People v. Marta CA4/3

INTRODUCTION

A jury convicted Cesar Gerardo Marta of the second degree murder of Cesar Daniel Hernandez-Gutierrez (Gutierrez) and acquitted Marta of first degree murder. (Pen. Code, §§ 187, 189.) The trial court found true the allegations that Marta had previously been convicted of a serious felony (id., § 667, subd. (a)(1)) and had been convicted of a serious and violent felony (id., §§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)). The court struck the prior serious and violent felony conviction for purposes of sentencing and sentenced Marta to a term of 20 years to life in prison. The one claim of error asserted by Marta is the trial court should have granted his motion for a mistrial. Marta’s motion for a mistrial was based on the court’s decision to admit for a limited purpose, and later to strike, testimony from a witness that, on the evening of the murder, Marta’s nephew stated, “we’re going to go to [the victim’s] house and F him up.” We conclude the trial court did not err by denying the motion for a mistrial and therefore affirm.

FACTS

Marta was married to Ysidra Cano as of the time of trial. They have two daughters: Vanessa and Ruby. Vanessa suffers from…