P. v. Martinez

Filed 3/9/07 P. v. Martinez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND MARTINEZ,
Defendant and Appellant.
B187947
(Los Angeles County
Super. Ct. No. KA067426)
APPEAL from a judgment of the Los Angeles Superior Court. George Genesta,
Judge. Affirmed.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr.,
Lawrence M. Daniels, and April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff
and Respondent.
_______________

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Raymond Martinez was convicted of the first degree murder of Cesar Delatorre
(count 1), with an enhancement for personal discharge of a firearm, causing death. He
also was convicted of possession of a controlled substance (count 2), because
methamphetamine was found in his pocket when he was arrested. He was sentenced to
prison for 50 years to life on count 1, plus the upper term of three years on count 2. He
contends: (1) The trial court should not have refused to instruct that a felony murder does
not occur when a felony is committed in the course of an intentional murder. (2)
Imposition of the upper term on count 2 violated his Sixth and Fourteenth Amendment
rights to a jury trial, under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and
Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
At our request, both sides have provided supplemental briefing on the effect of
Cunningham, which was decided after the initial briefing was completed.
We reject appellant’s instructional error, find no error from imposition of the
upper term on count 2, and affirm.
FACTS
1. Prosecution Evidence
Delatorre was killed shortly before midnight on August 5, 2004.1 His best friend,
Gerardo R., was present just before and just after the shooting. Gerardo was the
prosecution’s primary witness.
At the time of the crime, Gerardo had known appellant for about six weeks. They
met because Gerardo was dating Suzette G. (Suzette), and appellant was dating Suzette’s
cousin, Melissa G. (Melissa). Gerardo was on parole for auto burglary, grand theft auto,
and possession of cocaine. He and Suzette had purchased drugs from appellant.
Appellant possessed a gun and was usually high on methamphetamine. He was living at
the home of his friend, Anthony Valdez. Valdez was the codefendant below, but is not
involved on this appeal.
1
All subsequent events occurred in 2004 unless otherwise stated.

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Gerardo was with Delatorre when Delatorre first met appellant on the night of
August 4. Appellant and Delatorre discussed methamphetamine at that time.
Around 5:30 a.m. the next day, August 5, Gerardo heard a gunshot outside his
house, as he was dressing for work. When he went outside, he discovered that appellant
had “accidentally” fired a bullet into a wall, while showing his gun to Gerardo’s brother.
Appellant then rode in the car, while Gerardo’s brother took Gerardo to work.
That afternoon, a group of people used methamphetamine at Gerardo’s house.
The group included Gerardo, Gerardo’s brother, appellant, Delatorre, Melissa, and
Melissa’s brother. Appellant and Delatorre left separately. After Delatorre left, a person
telephoned, from whom Delatorre was supposed to obtain methamphetamine. Delatorre
returned to Gerardo’s house about 10 minutes later, and then left.
That evening, between 9:30 and 10:00 p.m., appellant told Melissa that “[h]e was
going to go with some friends and just take care of some business.”
Later that evening,2 Gerardo and Suzette sat in Suzette’s car in front of Gerardo’s
house. Suzette’s toddler daughter was with them in the car. Delatorre drove up alone in
his Jeep Cherokee. He stopped briefly behind Suzette’s car, and then drove away.
About 10 minutes later, Delatorre returned in the Jeep, and parked it behind
Suzette’s car. This time, appellant and Valdez were with him.
Valdez got out of the Jeep and stood by a wall. Appellant left the Jeep and walked
towards Suzette, who left her car. Appellant hugged Suzette, while whispering in her ear
that she and her daughter should “get out of there.” She told him that she was going to
the home of a friend named Benny. He told her “that he was with [her] at Benny’s house
the whole time.”
Gerardo got out of Suzette’s car and joined Valdez by the wall. Suzette drove off
with her daughter. Delatorre got out of the Jeep and talked to appellant. Appellant
appeared to be upset with Delatorre. Delatorre got back into the Jeep and drove away,
alone.
2
Some of Gerardo’s time estimates are confusing.

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Appellant and Valdez whispered to each other. Gerardo asked appellant what was
wrong. Appellant angrily said that Gerardo’s friend had “better come up with
something.” Gerardo offered to pay for anything that Delatorre owed. Appellant
answered, “It’s not even about the money any more.” Gerardo told appellant “not to do
anything stupid.” Appellant told Gerardo not to get involved or he would kill him.
Valdez and appellant resumed whispering to each other.
From inside the house, Gerardo’s father told him to come inside. Appellant said
he would wait for Delatorre. Gerardo went into the house. Thirty or 40 minutes later,
around 11:30 p.m., he went outside again, when he heard Delatorre drive up.3 He knew
Delatorre had returned because Delatorre was loudly playing something on the “huge”
speakers of his Jeep’s “good” stereo system.
Once outside, Gerardo saw that Delatorre was in the driver’s seat of the Jeep,
appellant was in the front passenger seat and Valdez was in the backseat, directly behind
Delatorre. Gerardo got into the back seat, behind appellant. Delatorre was nervous. He
told Gerardo that “they” had pulled a gun on him. He also said that he had given
appellant and Valdez what they wanted, but they would not leave the Jeep. Delatorre
activated his cell phone. Gerardo then saw that appellant was holding a .45-caliber
automatic weapon against Delatorre’s stomach. Also, appellant was “stoned on meth.”
Appellant ordered Delatorre to turn off the phone. Delatorre complied.
Gerardo said that he had to leave the Jeep to take out the trash. Nobody tried to
stop him. He got out of the Jeep and stood beside it. Appellant repeatedly ordered
Delatorre to turn on the vehicle and drive it down the street. The ignition switch on the
Jeep was broken so it could be started only by a special method that Delatorre used,
involving his fingers. He did not start it, and obviously did not want to start it. Appellant
asked Gerardo to tell Delatorre to start the Jeep. Gerardo told appellant to calm down
3
According to Suzette, while she was at Benny’s house, Delatorre drove up there,
stayed for about five minutes, and left.

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and put the gun away. He used the name “Ray” for appellant, as that was the name he
had used in the past. Appellant angrily said that his name was “Rico,” and not “Ray.”
He continued to point the gun at Delatorre, but no longer held it against his stomach.
Gerardo went into the house and dialed 911. He told the operator that people in a
car had pulled out a gun on his best friend. While talking on the telephone, he heard the
Jeep start. He and the operator both then heard a gunshot.
Gerardo ran outside. He heard a second shot, about 10 seconds after the first one.
He saw appellant pull Delatorre out of the driver’s side of the Jeep, and drop him to the
ground. Appellant then entered the Jeep, which was still running, and drove it away, with
Valdez inside.4
When the police arrived, Delatorre’s body was lying in the street. His wallet and
cell phone were missing. Gerardo suggested places where appellant and Valdez might be
found, including Melissa’s house.
Shortly before 4:00 a.m., an unknown person dropped off appellant and Valdez at
the home of Melissa and Suzette. Appellant and Valdez looked frightened. Appellant
asked Suzette whether she thought anybody who lived near Gerardo would recognize
him. He requested different clothing. Both he and Valdez had blood on their clothes.
The police soon arrived. They took appellant and Valdez into custody. In his pants
pocket, appellant had a baggie that contained a usable quantity of methamphetamine.
Laboratory tests later showed that both appellant and Valdez had Delatorre’s DNA on
their clothing.
4
Gerardo’s testimony was verified both by the 911 call and by testimony from a
neighbor. From inside his house, the neighbor heard two gunshots, “separated by a few
seconds, maybe less than a minute.” “The first one was more muffled,” while “[t]he
second one was louder and deeper.” The neighbor looked outside. Although his view
was partly obstructed, he saw that a sports utility vehicle was stopped in the middle of the
street. A man walked around the vehicle’s back end, towards the driver’s side. A minute
or two later, the vehicle drove off.

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According to the pathologist, Delatorre was killed by a .45-caliber bullet that
entered his head at his right upper cheek. The muzzle of the gun was pressed against his
face before the weapon was fired. He also suffered a flesh wound, from a bullet that
entered on the left side of his chest and exited on the right side of his lower abdomen. He
tested positive for methamphetamine.
Delatorre’s Jeep was subsequently found, submerged in a 40-foot ditch, at a
construction site near the home of appellant’s mother. The Jeep’s stereo and front and
rear speakers were missing.
On August 26, 2004, the day before the preliminary hearing was scheduled, a
friend of appellant’s visited him at the jail. Their conversation was recorded. They
spoke in a kind of code. The friend later told a detective what the code words meant,
although he repudiated that translation at the trial. Appellant asked the friend to kill the
witness, before the hearing the next day. He said that the gun used in the crime was
gone, but he could have another gun delivered to the friend, that night. He had already
asked somebody else to do this for him, but he did not trust that person. He said that he
“liked it,” and “[i]t felt good,” when he committed the crime.
2. Defense Evidence
Dr. Ronald Markman testified regarding the general effects of methamphetamine
use.
DISCUSSION
1. The Refused Instruction
Appellant maintains that the trial court committed reversible error when it refused
to give a special defense instruction on felony murder. We do not agree.
The evidence showed that appellant was angry because Delatorre failed to give
him something, probably money or drugs. Delatorre returned and handed over whatever
had been lacking. Appellant then forced Delatorre to start the Jeep, shot him in the head,
and drove off in the Jeep.
The jury was instructed, and the prosecutor argued, that a finding of first degree
murder could be based on either of two theories: (1) a willful, deliberate and

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premeditated murder, or (2) a felony murder, based on the underlying uncharged felonies
of robbery, carjacking, or kidnapping. The prosecutor further argued that appellant
simultaneously intended to kill, rob, carjack, and kidnap.
In connection with the felony-murder theory, the jury was correctly instructed, via
CALJIC No. 8.21, that “[t]he unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission or attempted
commission of the crime of a Kidnapping, Carjacking, or Robbery is murder of the first
degree when the perpetrator had the specific intent to commit that crime.” The jury was
also instructed on the elements of the underlying felonies.
However, the trial court refused to give an instruction that read: “If you find that
the defendant or co-defendant’s primary intent was to kill the victim and he or the co-
defendant commits or attempts to commit another felony during the commission of the
murder there is no felony-murder because the killing was not committed during the
perpetration of the underlying felony.”
The requested instruction was properly refused, as it was a confusing and incorrect
statement of law. Appellant could commit an intentional killing out of anger over a drug
dispute, and simultaneously be guilty of a felony murder, if he also killed while
attempting to commit kidnapping, carjacking, or robbery.
The requested instruction was derived from People v. Green (1980) 27 Cal.3d 1,
58-59, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834,
footnote 3. Green found insufficient evidence for a robbery murder special circumstance,
on the ground that the murder did not occur during the commission of a robbery, as the
victim was killed out of jealousy or revenge, and the robbery of her purse, rings and
clothes was “merely incidental” to the murder, to avoid identification of her body.
(People v. Green, supra, 27 Cal.3d at p. 61.)
The facts here were entirely different. The jury found that appellant intentionally
discharged his firearm, causing death. He held a gun at Delatorre’s stomach while
ordering him to start the Jeep and drive it down the street. After that, he pressed the gun
against Delatorre’s cheek, fired it as soon as Delatorre started the Jeep, and immediately

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took the Jeep. He killed while perpetrating a carjacking, with the goal of taking the Jeep.
There was therefore no issue over whether the underlying crime was merely incidental to
the murder. (People v. Green, supra, 27 Cal.3d at p. 61; see People v. Marshall (1997)
15 Cal.4th 1, 41.)
Although we find that the requested instruction was correctly refused, we also find
there was no prejudice, assuming that there was any error. The evidence overwhelmingly
established that appellant intended both to commit a premeditated murder and to kill
Delatorre to obtain his property, based on the following facts:
(1) Appellant knew the gun was operable, as he had fired it into a wall, earlier that
day. (2) Appellant was planning something that night, as he told Melissa that “[h]e was
going to go with some friends and just take care of some business.” (3) The plan
involved dangerous behavior, as appellant instructed Suzette to leave with her child when
he saw her outside of Gerardo’s house. (4) Appellant tried to create an alibi in advance,
as he told Suzette “that he was with [her] at Benny’s house the whole time.” (5)
Appellant argued with Delatorre, complained to Gerardo that Delatorre had “better come
up with something,” and said, “It’s not even about the money any more.” (6) Appellant
and Valdez had a whispered conference while Delatorre was gone. (7) Delatorre told
Gerardo, inside the Jeep, that he had given “them” what they wanted, but they would not
leave the Jeep, and were holding a gun on him. (8) Only Delatorre could start the Jeep,
and appellant shot Delatorre in the head, as soon as the Jeep was started. (9) After the
shooting, appellant immediately pulled Delatorre’s body from the Jeep and drove off in
it. (10) Delatorre had his cell phone when Gerardo was inside the Jeep, and presumably
had a wallet, but his cell phone and wallet were missing after he was shot. (11) When
the Jeep was recovered, its stereo system and speakers were gone. (12) Appellant
admitted the crime when his friend visited him at the jail.
Based on the foregoing evidence of guilt, we conclude that there was no possible
prejudice from the absence of the requested instruction.

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2. The Sentencing Issue
On count 2, possession of a controlled substance (Health & Saf. Code, § 11377,
subd. (a)), the trial court imposed the upper term of three years, rather than the midterm
of two years. As a circumstance in aggravation, it found that appellant had previously
been granted probation and failed on probation, and he was not a person who would
complete or who would be successful on probation. The court apparently chose the
circumstance in aggravation of former rule 4.421(b)(5) of the California Rules of Court,
which states, “[t]he defendant’s prior performance on probation or parole was
unsatisfactory.” For simplicity, we will refer to it here as the “failure on probation
circumstance.”
Appellant maintains that under Blakely, supra, 542 U.S. 296, and Cunningham,
supra, 127 S.Ct. 856, he was entitled to a jury determination on the failure on probation
circumstance. Respondent counters that (a) appellant forfeited the claim by failing to
object on this ground below, (b) the failure on probation circumstance fell within the
recidivism exception of Almendarez-Torres v. United States (1998) 523 U.S. 224, and (c)
assuming any error under Blakely and Cunningham, the error was harmless.
Blakely, supra, 542 U.S. 296 was decided on June 24, 2004. It held that the
statutory sentencing scheme of the State of Washington violated the defendant’s Sixth
Amendment right to a have a jury determine the facts that are essential to punishment, as
the scheme permitted an increase in the sentence based on a finding by the judge at the
sentencing hearing, even though that fact had neither been admitted by the defendant nor
found true by a jury. (Blakely, supra, 542 U.S. at pp. 298-305.) Blakely relied on this
language from Apprendi v. New Jersey (2000) 530 U.S. 466: “ ‘Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’ ” (Blakely, supra, at p. 301, quoting Apprendi v. New Jersey, supra, 530 U.S. at
p. 490.) It further held “that the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” (Blakely, supra, at p. 303, original italics.)

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Subsequent to Blakely, in People v. Black (2005) 35 Cal.4th 1238, 1254 (Black),
the California Supreme Court held that California’s determinate sentencing law (DSL)
does not violate the Sixth Amendment, because under the California scheme, the upper
term is the “ ‘statutory maximum.’ ” Black was decided on June 20, 2005. It was
overturned by the United States Supreme Court on January 22, 2007, in Cunningham,
supra, 127 S. Ct. 856, 871.
Cunningham ruled that it is the midterm of a DSL sentence, and not the upper
term, that constitutes the statutory maximum sentence. (Cunningham, supra, 127 S.Ct. at
p. 871.) It further held that the DSL violates a defendant’s Sixth Amendment right to a
jury trial, because it gives the trial judge, and not the jury, the authority to find the facts
that permit an upper term sentence. (Ibid.)
Before considering whether appellant’s sentence complied with the requirements
of Blakely and Cunningham, we first turn to the question of waiver.
A “waiver is ordinarily an intentional relinquishment or abandonment of a known
right or privilege.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464.) “If appropriate
waivers are procured, States may continue to offer judicial factfinding as a matter of
course to all defendants who plead guilty.” (Blakely, supra, 542 U.S. at p. 310.) Here,
however, there was no “appropriate waiver” of the right to a jury trial. Appellant was
sentenced on December 2, 2005, after Blakely and Black, but before Cunningham.
Nobody mentioned Blakely at the sentencing hearing. A request for a jury trial on the
aggravating circumstances at that time would have been futile, given the California
Supreme Court’s holding in Black. The circumstances do not justify a finding of a
knowing and intelligent waiver of the right to jury, as to the circumstance in aggravation.
As to the merits of appellant’s argument: The jury trial principles discussed in
Blakely and Cunningham apply to facts that increase the penalty, “[o]ther than the fact of
a prior conviction.” (Blakely, supra, 542 U.S. at p. 301, see also Cunningham, supra, 127
S.Ct. at p. 868.) The parties dispute whether a failure on probation falls within “the fact
of prior conviction” exception to the right to jury. (Almendarez-Torres v. United States,
supra, 523 U.S. 224; People v. Thomas (2001) 91 Cal.App.4th 212; People v. McGee

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(2006) 38 Cal.4th 682; but see People v. McGee, supra, 38 Cal.4th at pp. 709-716 (dis.
opn. of Kennard, J.); Shepard v. U.S. (2005) 544 U.S. 13, 28 (conc. opn. of Thomas, J.).)
The previous grant of probation is part of appellant’s sentencing history, as shown
by the summary of his record in the probation report. It is an outgrowth of the “[o]ther
than the fact of a prior conviction” exception, which also has been called the “recidivism”
sentencing factor. (See Almendarez-Torres v. United States, supra, 523 U.S. at pp. 243-
244; Apprendi v. New Jersey, supra, 530 U.S. at p. 488.) Recidivism is distinguishable
from other matters that are used to enhance punishment, “because (1) recidivism
traditionally has been used by sentencing courts to increase the length of an offender’s
sentence, (2) recidivism does not relate to the commission of the charged offense, and
(3) prior convictions result from proceedings that include substantial protections.”
(People v. McGee, supra, 38 Cal.4th at p. 698.) We therefore conclude that appellant’s
failure on probation was not the type of fact for which a jury trial was required, as the
Sixth Amendment has been interpreted by the United States Supreme Court.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FLIER, J.
We concur:
RUBIN, Acting P. J. BOLAND, J.

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