Filed 3/25/16 P. v. Martinez CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                             C077727

                   Plaintiff and Respondent,                                     (Super. Ct. Nos.
                                                                              NCR89077, NCR89078,
         v.                                                                   NCR89305, NCR89616)

FELIX MARTINEZ,                                                        ORDER MODIFYING OPINION
                                                                        AND DENYING PETITION
                   Defendant and Appellant.                                FOR REHEARING

                                                                          [CHANGE IN JUDGMENT]




THE COURT:


         It is ordered that the nonpublished opinion filed herein on March 9, 2016, is
modified as follows and appellant Felix Martinez’s petition for rehearing is denied:



                                                             1
1.     At page 2, at the end of the first sentence of the first paragraph of the Factual and
Procedural Background, which reads, “The facts underlying the offenses defendant
committed in August and October are not material to his arguments on appeal, and we
therefore omit them.”, add the following footnote 2 (with subsequent footnotes
renumbered accordingly):
                2 The fact we do not summarize these offenses does not
                preclude defendant from relying on the record, in any future
                petition for review, to make an argument regarding undue
                prejudice in connection with the October 2013 incident in
                support of a claim of error.
2.     At page 2, change the parenthetical in the second sentence of the first paragraph of
the Factual and Procedural Background, which reads, “Our factual focus is on the
December 2013 assault in the jail (case No. NCR89078—count V).”, so that the sentence
now reads:

                Our factual focus is on the December 2013 assault in the jail
                (case No. NCR89305—counts I, II and III).
3.     At page 3, at the end of the fifth sentence of the last, partial paragraph, which
reads, “The cellmate had blood on his hands; defendant was covered with blood but
uninjured.”, add the following footnote 4 (with subsequent footnotes renumbered
accordingly):
                4 In his petition for rehearing, defendant requests that the
                opinion be more detailed about the precise manner in which
                he was covered with blood. This is not the same as saying
                that our statement of facts is inaccurate; nothing prevents
                defendant from citing to the exact manner in which his
                appearance is described in the record in any future petition for
                review.
4.     At the top of page 13, change the last sentence of the first paragraph (which is the
last paragraph of part 6.0 of the Discussion), so that it now reads:




                                               2
             We will strike the enhancements imposed on counts IV (case
             No. NCR89078), VI, VII and VIII (case No. NCR89077).


5.    At page 13, change the second sentence of the Disposition, which reads, “The
on-bail enhancement for count VI is stayed.”, so that it now reads:

             The on-bail enhancements for counts IV, VI, VII and VIII are
             stricken.



      This modification effects a change in the judgment.



BY THE COURT:



           HULL                   , Acting P. J.



           BUTZ                   , J.



           DUARTE                 , J.




                                            3
Filed 3/9/16 P. v. Martinez CA3 (unmodified version)
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                             C077727

                   Plaintiff and Respondent,                                     (Super. Ct. Nos.
                                                                              NCR89077, NCR89078,
         v.                                                                   NCR89305, NCR89616)

FELIX MARTINEZ,

                   Defendant and Appellant.




         A jury convicted defendant Felix Martinez of all charges in an information that
consolidated the allegations of four complaints (apparently without consolidating the four
cases) involving events in August, October, and December 2013, which included
unlawful possession of a firearm and ammunition, an attack on a coworker on the street, a
failure to appear, and an attack on a fellow jail inmate; defendant had previously admitted


                                                             1
the various special allegations that were attached to the nine counts. The trial court
sentenced defendant to state prison for a term in excess of 34 years.1

       To reorder his claims thematically, defendant contends the trial court erred in
allowing an expert witness to offer an opinion on why various gang eyewitnesses testified
as they did; in striking the response of a witness as irrelevant; in failing to instruct on the
evaluation of expert testimony; in failing to fashion an instruction on the elements of
failure to appear; in instructing on the use of defendant’s prior convictions in assessing
his credibility; and in imposing multiple on-bail enhancements for a single period of
“own recognizance” (OR) release. The People concede the latter point. We agree that
the conviction for failure to appear (case No. NCR89616—count IX) must be reversed.
We shall thus reverse in part and otherwise affirm the judgment as modified.

                  FACTUAL AND PROCEDURAL BACKGROUND

       The facts underlying the offenses defendant committed in August and October are
not material to his arguments on appeal, and we therefore omit them. Our factual focus is
on the December 2013 assault in the jail (case No. NCR89078—count V).

       Defendant’s cellmate (who was still in jail at the time of defendant’s trial) testified
defendant was a member of a Los Angeles subset of an umbrella criminal gang;2 the
cellmate was a member of a different local subset. Defendant negotiated to obtain the
role of “shot caller” in the jail after its previous holder was released, a position to which



1 Defendant’s contentions on appeal do not for the most part require us to spell out the
particulars of his convictions and enhancements or his sentence. We will incorporate the
pertinent components in the Discussion.
2 The gang expert first became aware that defendant was living in Tehama County
during a parole sweep of gang members in 2004 or 2005. Defendant owned property
locally, and did not involve himself directly with the local subsets of the umbrella gang
because this would have diminished his stature as a Los Angeles member.


                                               2
inmate members of the various subsets of the umbrella gang owed obedience regardless
of defendant’s out-of-town affiliation. Failure to heed his orders would result in
discipline, which could be anything from a beating to a stabbing.

       There was a power struggle occurring between defendant and a rival inmate,
who had also claimed the role of shot caller but was falling out of favor with fellow gang
members. On Christmas Day, defendant told his cellmate that they would be disciplining
the victim. The victim had not heeded a directive to disregard the rival inmate, who was
a friend of the victim. On the following morning, there was an announcement that there
would be yard time. Defendant and his cellmate went to the victim’s cell. (As members
of the same gang, the inmates were released to participate as a group in activities such as
yard time.) At defendant’s direction, the cellmate entered the victim’s cell first and held
him in a bear hug, rolling him to the floor. Defendant had said that he intended to stab
the victim’s face and cut out his eyes. As the cellmate watched, defendant swung
overhand about a dozen times, striking the victim’s face. The victim called defendant by
his nickname and asked why he was doing this. As defendant was being taken away
from the cell, he shouted to the nearby rival inmate that the rival would be next.

       The cellmate acknowledged that his act of testifying would not be acceptable at
all to his gang, which would “green light” him for violent retaliation. He had dropped out
of the gang after the incident and was in protective custody.

       A guard responded to the attack. He pulled the cellmate out of the victim’s cell
and told him to get on the ground. The cellmate did not immediately comply with the
order. The guard also ordered defendant to get on the ground; defendant complied, and
the guard handcuffed him. The cellmate had blood on his hands; defendant was covered
with blood but uninjured. The victim’s face was bleeding profusely; it appeared there
was a cut on his right eyelid. At the hospital, the victim purported not to be able to
identify his assailants; when the guard provided him with their names, the victim simply


                                             3
said “Those fuckers.” A piece of a bloody pencil was retrieved from the toilet next to
which defendant’s cellmate had been standing; other parts of it were on the floor and on a
table next to the toilet. The victim suffered a one-centimeter cut to his right eyelid and
corneal abrasions in both eyes.

       Another inmate who was a former member of another East Los Angeles subset of
the umbrella gang had received a message from defendant (with whom he was familiar
“from the street” in Corning) directing him to join in an attack on the victim and the rival
inmate. Because he considered himself a dropout from the gang since 2005, he did not
comply. The former gang member’s cell was one level up and across from the victim’s
cell. He could see the front half of it. On the morning of the attack, he saw defendant
and his cellmate go into the victim’s cell, and could hear the victim screaming. He heard
the victim calling defendant by his nickname and asking why he was attacking him.
When the guards arrived, defendant’s cellmate came out of the cell and lay down on the
floor, at which point other guards used a Taser on him. He thought he heard defendant
warn the rival inmate that the rival would be next while the guards were taking defendant
away. The former gang member also acknowledged he was at risk of retaliation both
because he did not obey defendant, and because he was testifying against him.

       The victim stonewalled. He denied knowing anyone with the name of defendant,
defendant’s cellmate, the former gang member, the rival inmate, or the captain in charge
of the jail who interviewed him in January 2014. He at first acknowledged recognizing
defendant as someone he had seen in the jail, though later testified that he had never seen
defendant before. He did not know anyone with defendant’s nickname. He did not have
anything to say about his injury. He was not a member of a gang or familiar with any
gang. He denied being afraid to testify.

       The jail captain had testified multiple times as a gang expert. He confirmed that
the former gang member had been documented as a gang dropout, and that one could see


                                             4
the front portion of the victim’s cell from the vantage point of the former gang member’s
cell. He recalled being told of defendant threatening the rival inmate while being taken
away (a threat that the jail staff took seriously enough to transfer the rival to a jail in
another county), even if this was not reflected in the written reports. A shot caller does
not ordinarily inflict discipline personally, but the captain thought defendant did so to
emphasize his control over the unit. Although he was aware of conflict among the gang
members in the unit, he had previously been under the impression that the rival inmate
was the shot caller (albeit with waning power), and only learned after the incident of
defendant’s holding that status. In the captain’s opinion, the victim testified in a manner
consistent with the way any gang member called as a witness would testify.3 Given that
the victim had previously interacted with the various witnesses, it would be “strange” for
him to claim that he did not know them. It is uncommon for gang members such as
defendant’s cellmate and the former gang member to give testimony in support of the
prosecution.

       Defense counsel argued in closing that the cellmate was the actual assailant
responsible for the attack on the victim, and was part of an attempt to deflect blame
to defendant. Counsel contended defendant was not really the shot caller of the unit.

                                        DISCUSSION

1.0 The Jail Captain’s Testimony About the Gang Witnesses Was Proper

       Defendant argues it was error to allow the jail captain to express an opinion about
the manner in which the inmate gang witnesses testified. He claims this was
“effectively” an inadmissible opinion on the truthfulness of these witnesses. We
disagree.



3 The trial court overruled defense counsel’s objection to this testimony.



                                               5
       As with evidentiary rulings generally, the admission of expert testimony is subject
to the trial court’s reasonable discretion. (People v. Nicolaus (1991) 54 Cal.3d 551, 582.)
The behaviors of gang members are properly the subject of expert opinion when these are
counterintuitively beyond common experience. (People v. Gardeley (1996) 14 Cal.4th
605, 617.)

       The jury heard testimony from a victim who defied logic in claiming that he
lacked any knowledge about the assault on him, or fellow inmates he saw on a daily
basis. It may be that jurors who are well versed with the system of criminal justice could
correctly attribute this to the prison code of silence that prevailed even before the present
predominance of gangs, but it is nonetheless behavior that could be inexplicable to other
jurors. In this circumstance, it was not an abuse of discretion to allow expert testimony
to explain that the victim’s testimony is typical of a gang member. (In this respect, it is
similar to an expert who explains, pursuant to Evidence Code section 1107, why a
witness might recant a statement in a domestic violence case.) Ideally, the People should
have elicited this opinion in the form of a hypothetical gang witness rather than the
specific victim in this case. (People v. Vang (2011) 52 Cal.4th 1038, 1048.) But
defendant did not object on this basis, and in any event we cannot fathom that a jury
would have reached a result more favorable to defendant if presented with this testimony
through the means of a hypothetical question.4 Additionally, the captain never expressly
stated an opinion that the victim was being untruthful (contrary to defendant’s assertion),
just that the victim testified in a stonewalling manner typical of other gang witnesses.

       The same reasoning applies to the jail captain’s opinion that it is rare for a witness
who is a member of a gang to testify on behalf of the prosecution. Moreover, the opinion



4 We reject defendant’s efforts to transform this question of state evidentiary law into a
violation of the federal Constitution subject to the more stringent standard of prejudice.


                                              6
could not possibly be prejudicial where both witnesses themselves explained that they
were at risk of retaliation for their testimony. Again, contrary to defendant’s intimations,
the captain did not offer an express opinion that the witnesses were being truthful on this
basis.

         Finally, the captain’s description of the victim’s lack of knowledge of the identity
of his fellow inmates as “strange” is not any sort of opinion testimony. He was aware
from personal knowledge that the victim was in contact with the other inmates, and thus
was entitled to express his personal opinion about the plausibility of this aspect of the
victim’s testimony.

2.0 Striking the Guard’s Testimony Was Harmless

         During the testimony of the guard who responded to the incident, on cross-
examination he noted that a Taser had been used on defendant’s cellmate after the
cellmate was extracted from the victim’s cell. The prosecutor objected that this was
irrelevant and asked that the testimony be stricken. The trial court sustained the objection
and struck the testimony, after which (as noted above) the guard simply testified that the
cellmate had not been compliant with orders. Defendant contends the trial court’s actions
were prejudicially erroneous in light of the defense theory of the case.

         This argument is frivolous. The guard nonetheless testified that, unlike defendant,
the cellmate had not been compliant with orders. The former gang member testified that
he witnessed the use of a Taser on the cellmate. While defendant labels this testimony as
“misleading” because it ascribed compliant behavior to the cellmate before the
deployment of the Taser, the fact that the Taser was used dispelled any possibility the
jury might consider the cellmate to have been compliant (whatever the detriment to the
defense theory that might result from that viewpoint). As a result, whatever the necessary
evidentiary support this detail about the Taser (or noncompliance) provided for the
largely speculative defense theory, it was in fact before the jury. The trial court’s actions

                                               7
in sustaining the objection and striking the guard’s testimony therefore could not have
had any possible effect on the outcome of this case.

3.0 The Error in Failing to Instruct on Expert Testimony Is Harmless

       It is not disputed that a trial court has a duty to employ the pattern instruction on
expert opinions sua sponte. (Pen. Code, § 1127b;5 People v. Lynch (1971) 14 Cal.App.3d
602, 609 (Lynch).) The trial court in the present case did not.

       The failure to instruct on the weight of expert opinion is not prejudicial unless we
determine it is reasonably probable that a properly instructed jury would have rendered a
verdict more favorable to defendant. (People v. Reeder (1976) 65 Cal.App.3d 235, 241-
243 (Reeder); Lynch, supra, 14 Cal.App.3d at pp. 609-610.) Defendant argues at length
that the lack of the pattern instruction prejudiced him. He claims the captain’s opinions
were “essential to enhance and bolster the otherwise highly questionable testimony of”
the cellmate and the former gang member.6

       However, as in Lynch, the jury was otherwise instructed that it was the exclusive
judge of the facts in determining what happened and in deciding whether a witness was
credible, and it was also given a lengthy list of factors to consider in judging whether a
witness was credible. Nothing in the instructions or the arguments of counsel indicated
the jury was to abdicate these duties in favor of expert opinion. This is not a case such as
Reeder where a false aura of reliability in the absence of the instruction could be imputed
to the suspect science underlying polygraphs through the testimony of polygraph
“experts,” when the sole issue was whether or not a rape took place (the sole evidence


5 The substance of the statutory mandate for the instruction advises the jury that it may
rely on expert opinions on disputed issues, but it is not bound to agree with the opinion
and may disregard it if the jury finds it to be unreasonable.
6 We do not find the rest of the expert’s explanations of gang functioning to which
defendant adverts in his brief to be material to the determination of defendant’s guilt.


                                              8
being the conflicting accounts of the victim and defendant). Rather, here the two inmates
offered both eyewitness and auditory witness to defendant’s attack on the victim and
threats against the rival inmate, against which weighed only the victim’s feigned lack of
recollection and defense counsel’s speculations about an effort to make defendant a
“patsy.” The jury was fully aware that these witnesses were criminals and gang
members, and—at least in the case of the cellmate—an accomplice who was benefitting
with a reduced sentence for his cooperation with the prosecution. The jury was also
aware that both witnesses were testifying at risk of their personal safety, in the case of the
former gang member without any apparent offsetting benefit. In short, on review of the
record as a whole, we are not convinced it is reasonably probable that a jury would have
found in defendant’s favor had it been expressly instructed that it was not obligated to
agree with expert opinion.

4.0 The Instructions on Failure to Appear Are Inadequate

       All we need note in connection with this count is that on October 28, 2013, in a
Tehama County case involving transportation of a controlled substance that is not part
of the present appeal, defendant was ordered to appear personally. When he failed to
appear, the trial court issued a bench warrant for his arrest. He ultimately surrendered in
December 2013, and was remanded to jail (where the above attack on the inmate soon
followed).

       The only instruction the trial court included for this count (count IX) was in what
it termed the “charging instruction.” Thus, in addition to the other counts in the
information, the court reiterated for the jury that as to this count the information alleged
“defendant, on . . . October 28th, 2013, . . . was a person who was charged with the
commission of a felony . . . and was [OR] released from custody . . . , and who did
willfully and unlawfully fail to appear as required . . . in order to evade the process of”
the Tehama County Superior Court. Unlike the remainder of the offenses, the trial court


                                              9
did not include a separate instruction that expressly recited what the prosecution must
prove to establish guilt of the charged offense. The court did instruct that failure to
appear was a crime of specific intent; however, this instruction told the jury that the
particular specific intent required for failure to appear would be “explained in the
instruction for that crime,” which did not exist.

       As we have noted, the pattern jury instructions do not include any for the crime of
failure to appear. (People v. Carroll (2014) 222 Cal.App.4th 1406, 1411, fn. 4.) In
Carroll, the trial court did fashion an instruction that expressly told the jury the offense
required the prosecution to prove the elements specified in the statute, including the
specific intent to evade the process of the court. (We did not address the adequacy of this
instruction (id. at p. 1412, fn. 5).)

       The People contend defendant has forfeited this argument. This disregards the
“sua sponte” status of instructions on the elements of an offense. (People v. Cummings
(1993) 4 Cal.4th 1233, 1311.)

       The People take the tack that the jury would somehow discern that the allegations
of the information, coupled with a designation of the offense as requiring an unspecified
specific intent, amounted to the elements necessary to prove defendant’s guilt. However,
in attempting to assess how a jury interpreted ambiguous instructions, it is proper for us
to consult the arguments of counsel. (Middleton v. McNeil (2004) 541 U.S. 433, 438
[158 L.Ed.2d 701]; People v. Kelly (1992) 1 Cal.4th 495, 526-527.) The prosecutor in
both opening argument and his rebuttal expressly told the jury “all that is required” is
proof that defendant failed to be present in court when required, without making any
reference to the necessary mental state. Defense counsel, after noting he had stipulated to
the fact defendant was not present in court for that case, then stated, “I submit to you I am
not arguing about [this count].” Accordingly, we do not have any way to confirm that the



                                              10
jury considered any of the other factual elements of the statute, or that defendant willfully
intended to evade the process of the court.

       We therefore reverse defendant’s conviction for failure to appear (case
No. NCR89616—count IX). Should the People find it worth their while to retry
defendant for this 16-month component of a sentence of over 34 years, they may do so.

5.0 The Instruction on Use of Felony Convictions for Credibility Is Immaterial

       Defendant did not testify, nor was the truth of any extrajudicial statement of his
at issue. The trial court nonetheless included the pattern limiting instructions that the
felony conviction to which defendant had stipulated for purposes of the charges of
unlawful firearm and ammunition possession could be considered only for the purposes
of establishing his status as a felon or assessing his credibility. (CALCRIM Nos. 2511,
2591.) As the People concede, the limiting instruction on credibility was not relevant in
the circumstances of the present case. (People v. Meredith (2009) 174 Cal.App.4th 1257,
1263.) Putting aside whether defendant has forfeited the argument because he did not
propose a modification of the pattern instructions to omit the irrelevant material (People
v. Lee (2011) 51 Cal.4th 620, 638 [defense counsel must request clarification of accurate
statement of law]), we disagree with his premise that the jury would have used the
irrelevant limiting instruction as license to consider his prior conviction as evidence of
his criminal disposition.

       “It has been held that the giving of inapplicable instructions, correct in the abstract,
is not ground for a reversal.” (People v. Boggs (1936) 12 Cal.2d 27, 37; accord, People v.
Cross (2008) 45 Cal.4th 58, 67 (Cross) [technical error not warranting reversal in most
cases]; see People v. Lee (1999) 20 Cal.4th 47, 57 [in the absence of a showing of prejudice,
may not complain of correct but inapplicable instruction].)




                                               11
       Under federal and state law, defendant must establish a reasonable likelihood that
a reasonable juror would have interpreted the instruction in the erroneous manner he posits.
(Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316]; People v. Williams
(2013) 56 Cal.4th 630, 688; Cross, supra, 45 Cal.4th at pp. 67-68.)

       The jury in the present case received the standard instructions that some instructions
might not apply to the facts as the jury determined them, and that in evaluating witnesses
generally, the jury could consider a felony conviction only for the purpose of evaluating the
credibility of the testimony of the witness. A reasonable juror would thus correlate the
reference to defendant’s credibility in the challenged limiting instructions as referring to the
credibility of any testimony of defendant, and in correlation with the other instruction realize
that this limiting instruction did not have any application to the case. We do not find any
reasonable possibility that a juror instead would fashion license to consider criminal
propensity out of thin air. We reject this argument.

6.0 The Trial Court Improperly Imposed Multiple On-bail Enhancements

       The trial court imposed two-year enhancements (Pen. Code, § 12022.1) for
committing an offense while on bail on all counts not involving the attack in the jail.
Three of these were applied to the base terms consecutively (cases No. NCR89078—
count V; No. NCR89077—count VI; and No. NCR89616—count IX); the court stayed
the other three along with the convictions to which they applied (pursuant to Pen. Code,
§ 654).

       An on-bail enhancement is based on the nature of the offender as a recidivist, not
the conduct of the underlying offense. (People v. McClanahan (1992) 3 Cal.4th 860,
868-869, 870-871; People v. Anderson (1995) 35 Cal.App.4th 587, 593.) As a result, a
trial court may impose only one such enhancement in sentencing a defendant on multiple
convictions. (People v. Augborne (2002) 104 Cal.App.4th 362, 376-377.) The People
correctly concede the point.

                                               12
      The issue is moot with respect to the conviction for failure to appear (case
No. NCR89616—count IX), which we reverse. We will stay the enhancement imposed
on count VI (case No. NCR89077—unlawful possession of a firearm).

                                     DISPOSITION

      Count IX is reversed, which the People may elect to retry within 30 days of the
issuance of our remittitur. The on-bail enhancement for count VI is stayed. Otherwise,
the judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment reflecting these modifications and to forward a certified copy to the Department
of Corrections and Rehabilitation.




                                                       BUTZ                  , J.



We concur:



      HULL                 , Acting P. J.



      DUARTE               , J.




                                            13
