The key to a murder conviction is premeditation

In July the Court of Appeal in the greater San Francisco area

reversed a conviction that, in my opinion, was an easy call.

This is the story of a bully and his victim, the death of the

bully and what is appropriate justice. It is also the story of the

Santa Cruz County Prosecutor’s Office, which has now had three

convictions reversed since April. Each case had one thing in common;

the Deputy District Attorney trying the case argued that certain jury

instructions should not be given, the judge bought it and the

Appellate Court found that the defendant had not gotten a fair trial.

In this case one Marvin Martinez shot and killed Angel Ayala and

Mario Cerna in 2001 near a body shop in Santa Cruz. Martinez was

subsequently interrogated by police officers who videotaped what

turned out to be his confession. Perhaps the most important part of

the confession was Martinez’s mental state. It was clear to the

Appellate Court justices that Martinez was emotionally wrought, and

overwhelmed with what had taken place. During his confession he

alternately sobbed and vomited.

He also freely admitted what he had done. Martinez talked about a

lifetime of torment, which dated back to when he and Cerna attended

middle school.

Cerna would beat him up on a regular basis and talk about him in

an extremely negative way to all who would listen. This went on for

years and culminated in the confrontation outside the automobile body

shop.

Martinez said his goal was to shoot in the direction of Cerna in

the hope that it would scare the daylights out of him and get him to

leave him alone. Unfortunately, that bullet hit Ayala.

Cerna and Martinez then looked at each other and Martinez was

overcome with a tremendous amount of anger for all he had taken over

all of these years. He shot again wanting to scare Cerna, not to

actually hit him.

The key to this case occurred when the defense attorney asked the

judge to give jury instructions for a lesser offense than murder

known as voluntary manslaughter. The defense attorney suggested that

Cerna’s behavior over the years had led to Martinez shooting him, in

what is referred to as the “heat of passion.”

The prosecutor objected and the judge denied the giving of these

instructions. The Court of Appeals found this to be an incorrect

decision concluding that the instructions pertaining to provocation

and heat of passion should have been given.

The key to a murder conviction is premeditation. If the jurors

were to, after viewing the tape, decide that they were not convinced

beyond a reasonable doubt that premeditation existed, they could have

found that this was voluntary manslaughter rather than murder. As it

was with the instructions they got, the jurors could have convicted

Martinez of first degree murder but they were clearly sympathetic to

him after viewing the videotape and convicted him of second-degree

murder which was the lowest level crime they were offered.

Sometimes prosecutors go a little too far and focus only on

winning rather than on justice. This creates situations such as what

happened in the Martinez case, and in the other two cases that have

recently been reversed. This leads to time, money and other resources

being wasted. What good has been accomplished by three overturned

convictions in the last five months? Each of these cases now has to

be retried.

Apparently the prosecutors’ hope is that the defense will lose its

appeal and the cases won’t be overturned, but even if that were to

happen, would justice truly be served? Not even close.

It is important to remember that the role of the prosecutor and

the role of the defense attorney are quite different as are the

standards applied to each of them.

The prosecutor is supposed to seek justice; the defense attorney

is supposed to vigorously defend his client. This puts a greater

burden on the prosecutor to try his case “above reproach.” I would

suggest that if there is any question as to whether or not a lesser

charge would be appropriate; the lesser charge, in this case

voluntary manslaughter, should be offered to the jury.

Hopefully prosecutors all over this state will be guided by these

appellate court decisions and do the right thing in the future.

* CHARLES J. UNGER is a criminal defense attorney in the Glendale

law firm of Flanagan, Unger & Grover, and a therapist at the Foothill

Centre for Personal and Family Growth. He may be reached at (818)

244-8694 or at o7www.charlieunger.com.

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