Filed 11/14/13 P. v. Martinez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
BRAYON MARTIN MARTINEZ,
Defendant and Appellant. B240371
(Los Angeles County Super. Ct. No. YA075442)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Stuart M. Rice, Judge. Affirmed. Fay Arfa, a Law Corporation, and Fa y Arfa for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Atto rney General, James William Bilderback II, Supervising Deputy Attorney Ge neral, and Marc A. Kohm, De puty Attorney General, for Plaintiff and Respondent.

________________ _____________2 Defendant and appellant Brayon Martin Martinez appeals from the judgment
entered after two trials. Prior to the first trial, defendant pled guilty on count 5 to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). 1 The jury
convicted defendant in count 4 of evading an officer (Veh . Code, § 2800.2, subd. (a)).
The trial court declared a mistrial after th e jury deadlocked on counts 1-3 and 6-7. After the information was amended, defe ndant was convicted in the second trial on counts 6 and 7 of assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)) and on count 8 of assault with a semi automatic firearm on an unidentified victim (§ 245, subd. (b)). The jury found true the allegations defendant used a firearm within the meaning of section 12022.53, subdivisions (b) and (c), as to counts 6 and 7, and he used a firearm within the meaning of section 12022.5, subdivisions (a) and (d), as to all
three counts. The trial court sentenced defendant to 33 years 8 months in state prison.
Defendant contends insufficient evidence , instructional error, improper exclusion of evidence, and cumulative e rror require reversal of th e judgment. We affirm.

FACTS

At approximately midnight on June 27, 2009, Redondo Beach Police Officers John Anderson and Brian Long were on patrol in an unmarked car. Th e officers were in standard police uniform and wore badges, reflective patches, and utility belts. The officers observed defendant, one other man, a nd two women in the street. Defendant was holding his waistband as if he had a gun. The officers dr ove past the group and then returned to investigate. A BMW was stopped in the middle of the street. The officers
observed a man run from the sidewalk to the passenger side door of the BMW. Defendant immediately exited from the driv er’s side door, extended his arm over the vehicle, and fired a semiautomatic weapon at the man, who was standing right next to the

1 All further statutory references are to the Penal Code unless otherwise stated.3 car facing defendant. The man fled away fro m the vehicle, and defendant repositioned
himself behind the BMW and fired at him a second time. The officers stopped their car. Officer A nderson exited and yelled, “Hey, police.”
Defendant turned toward Officer Anderson and immediately fired at him. Officers Anderson and Long fired numero us shots at defendant. Defe ndant returned fire and then
fled in the BMW. Defendant led the officers on a high sp eed chase. Other marked patrol cars pursued defendant with lights and sirens activated, but he continued to evade arrest. Finally, defendant drove back to the scene of the shooting and surrendered. Defendant was arrested and transported to the hospital. Defendant’s gun was found lying in the stre et on the path he used to escape. The serial number had been defaced and was illegible. Defendant presented evidence that it wa s dark at the time of the shooting. An expert for the prosecution testified the photographs presented by the defense did not accurately depict the lighting c onditions at the time of the shooting.

DISCUSSION

Sufficiency of the Evidence

The Fifth and Sixth Amendmen ts, which apply to the stat es through the Fourteenth Amendment, require the prosecution to prove all elements of a crime beyond a reasonable doubt. ( Sullivan v. Louisiana (1993) 508 U.S. 275, 277- 78.) A conviction supported by
insufficient evidence violates the Due Process Clause of th e Fourteenth Amendment and must be reversed. ( Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “‘In reviewing the sufficiency of ev idence . . . the question we ask is “whether, after viewing the evidence in the light most fa vorable to the prosecution, any rational trier of fact could
have found the essential elemen ts of the crime beyond a reas onable doubt.”’ [Citations.] . . . ‘In determining whether a reasonable trie r of fact could have found defendant guilty4 beyond a reasonable doubt, the appellate cour t “must . . . presume in support of the judgment the existence of every fact th e trier could reasonably deduce from the evidence.”’ [Citation.]” ( People v. Young (2005) 34 Cal.4th 1149 , 1175.) “The record
must disclose substantial ev idence to support the verdict—i.e., ev idence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v. Zamudio (2008) 43 Cal.4th 327, 357.) The reviewing court doe s not reweigh the evidence, evaluate the credibility of witnesses, or decide factual conflicts, as th ese are the province of the trier of fact. ( People v. Culver (1973) 10 Cal. 3d 542, 548; In re Frederick G . (1979) 96 Cal.App.3d 353, 367.)

Defendant Knew Or Should Have Known the Victims Were Peace Officers

Defendant’s contention there was insuffici ent evidence to support his convictions
on the basis that he knew or should have kno wn that Officers Anderson and Long were peace officers engaged in the performance of their duties is without merit. Pursuant to section 245, subdivision (d)(2), “Any person who commits an assault upon the person of a peace offi cer or firefighter with a se miautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when th e peace officer or firefighter is engaged in the performance of his or her duties, sh all be punished by imprisonment . . . .” Evidence was presented that the officers were in full uniform. Officer Anderson identified himself and Officer Long by yelling, “Hey, police” before defendant turned in
their direction and fired at th em. The jury could have reas onably inferred that defendant heard the officer identify hi mself, saw the officers in st andard, full uniform and fired nonetheless. Thus, substantial evidence suppor ts the jury’s finding th at defendant either
knew or should have known that Officers Anderson and Long were police officers engaged in the performance of their duties.5 Sufficient Knowledge of the Facts to Kn ow Defendant’s Acts Would Probably and Directly Result in Injury

Defendant’s contention the evidence was in sufficient to support the finding that he
intended to shoot the unid entified man also fails. “‘Any person who commits an assault upon the pe rson of another with a
semiautomatic firearm shall be punished by imprisonment in the state prison . . . .’ (§ 245, subd. (b).) ‘An assau lt is an unlawful attempt, co upled with a pr esent ability, to commit a violent injury on the person of another.’ (§ 24 0.) Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and direc tly result in su ch injury.” ( People v. Miceli (2002) 104 Cal.App.4th 256, 268-269.)
The record belies defendant’s assertion that no evidence was presented regarding
how close defendant was to the unidentified ma n when defendant shot at him. Officer
Anderson observed an unidentified man ru n to the passenger’s side of a BMW and defendant “immediately” jump out of the dr iver’s side door, extend his arm over the vehicle, and shoot in the man’s direction. He clarified that the unidentified man was “right up on the car” facing it when defendant shot at him from the driver’s side. As the man fled, defendant repositione d himself behind the vehicle and shot at him again from approximately 15 feet away. Likewise, Offi cer Long observed that “as soon as [the unidentified man] got to the front passenger doo r, the driver stepped out, . . . reached over the hood of his car, and shot one round at [the unidentified man].” Officer Long
confirmed that defendant went to the back of the vehicle and shot at the man again as he
fled. The evidence that defendant fired two ro unds at the unidentified man at close range and repositioned himself in betw een firing to get a better shot supports the jury’s finding that defendant had knowledge of the facts sufficient to esta blish his acts would probably and directly result in injury.6 Lawfulness Instruction

The crime of aggravated assault on a pe ace officer requires that the officer be “engaged in the performance of his . . . duties” at the time of the assault. (§ 245, subd. (d)(2).) The offi cer must be acting lawfully. If th e officer used excessive force or
detained the defendant withou t justification, the defendant may be found guilty only of the lesser offense of simple assault. ( People v. White (1980) 101 Cal.App.3d 161, 166.) The trial court has a sua sponte duty to in struct on lawfulness if there is sufficient evidence the officer was not lawfully performing his or her duties. ( People v. Gonzalez (1990) 51 Cal.3d 1179, 12 17 [“disputed facts bearing on the issue of legal cause must be submitted to the jury consideri ng an engaged-in-dut y element”], superseded by statute on another point as explained in In re Steele (2004) 32 Cal.4th 682, 690.) Here, no facts were presented that woul d necessitate giving Judicial Council of California Criminal Jury Instructions (2009-2010) CALCRIM No. 2670 (Lawful Performance, Peace Officer), as defendant conte nds. It is undisput ed defendant fired on
the unidentified man twice and then turned and fired on the office rs immediately after
Officer Anderson identified them as policemen, and before eith er of the officers fired a single shot. The officers could not have been using excessive force when defendant assaulted them, nor were they deta ining him without justification.

Exclusion of Evidence

Pursuant to Evidence Code section 1240, “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purp orts to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” “‘“To render [statements] admi ssible [under the spontaneous declaration exception] it is required that (1) there mu st be some occurrence startling enough to produce this nervous excitement and render th e utterance spontaneous and unreflecting;7 (2) the utterance must have be en before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be su pposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must rela te to the circumstance of the occurrence preceding it.” [Citations.]’ [Citation.]” ( People v. Thomas (2011) 51 Cal.4th 449, 495 ( Thomas ).) “‘Such declarations are admissibl e only when they are “ ‘made at a
time when there was no motive to deceive.’”’ [Citation.]” ( People v. Ervine (2009) 47 Cal.4th 745, 779.) “‘Whether the requireme nts of the spontaneou s statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] . . . [Citation.]’” ( Thomas
, supra , at p. 495.) “‘[T]he discretion of the trial court is at its
broadest’ when it determines whether an utte rance was made while the declarant was still in a state of nervous excitement.” ( Id . at p. 496.) During defendant’s first tria l, Officer Justin Korte te stified that he handcuffed defendant and accompanied him to the hospital. The trial c ourt held an Evidence Code section 402 hearing regarding admission of st atements defendant ma de to Officer Korte during that time. Officer Korte stated that so me time after they a rrived at the hospital,
defendant said that he had been robbed and “they” were jealous of him. The officer could not recall if defendant had been drugged or treated at that time but did recall the
statement was made after some time had passed at the hospital. Defense counsel requested the statement be admitted as a spont aneous statement. Judge Rand Rubin, who presided over the first trial, excluded the evidence, finding insuffi cient evidence that
defendant made the statement wh ile under the stress of the event, or that the statement purported to describe the shooti ng, rather than events that occurred before the shooting. During Officer Korte’s testimony in th e second trial, defense counsel again requested the statement be admitted as a spontan eous statement. No further evidence was offered. The trial court agreed with the reasoning of the prior trial judge and excluded
the evidence as self-s erving hearsay.
Defendant contends the tria l court abused its discreti on and violated his federal constitutional rights in excluding the evidence. He argues the statement was admissible8 both as a spontaneous statement (Evid. Code , § 1240) and as state of mind evidence ( id
., § 1250). Defendant failed to object to the excl usion of the statement on constitutional grounds or as state of mind evidence and has therefore forfe ited those arguments. (See,

e.g., People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10 [failure to articulate state of mind as theory of admissibility forfeited argument on appeal] .) Additionally, defendant’s constitutional argument is forfe ited because he did not support his assertion with substantive argument. ( People v. Hovarter (2008) 44 Cal.4th 983, 1010 [“The ‘routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.’ [Citation.] As defendant provides no elaboration or separate argument for these constitutional claims, we declin e to address further these bo ilerplate contentions.”].) With respect to defendant’s contention that the statement should have been admitted as a spontaneous stat ement under Evidence Code se ction 1240, the trial court did not abuse its discretion. As the pros ecution aptly argued at the Evidence Code section 402 hearing, defendant made the st atement after waiting in the emergency room
for a while with Officer Korte. Prior to making the statement, he had engaged in a car chase, discarded his weapon, been arrested , and been taken to the hospital in an ambulance. The facts support the trial court’ s determination that the statement was not spontaneous because defendant had ample time for reflection and a motive to deceive.

Cumulative Error

Finally, defendant contends that cumulativ e errors at trial deprived him of due process. As we have concl uded that the trial c ourt did not err, the contention necessarily fails. (See People v. Hines (1997) 15 Cal. 4th 997, 1062.)9 DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.