Filed 4/19/21 P. v. Martinez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO MARTINEZ,

Defendant and Appellant.

 B305289

 (Los Angeles County

 Super. Ct. No.BA481185)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Richard S. Kemalyan, Judge. Affirmed.

A.William Bartz, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael R. Johnsen and David W. Williams, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Appellant Francisco Martinez appeals from his conviction 

for robbery. He contends the court erred by denying his request 

to sanitize his prior robbery conviction to omit the fact that it was 

the same crime as the charged offense. He also argues that there 

was insufficient evidence to support giving a jury instruction on 

flight. We affirm. 

PROCEDURAL HISTORY

An information filed in 2019 charged appellant with the 

second degree robbery of B. Perez (Pen. Code § 2111). The 

information further alleged appellant suffered a prior conviction 

of a serious or violent felony, a 2011 robbery (§§ 667, subds. (a)(1) 

and (d), 1170.12, subd. (b)) and a prior felony conviction for 

spousal abuse in 2016 (§ 273.5, subd. (a)

2

On December 19, 2019, the jury found appellant guilty of 

second degree robbery. Appellant admitted his prior robbery 

conviction and the court found the related allegations to be true. 

The court sentenced appellant to the upper term of five years, 

doubled for the prior strike conviction, for a total of ten years in 

state prison. The court struck the five-year enhancement

allegation under section 667, subdivision (a)(1). Appellant timely 

appealed. 

1All further statutory references are to the Penal Code 

unless otherwise indicated.

2 The information further alleged that during the 

commission of the offense, appellant inflicted great bodily injury 

upon the victim within the meaning of section 12022.7, 

subdivision (a). The prosecution withdrew this allegation during 

trial. 
3

FACTUAL BACKGROUND 

I. Prosecution Evidence

G. Rosas testified that she was walking from her home to 

the store with her sister around 7:45 p.m. on September 7, 2019. 

As they walked south on Broadway in Los Angeles, they saw 

appellant, their neighbor, and stopped to say hello. During this 

conversation, another man walked up to them, whom Rosas did 

not know. Rosas did not remember whether the other man said 

anything when he walked up. Rosas and her sister then resumed 

walking to the store. On her way home from the store, she saw 

the other man again and he appeared to be injured. 

B. Perez, the victim, testified that he was walking home 

from a friend’s house on the evening of September 7, 2019. He 

had been drinking alcohol earlier that day, but denied drinking 

at the time of the incident. Perez was carrying a speaker and a 

container of juice. After defense counsel showed video 

surveillance footage of the incident taken from a nearby store, 

Perez acknowledged that he stopped for a moment next to 

appellant and two women, but he did not remember saying 

anything to them. He did lift his right arm and gesture while 

standing next to the group, as shown in the video, but testified 

that he did not remember why he did so. 

After Perez resumed walking down Broadway, Perez 

testified that appellant approached him on a bicycle. Appellant 

told Perez he wanted the speaker Perez was carrying; Perez said 

“no.” Perez testified that he tried to hold onto the speaker, but 

appellant “took it.” Appellant hit him, causing him to lose

consciousness. He fell to the ground, scraping his face and 

injuring his eye. When he regained consciousness, the police 

were there and his speaker was gone. 
4

Perez told a police officer at the scene that his first 

encounter with appellant was when appellant came at Perez from 

behind and tried to reach into his pocket where he keeps his 

wallet. Perez acknowledged that this was not visible from the 

surveillance video. He also told police that while he was on the 

ground, appellant continued to try to take his wallet, but Perez 

pushed him away. 

Perez met with Los Angeles Police Department (LAPD) 

Detective Gabriel Nily approximately a week after the incident. 

Perez told Nily that he had been hit in the face and lost 

consciousness, and that the assailant took his portable speaker. 

Perez acknowledged that he did not mention the speaker to the 

police at the scene immediately after the incident. At trial, Perez 

identified on the video where he was holding the speaker in his 

left arm before the incident. Perez also testified that he recalled, 

and the video showed, that appellant “took the speaker . . . then 

hit me.” 

LAPD Officer Chad Fillinger testified that he arrived at the 

scene on September 7, 2019 after being flagged down by a 

passerby. Fillinger spoke with Perez in English, although Perez 

seemed to speak primarily Spanish. Perez was sitting on the 

ground with injuries to his face; he appeared dazed. Fillinger 

testified that Perez also appeared “potentially” intoxicated 

because he had difficulty speaking, his speech was slurred, and 

he was unable to stand or focus. Perez had his wallet and cell 

phone. Fillinger did not see any other personal items nearby. 

With assistance in Spanish from a passerby, Perez told Fillinger

that a man came up from behind and tried to grab his wallet out 

of his pocket, but he stopped the suspect and turned toward him, 

then the suspect punched him three times in the face with his 
5

fist. 

Detective Nily testified that he retrieved video surveillance 

footage from two cameras at a bicycle shop near the incident. He 

reviewed and discussed the video footage at trial, including the 

portion where it appeared the victim was struck by the assailant. 

He described the video as showing appellant grabbing the 

speaker and Perez pulling it back, then appellant punching Perez 

in the face. Afterward, appellant walked with his bicycle 

northbound on Broadway. Nily noted that the video did not show 

the victim on the ground, except for one of his feet, which 

twitched and then remained motionless for several minutes. 

Afterward, the video showed the victim getting up. Nily also 

testified that he did not see on the video anyone other than the 

assailant get close enough to take anything from the victim while 

he was on the ground. 

II. Defense Evidence

Appellant testified that just before the incident he was 

walking home northbound on Broadway. He stopped to talk to 

Rosas and her sister. During the conversation, he noticed Perez 

out of the corner of his eye. He heard Perez say “muchachitas” in 

Spanish to the girls, which he understood to mean Perez was 

trying “to hit on them” in a “sexual way.” This made appellant 

“really mad” because one of the girls was underage. 

Perez started walking northbound and appellant began to 

follow him, planning “just to hit him because he sa[id] something 

bad or disrespectful to the girls.” Perez was holding two objects 

and appellant thought Perez was going to hit him with one of 

them, so appellant “grabbed it so I could start a fight” and to 

ensure a “fair fight.” He did not remember what the object was. 

As he tried to pull the object away from Perez, Perez resisted. 
6

Then appellant hit Perez one time, knocking Perez down. After 

that, appellant retrieved his bicycle and began to walk home. As 

he passed Perez, appellant bent down and told him “don’t talk to 

the girls like that.” Appellant denied taking anything from 

Perez. When the prosecutor showed portions of the surveillance 

video during trial, appellant denied that the video showed him 

picking anything up off the ground after hitting Perez; he claimed 

that was when he bent down to speak to Perez. After the 

incident, appellant went home. 

Appellant was arrested on September 13, 2019. After his 

arrest, he denied to police that he had punched Perez. Appellant

admitted at trial that he was convicted of felony robbery in 2011 

and felony spousal abuse in 2016.

DISCUSSION

I. Evidence of Prior Conviction

Appellant contends the trial court erred in refusing his 

request to sanitize his prior robbery conviction, which the 

prosecution used to impeach him at trial. We find no abuse of 

discretion and therefore affirm.

A. Background

In anticipation of appellant’s testimony, the prosecutor 

sought to introduce evidence of two of appellant’s prior felony 

convictions for purposes of impeachment: the 2011 robbery and 

the 2016 spousal abuse conviction. Defense counsel conceded 

that they were crimes of moral turpitude and felonies, but 

requested that they be sanitized to eliminate mention of the 

specific felony. Defense counsel argued that telling the jury 

about a prior robbery by appellant would be more prejudicial 

than probative, as “it might lead the jury to believe that he is 

guilty of this crime simply because he has a propensity to commit 
7

robberies.” Defense counsel also argued that identifying the 

specific crime would not “help the jury determine whether or not 

my client was being truthful or credible,” and suggested that the 

prosecutor could refer to the prior convictions as “crimes of moral 

turpitude.” 

The prosecutor responded with concern that the jury might 

not understand the meaning of “a crime of moral turpitude.” The 

prosecutor also argued that “some felonies reflect more on 

someone’s credibility than others, and I think robbery is one of 

those,” and further noted that many jurors did not know which 

crimes are felonies. 

The court found that defense counsel’s proposal would not 

“give the jury any guidance” in evaluating the crimes as relevant 

to appellant’s credibility or veracity; instead, it would be 

“information in a vacuum.” The court concluded that the 

prosecution was “entitled to present these crimes of moral 

turpitude for purposes of impeachment.” After weighing any 

potential prejudice against the probative value of identifying the 

precise offenses, the court excluded any reference to the 

underlying facts of the priors. However, the court found it was 

not “sufficient to tell the jury they’re crimes of moral turpitude, 

and that is because there’s nowhere in the jury instructions . . . 

that gives the jury any understanding of what a crime of moral 

turpitude is.” The court concluded that “to the extent that the 

description of the offenses goes to the jury understanding 

information that is admissible, the court believes that the People 

should be entitled to note the nature of [the] offenses.” The court 

also noted that it would instruct the jury with CALCRIM No. 

316, which states that if the jury found a witness had been 

convicted of a felony, it could “consider that fact only in 
8

evaluating the credibility of the witness’s testimony.” 

B. Legal framework

A prior felony conviction involving moral turpitude is 

admissible to impeach a witness. (Cal. Const., art. I, § 28, subd. 

(f)(4); Evid. Code, § 788; People v. Anderson (2018) 5 Cal.5th 372, 

407.) “‘Evidence of prior felony convictions offered for this 

purpose is restricted to the name or type of crime and the date 

and place of conviction.’” (People v. Gutierrez (2018) 28 

Cal.App.5th 85, 88–89 (Gutierrez), quoting People v. Allen (1986) 

42 Cal.3d 1222, 1270.)

The admission of a prior felony conviction for impeachment 

purposes is subject to the trial court’s discretion to exclude 

evidence as more prejudicial than probative under Evidence Code 

section 352. (Gutierrez, supra, 28 Cal.App.5th at p. 89, citing 

People v. Anderson, supra, 5 Cal.5th at p. 407.) “When 

determining whether to admit a prior conviction for impeachment 

purposes, the court should consider, among other factors, 

whether it reflects on the witness’s honesty or veracity, whether 

it is near or remote in time, whether it is for the same or similar 

conduct as the charged offense, and what effect its admission 

would have on the defendant’s decision to testify.” (People v. 

Clark (2011) 52 Cal.4th 856, 931 (Clark).)

We review the trial court’s ruling for an abuse of discretion. 

(People v. Anderson, supra, 5 Cal.5th at p. 407.) “Because the 

court’s discretion to admit or exclude impeachment evidence ‘is as 

broad as necessary to deal with the great variety of factual 

situations in which the issue arises’ [citation], a reviewing court 

ordinarily will uphold the trial court’s exercise of discretion.” 

(Clark, supra, 52 Cal.4th at p. 932.)
9

C. Analysis

Appellant does not dispute that the two convictions 

admitted involved moral turpitude. He argues that the trial 

court abused its discretion in refusing to sanitize his robbery 

conviction, because the fact that it was a robbery had minimal 

probative value but a high degree of prejudicial similarity to the 

charged crime.3

We find no abuse of discretion here. The court expressly 

engaged in the appropriate balancing analysis under Evidence 

Code section 352. It allowed the prosecution to use only two prior 

felony convictions reflecting crimes of moral turpitude, and 

further limited their introduction to the name and the date of 

each conviction. The court considered the potential prejudice 

arising from the similarity between the prior robbery conviction 

and the charged crime, but agreed with the prosecution that 

describing the conviction only as a “crime of moral turpitude” 

could have confused the jury. The trial court also properly found 

that evidence of the prior robbery conviction was relevant to the 

jury’s ability to evaluate appellant’s credibility. (See People v. 

Mendoza (2000) 78 Cal.App.4th 918, 925 [prior convictions for 

burglary, robbery, and other theft-related crimes are probative of 

credibility]; Clark, supra, 52 Cal.4th at p. 932.) 

We reject appellant’s assertion that the court should have 

weighed the similarity between the offenses more heavily. 

“‘Although the similarity between the prior convictions and the 

charged offenses is a factor for the court to consider when 

balancing probative value against prejudice, it is not dispositive.’” 

(People v. Edwards (2013) 57 Cal.4th 658, 722; see also Clark, 

3Appellant does not challenge on appeal the denial of his 

request to sanitize his other prior conviction for spousal abuse.
10

supra, 52 Cal.4th at p. 932 [finding no abuse of discretion in 

permitting the prosecutor to impeach the defendant with prior 

robbery convictions that were identical to the charged offenses]; 

People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 [holding that a 

prior conviction for assault with a deadly weapon on a peace 

officer was admissible to impeach a defendant charged with 

attempted murder of a police officer].) 

Notably, none of the cases appellant cites finds error 

arising from a trial court’s refusal to sanitize a prior conviction. 

Instead, each reflects the trial court’s broad discretion to balance 

the competing factors at issue. (See People v. Massey (1987) 192 

Cal.App.3d 819, 825 [rejecting appellant’s argument that 

admission of sanitized convictions was prejudicial because jury 

might speculate as to the nature of prior offenses]; People v. 

Foreman (1985) 174 Cal.App.3d 175, 182 [upholding use of 

sanitized identical prior convictions, but also noting that “we 

would have upheld the admission of the prior burglary as a 

burglary”].)

The court also mitigated any potential prejudice by 

instructing the jury that it could consider the prior convictions 

only in evaluating appellant’s credibility. “‘Any prejudice that 

the challenged information may have threatened must be deemed 

to have been prevented by the court's limiting instruction to the 

jury. We presume that jurors comprehend and accept the court's 

directions.’” (Gutierrez, supra, 28 Cal.App.5th at p. 91, quoting 

People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

Finally, in the absence of any error under Evidence Code 

section 352, we also reject appellant’s constitutional claims. The 

routine and proper application of state evidentiary law does not 

impinge on a defendant's due process rights. (People v. Hovarter
11

(2008) 44 Cal.4th 983, 1010.)

II. Flight Instruction

Appellant contends it was error to instruct the jury 

regarding flight, arguing there was insufficient evidence that he 

fled after the incident. We disagree.

A. Background

During discussion of the jury instructions, appellant 

objected to the use of CALCRIM No. 372 regarding use of 

appellant’s flight as evidence of his guilt. The court overruled the 

objection, explaining: “I thought about that when I was doing the 

[jury instruction] packet I had, and the facts are a little bit 

different than some cases we see where, you know, something 

happens, and people run out of the surveillance film. And this is 

more of a departure as opposed to a flight, but out of an 

abundance of caution, I think it should be given.” 

The court instructed the jury with CALCRIM No. 372 as 

follows: “If the defendant fled immediately after the crime was 

committed, that conduct may show that he was aware of his guilt. 

If you conclude that the defendant fled, it is up to you to decide 

the meaning and importance of that conduct[.] However, evidence 

that the defendant fled cannot prove guilt by itself.” 

B. Legal framework

“‘In general, a flight instruction “is proper where the 

evidence shows that the defendant departed the crime scene 

under circumstances suggesting that his movement was 

motivated by a consciousness of guilt.”’ [Citations.] Evidence 

that a defendant left the scene is not alone sufficient; instead, the 

circumstances of departure must suggest ‘a purpose to avoid 

being observed or arrested.’” (People v. Bonilla (2007) 41 Cal.4th 

313, 328 (Bonilla), quoting People v. Crandell (1988) 46 Cal.3d 
12

833, 869; see also People v. Bradford (1997) 14 Cal.4th 1005, 1055 

[noting that “‘[F]light requires neither the physical act of running 

nor the reaching of a far-away haven,’” but does require “‘a 

purpose to avoid being observed or arrested’”]; § 1127c.) “To 

obtain the instruction, the prosecution need not prove the 

defendant in fact fled, i.e., departed the scene to avoid arrest, 

only that a jury could find the defendant fled and permissibly 

infer a consciousness of guilt from the evidence.” (Bonilla, supra, 

41 Cal.4th at p. 328, citing People v. Turner (1990) 50 Cal.3d 668, 

694–695.)

We review the trial court’s decision to give a flight 

instruction for substantial evidence. (See People v. Boyette (2002) 

29 Cal.4th 381, 438-439; see also People v. Turner, supra, 50 

Cal.3d at pp. 694–695.) 

C. Analysis

Appellant contends there was insufficient evidence that he

fled, meaning that he “took action to avoid detention or arrest” 

following his confrontation with Perez. In support, appellant 

points to the trial court’s comment that his conduct was “more of 

a departure as opposed to a flight.” 

We conclude that substantial evidence supports the flight 

instruction. The undisputed evidence showed that appellant 

immediately left the scene following his confrontation with Perez. 

There was also evidence from which the jury could conclude that 

he did so immediately after taking the speaker from Perez. After 

rendering Perez unconscious, appellant did not attempt to aid 

him or call for assistance. These circumstances surrounding 

appellant’s departure could give rise to an inference of 

consciousness of guilt. (See Bonilla, supra, 41 Cal.4th at p. 329 

[finding the circumstances supported flight instruction where the 
13

defendant immediately left the scene and during the attack on 

the victim, the defendant “did not call out to him, attempt to aid 

him, or call for or go for assistance (acts that might have led to 

Bonilla’s detection at the scene or otherwise connected him with 

the attack)”]; People v. Jurado (2006) 38 Cal.4th 72, 126 [failure 

to use call box to summon assistance at crime scene before 

leaving supported flight instruction].) Whether termed as a 

“departure” or a “flight,” the evidence here supported an 

inference that appellant left the scene to avoid detection or 

arrest. (See People v. Turner, supra, 50 Cal.3d at p. 694 [“A flight 

instruction is proper whenever evidence of the circumstances of 

defendant’s departure from the crime scene or his usual environs, 

or of his escape from custody after arrest, logically permits an 

inference that his movement was motivated by guilty 

knowledge.”].) As such, the instruction was warranted, 

regardless of whether the jury could have reached the opposite 

conclusion that appellant simply left to return home.4

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J. CURREY, J.

4Because we find no error, we reject appellant’s argument, 

asserted in his reply brief, regarding cumulative error.