P. v. Martinez

Filed 1/25/08 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
GUILLERMO MARTINEZ,
Defendant and Appellant.
B195582
(Los Angeles County
Super. Ct. No. PA056230)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald S. Coen, Judge. Affirmed.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and
Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

-- 1 of 12 --

2
Defendant and appellant Guillermo Martinez appeals from the judgment entered
following a jury trial that resulted in his conviction of possession of heroin for sale. He
contends: (1) the trial court erred in admitting evidence of uncharged crimes; (2) the
unanimity instruction was improper; (3) even if individually harmless, these errors were
cumulatively prejudicial; (4) imposition of the upper term violated the principals set forth
in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi). We affirm.
PROCEDURAL BACKGROUND
Defendant and Manuel Martinez were jointly charged by information with
possession of heroin for sale on July 13, 2006 (Health & Saf. Code, § 11351); as to
defendant, it was further alleged that he had suffered a prior drug related conviction
(Health & Saf. Code, § 11370.2, subd. (a)).1 The jury found defendant guilty of
possession for sale and in a bifurcated proceeding the trial court found true the prior
conviction allegation. Defendant was sentenced to a total of seven years in prison
comprised of the four year high term on the substantive offense plus a consecutive three
years for the prior conviction enhancement.
Appellant filed a timely notice of appeal.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000)
23 Cal.4th 978, 1053), the evidence established that on July 13, 2006, Los Angeles Police
Officer Brandy Arzate and her partner, Ammon Williams, were in plain clothes and
1 Defendant and codefendant Manuel Martinez are not related. To avoid confusion,
we refer to defendant as “defendant” and to Manuel Martinez as “Martinez.” In addition
to the joint charge, Martinez was also charged with possession for sale of cocaine,
transportation or sale of heroin, and transportation or sale of cocaine. Although another
codefendant, Daniel Olivas, was at one point joined for purposes of trial, only defendant
and Martinez ultimately were tried together. But before the jury delivered their verdicts,
they were informed that Martinez was “no longer part of this case.”

-- 2 of 12 --

3
driving an unmarked car while on a narcotics enforcement detail in North Hollywood. At
about 4:15 p.m., they were driving on Strathern when they noticed defendant sitting in
the driver’s seat of a Honda parked on Strathern, under the 170 Freeway overpass.
Suspecting defendant may be engaged in illegal drug activity, the officers called for
backup from Officer Anthony Manente. Arzate and Williams initiated surveillance of
defendant by parking about 75 feet behind the Honda. About two minutes later, Arzate
saw an SUV park about a car length behind the Honda; the driver of the SUV get out of
that vehicle and into the passenger seat of the Honda; 20 or 30 seconds later, this man
returned to the SUV and drove away. A few minutes later, defendant drove away.
Meanwhile, Manente had arrived at the location in time to see a man exit the Honda,
enter the SUV and drive away.
Confident they had witnessed a “call and deliver” narcotics transaction, the
officers continued surveillance of defendant as he drove the Honda along surface streets
to a nearby residential neighborhood.2 During the five-minute drive, Arzate observed
defendant talking on a cell phone. Eventually, defendant parked on Arleta Avenue near
Carl Street. Williams parked across the street and Manente parked on the same side of
the street as defendant. A fourth officer, Detective Romero, arrived and also parked
nearby.
The officers observed defendant sit in the car for about five minutes, then get out
and stand on the sidewalk looking up and down the street. About five minutes later, a
Nissan driven by Olivas and in which codefendant Martinez was seated in the front
passenger seat arrived and parked about a car length behind defendant’s Honda.
Defendant got into the back seat of the Nissan, behind Martinez. From his vantage point,
Manente saw Martinez retrieve a small item from the sunglass compartment of the Nissan
2 Arzate explained that a “call and deliver” transaction entailed a buyer calling or
paging a dealer, arranging a time and place to meet and the transaction occurring at that
set time and place. Arzate elected to follow defendant and not the SUV because, in her
experience, it is usually the buyer who gets into the dealer’s vehicle. Arzate also
requested reinforcements to follow the SUV.

-- 3 of 12 --

4
and hand it to defendant. All of the officers were in radio contact, and Manente
communicated his observance to them.
Arzate and Williams approached the Nissan from one direction while Manente
came from a different direction. As she approached the driver’s side window, Arzate saw
defendant hand an undetermined amount of U.S. currency to Olivas. The officers
identified themselves, and Arzate ordered the suspects out of the Nissan. As Olivas got
out of the car, Arzate noticed he was still holding the money defendant had handed to
him; when Olivas dropped this money, some landed on the driver’s seat and some on the
street; when the money was collected, it was later determined to be $718.
Meanwhile, as Manente approached the Nissan, he saw defendant open the back
door and toss out something that landed four feet away. Manente immediately picked up
the object, which was later determined to be 25.21 grams of heroin. Arzate testified that
25 grams of heroin is known as a “Mexican ounce” and sells for between $700 and
$1,000.
Defendant, Olivas, and Martinez were arrested and searched; defendant had $422
in his possession, Martinez had $63, and Olivas had $140.
Arzate found a golf ball sized plastic bindle resembling heroin in the sunglass
compartment of the Nissan. Underneath the dashboard, she found a black zippered pouch
containing 25 foil-wrapped bindles containing a dark substance resembling heroin, and
11 plastic-wrapped bindles containing a substance resembling cocaine. Arzate also found
two cell phones in the center console of the Nissan. Both phones rang continuously from
the time they were seized.
When he searched the Honda, which was registered to defendant, Williams found
a cell phone on the front passenger seat. In the trunk, Williams found a digital scale, a
box of aluminum foil, and a box of plastic sandwich bags. While the suspects were being
transported to the police station, one of the cell phones found in the Nissan rang a number
of times. At the police station, the cell phone screen indicated 57 missed calls.
Arzate opined that the heroin defendant tossed from the car (Peo. Exh. 1), the
heroin found in the Nissan’s sunglass compartment (Peo. Exhs. 3, 4), and the heroin and

-- 4 of 12 --

5
cocaine found in the black pouch underneath the Nissan’s dashboard (Peo. Exhs. 8, 9,
11), had been possessed for sale. This opinion was based on various factors including the
quantity of the substance, the cell phones, digital scale, packaging materials, the behavior
of defendant, Martinez and Olivas, and the absence of any paraphernalia indicating use.
DISCUSSION
A. Evidence of Uncharged Crimes Was Admissible
Defendant contends the trial court erred in admitting evidence of the
circumstances of his June 2004 arrest on drug related charges and of codefendant
Martinez’s February 2006 arrest on drug related charges. He argues that the prior
incidents were too dissimilar from the charged offense for evidence of the prior incidents
to be admissible under Evidence Code section 1101; even if admissible, defendant
maintains, the evidence was unduly prejudicial under Evidence Code section 352. We
disagree.
1. The legal framework
Evidence of crimes committed by a defendant other than those charged is
inadmissible to prove criminal disposition or poor character. (Evid. Code § 1101,
subd. (a).) But such evidence is admissible to prove, among other things, the existence of
a common design or plan or the perpetrator’s intent in the commission of the charged
offense. (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart); Evid. Code, § 1101,
subd. (b).) It is also admissible to prove knowledge of the narcotic character of the
substance involved, unless the defendant stipulates to such knowledge. (People v. Perez
(1974) 42 Cal.App.3d 760, 766; People v. Pijal (1973) 33 Cal.App.3d 682, 691.)
Nevertheless, such evidence is admissible “ ‘only if the charged and uncharged
crimes are sufficiently similar to support a rational inference of identity, common design
or plan, or intent.’ ” (Lenart, supra, 32 Cal.4th at p. 1123.) Depending on the issue to
which the evidence is relevant, a greater or lesser degree of similarity between the

-- 5 of 12 --

6
charged offense and the uncharged offense is required. The least degree of similarity is
required to establish relevance to prove intent. (Ibid.) “To satisfy this theory of
relevance, charged and uncharged crimes need only be sufficiently similar to support the
inference that the defendant probably harbor[ed] the same intent in each instance.”
(People v. Demetrulias (2006) 39 Cal.4th 1, 15 (Demetrulias), internal quotations and
citations omitted; People v. Lewis (2001) 25 Cal.4th 610, 637.)
Even if relevant, “[e]vidence of an uncharged crime may be admitted only if its
substantial probative value is not outweighed by a danger of undue prejudice, of
confusion of the issues, or of misleading the jury. ‘On appeal, a trial court’s resolution of
these issues is reviewed for abuse of discretion. [Citation.] A court abuses its discretion
when its ruling “falls outside the bounds of reason.” ’ [Citation.]” (People v. Catlin
(2001) 26 Cal.4th 81, 122.)
2. The People’s motion, the evidence and limiting instructions
Here, the People filed a written motion in limine to introduce evidence of the
circumstances surrounding (1) defendant’s June 7, 2004 arrest on drug related charges
and (2) codefendant Martinez’s February 28, 2006 arrest on drug related charges. The
theory of admissibility was that the circumstances of these uncharged offenses were so
similar to those of the charged offenses that the uncharged offenses were probative of
knowledge and intent under Evidence Code section 1101, subdivision (b). Over defense
objection, the trial court concluded that the evidence was relevant to both knowledge of
the controlled substance and intent to sell and that it was substantially more probative
than prejudicial under Evidence Code section 352.3
Based on this ruling, the prosecutor introduced the testimony of three officers
involved in an undercover investigation that resulted in defendant’s arrest for possession
of heroin on June 8, 2004. Officer Jason Wagner testified that he used his cell phone to
3 The trial court also found the evidence relevant to prove a common plan or
scheme, but later limited admissibility to prove intent and knowledge.

-- 6 of 12 --

7
arrange a meeting with a man who agreed sell Wagner heroin; the man said he would be
driving a Chevy Lumina; at the agreed upon time and place for the meeting, defendant
drove up in a Chevy Lumina; when Wagner and his backup team approached defendant,
defendant put something in his mouth and swallowed; defendant was transported to a
hospital. Arzate, a member of Wagner’s backup team, testified that she was with
defendant at the hospital when doctors gave him something to make him vomit; Arzate
and another officer retrieved two heroin filled balloons from the vomit. Meanwhile,
Wagner retrieved a cell phone from the Chevy Lumina defendant had been driving;
Wagner determined that this cell phone carried the telephone number Wagner had called
to set up the meeting. Officer Timothy Grabe testified that, when the cell phone retrieved
from the Chevy Lumina later rang, Grabe answered it; the caller asked to purchase
heroin; Grabe agreed to sell the man heroin and a meeting time and place was arranged;
at that time and place a man who matched the description the caller gave of himself
arrived and was sold “faux” narcotics.
The evidence of codefendant Martinez’s February 2006 arrest consisted of Grabe’s
and Wagner’s testimony that on that date they encountered Martinez; a search of
Martinez recovered a cell phone, car keys, and $810 in cash; the officers used the keys to
open Martinez’s car; Martinez directed the officers to a black pouch that contained
bindles of cocaine and heroin. Wagner testified that this incident had nothing to do with
defendant.
The trial court instructed the jury that they could consider evidence of uncharged
offenses “only if the People have proved by a preponderance of the evidence that the
defendant in fact committed the uncharged offense. . . . [¶] . . . [¶] If you decide that
the defendant committed the uncharged offense, you may, but are not required to
consider that evidence for the limited purpose of deciding whether or not: [¶] A
defendant acted with the intent to sell the controlled substance as charged in counts 1 and
2 in this case; or [¶] A defendant knew of the controlled substance’s nature when he
allegedly acted in this case. [¶] . . . [¶] Do not consider this evidence for any other

-- 7 of 12 --

8
purpose. [¶] Do not conclude from this evidence that a defendant has a bad character or
is disposed to commit crime.”
3. Analysis
We conclude that the trial court did not abuse its discretion in admitting this
evidence. First, since defendant did not stipulate that he knew the substance at issue was
heroin, his knowledge was a disputed issue. (See People v. Thornton (2000)
85 Cal.App.4th 44, 48.) Second, defendant expressly put into issue the element of intent
by arguing that he was a heroin user, not a dealer. The June 2004 incident was
sufficiently similar to the charged offense to make it probative of both defendant’s intent
– possession for sale and not personal use – and his knowledge of the narcotic character
of the substance. The events are similar in that both had the hallmarks of a “call and
deliver” transaction – most notably, the use of a cell phone to arrange the time and place
of the transaction. Both incidents involved heroin. Finally in both incidents defendant
attempted to dispose of the contraband when confronted by police.
As in Demetrulias, the jury in this case could rationally find it unlikely that
defendant had the extremely bad luck to twice be found in possession of a substantial
quantity of heroin and a cell phone that was being called by persons trying to purchase
heroin when the heroin was only for his own use. A more likely inference is that
defendant intended to sell the heroin. The evidence was also relevant to prove
defendant’s knowledge of the substance. For these reasons, the evidence was admissible
on the issues of intent and knowledge under Evidence Code section 1101,
subdivision (b).
Moreover, the evidence was not more prejudicial than probative. It was strongly
probative of both whether defendant had the intent to sell, rather than merely possess the
drugs for his own use, and whether he had knowledge of the narcotic nature of the
substance. The trial court corrected any prejudicial effect by its instruction admonishing
the jury not to use the evidence to show disposition to commit crimes. Accordingly, we
find no error in the trial court’s admission of this evidence.

-- 8 of 12 --

9
Finally, we are not persuaded otherwise by defendant’s argument that the evidence
was prejudicially cumulative because multiple officers testified. Each officer testified to
the particular aspect of the incident as to which that officer had personal knowledge.
Thus, the evidence was not cumulative.
As for the February 2006 incident involving codefendant Martinez, defendant has
not shown that the evidence was inadmissible against Martinez on the issues of
knowledge and intent. The prosecution’s theory was that defendant was an aider and
abettor, nor has he shown how admission of this evidence was prejudicial to him,
especially in light of Officer Wagner’s testimony that this incident did not involve
defendant at all.
B. The Trial Court Properly Gave a Unanimity Instruction
Defendant contends the trial court erred in giving a unanimity instruction.4 He
argues that, because there was no evidence that defendant committed any illegal act other
than possessing the heroin that he tossed from the Nissan on July 13, 2006, the
instruction allowed the jury to improperly convict defendant based on evidence of the
uncharged June 2004 incident. The People counter that the other act necessitating this
instruction was the “call and deliver” transaction with the driver of the SUV occurring
just before the incident in the Nissan. We agree with the People.
“[W]hen the evidence suggests more than one discrete crime, either the
prosecution must elect among the crimes or the court must require the jury to agree on the
same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where
4 The challenged instruction was: “The defendant is charged with possession for
sale of a controlled substance in count 1. Also, defendant Manuel Martinez is charged in
count 3 with the sale or transportation of heroin. [¶] The People have presented evidence
of more than one act to prove that the defendant committed this offense. You must not
find a defendant guilty unless you all agree that the People have proved that the
defendant committed at least one of these acts, and you all agree on which act he
committed.”

-- 9 of 12 --

10
no election is made, the court has a duty to instruct sua sponte on the unanimity
requirement. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
Here, during a discussion of jury instructions, the following colloquy occurred:
“[DEFENSE COUNSEL]: . . . I believe the unanimity instruction will be confusing to
the jury in that there is 1101(b) evidence presented, and that I think the jury may believe
that they have a right to agree that my client was guilty of the 2004 incident and convict
based on that. [¶] THE COURT: The unanimity instruction specifies by number and by
the count that it’s related to, separate and apart from the 1101(b) evidence. The 1101(b)
evidence has its own separate instruction. [¶] [DEFENSE COUNSEL]: I would ask the
court to add something to the [unanimity] instruction saying that it excludes the 1101(b)
or the 2004 incident. It doesn’t apply. [¶] THE COURT: There is no need.”
Accordingly, the trial court instructed: “The defendant is charged with possession
for sale of a controlled substance in count 1. Also, defendant Manuel Martinez is
charged in count 3 with the sale or transportation of heroin. [¶] The People have
presented evidence of more than one act to prove that the defendant committed this
offense. You must not find a defendant guilty unless you all agree that the People have
proved that the defendant committed at least one of these acts, and you all agree on which
act he committed.”
The prosecutor did not explain in her closing argument how the instruction applied
to defendant.5 But at trial, Arzate had opined that “a call and deliver transaction possibly
occurred between [defendant] and the burgundy SUV, as well as a narcotic transaction I
believe was occurring between [defendant] and the two gentlemen in the gray Nissan,
Manuel Martinez and Daniel Olivas.” Although the incident with the driver of the SUV
5 Regarding codefendant Martinez, the prosecutor explained that, as to the charge of
sale or transportation of heroin (count 3), the jurors “need to be unanimous that
[codefendant Martinez] either sold the heroin or transported the heroin, or both. Either
one will do. You just have to be unanimous on it. You don’t have to tell us whether it’s
one or both. But amongst yourselves we trust you will be unanimous, again, as to the
heroin, that he either sold or transported or both.”

-- 10 of 12 --

11
was not the theory of the prosecution’s case against defendant, some jurors may have
concluded, based on Arzate’s opinion, the fact that the incident had all the hallmarks of a
“call and deliver” transaction, and the fact that defendant was purchasing such a large
amount of heroin a few minutes later, that defendant’s criminal act was possession of
heroin which he sold to the driver of the SUV. To assure that the jurors unanimously
agreed on the same criminal act, the trial court properly gave the unanimity instruction.
Even assuming it was error to give the unanimity instruction, the jury was properly
instructed on the limited purpose for which they could consider evidence of the June
2004 incident. We assume the jurors understood and followed this instruction. (People
v. Holt (1997) 15 Cal.4th 619.)
C. Cumulative Error
Since we have found no merit to either claim of error advanced by defendant, his
claim of cumulative error necessarily fails.
D. Apprendi/Cunningham
Also without merit is defendant’s contention that the trial court’s imposition of the
high term violated the principles set forth in the line of cases commencing with Apprendi,
supra, 530 U.S. at page 490 and culminating with Cunningham v. California (2007)
549 U.S. __ [127 S.Ct. 856, 868] (Cunningham).
Here, the trial court selected the high term based on the circumstances that
(1) defendant was on probation at the time of the current offense and (2) his prior
performance on probation was unsatisfactory. Both circumstances are related to
defendant’s recidivism and rendered him eligible for the high term under People v. Black
(2007) 41 Cal.4th 799. Therefore, defendant “was not legally entitled to the middle term,
and his Sixth Amendment right to jury trial was not violated by imposition of the upper
term sentence . . . .” (Id. at p. 820.)

-- 11 of 12 --

12
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
RUBIN, J.
WE CONCUR:
COOPER, P. J.
FLIER, J.

-- 12 of 12 --