Filed 6/28/16 P. v. Marta CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050716

         v.                                                            (Super. Ct. No. 10CF2948)

CESAR GERARDO MARTA,                                                   OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County,
Thomas M. Goethals, Judge. Affirmed.
                   Mark Alan Hart, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Scott C. Taylor and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
                                             *               *               *
                                    INTRODUCTION
              A jury convicted Cesar Gerardo Marta of the second degree murder of
Cesar Daniel Hernandez-Gutierrez (Gutierrez) and acquitted Marta of first degree
murder. (Pen. Code, §§ 187, 189.) The trial court found true the allegations that Marta
had previously been convicted of a serious felony (id., § 667, subd. (a)(1)) and had been
convicted of a serious and violent felony (id., §§ 667, subds. (d) & (e)(1), 1170.12,
subds. (b) & (c)). The court struck the prior serious and violent felony conviction for
purposes of sentencing and sentenced Marta to a term of 20 years to life in prison.
              The one claim of error asserted by Marta is the trial court should have
granted his motion for a mistrial. Marta’s motion for a mistrial was based on the court’s
decision to admit for a limited purpose, and later to strike, testimony from a witness that,
on the evening of the murder, Marta’s nephew stated, “we’re going to go to [the victim’s]
house and F him up.” We conclude the trial court did not err by denying the motion for a
mistrial and therefore affirm.


                                          FACTS
              Marta was married to Ysidra Cano as of the time of trial. They have two
daughters: Vanessa and Ruby. Vanessa suffers from mental illness. Marta was
estranged from Cano and lived in Nebraska.
              Marta returned to California in May 2010 to visit Vanessa. He drove to
California in a green Chevrolet van with Nebraska license plates. On May 26, Marta
went to Cano’s house to see Vanessa. During the visit, Vanessa told Marta that Gutierrez
had hit her. Later, Marta asked Joe Contreras, who was talking with Ruby, if Gutierrez
“still lived at the same place.” Contreras knew Gutierrez, but did not know the answer to
Marta’s question. A few hours later, Marta left in his van with his sister, his nephew
Jonathan Bautista (Bautista), and Vanessa.

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              At about 10:00 p.m. on May 26, 2010, Gutierrez was outside of his home in
Santa Ana. Others present were Gutierrez’s brothers, Mark Gutierrez and Ernesto
Gutierrez, Mark Gutierrez’s girlfriend, and Ernesto Gutierrez’s brother-in-law. Two men
walked toward Gutierrez. The two men walked past Gutierrez, then walked back and
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approached him. One man had a knife. The other man, later identified as Marta, asked
Gutierrez, “are you Danny?” Gutierrez responded, “yeah. Do I know you?” Marta said,
“this is for my little girl,” and started punching Gutierrez in the face and backed him into
a corner of a house.
              Gutierrez was knocked to the ground. When he got up and tried to run
away, the other man joined Marta in the assault. The man with the knife waved it at
Ernesto Gutierrez and his brother-in-law to prevent them from helping Gutierrez. As
Marta kicked, hit, and punched Gutierrez, the man with the knife stabbed Gutierrez seven
times. Marta and the other man ran to a van and drove off. The van did not have
California license plates.
              Gutierrez died of multiple stab wounds from a single-edged knife of five to
seven and a half inches in length.


                                      DISCUSSION
                                             I.
                                       Background
              Before trial, the prosecution sought permission to have Contreras testify
that on the evening of May 26, 2010, Bautista said, “we’re going to Danny’s house.” The
prosecution argued the statement was admissible as circumstantial evidence that Marta
and Bautista had the same mental state of an intent to go to Gutierrez’s home. The
prosecution also argued the statement was admissible under Evidence Code section 1223

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     The defense argued this man was Marta’s nephew, Bautista.

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as a statement by a coconspirator. The trial court ruled the statement was inadmissible
without further evidence that Marta heard the statement or that a conspiracy existed at the
time the statement was made.
              Contreras testified at trial as both a prosecution witness and a defense
witness. During the prosecution’s case-in-chief, Contreras testified that Vanessa told
Marta that Gutierrez had hit her. When Vanessa told this to Marta, he asked Contreras
whether that was true and if he knew whether Gutierrez lived at the same address.
Contreras testified that a few hours later, Marta left in a van with his sister and Bautista.
              Contreras was also called as a defense witness. Defense counsel asked
Contreras whether Bautista “interact[ed]” with Gutierrez and whether Bautista knew
where Gutierrez lived.
              On cross-examination, the prosecutor asked Contreras, “[w]hat did
[Bautista] say to you about where [Gutierrez] lives?” Defense counsel made a hearsay
objection. The trial court overruled the objection on the ground the question “goes to
state of mind.” The court explained the hearsay rule to the jurors and told them the
answer would be admitted not to prove the truth of the fact asserted but “the fact that
somebody heard the statement or has an opinion about it may have caused the hearer to
do something.”
              The following exchange then occurred:
              “Q. By [the prosecutor]: What did Jonathan [Bautista] say to you about
Danny’s house on the last—on that Wednesday when they came to pick up defendant?
              “A. [(Contreras):] With the bad word or without it?
              “The Court: Tell us what you heard because we are adults here.
              “The Witness [(Contreras)]: Okay. He said, ‘we’re going to go to his
house and F him up.’”
              Later, during a discussion on jury instructions, defense counsel renewed his
earlier objection to Contreras’s testimony and moved for a mistrial. Defense counsel

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argued that Contreras’s state of mind was irrelevant and no evidence had been introduced
to show that Marta had heard Bautista’s statement. The prosecutor conceded there was
no evidence that Marta was within earshot of Bautista when he made the statement about
going to Gutierrez’s house. The prosecutor argued that, because defense counsel had
asked Contreras about whether Bautista knew where Gutierrez lived, the prosecutor could
ask Contreras how he knew that information. Bautista’s statement about going to
Gutierrez’s house was relevant, the prosecutor argued, to show how Contreras knew that
Bautista knew where Gutierrez lived.
              The court tentatively ruled that the prosecutor’s question was proper but
that Contreras’s answer should be stricken as nonresponsive. The court stated it would
review the transcript and continue to think about the issue over the weekend before
making a final ruling.
              On the following Monday, the trial court struck Contreras’s testimony
about what Bautista said and denied the defense motion for a mistrial. At the request of
defense counsel, the trial court agreed to admonish the jury. The court admonished the
jury to forget that it heard Contreras testify, “[h]e said, ‘[w]e’re going to go to his house
and “F” him up.’” The court continued: “Forget you heard it. You cannot think about it,
talk about it, or consider it as evidence during your deliberations. And the lawyers aren’t
going to talk about it, because it’s no longer a piece of evidence that is fair game for
discussion or consideration. [¶] . . . So I hate to tell you what it is again, because now it’s
fresh in your memory, but it is a reminder, and you now have to strike that from your
notes, in effect. Strike that from your memory banks, in effect. And if it comes up in the
jury room, if somebody does mention it, the rest of you have to say, ‘[w]ait a minute, the
[j]udge struck that. We can’t talk about it, think about it, consider it as any sort of
evidence.’ All right. Everybody with me?”
              When instructing the jury, the court repeated the admonishment by telling
the jury, “[i]f I order[ed] testimony stricken from the record, you must disregard it and

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must not consider that testimony for any purpose.” The court also instructed the jury
with a modified CALCRIM No. 418, regarding consideration of a coconspirator’s
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statements.
                                                II.
                            Legal Standards: Motion for a Mistrial
                  A trial court’s decision on a motion for a mistrial is reviewed under the
abuse of discretion standard. (People v. Collins (2010) 49 Cal.4th 175, 198.) “‘A
mistrial should be granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction. [Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions. [Citation.]’” (Ibid.) A motion for
a mistrial should be granted only when a defendant’s chances of receiving a fair trial have
been damaged beyond repair. (Ibid.)
                  When the trial court determines that any prejudice can be cured by
admonition, and the court instructs the jury to disregard the stricken testimony, the jury is
assumed to have followed that instruction. (People v. Mendoza (2007) 42 Cal.4th 686,
703; People v. Cox (2003) 30 Cal.4th 916, 961, disapproved on another ground in People
v. Doolin (2009) 45 Cal.4th 390, 421.)




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   The jury was instructed, in relevant part: “In deciding whether the People have
proved that the defendant committed any of the crimes charged, you may not consider
any statement made out of court by Juan Bautista unless the People have proved by a
preponderance of the evidence that: [¶] 1. Some evidence other than the statement itself
establishes that a conspiracy to commit a crime existed when the statement was made;
[¶] 2. Juan Bautista was a member of and participating in the conspiracy when he made
the statement; [¶] 3. Juan Bautista made the statement in order to further the goal of the
conspiracy; [¶] AND [¶] 4. The statement was made before or during the time that the
defendant was participating in the conspiracy.”

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                                             III.

               The Trial Court Did Not Err by Denying Marta’s Motion
                                   for a Mistrial.
              In this case, the trial court struck Contreras’s testimony that Bautista had
said, “we’re going to go to his house and F him up,” and admonished the jury in the most
thorough language imaginable. The court told the jurors not to consider, think about, or
talk about the testimony, to delete the testimony from their memory banks, and to strike
the testimony from their notes, and to forget they ever heard the testimony. At the end of
trial, during general jury instruction, the court again told the jury to disregard the stricken
testimony. We assume the jury followed the admonishment and instructions. (People v.
Mendoza, supra, 42 Cal.4th at p. 703.) Although a bell cannot be unrung (People v. Hill
(1998) 17 Cal.4th 800, 845-846), it can be assumed the jury followed an instruction to
ignore the ring.
              Marta argues the admonishments could not have cured any prejudice
because the jury heard Contreras’s testimony on Thursday but the court did not strike the
testimony until the following Monday, giving the jurors a full weekend to consider the
testimony. In addition, Marta argues, the trial court, by instructing the jury with
CALCRIM No. 418, created at least an ambiguity as to whether the jury could consider
the stricken testimony as a coconspirator’s statement if the jury found the elements of a
conspiracy. According to Marta, the combination of allowing the jurors to ponder the
stricken testimony for four days, combined with the instruction on a coconspirator’s
statements, violated his rights under the Sixth and Fourteenth Amendments to the United
States Constitution to “a reliable jury determination of the elements of the charge and
right to place the burden upon the prosecution to prove guilt beyond a reasonable doubt
with competent evidence.”
              We reject those arguments on two grounds. First, the trial court did not
abuse its discretion by determining that an admonition to the jury would cure any


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prejudice from the stricken testimony. Second, the stricken testimony, even if considered
by the jury, was not prejudicial under the standard of Chapman v. California (1967) 386
U.S. 18. Under the Chapman v. California standard, error is harmless when it appears
“beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” (Id. at p. 24.) “‘To say that an error did not contribute to the ensuing verdict
is . . . to find that error unimportant in relation to everything else the jury considered on
the issue in question, as revealed in the record.’” (People v. Neal (2003) 31 Cal.4th 63,
86, quoting Yates v. Evatt (1991) 500 U.S. 391, 403.)
              The stricken testimony was consistent with—and arguably supported—
Marta’s theory of defense presented at trial. Contreras testified he heard Bautista say,
“we’re going to go to [Gutierrez’s] house and F him up.” The evidence was
overwhelming, and Marta agrees, that he was one of the two men who went to
Gutierrez’s house on the night of May 26, 2010. Thus, the statement that Bautista and
Marta were going to Gutierrez’s home did not tell the jurors anything they would not
have found in the absence of the statement. The statement that Bautista and Marta were
going to “F [Gutierrez] up” conveyed the intent to beat up Gutierrez or hurt him, not to
kill him. That was very nearly Marta’s theory of defense. In closing argument, Marta’s
counsel argued that Marta confronted Gutierrez with the intent of getting into “a good
old-fashioned fist fight” and land “[a] couple of punches, just to make sure it settles in.”
Marta “followed the old-fashioned rules of fighting, with your fists, no weapons, because
he was brought up to take care of [his] family.”
              Thus, if the jury ignored the admonition, or for any other reason considered
the stricken testimony, we conclude beyond a reasonable doubt the stricken testimony did
not contribute to the verdict.




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                                  DISPOSITION
            The judgment is affirmed.




                                            FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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