCRIM
No. 625) only applies "where a person is so drunk or so high that that person . . . doesn't
know what he's doing." Although we agree the prosecutor misstated the law, we
conclude the error was harmless.
              "'The applicable federal and state standards regarding prosecutorial
misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct so "egregious that it infects
the trial with such unfairness as to make the conviction a denial of due process."'"
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves "'"the use of
deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"'
[Citation.]" (People v. Navarette (2003) 30 Cal.4th 458, 506.)
              When a claim of prosecutorial misconduct focuses on the prosecutor's
questions or comments before the jury, "'. . . the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.'" (People v. Cole (2004) 33 Cal.4th 1158, 1202–1203.) A
prosecutor commits misconduct by misstating the law during closing argument. (People
v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21.)
              During closing argument, the prosecutor stated: "Voluntary intoxication is
in instruction 625, and it says . . . you may consider, if any, of the defendant's voluntary
intoxication only in a limited way. You may . . . consider that evidence only in deciding
whether the defendant acted with an intent to kill or the defendant acted with deliberation
and premeditation or the defendant was unconscious when he acted. . . . [¶] Let's talk

                                              5
about that instruction and whether it applies to this case at all. That instruction is
reserved for situations where a person is so drunk or so high that that person has no clue
what that person is doing, and that person shoots and kills. The law says in that situation
that person . . . doesn't know what he's doing, and therefore, he doesn't have the intent to
kill . . . . He doesn't have the wherewithal to premeditate and deliberate about the crime."
At that point, defense counsel stated, "Objection. Misstates the law." The court then told
the jury: "I've provided the law, the jury will read the law, and the jury will follow the
law."
              We agree with appellant that the prosecutor misstated the law to the extent
he asserted that voluntary intoxication only applies when the defendant is so intoxicated
that he "doesn't know what he's doing." Such a level of intoxication amounts to
unconsciousness, a separate defense that was not at issue in this case. (People v. Ochoa
(1998) 19 Cal.4th 353, 423–424; CALCRIM No. 626.) The jury's consideration of
evidence of appellant's voluntary intoxication was not so limited. As the jury was
instructed, evidence of appellant's voluntary intoxication could be considered "in
deciding whether the defendant acted with an intent to kill, or the defendant acted with
deliberation and premeditation, or the defendant acted in imperfect self defense or
complete self defense." (CALCRIM No. 625.)
              Although the prosecutor misstated the law on voluntary intoxication,
reversal is not required because appellant fails to demonstrate "'. . . a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.'" (People v. Cole, supra, 33 Cal.4th at pp. 1202–1203.) Appellant
concedes that CALCRIM No. 625, which was given here, properly states the law on
voluntary intoxication. When appellant objected to the prosecutor's misstatement, the
court admonished the jury to follow the law as set forth in the instructions. The jury was
also given CALCRIM No. 200, which informed the jury that it was to follow the
instructions and disregard any comments by counsel that conflicted with those
instructions. We presume the jurors understood and followed these instructions, which


                                              6
were also highlighted by the prosecutor during his closing argument. (People v. Hinton
(2006) 37 Cal.4th 839, 871.)
              Moreover, the written instructions directly contradicted the prosecutor's
assertion that appellant's voluntary intoxication was only relevant if it rendered him
unaware of what he was doing. As particularly relevant here, the instructions provided
that the evidence could be considered in determining whether appellant acted in imperfect
self-defense. A person who purports to act in self-defense, be it imperfect or complete,
obviously and logically purports to act with knowledge of what he is doing. Defense
counsel also emphasized the evidence of appellant's intoxication during closing argument
and correctly stated that the evidence was relevant to appellant's claim of imperfect self-
defense even if his intoxication did not render him unconscious. Accordingly, it is not
reasonably likely the jury construed the prosecutor's remarks as consistent with the
instructions. (People v. Cole, supra, 33 Cal.4th at pp. 1202–1203.)
              The lack of prejudice is further demonstrated by the relative dearth of
evidence supporting appellant's claims of voluntary intoxication and imperfect self-
defense. The facts and circumstances surrounding the shootings strongly support an
inference that appellant intentionally acted with premeditation and deliberation, rather
than in response to a perceived threat to his safety. Although he claimed to have believed
that his victims were armed, no evidence to that effect was found at the scene. Moreover,
appellant concealed his rifle as he approached the victims and initiated the deadly
confrontation that ensued. Only a few hours after killing two people and seriously
wounding another, he laughed about it. When he was later arrested and placed in a cell
with Hernandez, he spoke about the crimes yet said nothing of the perceived need to
defend himself. In light of this evidence, it is not reasonably probable that the
prosecutor's misstatements affected the verdict and the error was thus harmless. (People
v. Watson (1956) 46 Cal.2d 818, 836; People v. Bordelon (2008) 162 Cal.App.4th 1311,
1323-1324 [prosecutorial misconduct during closing argument is subject to Watson
harmless error standard of review].)


                                             7
                                              II.
                           Refusal to Modify CALCRIM No. 520
              The court instructed the jury on the elements of murder in accordance with
CALCRIM No. 520. The jury was also instructed pursuant to CALCRIM No. 571 that
appellant was guilty of voluntary manslaughter and not murder unless the prosecution
proved he did not act in imperfect self-defense. The instruction went on to provide that
appellant acted in imperfect self-defense if (1) he "actually believed that he was in
imminent danger of being killed or suffering great bodily injury;" (2) he "actually
believed that the immediate use of deadly force was necessary to defend against the
danger;" and (3) "[a]t least one of those beliefs was unreasonable."
              Appellant claims the court erred in denying his request to modify
CALCRIM No. 520 to include the concept of imperfect self-defense. He asserts that the
court should have modified the instruction pursuant to the rule that criminal defendants
are entitled to requested instructions that pinpoint the defense's theory of the case. (See
People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) We are not persuaded.
              It is well settled that the trial court need not give pinpoint instructions
containing points that are adequately covered in other instructions. (People v. Gutierrez,
supra, 28 Cal.4th at p. 1144.) Appellant offers nothing of substance that would warrant
our rejection of this established rule. His claim that the jury may have been confused as a
result of the prosecutor's arguments relating to appellant's claim of imperfect self-defense
is also unavailing. The prosecutor made clear that the jury's primary task was to
determine whether appellant had acted in imperfect self-defense, and that the prosecution
bore the burden of proving beyond a reasonable doubt that he did not so act. Appellant
does not dispute that the instructions accurately stated the law. As we previously noted,
we presume the jury followed the instructions and heeded the admonition to disregard
any arguments that were contrary to those instructions. (People v. Hinton, supra, 37
Cal.4th at p. 871.)
              In his reply brief, appellant cites People v. Thomas (2013) 218 Cal.App.4th
630, for the self-styled proposition that the trial court was required to "elevate the

                                              8
absence of imperfect self-defense to its constitutionally required status as a listed
component of a murder conviction." The case does not support such a proposition. In
Thomas, the Court of Appeal held that the trial court had prejudicially erred in failing to
instruct the jury on provocation/heat of passion voluntary manslaughter (CALCRIM No.
570) as a lesser included offense of murder. In reaching that conclusion, the court
reasoned that the error was of federal constitutional magnitude because the court had
effectively failed "to adequately instruct the jury on the element of malice." (Id. at p.
643.) The court did not, however, conclude that the trial court was required to include
the elements of CALCRIM No. 570 within the instructions on murder, as set forth in
CALCRIM No. 520. Rather, the court merely held that the latter instructions should have
been given.
               Here, the jury was fully and accurately instructed on the elements of
imperfect self-defense as set forth in CALCRIM No. 571. Those instructions made clear
that appellant could not be found guilty of murder unless the prosecution bore its burden
of proving beyond a reasonable doubt that appellant did not shoot the victims in
imperfect self-defense. Contrary to appellant's assertion, the court was not required to
give the same instructions when instructing the jury on the elements of murder pursuant
to CALCRIM No. 520. The jury was instructed to consider the instructions as a whole,
and we do the same in determining their correctness. (People v. Moore (2011) 51 Cal.4th
1104, 1140.)
                                             III.
                      Firearm Enhancements (§ 12022.53, subd. (d))
               The information against appellant and codefendant Hernandez alleged as to
all counts that (1) a principal personally and intentionally discharged a firearm and
caused great bodily injury or death to the victims (§ 12022.53, subds. (d) & (e)(1)); (2) a
principal personally used a firearm (§ 12022.53, subds. (b) & (e)); and (3) a principal
personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). It
was also alleged that the crimes were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(4)). The jury found all of the firearm allegations to be true, yet

                                              9
reached a contrary finding on the gang enhancement allegation. In accordance with the
former findings, the court imposed enhancements of 25 years to life on all three counts
pursuant to subdivision (d) of section 12022.53.3
              Appellant claims that the firearm enhancements were imposed in violation
of his due process rights. He reasons that the jury's not true finding on the section
186.22, subdivision (b) allegation is fatally inconsistent with its true finding on the
section 12022.53, subdivision (e)(1) allegation, which only applies when "[t]he person
violated subdivision (b) of Section 186.22."4
              The court, however, did not impose the firearm enhancements pursuant to
subdivision (e)(1) of section 12022.53, and the jury made no findings under that
subdivision of the statute. Although the verdict form reflects a finding that "PEDRO
MARTINEZ, a principal, personally and intentionally discharged a firearm, to wit, a rifle,
within the meaning of Penal Code Sections 12022.53(c) and 12022.53(e)(1)," the
instructions made no reference to subdivision (e)(1) or the substance thereof.5 As
appellant acknowledges, the statute's inclusion on the verdict form is "just boilerplate[.]"




       3 The sentences on the enhancement allegations found true under subdivisions (b)
and (c) of section 12022.53 were stayed pursuant to section 654.
        4 Subdivision (d) of section 12022.53 states in pertinent part: "Notwithstanding
any other provision of law, any person who, in the commission of a felony . . . personally
and intentionally discharges a firearm and proximately causes great bodily injury . . . or
death, to any person other than an accomplice, shall be punished by an additional and
consecutive term of imprisonment in the state prison for 25 years to life." Subdivision
(e)(1) states: "The enhancements provided in this section shall apply to any person who
is a principal in the commission of an offense if both of the following are pled and
proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any
principal in the offense committed any act specified in subdivision (b), (c), or (d)."
       5 Appellant admitted he was the shooter and it was never alleged otherwise. It is
apparent that the allegations he acted as a "principal" were only relevant to the charges
against his codefendant Hernandez, who "pled out" of the case after instructions were
read to the jury.
                                             10
              The jury was, however, instructed on the elements of subdivisions (b), (c),
and (d) of section 12022.53. Pursuant to those instructions, the jury was required to
determine, as provided in subdivision (d), whether appellant personally and intentionally
discharged a firearm, thereby causing great bodily injury or death to the victims. The
verdict form unequivocally reflects that the jury answered this question in the affirmative.
Accordingly, the court was required to impose enhancements of 25 years to life as to each
count, notwithstanding the jury's rejection of the gang allegation. (§ 12022.53, subd. (d).)
                                            IV.
                               Presentence Custody Credits
              Appellant claims he is entitled to an additional 33 days of presentence
custody credit. The People correctly concede the point. Appellant was in custody from
the date of his arrest on June 18, 2010, and his sentencing on August 8, 2012. He was
thus entitled to 783 days presentence custody credit. (§ 2900.5, subd. (a).) The court,
however, only awarded 750 days of credit. We shall accordingly order that the judgment
be modified to correct this error.
                                            V.
                      Parole Revocation Restitution Fine (§ 1202.45)
              Appellant contends the court erroneously imposed and stayed a $240 parole
revocation restitution fine under section 1202.45 because his sentence does not include a
period of parole. The People acknowledge that appellant's position finds support in
People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan). They claim, however,
that Oganesyan was effectively overruled by People v. Brasure (2008) 42 Cal.4th 1037
(Brasure).
              We conclude that Oganesyan is still good law and find its reasoning
persuasive. The defendant in that case received two indeterminate sentences, one of
which was life without the possibility of parole. The Court of Appeal struck the parole
revocation restitution fine imposed by the trial court under section 1202.45, reasoning
that such a fine is proper only when the defendant's sentence includes a possibility of


                                            11
parole. (Oganesyan, supra, 70 Cal.App.4th at p. 1183.) In Brasure, our Supreme Court
held that a parole revocation restitution fine was properly imposed notwithstanding the
defendant's death sentence because he also received determinate sentences on related
counts for which a period of parole was applicable. The court distinguished Oganesyan
on the ground that the sentence imposed in that case did not include any determinate
terms for which a period of parole applied. (Brasure, supra, 42 Cal.4th at p. 1075.) The
court explained: "As in Oganesyan, to be sure, defendant here is unlikely ever to serve
any part of the parole period on his determinate sentence. Nonetheless, such a period was
included in his determinate sentence by law and carried with it, also by law, a suspended
parole revocation restitution fine. Defendant is in no way prejudiced by assessment of
the fine, which will become payable only if he actually does begin serving a period of
parole and his parole is revoked." (Ibid.)
              Appellant, like the defendant in Oganesyan, received a sentence that does
not include a determinate term with a period of parole under section 1170. "Because
[appellant's] sentence included no period of parole and he was sentenced to no
determinate term, it was improper to impose the parole revocation fine." (People v.
Battle (2011) 198 Cal.App.4th 50, 63, citing Brasure, supra, 42 Cal.4th at p. 1075, and
Oganesyan, supra, 70 Cal.App.4th at p. 1183; see also People v. DeFrance (2008) 167
Cal.App.4th 486, 505 [same], and People v. Jenkins (2006) 140 Cal.App.4th 805, 819
[same].) We shall accordingly order the fine stricken.
                                      DISPOSITION
              The judgment is modified to reflect that appellant is entitled to 783 days of
presentence custody credit. The parole revocation restitution fine imposed under section
1202.45 is stricken. The clerk of the superior court is directed to prepare an amended




                                             12
abstract of judgment and forward a copy to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed.
             NOT TO BE PUBLISHED.


                                        PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




                                           13
                                   Tia Fisher, Judge

                        Superior Court County of Los Angeles
                        ______________________________

             Brett Harding Duxbury, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee,
Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.




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