P. v. Martinez 12/16/08 CA2/1

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B194836

Case Date: 03/25/2009

Preview:Filed 12/16/08

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. RICHARDO MARTINEZ and JESSE MARTINEZ, Defendants and Appellants.

B194836 (Los Angeles County Super. Ct. No. LA 049659)

APPEALS from judgments of the Superior Court of Los Angeles County. Richard H. Kirschner, Judge. Reversed. ________ Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Richardo Martinez. Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant Jesse Martinez. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent. _________

2

Richardo Martinez and Jesse Martinez appeal from their convictions on two counts of murder and one count of attempted murder.1 The trial court instructed the jury that it could find Richardo and Jesse guilty of the murders and the attempted murder if the jury found that (1) they aided and abetted a breach of the peace or a misdemeanor assault and (2) the murders and the attempted murder were "natural and probable consequences" of the crimes that they aided and abetted. On appeal, Richardo and Jesse argue that the trial court erred by so instructing the jury because the record does not contain substantial evidence that the murders and the attempted murder were natural and probable consequences of the alleged breach of the peace or the alleged misdemeanor assault. We agree, and we further conclude that it is reasonably probable that Richardo and Jesse would have obtained a more favorable result were it not for the trial courts error. We therefore reverse. BACKGROUND The amended information charged Richardo, Jesse, and a third codefendant, Saul Rivera, with the murders of Miguel Zapata (count 1) and David Zapata (count 2) in violation of Penal Code section 187, subdivision (a),2 and with the attempted murder of Edwin Leiva in violation of section 187, subdivision (a), and section 664 (count 3). The information alleged with respect to all counts that the murders and the attempted murder were willful, deliberate, and premeditated within the meaning of section 664, subdivision (a), and were serious felonies within the meaning of section 1192.7, subdivision (c). It further alleged with respect to counts 1 and 2 the special circumstances of multiple murders (

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