Filed 2/27/13 P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. RAUL JORGE MARTINEZ, Defendant and Appellant. G045719 (Super. Ct. No. 08NF3251)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys Ge neral, for Plaintiff and Respondent.
* * *2 This gang confrontation and shooting case raises a single issue, centered on
whether the trial court had a su a sponte duty to in struct the jury ba sed on a recondite
statement in People v. Garcia (2008) 162 Cal.App.4th 18, 31, that “an unlawful killing during the commission of an inherently dang erous felony, even if unintentional, is at least voluntary manslaughter.” (Italics added; see also id . at p. 22 [same statement in introduction of opinion].)
The answer is no. Whatever mysteries are inherent in Garcia’s “at least” comment, they have no applica tion to the case before us. Garcia was a highly unusual case in which a gun was not used as a gun, but as a blunt instrument: the victim was hit in the face with its butt, fell to the sidewalk and di ed of head trauma. The Garcia court affirmed the conviction as against the defe ndant’s argument that he was entitled to
instructions on in voluntary manslaughter, but its task was made difficult by the semantic anomaly that the use of the butt of a gun as a blunt instrument made the crime, literally, an “assault . . . with a firearm,” henc e an “inherently dangerous felony.” ( Garcia, supra , 162 Cal.App.4th at p. 22.) This case, by cont rast, presents a semantically clean set of
facts: Martinez fired into a crowd. His a ttorney argued he was acting rashly because of the heat of passion given a sudden quarrel (t he crowd was group of rival gang members intent on doing him harm), and therefor e could be convicte d only of voluntary manslaughter. But the jury found him guilty of second degree murder. We affirm. These facts present no Garcia issue and therefore required no Garcia instruction.
BACKGROUND The salient events concerning the sh ooting are straightforward. Late one night in 2003, 1 three Pauline Street gang members we re standing near a staircase at a
motel in West Anaheim. A half-dozen or so of the rival Barrio Small Town gang were in a room at the motel, partying. When member s of the Small Town gang went outside to

1 Martinez was not apprehended until 2008.3 have a cigarette, they confronted the Pauline Street contingent. One of the Small Town gang members uttered the words of univers al challenge among ga ng members, “where you guys from?” and a fight ensu ed. Two of Martinez’s Paulin e Street cohorts soon ran, but Martinez pulled out a gun and fired it in to the oncoming squa d of Small Towners, killing one of them.
Martinez testified in his own defense at trial. His side of the story was that
when one of the Small Town ers uttered the provocative “where you guys, from?” challenge, Martinez was in the process of pulli ng up his socks. Th en, suddenly, someone
kicked him in the face and he fell to the ground. His two co mpatriots ran up the stairs. When Martinez tried to follow, he was pulled ba ck down. He tried to cover his face as he was being hit and kicked by no less than five people. While covering his face with his left arm, Martinez reached into the pocket of his hoodie with his right hand, pulled out a gun, and fired it once or twice, not looking, not aiming at anyone. At that point he was able to make his escape. He would not be caught until years late r. His trial took place in 2010, and the jury was instruct ed that sufficient provocation coul d reduce second degree murder to voluntary manslaughter. It was also instru cted it could find Martinez guilty of only voluntary manslaughter if he had acted because of a sudden quarrel or heat of passion (with the attendant qualification, of course, that he had acted like a person of average disposition). In this vein th e jury was also told the pr osecution had the burden of showing Martinez did not kill as the “result of a sudden quarrel or in the heat of passion,” and if it did not carry the bu rden Martinez could not be found guilty of murder. The jury was also told it could find Ma rtinez acted in imperfect self-defense if he believed he was in imminent danger of being killed or sufferi ng great bodily injury and he actually believed the use of deadly force was necessary to defend against that danger, even if his belief was unreasonable. An d the jury was further told that if it did4 find Martinez acted in imperfect self-defense , it could not convict him of murder, but only voluntary manslaughter. The jury returned a verdict of sec ond degree murder and street terrorism. With firearm and gang enhanc ements, Martinez was sentenced to life with possibility of parole, plus a consecutive term of 25 years to life.
DISCUSSION In Martinez’s opening brief, he asserts that People v. Garcia, supra , 162 Cal.App.4th 18 “held that an unintentional killing without malice, committed during the course of an inherently dangerous assaultive felony, constitutes voluntary manslaughter.” 2 Presumably, that formulation of what Garcia supposedly held is the precise jury instruction he now asserts should ha ve been given sua spon te to the jury. But that is not the whole story of Garcia and is not the law to be applied here. A trial court is under no duty to instruct the jury sua sponte on “every possible theory that may fit the facts of the case before it” ( People v. Wade (1959) 53 Cal.2d 322, 334). But we need not decide the case on that ba sis because in this case the proffered instruction doesn’t fit the facts of the case at all.
This is not a case of an “unintentional killing without malice, committed during the course of an inherently dangerous assaultive felony.” (Italics added.) What Martinez forgets is that ther e is a major qualitative differenc e between what happened in
Garcia and what happened here. In Garcia , the perpetrator used the butt of a shotgun to
ward off an attacker who was in the process of lunging at him. ( Garcia, supra , 162

2 In fact, Garcia never said “an unintentional killing without malice, committed during the course of an inherently dangerous assaultive felony, constitutes voluntary manslaught er.” The phrase “without malice” is missing in the original Garcia , and the court inserted an enigmatic “at least” into its statement. What Garcia said, precisely, was: “An unlawful killing during the comm ission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter.” ( Garcia, supra , 162 Cal.App.4th at p. 22, italics added; see also id . at p. 31 [“an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter”].)5 Cal.App.4th at p. 23.) Th us the defendant in the Garcia court could plausibly argue there really had been no “malice.” (See id . at p. 26.) By contrast, in this case Martinez fired into a crowd . And the law has been clear for over a century that when someone fires into a crow d, malice is implied. (See People v. Stein (1913) 23 Cal.App. 108, 114-115 [“It does not follow, merely because the defendant might not perhaps ha ve entertained any personal ill-will toward the deceased, that the shooting and killing of the latter wa s not with the malice essential to the
consummation of the crime of murder. The deliberate and unnecessary discharging of a gun into a multitude of people, with an utter disregard of the consequences of the act, whereby human life is destroyed, is murder, and malic e will be implied, although the perpetrator of the act had no malice against any particular person of the multitude into which he so fired.”]; In re Londale H. (1992) 5 Cal.App.4th 1 464, 1467 [“The deliberate discharge of a firearm into a multitude of peop le with utter disregard of the consequences is an inherently dangerous act likely to result in death or great bodily harm. . . . Where such act results in death, malice will be impl ied, although the perpetrator of the act had no malice against any particul ar person in the crowd into which he fired.”].) To the degree the eviden ce showed the possibility Martinez did not have a
malicious mental state because his shot was th e result of a sudden quarrel or a fear for his life, the jury was prop erly instructed. (See People v. Lasko (2000) 23 Cal.4th 101, 104.) Had they accepted that version of the facts, the instruction wo uld have provided a path to an appropriate verdict. But Garcia would not have reduced the set of facts to an involuntary manslaughter. Finally, we stress how inapposite Garcia is to this case. The main point on appeal in Garcia was whether, given the absence of ma lice, the defendant was entitled to an instruction which might have allo wed the jury to convict him only of in voluntary manslaughter. ( Garcia, supra , 162 Cal.App.4th at p. 26 [“Rather, he argues the jury
should have been o ffered the option of convicting hi m of involuntary manslaughter6 instead because there was s ubstantial evidence the killing of Gonzalez was committed
without malice and without either an intent to kill or conscious disregard for human life and, therefore, was neither murder nor voluntary manslaughte r.”].) Context is everything, and in context, the point of Garcia’s cryptic “at least” language was that the
defendant there was not entitled to an involuntary manslaug hter instruction. A fortiori, here, where the defendant’s conduc t was more culpable than in Garcia and where malice was established by the act of firing a gun into a crowd, no such instruction was required.
DISPOSITION The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.