Filed 9/2/26 P. v. Martinez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B344304
Plaintiff and Respondent, Los Angeles County Super. Ct. No. MA085403
v.
SANTIAGO MARTINEZ et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County, Emily J. Cole, Judge. Affirmed as modified.
Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant Santiago Martinez.
Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant Alberto Mejia.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Inmates Santiago Martinez and Alberto Mejia attacked another inmate. Martinez and Mejia challenge their convictions for attempted murder and other charges. We agree with the prosecution that we must reverse Mejia’s conviction under section 4501, subdivision (a) because it duplicates his conviction under section 4500. We otherwise affirm. Statutory citations are to the Penal Code.
I
Martinez and Mejia were inmates at a maximum-security prison in Los Angeles County. Within the prison, they were housed in administrative segregation, “a prison within a prison” for inmates who commit violent crimes in prison or who pose other safety concerns. Inmates in this section are cuffed at the hands and ankles with a waist chain anytime they are out of their cells, unless they are in the shower or yard. Zapatistas and 2-5ers are two rival groups present at the prison.
Martinez and Mejia were sitting next to each other at a group therapy session. An officer escorted fellow inmate Gabriel Vildasola past the window of the room in which the therapy session was occurring. Martinez and Mejia used a handmade key to unlock their shackles within seconds. Martinez passed a weapon to Mejia. Officers later found handcuff keys on the floor of the classroom.
Vildasola pulled away from the officer escorting him and began running. Mejia ran out the door of the therapy room with a weapon in his hand and down a hallway parallel to the one Vildasola was running down. A door connected the two hallways. Mejia slipped before reaching the connecting door, and officers pinned him down.
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Martinez ran down the same hallway Vildasola took. An officer kicked Martinez’s legs out from under him, causing him to fall to the ground. Martinez got up, shoved past another officer who pepper sprayed him, and caught Vildasola, whom he stabbed four times. An officer jumped on Martinez, grabbing him around the neck, and pulled him off Vildasola, before pinning Martinez to the ground. Martinez had a knife-like weapon in his hand. As officers escorted him away, Martinez yelled, “I got that fool,” so other inmates could hear. He also said, “I stabbed a Zapatista right now,” and, in Spanish, “I’m here for 2-5.” He later told an officer, “This was nothing personal. It’s just business.” During his closing, the prosecutor pointed out a 2-5er tattoo on Martinez’s cheek.
Officers found another handcuff key and weapon in Martinez’s cell.
An officer pinned Vildasola down after the attack when he reached for a weapon on the ground by his hand. The stab wounds to Vildasola’s back and abdomen caused his lung to collapse.
Attorney Robert Haberer represented Martinez, and attorney James Pinchak represented Mejia. During voir dire but before jury selection, the trial court spoke with counsel on the record about safety measures without Martinez or Mejia present. The court noted that earlier, off the record, each defense counsel had requested the court place his clients in a stealth belt due to counsel’s concern for his own safety. The court further noted that it would not have required the belts absent counsels’ request because the court had not noticed any concerns. Due to Pinchak’s earlier on the record objection, the court pulled the prison reports for Martinez and Mejia to determine if there was
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manifest need for the belts. Pinchak noted that he had objected “to protect the record to also show my client that I’m working for him so I would have a better client control.”
At the court’s invitation, the prosecutor laid out several rules violations Mejia committed while in prison. The court itself then read into the record a number of rules violations Martinez committed.
Haberer then shared his concerns with the court. He noted that the belts did not prejudice the defendants because the jury could not see them. Haberer expressed his concern for his safety, noting both defendants already were serving life sentences and had a “nothing to lose” attitude: “that’s scary to me.” He was also concerned by the “unpredictability” of his client’s personality, who could appear “happy-go-lucky, charming” in contrast to the nature of the charges. Haberer objected to a suggestion that he sit between Martinez and Mejia, because his carotid artery “is exposed to everything,” and his client had a “history of being able to secrete weapons.” He noted that “[i]nstead of paying attention to the trial, my peripheral vision has to be on alert all the time. It reduces my ability to focus.”
Pinchak objected to his seat being moved because “[i]f something happens, I have plenty of space to move away.”
The court ultimately found there was manifest need for both Martinez and Mejia to wear stealth belts. The court also ordered extra bailiffs in the courtroom.
During the trial, the jury saw surveillance video of the attack. Ten correctional officers testified.
The jury convicted Martinez and Mejia each of attempted premeditated murder and assault with a deadly weapon by a state prisoner (§ 4501, subd. (a) (§ 4501(a)).
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The jury also convicted Mejia of assault with malice aforethought (§ 4500).
Whether § 4501(a) and section 4500 are different crimes or are essentially the same crime on the facts here is an issue in this appeal. Prosecutors had charged Mejia but not Martinez with two different assault crimes, apparently because the prosecution was uncertain exactly which of these theories jurors might accept, given that Mejia was not the one who plunged the weapon into the victim. Jurors, however, accepted all of the prosecution’s theories, thus raising the issue of possible duplication, which as we shall see the prosecution now concedes.
II
Martinez and Mejia appeal their convictions on three bases.
First, Martinez and Mejia claim a violation of their constitutional rights to be present at all critical proceedings and to conflict-free counsel. Because they do not show prejudice, these claims fail. Second, they argue section 954 prohibits multiple convictions based on the single act of stabbing. As the prosecution agrees, we must reverse Mejia’s conviction for § 4501(a), for it essentially duplicates his conviction for section 4500. We affirm all other convictions. We reject an argument about prosecutorial misconduct because there is no showing of prejudice.
A
Martinez and Mejia argue the court violated their constitutional rights in two interrelated ways. First, they argue the court violated their constitutional right to be present at a critical proceeding when they were absent from the hearing discussing security measures. Second, they argue this exclusion prevented them from realizing their counsel had conflicts of
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interest: the lawyers were worried about the lawyers’ own safety as well as the clients’ best interests. Their claims fail. Prejudice is required, but Martinez and Mejia do not show it.
Defendants have a constitutional right to be present at proceedings where necessary to protect their ability to effectively cross-examine and at critical stages where their presence would enhance the fairness of the proceeding. (People v. Flinner (2020) 10 Cal.5th 686, 710.) Violations of this right are harmless unless defendants show prejudice. (Ibid.)
Defendants also have a constitutional right to counsel free of professional conflicts. (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) Representation by counsel laboring under a conflict of interest is ineffective assistance of counsel. (Id. at pp. 417–418.) Where the conflict is caused by representation of multiple clients in the same matter, we presume prejudice. (Id. at pp. 418, 428; see also People v. Almanza (2015) 233 Cal.App.4th 990, 1006–1007 [under Doolin, where counsel not representing two or more defendants concurrently, traditional prejudice standard, not presumption, applies].) In other cases, a defendant asserting this type of claim must show counsel had an actual conflict that adversely affected the representation and that the effect on the representation prejudiced the defendant. (Doolin, supra, 45 Cal.4th at pp. 417–418.)
We will assume Martinez and Mejia had a right to be at the security proceeding. Both argue the exclusion caused prejudice because neither learned about the professional conflict and neither knew the lawyers were arguing against their clients’ best interests.
Martinez and Mejia argue their counsel had a conflict because they were afraid of the defendants and this caused their
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counsel to take positions adverse to the best interests of their clients. We will assume for the purposes of this analysis that their counsel had a conflict.
Citing People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 309, Martinez and Mejia argue prejudice is presumed when an actual conflict of interest exists. However, Gonzales requires an actual conflict must have “affected counsel’s performance” before a defendant can gain a remedy. (Ibid.)
Martinez and Mejia have shown no adverse effect. Martinez argues his attorney’s fear led him to argue his client was dangerous and led to the admittance of evidence such as the rules violation report, as well as imposition of the stealth belts. As noted, the jury could not see the stealth belt. Martinez does not explain how prejudice resulted from this.
Martinez argues that the court’s exposure to the information about the rules violation and counsel’s argument that he was dangerous tainted the guilt phase and sentencing. Martinez does not make this argument until his reply brief, and we disregard it for this reason. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761 fn. 4.)
Moreover, this prejudice argument also fails on the merits for want of a factual basis. Nothing suggests counsels’ fear or the court’s exposure to Martinez’s rules violations played a role at trial or during sentencing. The court’s use of the information about the attorneys’ fear and Martinez’s prison behavior was extremely limited: it considered the information only for the purpose of determining whether there was manifest need for the stealth belt. The court did not mention counsels’ fear or the rules violations during trial or sentencing. At sentencing, for instance, the prosecutor argued, and the court relied on, solely on previous
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convictions and the nature of the crime itself to determine factors in aggravation.
Mejia argues the conflict led his counsel to request Mejia be restrained while simultaneously objecting on the record for the purpose of client control. Mejia argues prejudice resulted because his counsel argued for the stealth belt, a position against Mejia’s best interests. The jury could not see the stealth belt, which had no effect on the trial. The prejudice argument fails.
B
Martinez and Mejia argue their respective § 4501(a)
convictions are improper under section 954. Martinez argues his § 4501(a) conviction duplicates his attempted murder charge, while Mejia argues his § 4501(a) conviction duplicates his section 4500 assault charge. As the prosecutor concedes, Mejia is correct. Martinez, however, has not established his conviction is improper.
Section 954 allows prosecutors to charge “different statements of the same offense,” but does not allow a defendant to be convicted for multiple statements of the same offense. (People v. Vidana (2016) 1 Cal.5th 632, 650 (Vidana).) Multiple convictions can arise from the same act. (Id. at p. 637.)
There are two tests to determine whether an uncharged offense is necessarily included within a charged offense: the “elements” test and the “accusatory pleading” test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the
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latter is necessarily included in the former. (People v. Reed (2006) 38 Cal.4th 1224, 1227–1228 (Reed).)
A defendant cannot be convicted of two offenses if one is necessarily included in the other or if the legislature intended to define a single offense that can be committed multiple ways – in other words, if the convictions are different statements of the same offense. (Vidana, supra, 1 Cal.5th at pp. 637, 648–649.)
To determine if two convictions run afoul of section 954, we consider the elements as well as legislative intent. (Vidana, supra, 1 Cal.5th at p. 638.) If one is a necessarily included offense of the other, they are not different offenses. (Id. at p. 637.) Even if the elements differ, two offenses can be essentially the same if legislative intent shows this is so. (Id. at p. 648.) We consider the text and structure of the statutes, the elements of the offenses, the punishments, the legislative history, and the historical context of the statutes’ enactment. (People v. Aguayo (2022) 13 Cal.5th 974, 982–983.)
Mejia argues he may be convicted only of section § 4501(a)
or of 4500, but not both. This is correct, as the prosecutor concedes. (See People v. Nava (2007) 107 Cal.App.5th 624, 626 [person cannot be convicted under both § 4500 and § 4501(a) for same conduct].)
Martinez makes a different, and incorrect, contention: that his section § 4501(a) conviction duplicates his attempted murder charge.
Martinez does not dispute that, under the statutory elements tests, the conviction under § 4501(a) for assault with a deadly weapon is not included in the conviction for attempted murder. Instead, he argues that under the accusatory pleading test, they are different statements of the same offense. But Reed,
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supra, 38 Cal.4th 1224, a case Martinez cites, holds the statutory elements test should be used and the accusatory pleading test should not. (Id. at pp. 1229–1230.)
Martinez makes no attempt to show the legislative intent requires a different result. Based on the record before us, section 954 does not preclude Martinez’s convictions for attempted murder and for violating § 4501(a).
C
Martinez and Mejia argue that the prosecutor committed misconduct in closing argument requiring reversal. These arguments fail.
Prosecutorial misconduct violates the federal Constitution when the prosecutor’s conduct so infects the trial with unfairness as to make any resulting conviction a denial of due process. (People v. Nadey (2024) 16 Cal.5th 102, 156 (Nadey).) Under state law, prosecutors commit misconduct when they use deceptive or reprehensible methods to attempt to persuade the jury or court. (Ibid.) Where the alleged misconduct consists of comments to the jury, we evaluate whether there is a reasonable likelihood the jury applied or construed the comments in an objectionable fashion. (Ibid.)
To preserve an objection for appeal, defendants must object and request a curative admonition. (People v. Choyce (2025) 18 Cal.5th 86, 114.) Defendants are excused from these requirements only when the objection would be futile or the trial court overrules the objection immediately and does not provide opportunity for counsel to request an admonition. (People v. Boyette (2002) 29 Cal.4th 381, 432 (Boyette).)
Martinez and Mejia both assert an instance of alleged misconduct, and Martinez alleges two additional instances. We
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need not determine if defendants preserved their objections because they are meritless in any case. We will describe and analyze each in turn.
First, both Martinez and Mejia argue the prosecutor improperly shifted the burden to defendants to produce evidence. Pinchak argued the prosecutor had not called witnesses to establish the motive he was urging the jury to find for the attempted murder: a feud between Zapatistas and 2- 5ers. In rebuttal, the prosecutor argued defense counsel had the same ability to subpoena witnesses that he did and suggested defense counsel had not done so because the witnesses would have testified about the defendants’ “motive to stab Vildasola and made their case worse.” Pinchak objected and asked to approach. The trial court overruled and declined to allow counsel to approach. Later, outside the presence of the jury, Pinchak stated he had not commented on what the witnesses’ testimony might be and the prosecutor’s rebuttal had improperly done so.
The jurors were not likely to misapply this comment. (See, e.g., Nadey, supra, 16 Cal.5th at p. 159–160.) The comment was brief, and the judge clearly instructed the jurors on the burden and that the attorneys’ comments were mere argument. Given the strength of the evidence here, this comment could not have swayed jurors. This is especially true given the prosecutor directed this argument at proving motive, which the prosecutor had emphasized he did not need to prove. (People v. Steskal (2021) 11 Cal.5th 332, 352–353 [comment harmless where tangential to issues in case].) Nor did the comment impermissibly shift the burden to defendants. The prosecutor did not suggest or imply defendants had a duty to produce evidence. (Id. at pp. 351–352 [prosecutorial comments that do not state or
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imply defendant has duty to produce evidence do not impermissibly shift burden].)
Martinez next argues the prosecutor’s reference to President John Kennedy was unduly inflammatory. This odd reference arose as follows. Defense attorney Haberer argued the improbability that Martinez and Mejia would have an opportunity to attack Vildasola militated against a finding that this was a planned attack. In rebuttal, the prosecutor argued that Lee Harvey Oswald took a difficult shot in assassinating President John Kennedy and that the difficulty of the shot did not diminish his culpability for the murder.
There is no likelihood the jury misapplied this comment.
The prosecutor’s comment was brief and referred to an event from more than 60 years ago, not to some current cause of boiling national outrage. It validly illustrated the point that taking a long shot does not reduce culpability of attempted murder.
Finally, Martinez challenges the prosecutor’s comment about him to the jury during his closing. The prosecutor told the jury, “You can consider the evidence. You can also consider the defendant’s behavior in court. You may even be able to see from where you’re sitting that Mr. Martinez has a dos cinco tattoo, two dots and a line, on his cheek.” We assume this comment was improper. (See Boyette, supra, 29 Cal.4th at p. 434.) However, it was also harmless. The prosecutor’s brief comment was isolated. As mentioned, the uncontested evidence was Martinez yelled, “I got that fool,” so other inmates could hear. He also said, “I stabbed a Zapatista right now,” and, in Spanish, “I’m here for 2- 5.”
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DISPOSITION
We direct the trial court to reverse Mejia’s conviction under section 4501, subdivision (a) and to strike the sentence and any fees imposed in connection with that charge. We further direct the trial court to correct the abstract of judgment in accordance with this holding and forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, we affirm the judgment.
WILEY, ACTING P. J.
We concur:
VIRAMONTES, J.
SCHERB, J.