Filed 1/22/14 P. v. Martinez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                 Consolidated Case Nos.
         Plaintiff and Respondent,                                                F063992 & F063998

                   v.                                                        (Super. Ct. No. BF137549A)

MARIO MENDOZA MARTINEZ, et al.,
                                                                                         OPINION
         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Kern County. John W. Lua,
Judge.
         John Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant Mario Mendoza Martinez.
         Richard Doctoroff, under appointment by the Court of Appeal, for Defendant and
Appellant Fernando Ortiz.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Eric L.
Christoffersen, for Plaintiff and Respondent.
                                                        -ooOoo-
       Appellants Mario Martinez and Fernando Ortiz made a poor choice when they
selected their victim in this case. J.H. probably looked like an easy target; a 13-year-old
boy riding alone on a scooter in the early evening. Martinez and Ortiz, then ages 20 and
21 respectively, attacked him in the parking lot of a sporting goods store.
       J.H. fought back. The men succeeded in robbing the boy of his scooter, but Ortiz
had to be taken to the hospital and received five staples to close a serious head wound.
J.H. emerged from the incident relatively unscathed.
       A jury convicted Martinez and Ortiz of second degree robbery (Pen. Code, §§ 211,
212.5, subd. (c))1 and assault with force likely to produce great bodily injury (§ 245,
subd. (a)(1)). Ortiz, who was determined to be the primary instigator, was sentenced to
five years in prison. Martinez received a shorter prison sentence of three years. We have
consolidated their separately filed appeals.
       The first of several issues raised by appellants is a Wheeler/Batson2 claim.
Although the victim was Caucasian, and both Martinez and Ortiz are Hispanic, defense
counsel objected to the prosecutor’s use of a peremptory challenge to excuse one of the
only African-American members of the prospective jury pool. Having reviewed the
transcript of the voir dire proceedings, we agree with the trial court’s ruling that the
burden of establishing a prima facie case of group bias/discrimination was not satisfied.
       A separate challenge is made to the sufficiency of the evidence in support of the
convictions for assault with force likely to result in great bodily injury. This claim rests
upon the disparity between the injuries sustained by Ortiz and J.H. Such circumstances,
however, do not warrant reversal. The elements of section 245, subdivision (a)(1), are
not negated simply because Ortiz found himself on the losing end of a fight he started.

       1   All statutory references are to the Penal Code unless otherwise indicated.
       2People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986)
476 U.S. 79 (Batson).



                                               2.
Additional grounds for appeal are alleged on the basis of instructional error, ineffective
assistance of counsel, and the trial court’s failure to apply section 654 at the time of
sentencing. We reject each of these contentions. Accordingly, the judgments are
affirmed.
                 FACTUAL AND PROCEDCURAL BACKGROUND
       J.H. was riding a scooter in the parking lot of a sporting goods store in Bakersfield
when he encountered two men whom he had never met. Martinez and Ortiz approached
him and said, “Hey, do you want to get jacked?” As J.H. tried to move away, Ortiz
struck him on his left side. J.H. responded by swinging his metal scooter at Ortiz,
connecting with the side of his head. A scuffle ensued between all three individuals.
       J.H. was knocked down at least once. The men eventually pulled the scooter out
of his hands and used it to hit him as the fighting continued. The incident ended when a
vehicle pulled up to assist Martinez and Ortiz. Retaining possession of J.H.’s scooter,
Martinez and Ortiz entered the vehicle and drove away.
       Part of the incident was captured on video by a surveillance camera and witnessed
by employees of the sporting goods store. The store manager called 911 and was able to
provide the license plate of the vehicle in which the assailants had fled. J.H. also called
911 from his cell phone to report what had happened. Police arrested Martinez and Ortiz
later that evening and recovered the stolen scooter.
       Martinez and Ortiz were charged by criminal information with second degree
robbery (Count 1) and assault with force likely to produce great bodily injury (Count 2).
At the jury trial held in October 2011, the prosecution’s witnesses included J.H., two
employees from the sporting goods store, and three officers from the Bakersfield Police
Department. The video surveillance footage and audio recordings of the 911 calls were
also admitted into evidence. The defense called no witnesses, but argued Ortiz was the
true victim and Martinez simply came to his aid. It was further argued that the men did



                                              3.
not intend to rob J.H., but were instead trying to disarm him to prevent further injuries to
themselves.
       The jury returned guilty verdicts against both defendants. Martinez was sentenced
to three years in prison under Court 1 and a concurrent term of two years under Count 2.
Ortiz was sentenced to five years in prison under Court 1 and a concurrent term of four
years under Count 2.
                                      DISCUSSION
Wheeler/Batson Motion
Jury Selection
       Jury selection began with 18 prospective jurors in the jury box. This group was
comprised of men and women from at least three or four different ethnic and racial
backgrounds. As relevant to the appeal, a woman identified as Juror No. 2 was described
by the presiding judge and the trial attorneys as being black or African-American.
       Voir dire of the prospective jurors was conducted by the trial court with
supplemental questioning from defense counsel and the prosecution, in that order.
During the initial round of challenges, the prosecutor exercised his second peremptory
challenge to excuse Juror No. 2. Defense counsel objected to the juror’s dismissal. The
parties agree that the relevant exchange between the presiding judge and trial counsel on
this issue was as follows:

       “MR. CARTER [attorney for Ortiz]: Yes. I would like to – I guess this would be
       the appropriate time to bring a Batson-Wheeler motion for the dismissal of Juror
       No. 2, I believe she was. As far as I can tell – I don’t know if she is the only black
       panel member, or I think there might be one other one out there. It is hard for me
       to tell. But I bring that motion at this point.

       “MR. NKWONTA [attorney for Martinez]: If I may join, I would invite [the
       prosecutor] to articulate a specific reason why she was excused based on her
       answers because from my memory, she was answering every question telling us
       that she would be a fair and impartial juror. So what is the real basis for her being
       excused?


                                             4.
“THE COURT: First off, Counsel, insofar as a Batson-Wheeler motion is
concerned, can you articulate for the record any pattern of conduct posed by the
prosecutor to show that he is arbitrarily discriminating against a particular class,
racial ethnicity, or gender?

“MR. CARTER: Yes. I mean, it is a little difficult given the panel that we are
presented. I only – I can only say at this point that he has picked off 100 percent
of the black panel members. I can also say in answer to the questions given were
not significantly – raise no significant issues for cause; they raise no significant
issues of bias; they raised no issues that would, as far as I could tell, separate her
from any of the other panel members who are still presently on the panel. [¶]
Part of the problem, of course, is this is very early on; so a pattern – we’ve only, I
think, had three peremptories altogether. So a pattern is going to be hard to
determine. But given that we don’t have – as I said, my recollection of what I can
see from the entire panel present of – I think there was 80 people that were here –
it appears to me there was only, maybe, as far as I could tell, one other black
person or person of color on the panel. I don’t know how much of a pattern you
could even get with two people, but she was the only black person on the panel
without obvious reasons for dismissal; and, therefore, I bring a motion.

“THE COURT: At this time I am going to deny your motion in that it does not
appear to the Court that a prima facie case has been satisfied for the following
reasons: [¶] On the one hand, Mr. Carter, you are absolutely correct. If there is
racial discrimination or excusing of prospective jurors based on race alone, that
would support a prima facie case, so long as it’s eliminating either the entire
prospective juror population or at least a majority of that prospective juror
population. I do not know at this point when looking at the audience whether
there are other African-Americans or other persons of similar racial ethnicity to
Prospective Juror No. 2, who was, I think, the third peremptory challenge used
overall – was used to excuse her. [¶] I am going to deny your motion at this time
without prejudice subject to, I guess, laying the proper foundation for that motion
upon reviewing the panel in its entirety.

“MR. CARTER: I understand, Your Honor. I understand. But I just have – it
seems to me, just maybe to help clarify my thinking, you just stated the prima
facie case in that the only black person up there – and perhaps [in] the whole
[pool] was just dismissed.

“THE COURT: I don’t know. All I know is there was one black person, or
African-American, in Seats 1 through 18. I do not know if there are others in the
audience that are part of this jury panel.

“MR. CARTER: All right.


                                      5.
       “THE COURT: Anything further counsel?

       “MR. CARTER: “No.”
       Counsel for Martinez renewed his motion after the jury had been selected, which
prompted an additional discussion:

       “MR. CARTER: I will renew my Batson-Wheeler motion given there was, at best,
one other person of color in the audience.

       “THE COURT: All right.

       “MR. NKWONTA: I join.

       “THE COURT: Counsel, as I stated previously, it does not appear to the Court a
       prima facie case has been shown in which to grant that in that the Court does recall
       the previous statements offered by the attorneys. [¶] Mr. Cuper, any comment or
       response you would like to make on the record at this time regarding excusing at
       that time Prospective Juror No. 2, Ms. [S]?

       “MR. CUPER [the prosecutor]: No, thank you, Your Honor.

       “THE COURT: All right. The record should reflect that as previously
       represented, the attorneys – I mean, the defendants in this case are of Hispanic
       origin; that [Juror No. 2] appeared to be African-American and, at least within
       Seats 1 through 18, was the only African-American on the panel. [¶] It did not
       appear to the Court that there was any discrimination to a particular class of
       subjects insofar as exercising peremptory challenges to discriminate or to
       eliminate one racial origin over another. For those reasons, as well as the answers
       given by Prospective Juror No. 2 at the time, as well as questions asked of the
       panel in whole, that a prima facie case has not been shown.”
Analysis
       A Wheeler/Batson motion refers to the rule derived from its namesake cases that
peremptory challenges based on a prospective juror’s race or membership in a similar
cognizable class are prohibited under the state and federal Constitutions. (People v. Avila
(2006) 38 Cal.4th 491, 541.) African-Americans and African-American women are
cognizable groups in this context. (People v. Bell (2007) 40 Cal.4th 582, 597 (Bell).)
Although Martinez and Ortiz are Hispanic, case law holds that a defendant need not be of


                                            6.
the same race as a prospective juror to object to an unlawful peremptory challenge by the
prosecutor. (People v. Burgener (2003) 29 Cal.4th 833, 863, citing Powers v. Ohio
(1991) 499 U.S. 400, 415-416.)
       “There is a rebuttable presumption that a peremptory challenge is being exercised
properly, and the burden is on the opposing party to demonstrate impermissible
discrimination.” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) To rebut this
presumption, the party making a Wheeler/Batson motion must successfully complete a
three-step procedure. (Ibid.) “First, the defendant must make out a prima facie case ‘by
showing that the totality of the relevant facts gives rise to an inference of discriminatory
purpose.’ Second, once the defendant has made out a prima facie case, the ‘burden shifts
to the State to explain adequately the racial exclusion’ by offering permissible race-
neutral justifications for the strikes. Third, ‘[i]f a race-neutral explanation is tendered, the
trial court must then decide . . . whether the opponent of the strike has proved purposeful
racial discrimination.’” (Johnson v. California (2005) 545 U.S. 162, 168, fn. and
citations omitted.)
       The trial court in this case found the first step was not satisfied, i.e., that the
moving parties failed to establish a prima facie case of group discrimination. The
applicable standard of review requires us to consider the jury selection proceedings as a
whole to determine whether substantial evidence supports the ruling. (People v. Jenkins
(2000) 22 Cal.4th 900, 993-994; People v. Howard (1992) 1 Cal.4th 1132, 1155.) The
focus of the prima facie inquiry is on the moving party’s contentions and the record of
voir dire. (People v. Wimberly (1992) 5 Cal.App.4th 773, 781.) “Because of the trial
judge’s knowledge of local conditions and local prosecutors, powers of observation,
understanding of trial techniques, and judicial experience, we must give ‘considerable
deference’ to the determination that appellant[s] failed to establish a prima facie case of
improper exclusion.” (Id. at p. 782; cf., Uttecht v. Brown (2007) 551 U.S. 1, 9
[“Deference to the trial court is appropriate because it is in a position to assess the

                                               7.
demeanor of the venire, and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of potential jurors.”].)
       Contrary to the arguments of Martinez and Ortiz, a prima facie case did not arise
simply because the prosecutor dismissed the only African-American person on the
prospective jury panel (or possibly one of only two “persons of color” in the entire pool).
It is true that even a single race-based challenge is prohibited. (People v. Cleveland
(2004) 32 Cal.4th 704, 734.) However, a reasonable inference of discrimination requires
more than the excused juror’s membership in a cognizable group that is underrepresented
in the jury pool. In the recent case of People v. Harris (2013) 57 Cal.4th 804 (Harris),
where a prosecutor dismissed the only two black women who had been called to the jury
box, it was held that “the small number of African-Americans in the jury pool makes
‘drawing an inference of discrimination from this fact alone impossible.’” (Id. at p. 835.)
       Other cases have rejected appellants’ proposition in the face of more questionable
ratios than those presented here. In People v. Streeter (2012) 54 Cal.4th 205, 223, the
prosecutor’s use of three out of five peremptory challenges against African-Americans
did not establish a prima facie case. The same was true in People v. Clark (2011) 52
Cal.4th 856, 905, where the prosecutor challenged four out of five African-American
prospective jurors. Another example is Bell, supra, which involved the use of
peremptory challenges to exclude two of three African-American jurors. (Bell, supra, 40
Cal.4th at pp. 597-598.)
       While the dismissal of some or all members of a cognizable group is relevant to
the Wheeler/Batson analysis, other probative circumstances must exist. Commonly
considered factors include the nature of the questioning by the prosecutor, the racial or
ethnic background of the defendant and the victim, and the similarity of challenged jurors
based on characteristics other than group membership. (Harris, supra, 57 Cal.4th at pp.
834-835.) With regard to the first consideration, evidence that the prosecutor engaged in



                                              8.
“desultory voir dire” or no questioning at all may suggest a discriminatory motive. (Id. at
p. 835.)
       None of these factors supports the existence of a prima facie case in this matter.
Appellate counsel for Ortiz initially claimed the prosecutor failed to question Juror No. 2,
but admitted the mistake in his reply brief. The prosecutor asked questions of eight
individuals in the jury box, one of whom was Juror No. 2. The prosecutor challenged one
of those eight people for cause (Juror No. 11) and exercised peremptory challenges
against two others (Juror No. 2 and Juror No. 12). The prosecutor’s voir dire was brief,
but understandably so considering he went last after three rounds of questioning by the
trial court and two defense attorneys. (See People v. Christopher (1991) 1 Cal.App.4th
666, 672 [“Although the prosecutor challenged the sole African-American prospective
juror, his questioning of that juror, while short, was not perfunctory nor unusually limited
when compared with his questioning of other members of the panel.”].)
       The characteristics of the excused jurors disclose no suspicious patterns. Juror No.
11, who was Hispanic (as were several other members of the pool), was challenged for
cause after expressing distrust of police officers based on a personal experience of racial
profiling. Juror No. 12 differed from Juror No. 2 in age, race, occupation, and residence
(they lived on opposite ends of the county). Moreover, the lack of any racial
commonality between Juror No. 2, the victim, and the defendants, reasonably weighs
against the existence of a prima facie case.
       The only other grounds offered in support of the Wheeler/Batson motion was the
opinion of Ortiz’s defense counsel that the voir dire responses of Juror No. 2 “raise[d] no
significant issues for cause[,] no significant issues of bias [and] no issues that would, as
far as I could tell, separate her from any of the other panel members.” Martinez’s trial
counsel focused exclusively on the prospective juror’s stated ability to be fair and
impartial. Both lawyers ignored a basic tenet of the peremptory challenge procedure.



                                               9.
       Prosecutors and defense attorneys alike have the right to excuse a prospective
juror “based upon facial expressions, gestures, hunches, and even for arbitrary or
idiosyncratic reasons.” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) “On
appellate review, a voir dire answer sits on a page of transcript. In the trial court,
however, advocates and trial judges watch and listen as the answer is delivered. Myriad
subtle nuances may shape it, including attitude, attention, interest, body language, facial
expression and eye contact.” (Id. at p. 622.)
       It is hardly a remarkable occurrence for a prospective juror to be peremptorily
challenged despite their promise to remain fair and impartial. Express representations to
the contrary would subject the juror to dismissal for cause. In People v. Cornwell, 37
Cal.4th 50 (Cornwell), a defendant’s Wheeler/Batson motion “alluded to nothing more
than the circumstance that (1) one of the two African-Americans among the potential
jurors had been challenged, and (2) the juror would not have been subject to excusal for
cause.” (Id. at p. 69.) Our Supreme Court made the following observation before
concluding the defendant had failed to establish a prima facie case: “The circumstance
that the juror was not subject to exclusion for cause certainly did not support an inference
that the exercise of a peremptory challenge against her was motivated by group bias.”
(Cornwell, supra, 37 Cal.4th at p. 70.)
       Furthermore, a defense attorney’s favorable opinion of the excused juror’s voir
dire responses carries little weight, if any, in our analysis of the overall circumstances.
(See People v. Lancaster (2007) 41 Cal.4th 50, 76.) One could easily argue that defense
counsels’ objection to the dismissal of Juror No. 2 evidenced their preference for her to
remain on the jury for some unspoken reason – perhaps the same reason which motivated
the prosecutor to exercise his peremptory challenge. Nevertheless, Martinez and Ortiz
insist we must engage in what is known as a “comparative juror analysis” to glean insight
into the prosecutor’s thought process. They are wrong.



                                             10.
       “The rationale for comparative juror analysis is that a side-by-side comparison [of
the characteristics and voir dire responses] of a prospective juror struck by the prosecutor
with a prospective juror accepted by the prosecutor may provide relevant circumstantial
evidence of purposeful discrimination ….” (People v. DeHoyos (2013) 57 Cal.4th 79,
109.) However, the courts of this state have repeatedly held that such an undertaking is
only required at the third stage of the Wheeler/Batson analysis. (See, e.g., People v.
Howard (2008) 42 Cal.4th 1000, 1019-1020.) The California Supreme Court reiterated
its position during the pendency of this appeal: “When a trial court has found no prima
facie showing, and the prosecutor has declined to state reasons for the excusals, we have
declined to conduct a comparative juror analysis.” (Harris, supra, 57 Cal.4th at p. 836.)
       Appellants rely on U.S. v. Collins (9th Cir. 2009) 551 F.3d 914 (Collins), wherein
the Ninth Circuit described comparative juror analysis as “a tool for conducting
meaningful appellate review of whether a prima facie case has been established ….” (Id.
at p. 921.) Our Supreme Court has acknowledged the Collins opinion and does not
subscribe to the same view. (Harris, supra, 57 Cal.4th at p. 836.) The reason is simple:
employing such a procedure on appeal to the first step of the Wheeler/Batson inquiry is
the equivalent of a guessing game.
       Even at the third stage, comparative juror analysis has inherent limitations. “A
transcript will show that the panelists gave similar answers; it cannot convey the different
ways in which those answers were given.” (Lenix, supra, 44 Cal.4th at p. 623.) “Two
panelists might give a similar answer on a given point. Yet the risk posed by one panelist
might be offset by other answers, behavior, attitudes or experiences that make one juror,
on balance, more or less desirable. These realities, and the complexity of human nature,
make a formulaic comparison of isolated responses an exceptionally poor medium to
overturn a trial court’s factual finding.” (Id. at p. 624.)
       There are further limitations when appellate review focuses on the prima facie
grounds for the motion. “Where, as here, no reasons for the prosecutor’s challenges were

                                              11.
accepted or posited by either the trial court or this court, there is no fit subject for
comparison.” (Bell, supra, 40 Cal.4th at p. 601.) “Whatever use comparative juror
analysis might have in a third-stage case for determining whether a prosecutor’s proffered
justifications for his strikes are pretextual, it has little or no use where the analysis does
not hinge on the prosecution’s actual proffered rationales ….” (Bonilla, supra,
41 Cal.4th at p. 350.)
       Appellants’ reliance upon Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El) is
misplaced. “Miller-El arose at the third stage of a Wheeler-Batson inquiry, [which
occurs] ‘after the trial court has found a prima facie showing of group bias, the burden
has shifted to the prosecution, and the prosecutor has stated his or her reasons for the
challenges in question.’ The high court did not consider whether appellate comparative
juror analysis is required ‘when the objector has failed to make a prima facie showing of
discrimination.’ A fortiori, Miller-El does not mandate comparative juror analysis in a
first-stage Wheeler-Batson case when neither the trial court nor the reviewing courts have
been presented with the prosecutor’s reasons or have hypothesized any possible reasons.”
(Bell, supra, 40 Cal.4th at p. 601, citations omitted.)
       As stated above, a presumption exists that the prosecution has exercised its
peremptory challenges in a constitutional manner. Martinez and Ortiz do not rebut this
presumption. Their Wheeler/Batson motion was based on a challenge against one of
possibly two African-American members of the jury pool and their attorneys’ opinion
that there was no apparent reason for the prospective juror’s dismissal. Such a skeletal
assertion, without more, does not establish a prima facie case of discrimination.
       In considering the totality of the circumstances, we note the peremptory challenge
came in the early stages of the selection process at a time when there was a racially
diverse group in the jury box. According to defense counsel, at least one other African-
American person remained in the pool. It is also significant that neither appellants nor
their victim were of the same race as the excused juror. These facts, combined with the

                                               12.
absence of countervailing circumstances, constitute substantial evidence in support of the
trial court’s finding that a prima facie case of racial discrimination was not made.
Sufficiency of the Evidence
       Martinez and Ortiz each challenge the sufficiency of the evidence in support of
their convictions for assault by force likely to produce great bodily injury within the
meaning of section 245, subdivision (a)(1). To assess their arguments, we review the
entire record to determine whether any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th
327, 357.) “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[s] guilty beyond a reasonable doubt. In applying this test,
we review the evidence in the light most favorable to the prosecution and presume in
support of the judgment the existence of every fact the jury could reasonably have
deduced from the evidence.” (Ibid., citations omitted.)
       Criminal assault requires an attempt to inflict violent injury and the present ability
to do so. (§ 240.) For purposes of section 245, “great bodily injury” means significant or
substantial injury. (People v. Brown (2012) 210 Cal.App.4th 1, 7 (Brown).) “One may
commit an assault without making actual physical contact with the person of the victim;
because the statute focuses on use of a deadly weapon or instrument or, alternatively, on
force likely to produce great bodily injury, whether the victim in fact suffers any harm is
immaterial.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, original italics.) If harm
does occur, the nature of the victim’s injuries is a relevant fact to consider in determining
whether the force used was capable of producing, and likely to produce, great bodily
injury. (Brown, supra, 210 Cal.App.4th at p. 7.)
       At trial, defense counsel repeatedly reminded the jury that Ortiz was seriously
injured from being struck with J.H.’s scooter. Whatever strategy was behind this tactic, it
cuts directly against the arguments advanced on appeal. The testimony of J.H., along

                                             13.
with the video surveillance footage, was more than sufficient to establish that the same
scooter was used to hit J.H. on the head after appellants had wrested it from his hands. In
addition to scrapes and bruises on his body, J.H. sustained cuts on his scalp. The severity
of the head injuries sustained by Ortiz from the same “weapon” (as it was described by
defense counsel) supports a reasonable inference that the force used against J.H. carried
the same likelihood of significant or substantial harm.
       The video evidence and testimony from multiple eyewitnesses also supports the
conclusion that Martinez and Ortiz were both involved in the assault. Respondent aptly
notes that Martinez and Ortiz are subject to the doctrine of aider and abettor liability.
(§ 31.) Therefore, it does not matter which man actually swung the scooter at J.H. The
evidence in the record substantially supports the convictions of both appellants.
Ineffective Assistance of Counsel
       Ortiz asserts a claim for ineffective assistance of counsel based on his trial
attorney’s disclosure of certain information during opening statements. The remarks
were made in the context of explaining why appellants were at the sporting goods store at
the time of the incident. Counsel’s narrative was as follows: “[Ortiz was] hanging around
with his friends. They decide – it’s his grandfather’s birthday. They decide to go buy –
Mr. Ortiz decides to go buy his grandfather a little present. And in this case it was just a
little – some bullets, .40 caliber bullets so he could shoot. Okay? They are going into the
store to buy a present. They go into the store, make their purchase. They come out of the
store. You’ve heard a little description of that….”
       Ortiz believes his attorney “poisoned the minds of the jurors by deliberately and
unnecessarily informing the jury that [he] had purchased high power .40 caliber bullets as
a birthday present for his grandfather.” Martinez joins in the claim under the theory that
his own counsel should have moved for a mistrial because the prejudicial effect of the
information was equally applicable to him. Both positions are untenable.



                                             14.
       An appellant must establish two things to show ineffective assistance of counsel:
(1) the performance of his or her counsel fell below an objective standard of
reasonableness, and (2) prejudice occurred as a result. (Strickland v. Washington (1984)
466 U.S. 668, 687 (Strickland); People v. Hernandez (2012) 53 Cal.4th 1095, 1105;
People v. Bradley (2012) 208 Cal.App.4th 64, 86-87.) These elements are often difficult
to prove. “In evaluating defendant’s showing [a court accords] great deference to the
tactical decisions of trial counsel in order to avoid second-guessing counsel’s tactics and
chilling vigorous advocacy by tempting counsel to defend himself or herself against a
claim of ineffective assistance after trial rather than to defend his or her client against
criminal charges at trial.” (In re Avena (1996) 12 Cal.4th 694, 722, citations and internal
quotation marks omitted.)
       In accordance with the deferential standard of review, we presume the actions of
defense counsel “might be considered sound trial strategy” under the circumstances of the
case. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007 (Mesa), quoting Strickland,
supra, 466 U.S. at p. 689.) Therefore, “a conviction will be reversed for ineffective
assistance of counsel only when the record demonstrates there could have been no
rational tactical purpose for counsel’s challenged act or omission.” (Mesa, supra, 144
Cal.App.4th at p. 1007.) Here, it is fairly obvious Ortiz’s attorney was trying to
humanize his client after the prosecutor had portrayed him as a bully who randomly
attacked a much younger and smaller child for no apparent reason. The explanation also
served to emphasize Martinez and Ortiz had a specific purpose for being at the store and
were not simply roaming the streets in search of a victim.
       Appellants argue these goals could have been accomplished without reference to
the .40 caliber ammunition. However, as suggested by respondent, the rationale may
have been that by identifying the item, the jury was more likely to believe Ortiz had




                                              15.
sufficient funds such that he had no reason to steal J.H.’s inexpensive scooter.3
Respondent also notes counsel later elicited testimony from one of the store employees
that Ortiz had money to pay for the item.
       Under the circumstances, we are not convinced there could not have been a
rational tactical purpose for counsel’s statements. Regardless, even if appellants could
clear the first Strickland hurdle, their claim would fail under the second test. “It is not
sufficient to show the alleged errors may have had some conceivable effect on the trial’s
outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors
the result would have been different.” (Mesa, supra, 144 Cal.App.4th at p. 1008.)
Although the error alleged by Martinez is his attorney’s failure to move for a mistrial, his
claim stands or falls with the viability of Ortiz’s arguments since a mistrial is warranted
“only when a party’s chances of receiving a fair trial have been irreparably damaged.”
(People v. Ayala (2000) 23 Cal.4th 225, 282, citations and quotation marks omitted.)
       To say the reference to Ortiz’s purchase of ammunition was fatally prejudicial to
his case is a highly speculative and subjective argument. No guns were involved in the
incident and the ammunition was said to have been purchased for a relative. If there was
a gun owner on the jury panel, the information may have had a positive impact. In any
event, proof of reversible error “‘must be a demonstrable reality and not a speculative
matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.) In light of the overwhelming
evidence in support of appellants’ guilt, it is not reasonably probable that, but for
counsel’s alleged error, a more favorable verdict would have been rendered.
Alleged Instructional Error on Mutual Combat
Background
       Appellants each relied on a claim of self-defense to justify their actions against
J.H. Although he did not testify at trial, Martinez told police at the time of his arrest that
       3   J.H. claimed he bought the scooter for nine dollars.



                                              16.
the incident began when “a white guy hit [my] homey.” Both defense attorneys argued
J.H. was the initial aggressor and/or used unreasonable force against Ortiz. Martinez was
described as a “Good Samaritan” who saved Ortiz’s life. Pursuant to these theories,
counsel argued the defendants had a right to defend themselves and each other.
       The trial court instructed the jury on self-defense using CALCRIM Nos. 3470,
3471, 3472, and 3474. We are concerned here with CALCRIM No. 3471, a version of
which was given as follows:

       “A person who engages in mutual combat or who is the initial aggressor has a
       right to self-defense only if:

       “1. He actually and in good faith tries to stop fighting;

       “AND

       “2. He indicates, by word or by conduct, to his opponent, in a way that a
       reasonable person would understand, that he wants to stop fighting and that he has
       stopped fighting.

       “If a person meets these requirements, he then has a right to self-defense if the
       opponent continues to fight.

       “If you decide that the defendant started the fight using non-deadly force and the
       opponent responded with such sudden and deadly force that the defendant could
       not withdraw from the fight, then the defendant had the right to defend himself
       with deadly force and was not required to try to stop fighting.”
       Martinez and Ortiz present a twofold argument with respect to the term “mutual
combat” as used in the first sentence of the instruction. First, appellants allege the trial
court erred by failing to delete this term because none of the parties advanced a theory of
mutual combat during trial. Second, they contend the error was exacerbated by the




                                             17.
court’s omission of a bracketed portion of the instruction which provides the legal
definition of “mutual combat.”4
       Because mutual combat has a specific legal meaning, Martinez and Ortiz believe
the erroneous inclusion of the term without an accompanying definition confused the
jury. More specifically, appellants hypothesize that the jurors interpreted the instruction
to mean that the act of exchanging blows with J.H., regardless of the circumstances,
“disqualified the participants from claiming self-defense, even if the jury determined [that
neither of them were] the initial aggressor.”
Analysis
       As a preliminary matter, we decline to address the parties’ debate over whether
this issue was waived or forfeited. It appears from the record that the trial court held an
unreported jury instruction conference with the trial attorneys, the details of which are
unknown to us. In any event, appellants alternatively claim ineffective assistance of
counsel on grounds that their lawyers allowed the alleged instructional error to occur.
The latter contention inevitably requires a substantive analysis. As we will explain, there
is no basis for reversal under any theory.
       It is evident from the first sentence of the instruction that CALCRIM No. 3471
applies to a person who engages in mutual combat or is the initial aggressor. Appellants’
heavy reliance on People v. Ross (2007) 155 Cal.App.4th 1033 (Ross) overlooks the fact
that CALCRIM No. 3471 was not at issue in that case. Ross involved juror confusion
over a version of CALJIC NO. 5.56, which is an instruction devoted exclusively to self-
defense in a mutual combat scenario and does not include the disjunctive language of
CALCRIM No. 3471. (Ross, supra, 155 Cal.App.4th at p. 1042, fn. 9.) The instruction


       4 “A fight is mutual combat when it began or continued by mutual consent or
agreement. That agreement may be expressly stated or implied and must occur before the
claim to self-defense arose.” (CALCRIM No. 3471.)



                                             18.
in Ross was given erroneously, without any evidence that would have made it applicable,
and the jury sought clarification during deliberations. (Id. at pp. 1042, 1049-1052.) Not
only is Ross inapposite to the facts of this case, it also does not stand for the proposition
that failure to define “mutual combat” when using CALCRIM No. 3471 constitutes
reversible error.
       We agree the evidence adduced at trial does not support a reasonable inference
that the parties engaged in mutual combat. We do not agree, however, that inclusion of
those two words in the challenged instruction sent the jury into a mental tailspin. Jurors
are presumed to be intelligent persons “‘capable of understanding and correlating all jury
instructions which are given.’” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
“‘Instructions should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.’” (Id. at p. 1112,
quoting People v. Laskiewicz (1986) 176 Cal. App. 3d 1254, 1258.)
       “[G]iving an irrelevant or inapplicable instruction is generally “‘“only a technical
error which does not constitute ground for reversal.”’” (People v. Cross (2008)
45 Cal.4th 58, 67.) Such errors are reviewed under the standard articulated in People v.
Watson (1956) 46 Cal.2d 818, 836. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130
(Guiton).)5 We “affirm the judgment unless a review of the entire record affirmatively
demonstrates a reasonable probability that the jury in fact found the defendant guilty
solely on the unsupported theory.” (Guiton, supra, at p. 1130.)
       The record indicates the jury was advised under CALCRIM No. 200 that some of
the instructions might not apply, depending on their findings about the facts of the case,
and the inclusion of a particular instruction did not mean the court was “suggesting

       5 Appellants’ argument that a stricter standard of review applies is unfounded.
The authorities they cite hold that a higher standard applies if an erroneous instruction
would permit the jury to convict based on a factually insufficient scenario. (E.g., People
v. Aguilar, supra, 16 Cal.4th at p. 1034.) No such danger existed in this case.



                                             19.
anything about the facts.” The jury was also instructed to first determine what the facts
were, then follow the instructions that applied to the facts as they found them. We
presume the jury followed these instructions and ignored the inapplicable instructions.
(People v. Holloway (2004) 33 Cal.4th 96, 152-153; Guiton, supra, 4 Cal.4th at p. 1131.
       Appellants’ theory of juror confusion depends upon a highly speculative and
improbable chain of contingencies. The jury first needed to reach the conclusion that
J.H. was the initial aggressor, which itself requires a great leap of faith to assume. Next,
instead of ignoring CALCRIM No. 3471 as irrelevant since neither defendant was the
initial aggressor, the jury would have had to fixate on the words “mutual combat,” assign
a counterintuitive meaning to that term, and consequently disregard all other instructions
pertaining to self-defense and defense of others. Finally, despite believing J.H. started
the fight (and that Martinez was the Good Samaritan), the jury needed to somehow still
reach a unanimous conclusion that both defendants committed robbery and aggravated
assault while acting with the required mens rea for each crime. The last step in this
process is virtually impossible to conceptualize given the elements of those offenses.
       In summary, Martinez and Ortiz fail to satisfy the burden of showing reversible
error. The evidence supporting the verdicts is strong in comparison to the evidence
supporting their claims of self-defense and defense of others, which was meager. There
is no reasonable probability that the inclusion of the words “mutual combat” in the
challenged instruction, without an accompanying definition, affected the outcome of the
case. The ineffective assistance of counsel claims fail for the same reasons stated above.
Failure to Instruct on Necessity
       The second allegation of instructional error is based on the lack of a jury
instruction on the defense of necessity in relation to the robbery charge. Martinez and
Ortiz argue the trial court had a sua sponte duty to provide such an instruction. As a fall-
back position, both claim ineffective assistance of counsel arising from their attorneys’
failure to make such a request.

                                             20.
       We begin our analysis by examining the elements of the offense in question.
Robbery is “the felonious taking of personal property in the possession of another, from
his person or immediate presence, and against his will, accomplished by means of force
or fear.” (§ 211.) The crime also requires a specific intent to permanently deprive the
victim of their property. (People v. Anderson (2011) 51 Cal.4th 989, 994.)
       At trial, appellants maintained that despite driving off with J.H.’s scooter, neither
formed the requisite intent to rob him. Instead, their sole purpose in dispossessing J.H. of
the scooter was to prevent its further use as a weapon against them. Appellants now
claim they were entitled to an instruction on the doctrine of necessity in conjunction with
this argument.
       “The necessity defense is very limited and depends on the lack of a legal
alternative to committing the crime.” (People v. Beach (1987) 194 Cal.App.3d 955, 971.)
Because of its narrow applicability, trial courts do not easily allow a defendant to present
the defense to a jury. “To justify an instruction on the defense of necessity, there must be
evidence sufficient to establish that defendant violated the law (1) to prevent a significant
evil, (2) with no adequate alternative, (3) without creating a greater danger than the one
avoided, (4) with a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he did not substantially
contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
       Proving there was “no adequate alternative” to the crime is a particularly onerous
requirement. The concept is best illustrated by contrasting necessity with the similar but
distinct defense of duress. “Unlike duress, the threatened harm is in the immediate
future, which contemplates the defendant having time to balance alternative courses of
conduct.” (People v. Heath (1989) 207 Cal.App.3d 892, 901 (Heath).) Therefore, a
person who acts out of necessity “has the time, however limited, to form the general
intent required for the crime, although under some outside pressure.” (Ibid.)



                                             21.
       This aspect of the defense exposes the flaw in appellants’ argument. As plainly
stated in Heath, supra, “[t]he situation presented to the defendant must be of an
emergency nature, threatening physical harm, and lacking an alternative, legal course of
action.” (Id. at p. 901, italics added.) Neither Martinez nor Ortiz showed the absence of
an adequate alternative to breaking the law. The necessity doctrine cannot be invoked
without admitting there was time to consider and choose between alternative courses of
conduct. Here that would mean Martinez and Ortiz could have simply turned and run
away, but instead chose to rob J.H. of his scooter. The availability of an adequate lawful
alternative precludes the defense.
       A trial court’s duty to instruct sua sponte arises when there is substantial evidence
in support of the proposed defense. (People v. Barraza (1979) 23 Cal.3d 675, 691.)
Conversely, no such duty exists if there is insufficient evidence in the record to support
the defense. (See, e.g., People v. Miceli (2002) 104 Cal.App.4th 256, 267 [no substantial
evidence to support the second and fifth elements of necessity]; People v. Verlinde (2002)
100 Cal.App.4th 1146, 1165 [insufficient evidence to permit the trier of fact to find the
elements of necessity].) “The standard for evaluating the sufficiency of the evidentiary
foundation is whether a reasonable jury, accepting all the evidence as true, could find the
defendant’s actions justified by necessity.” (People v. Trippet (1997) 56 Cal.App.4th
1532, 1539.) As explained, the record in this case does not permit such a finding. We
thus conclude there was no error by the trial court or the defense counsel.
Section 654
       Martinez and Ortiz contest the trial court’s imposition of concurrent sentences
under Count 2. They argue the sentences should have been stayed pursuant to section
654 because the force used against J.H. during the robbery and the assault was part of an
indivisible course of conduct. We find no error.
       Section 654 prohibits multiple punishments for crimes arising out of a single act or
indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) The statute

                                            22.
provides, in pertinent part: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) A defendant’s intent and
objective, rather than the “temporal proximity of his offenses,” determines whether two
crimes are part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d
321, 335.)
       The applicability of section 654 “is a question of fact for the trial court, which is
vested with broad latitude in making its determination. Its findings will not be reversed
on appeal if there is any substantial evidence to support them. We review the trial court’s
determination in the light most favorable to the respondent and presume the existence of
every fact the trial court could reasonably deduce from the evidence.” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143, citations omitted.)
       “When a trial court sentences a defendant to separate terms without making an
express finding the defendant entertained separate objectives, the trial court is deemed to
have made an implied finding each offense had a separate objective.” (People v. Islas
(2012) 210 Cal.App.4th 116, 129.) Such findings will also be upheld on appeal if
supported by substantial evidence. (Ibid.)
       Robbery and assault by means of force likely to produce great bodily injury can
occur as part of the same incident and still be punished separately. (See, e.g., In re
Chapman (1954) 43 Cal.2d 385, 389-390.) “‘[A]t some point the means to achieve an
objective may become so extreme they can no longer be termed “incidental” and must be
considered to express a different and more sinister goal than mere successful commission
of the original crime[.] Section [654] cannot, and should not, be stretched to cover
gratuitous violence or other criminal acts far beyond those reasonably necessary to
accomplish the original offense.’” (People v. Cleveland (2001) 87 Cal.App.4th 263, 272,
quoting People v. Nguyen (1988) 204 Cal. App. 3d 181, 191.)

                                             23.
       Appellants essentially argue they used force against J.H. after gaining possession
of his scooter for the purpose of perfecting the robbery. The trial court viewed the facts
differently. If taking and keeping the scooter was their sole intent, Martinez and Ortiz
could have fled as soon as the item was in their possession. Instead, they continued
fighting with the boy and used the scooter to hit him. Indulging all reasonable inferences
in favor of the trial court’s decision, we have no difficulty concluding that substantial
evidence supports the finding of two separate objectives behind the use of force:
(1) depriving the victim of his property and (2) inflicting harm upon him.
                                RECOMMENDATIONS
       The judgments are affirmed.



                                                                 _____________________
                                                                               Gomes, J.
WE CONCUR:


 _____________________
Cornell, Acting P.J.


 _____________________
Hoff, J.




                                             24.
