Filed 6/10/21 P. v. Martinez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARK JAMES MARTINEZ,

 Defendant and Appellant.

2d Crim. No. B299222

(Super. Ct. No. 2014010150)

(Ventura County)

A jury convicted appellant Mark J. Martinez on one count 

of murder in the first degree (Penal Code, § 187, subd. (a)1) and 

on one count of shooting at an inhabited dwelling (§ 246). It 

found true allegations he intentionally discharged a firearm 

causing death (§ 12022.53, subd. (d)) and committed both offenses 

as an active participant in a criminal street gang (§ 190.2, subd. 

(a)(22)). The court sentenced appellant to life without parole plus 

25 years on the first count and to a consecutive term of 40 years 

to life on the second count. He appeals. 

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

Appellant challenges the jury’s rejection of his self-defense 

theory and raises purported instructional errors relating to that 

theory. He also argues the People elicited improper testimony 

from its gang expert about appellant’s guilt. Lastly, he contends 

the trial court erred when it applied the multiple victim exception 

to his conviction for shooting at an inhabited dwelling and 

declined to stay his sentence on that charge.

We affirm the judgment as modified below. 

STATEMENT OF FACTS

On the afternoon of Saturday, March 29, 2014, Norma 

Elizalde did laundry on the back porch of her home at 1211 High 

Street in Santa Paula. Her 14-year-old son Ricardo played video 

games in the living room. Ricardo thought he heard gunfire and 

rose from his chair to investigate. He peered through the screen 

of the front door and saw a man crouched on the sidewalk. As he 

turned and ran to find his mother, bullets shattered the living 

room window. He hid in the kitchen and began calling her name. 

Ms. Elizalde emerged from the rear doorway of the home and fell

to the ground, bleeding heavily from her neck and unable to talk. 

Ricardo’s screams caught the attention of Norma’s brother, 

Nicolas Ramos, who lived next door. The two attempted to slow 

her bleeding while waiting for first responders. Norma’s twin 

sister Irma joined their efforts. Police and paramedics arrived 

promptly but their attempts to revive her failed. The medical 

examiner later determined a bullet had entered her neck and 

pierced her aorta, heart, and lungs before coming to rest near her 

armpit. 

Several eyewitnesses helped police piece together the 

events leading up to the shooting. A customer at nearby 

Neighborhood Market recalled hearing what sounded like a car 

backfiring. He turned and saw a man standing next to a black 
3

Infiniti firing a pistol toward two men fleeing down High Street. 

Another witness remembered seeing the distinctive black car as 

she worked at a taco stand in the market’s parking lot. She saw 

the driver and his passenger get out, shoot, then get back in and 

drive away. Two low-resolution surveillance cameras at 

Neighborhood Market recorded portions of the shooting. 

The victim’s brother, Ramos, told police two young men 

walked by his house as he was finishing yard work that 

afternoon. One of them made hand signs and yelled out a gang 

name in the direction of a black Infiniti sedan coming from the 

nearby intersection of High Street and 12th Street. The driver 

and his passenger yelled out a different gang name, stopped, and 

got out. The four immediately began brawling in the street. 

Ramos dialed 911 and fled to the backyard when he heard two 

sets of gunshots in succession. He returned to the front expecting 

to see one of the combatants lying wounded or dead in the street, 

but all four had vanished. His nephew Ricardo’s screams then 

drew him next door.

Ramos recognized the driver of the car as appellant Mark 

“Basik” Martinez. The men shared an acquaintance. Santa 

Paula police knew the 31-year-old Martinez as a longtime 

member of a local street gang called the Crazy Boyz. His 

passenger was a younger member named Jessie “Foe” Ruiz. The 

pair were arrested along with the two suspected pedestrians, 

Valente “Tiny” Tobias and Ernesto “Silencio” Marron, who Ramos 

likewise recognized and understood to be members of another 

gang called the 12th Street Locos. 

Marron was the only suspect to provide an account to law 

enforcement. He said he and Tobias were walking to 

Neighborhood Market when Tobias noticed the occupants of a 

black Infiniti staring at them from the intersection of High Street 
4

and 12th Street. Marron had a .45 caliber pistol tucked into the 

waistband of his sweat pants. As they approached the car, the 

passenger rolled down the window and asked, “Where you from?” 

Tobias responded, “12th Street Locos Tiny.” The driver and 

passenger replied “Crazy Boyz gang” and got out of the car.

Marron watched as the passenger fought with Tobias. The driver 

then came around the car and hit Marron in the head. When 

Marron stumbled, the pistol dislodged from his waistband and 

fell through his pant leg to the ground. He picked it up, shot 

several times in the driver’s direction, and began running. The 

driver retrieved his own gun from the car and started shooting at 

the fleeing Marron. Ballistics experts traced the 9mm bullet that 

struck Ms. Elizalde to casings found in the street near the

driver’s approximate location. When police searched appellant’s 

home three days after the shooting they found an empty carrying 

case for a 9mm pistol registered to appellant’s wife. 

PROCEDURAL HISTORY

At trial, prosecutors theorized appellant and Ruiz were 

intentionally cruising in 12th Street Locos’ territory to provoke a 

confrontation. A gang expert testified that calling out “where you 

from?” to a potential rival all but invited a deadly response. In 

contrast, defense counsel characterized the brawl as a chance 

encounter that turned deadly only after Marron began firing at 

appellant. Appellant immediately returned fire, they explained, 

to defend himself in a kill-or-be-killed situation. 

Jurors found appellant guilty of both murder and shooting 

at an inhabited dwelling. They found true allegations he 

intentionally discharged a firearm causing death and that he 

committed both offenses for the benefit of a criminal street gang. 

Defense counsel asked the trial court to stay appellant’s sentence 

on the second count because it was based on the same acts as the 
5

first count. It denied the request. The presence of Ms. Elizalde’s 

son in the home, the court held, meant appellant could be 

punished separately for each offense under the multiple victim 

exception to Penal Code section 654. Appellant appealed.

DISCUSSION

1. Sufficiency of the Evidence at Trial

Appellant contends the uncontested evidence shows he 

provoked only a non-deadly fistfight. Marron’s deadly and 

excessive response, he argues, entitled him to return fire in selfdefense. (See People v. Quach (2004) 116 Cal.App.4th 294, 301, 

quoting 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) 

Defenses § 75, p. 410 [“‘Where the original aggressor is not guilty 

of a deadly attack, but of a simple assault or trespass, the victim 

has no right to use deadly or other excessive force. . . . If the 

victim uses such force, the aggressor’s right of self-defense arises. 

. . .’”].) Appellant contends the evidence was insufficient to show 

he acted unreasonably under the circumstances. 

We review the record in the light most favorable to the 

judgment to determine if it discloses substantial evidence from 

which the jury could have found appellant guilty beyond a 

reasonable doubt. (People v. Cravens (2012) 53 Cal.4th 500, 507-

508.) Substantial evidence must be “reasonable, credible, and of 

solid value.” (Id. at p. 507.) 

The record does not present an open-and-shut case of selfdefense. Inconsistent testimony about the duration of time 

between Marron’s shots and appellant’s shots left jurors to 

resolve an important factual dispute. Ricardo Elizalde testified 

enough time passed for him to get up from his computer, go to the 

front door, spot a man crouching on the sidewalk, and begin 

running toward the kitchen to find his mother. Other witnesses 

estimated anywhere between half a second to more than 20 
6

seconds elapsed. Jurors could have interpreted this evidence as 

showing enough time passed that Marron no longer posed a 

threat to appellant when the latter returned fire. 

Appellant next argues Marron alone is responsible for 

escalating the confrontation from a fistfight into a gun battle. 

The evidence on this point was also in conflict. Marron testified 

the driver and passenger of the car asked him “Where you from?” 

A detective familiar with Santa Paula’s gang culture testified this 

question is often a prelude to armed confrontations between 

members of different gangs. The immediate and violent reaction 

of appellant and Ruiz to Tobias’s response corroborated the 

detective’s opinion. The jury could also have considered the 

speed with which appellant retrieved a loaded pistol from his car 

as showing he had a weapon at the ready, knowing an assault on 

two members of a different gang could turn deadly. These facts 

could have reasonably justified the jury’s findings. (People v. 

Cravens, supra, 53 Cal.4th at p. 508.) 

2. Jury Instruction on Causation

The trial court’s jury instructions included CALCRIM 505, 

“Justifiable Homicide: Self-Defense or Defense of Another.” This

told the jury it could consider Ms. Elizande’s killing justified if

appellant “believed there was imminent danger of death or great 

bodily injury to himself” and “acted only because of that belief.”2 

This echoes section 198, which requires: (1) the circumstances of 

2 CALCRIM 505 as issued stated in relevant part: “Belief 

in future harm is not sufficient, no matter how great or how 

likely the harm is believed to be. The defendant must have 

believed there was imminent danger of death or great bodily 

injury to himself. Defendant’s belief must have been reasonable 

and he must have acted only because of that belief.”
7

a justified killing to be “sufficient to excite the fears of a 

reasonable person”; and (2) the defendant to “have acted under 

the influence of such fears alone.” 

Appellant contends CALCRIM 505 is ambiguous because it 

does not contemplate “mixed motive” killings, i.e., those in which

the defendant harbors motives other than fear when killing in 

self-defense. The trial court should have clarified this ambiguity, 

he asserts, by instructing the jury sua sponte that fear of 

imminent danger or death or great bodily injury must have been 

a “substantial factor” in appellant’s decision to shoot at Marron, 

but not necessarily the only factor.3

Appellant frames his case as an opportunity for this court 

to clarify whether section 198 accommodates those who act with 

“mixed motives.”4 He proposes we answer this question by 

3 Appellant suggests a modified version of CALCRIM 240 

could have served this purpose. He proposes the following in his 

opening brief: 

“When CALCRIM No. 505 states that ‘Defendant’s belief 

must have been reasonable and he must have acted only because 

of this belief,’ this means that a killing in self-defense is not 

justified if some motive other than reasonable fear was a ‘cause’

of the killing.

“A motive caused the defendant to kill if the killing was the 

direct, natural, and probable consequence of that motive and the 

defendant would not have killed absent that motive. [. . .]

“There may have been more than one cause of a killing. A 

motive caused the defendant to kill only if it was a substantial 

motivating factor. A substantial factor is more than a trivial or 

remote factor. However, it does not have to be the only 

motivating factor.” 

4 Appellant identifies the dicta below from People v. Nguyen

(2015) 61 Cal.4th 1015, 1046 as leaving this question open: “We 
8

equating the section 198.2 “fear alone” standard of causation with 

a “substantial factor” standard. (See e.g., In re M.S. (1995) 10 

Cal.4th 698, 716 [substantial factor causation standard implied 

under hate crime statute; crime could have multiple concurrent 

causes so long as “prohibited bias was a substantial factor in the 

commission of the crime”].) Appellant characterizes defense 

counsel’s failure to propose such an instruction as ineffective 

assistance of counsel.5 

We decline to graft a substantial factor standard onto 

section 198. This would require us to ignore the statute’s 

directive that one invoking self-defense must have “acted under 

the influence of such fears [of imminent harm or death] alone.” 

(Italics added.) Instructing the jury that section 198 permits the 

defendant to have been motivated by other factors, whether 

substantial or not, would contravene the statute’s plain language. 

(See People v. Trevino, supra, 200 Cal.App.3d at p. 879 [“The 

party killing is not precluded from feeling anger or other 

emotions save and except fear; however, those other emotions 

cannot be causal factors in his decision to use deadly force”].) We 

conclude the trial court properly instructed the jury using 

note that defendant did not argue in the trial court, nor has he 

argued on appeal, that the jury should have been instructed that 

acting based on mixed motives is permissible so long as 

reasonable fear was the but-for cause of his decision to kill. We 

therefore have no occasion to consider whether such a rule would 

be consistent with section 198 as interpreted in [People v. Trevino

(1988) 200 Cal.App.3d 874] or other cases.”

5 Appellant raises ineffective assistance of counsel in this 

appeal as well as in a subsequently filed petition for writ of 

habeas corpus. (See In re Mark James Martinez, Court of Appeal 

No. B311136.) We will decide his petition separately.
9

CALCRIM 505 under these circumstances. As such, defense 

counsel did not fall below an objective standard of reasonableness 

by not requesting a causation instruction like the one proposed by 

appellant. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [“[A] 

reviewing court defers to counsel’s reasonable tactical decisions, 

and there is a presumption counsel acted within the wide range 

of reasonable professional assistance”].) 

3. Jury Instruction on Contrived Self-Defense

Appellant argues the trial court erred by instructing the 

jury on “contrived self-defense”6 because the instruction suggests 

the initiator of a non-deadly confrontation can never assert selfdefense, even when the victim escalates the situation by using 

deadly force. (See People v. Ramirez (2015) 233 Cal.App.4th 940, 

945 [contrived self-defense instruction misled jurors because it 

“made no allowance for an intent to use only nondeadly force and 

an adversary’s sudden escalation to deadly violence”].) The trial

court addressed the same concern by adding prophylactic 

language to the form instruction.7 We conclude substantial 

evidence supported the initial instruction and that the trial

6 CALCRIM 3472 states: “A person does not have the right 

to self-defense if he or she provokes a fight or quarrel with the 

intent to create an excuse to use force.”

7 The court added the following sentence to form CALCRIM 

3472: “If the defendant intended to provoke only a non-deadly 

altercation and the other party responded with deadly force, this 

instruction does not apply.” (Italics added.) This additional text 

appears consistent with CALCRIM 3472’s bench notes, which 

highlighted the need to modify the instruction “in the rare case in 

which a defendant intends to provoke only a non-deadly 

confrontation and the victim responds with deadly force.” 

Appellant’s is one such “rare case.”
10

court’s modification relieved any tension created by the 

instruction’s use under these circumstances.

4. Prosecutorial Misconduct

Appellant contends prosecutorial misconduct occurred 

during closing argument when the People insisted self-defense 

could not apply because appellant and Ruiz instigated the fight 

with Marron and Tobias. We find no misstatement of law in the 

record. The prosecutor’s closing argument aligned with the 

People’s theory of contrived self-defense, which, as stated in 

modified CALCRIM 3472, required proving appellant intended to 

provoke a deadly rather than non-deadly response.

Appellant also argues defense counsel provided ineffective 

assistance by not objecting when the prosecutor purportedly 

misstated the law to jurors. Defense counsel’s decision to forego 

what would have been a weak or meritless objection at this point 

did not constitute ineffective assistance of counsel.

5. Expert Testimony About Appellant’s Guilt

The People called Detective Allen Macias to testify about 

whether appellant committed the charged crimes as an active 

participant in a criminal street gang. (§ 190.2, subd. (a)(22).) 

Macias described how the department used a Field Identification 

(FI) database to track the city’s suspected gang members. He 

used a printout from the database to recall appellant’s long 

history of gang-related contacts with police. The prosecutor 

examining Macias then posed a detailed hypothetical in which an 

individual with appellant’s background shot Ms. Elizalde under 

identical circumstances. Macias concluded her death was gang 

related. Defense counsel cross-examined him at length about this 

opinion and the hypothetical upon which it was based.

Appellant argues the trial court erred by allowing the 

People to stray from the hypothetical during its redirect 
11

examination of Macias. He points to the following exchange 

between prosecutor and witness:

“Q. Now, you talked about -- [defense] counsel asked you 

a series of questions about the progression of contacts for 

individuals and how that can show patterns and help understand 

subsequent criminal conduct. With respect to the defendant in 

this case, the contacts that we’ve seen over the years culminating 

in a shooting of 12th Street Locos out in the street that ends up 

killing Mrs. Elizalde, do you see that as the progression where 

the progression ended to ultimately now we have a murder? 

(Italics added.)

“A. Yes.” 

Appellant maintains this exchange violated the wellestablished rule that “a witness cannot express an opinion 

concerning the guilt or innocence of the defendant.” (People v. 

Torres (1995) 33 Cal.App.4th 37, 46; People v. Prince (2007) 40 

Cal.4th 1179, 1227 [“an expert’s opinion that a defendant is 

guilty is both unhelpful to the jury . . . and too helpful, in that the 

testimony may give the jury the impression that the issue has 

been decided and need not be the subject of deliberation”].) While 

the People’s redirect did blur the line between appellant and his 

fictional counterpart, the record shows defense counsel 

repeatedly did the same while cross-examining Macias about the 

hypothetical. The court did not abuse its discretion by permitting 

the People to do so briefly on redirect examination. 

In addition, jurors heard from other sources about the 

gang-related nature of appellant’s confrontation with Tobias and 

Marron. Appellant concedes the evidence established he and 

Ruiz belonged to the Crazy Boyz gang and Tobias and Marron to 

the 12th Street Locos. Ramos testified the combatants on both 

sides exchanged their gang affiliations before starting their 
12

fistfight. Marron explained the meaning of the question “where 

you from” and how appellant and Ruiz yelled “Crazy Boyz gang” 

before attacking him and Tobias. Jurors could conclude from 

these facts alone appellant acted for the benefit of a criminal 

street gang when he fired at Marron.

6. Multiple Punishments for a Single Act

Penal Code section 654 “permits one unstayed sentence per 

victim of all the violent crimes the defendant commits incidental 

to a single criminal intent,” thereby circumventing section 654, 

subdivision (a)’s prohibition on multiple punishments for the 

same act. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.) 

The trial court cited section 654 when it imposed consecutive 

sentences for murder (count 1) and for shooting at an inhabited 

dwelling (count 2). Appellant argues the exception should not 

apply because charging documents did not identify Ricardo

Elizalde as a separate victim and because the People did not 

introduce evidence of his victim status at the preliminary 

hearing. We do not agree.

The amended felony information identified 1211 High 

Street as the “dwelling” for the purposes of count 2. At the 

preliminary hearing, an officer recalled Ramos telling him shortly 

after the shooting that Ms. Elizalde lived at this address with her 

“husband and two children.” Ramos became aware of his sister’s 

condition when her son Ricardo began “yelling that his mother 

had been shot.” This evidence shows at least one person other 

than Ms. Elizalde was in the house at the time of the shooting. 

In addition, the People were not required to name each victim in 

the information. (See People v. Centers (1999) 73 Cal.App.4th 84,

101 [“a number of cases have upheld the application of the 

multiple victim exception based on evidence of multiple victims, 

without considering whether the identities of those victims had 
13

been pleaded”].) Appellant need not have been aware of the 

identity or number of people in a building to face punishment for 

each victim separately. (People v. Felix (2009) 172 Cal.App.4th 

1618, 1631, citing People v. Anderson (1990) 221 Cal.App.3d 331.) 

The trial court properly applied the exception under these 

circumstances. 

7. Court Fees

The abstract of judgment imposed a court security fee and a 

criminal conviction assessment against appellant. The reporter’s 

transcript of his sentencing mentions neither fee. The superior

court shall strike both from the abstract.

DISPOSITION

We direct the trial court to strike the court security fee and 

criminal conviction assessment from the abstract of judgment. 

Judgment is affirmed as modified.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

TANGEMAN, J.
14

Derek D. Malan, Judge

Superior Court County of Ventura

______________________________

David Andreasen, 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, Senior 

Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising 

Deputy Attorney General, and David F. Glassman, Deputy 

Attorney General, for Plaintiff and Respondent.