Martinez

INTRODUCTION

After defendant and appellant Victor Arturo Martinez (defendant) engaged in a physical altercation with two clerks at a convenience store, he left the scene but returned shortly and again began to fight with them in the parking lot of the store. After being struck repeatedly with a wooden dowel wielded by one of the clerks, defendant, bleeding from a gash on his forehead, pulled a knife out of his pocket. He proceeded to disarm and stab the dowel-wielding clerk, and then fatally wound him in the neck with the knife.

The jury in defendant’s second trial found him guilty of second degree murder. On appeal, defendant contends that the trial court violated his constitutional rights by admitting the preliminary hearing testimony of the surviving clerk without the prosecution having exercised due diligence in attempting to obtain the presence of that clerk to testify at trial. Defendant further contends that the evidence was insufficient to support the second degree murder conviction; the trial court erroneously instructed the jury because the predicate unlawful act was not defined for finding implied malice; and the trial court misstated the requisite intent for…