People v. Martin

1

THE PEOPLE, Plaintiff and Respondent, v. MARK MCDONALD MARTIN, Defendant and Appellant.

F086531

California Court of Appeals, Fifth District

October 8, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County. No VCF408897 Nathan G. Leedy, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SNAUFFER, J.

After casing the property, appellant Mark McDonald Martin slipped into the attached garage of the home where his restraining order-protected former girlfriend, their two toddler daughters, and her current boyfriend were present. All four were watching the waning portions of the 2021 Super Bowl at the time, although the little girls had fallen asleep on a mattress on the living room floor. Martin threw gasoline he had brought with him onto the garage floor, ignited it, and then fled, causing a fire that quickly spread and soon threatened the entire residence. Fortunately, everyone inside was able to safely escape the flames without injury, and the fire department arrived and controlled the blaze.

A jury convicted Martin of four counts of willful, deliberate, and premeditated attempted murder (Pen. Code,^[1] §§ 664 &187, subd. (a)), arson of an inhabited structure (§ 451, subd. (b)), and first degree burglary of an inhabited dwelling (§§ 459 &460, subd. (a)). The trial court sentenced Martin to four consecutive indeterminate terms of seven years to life on the attempted murders, along with determinate terms for the arson and burglary convictions which were stayed pursuant to section 654.^[2]

Martin raises two claims on appeal:

(1) There was insufficient evidence to support the attempted murder and arson convictions, both as to the identity of the perpetrator and whether the fire was deliberately set or merely accidental.

(2) The trial court prejudicially erred in its response to the jury's request for clarification on the intent element of the attempted murder charges "because the response failed to inform the jurors that they must determine whether [Martin] possessed the intent to kill for each alleged victim." (Bold font and capitalizations omitted.)

We affirm.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

Martin contends that the evidence was insufficient to sustain the jury's attempted murder and arson verdicts.^[3] He focuses on two elements common to both convictions: Was the evidence sufficient to show that the fire was deliberately set, not an accident, and that Martin was the person who set it? It was both.

A. The Facts

Because Martin raises a sufficiency of the evidence claim, we lay out the underlying facts in some detail, doing so as we must in the light most favorable to the judgment. (People v Abilez (2007) 41 Cal.4th 472, 504.) Additional facts relevant to the jury instruction issue Martin also raises are separately set forth below.

i. The Backdrop

Martin and S.M. started dating in February 2018 and rather quickly had two daughters, M.M.1 and M.M.2.^[4] The couple separated soon after M.M.2 was born in March 2020 because S.M. said she "had to put a stop to" Martin's repeatedly stealing from her. By February 7, 2021, the date of the current offenses, M.M.2 was "about to turn a year [old], and [M.M.1] would have been just two." In the meantime, S.M. had obtained custody of the girls and Martin had no visitation rights.

After they separated, Martin continued to contact S.M. almost daily to tell her he missed her, loved her, and wanted to see her. She would try to block his calls, but he would just get new phone numbers and call her again. He would leave voicemails "crying and then cussing and then more crying," telling her he loved her, but also at times that he hated her. These attempts continued up to and until he was arrested for the current offenses in February 2021.

In one particularly telling voicemail, Martin told her:" 'Fucking burn to death. Fucking slow, horrible in a fucking car accident.'" He continued," 'You don't even need to file for custody. You fucking keep them.... I don't want nothing to do with you, whatsoever. Nothing with your daughters ... Change their fucking last name .... For reals change their fucking last name.'" He added," 'I wanna get off their fucking, the birth certificate too. I don't want to be on the birth certificate at all.'" In another voicemail, he said," 'I hope you fucking die you fucking fat fucking cow. Fucking fat bitch. I hope you fucking die.'" S.M. testified that Martin had also sent her several similar text messages.^[5]

In "the middle of 2020," S.M. began dating A.C., and the two began intermittently living together thereafter. By February 2021 they were still together, with S.M. and the girls now spending only a small part of their time at her parents' home and "slowly moving" fulltime into A.C.'s house.^[6]

In December 2020, S.M. and A.C. had a party for M.M.1's second birthday at S.M.'s parents' house. The event was posted on social media where their relationship was publicly disclosed for the first time. The event was also noteworthy because when leaving the party S.M. found a handwritten note on her car that said" '[A.C.], leave now,'" or something similarly threatening.^[7] In addition, the note contained a small addendum, "#SM", which S.M. testified was something A.C. had used on his social media to describe her before he and she went public with their relationship in order to "[p]ut me in [his] post ... without putting me in the post." S.M. said she "absolutely" recognized the handwriting on the note left on her car as being Martin's.

A few weeks later, in a Facebook entry dated January 23, 2021, Martin posted a photo captioned:" 'My plans for Valentine's Day.'" It showed a person sitting in a lawn chair squirting a hose at two people riding by on a passing motorcycle. Written above the two persons was" '*couple'" and above the seated individual was" '*me' ". At the top of the photo, Martin had written," 'But with a flamethrower instead!!' "

ii. The Fire

About two weeks after Martin's "flamethrower" post, on February 7, 2021, at around 6:00 p.m., S.M. and A.C. were watching the Super Bowl in the living room of A.C.'s house with the two girls, both of whom had fallen asleep on a mattress in the middle of the living room floor in front of the television. The living room was fully visible from the outside through sliding glass doors that led into the backyard. S.M. and A.C. left the girls sleeping in the living room and went to the bedroom to continue watching the game without disturbing them.

At some point, S.M. and A.C. both heard a noise sounding like a thud or a hard knock, and as S.M. went into the living room to check on the girls, she heard another thudding sound. She then saw smoke coming into the house through the edges of the laundry/washroom door leading into the garage, and she called for A.C. He opened the door to the garage and yelled," '[T]here's a fire, call 9-1-1.'" The flames in the garage at that point were already extending to the garage ceiling. S.M. picked up the girls, ran outside, and called 911.

The Visalia Fire Department responded to the scene and successfully extinguished the fire before the entire house was completely involved. Initially, the on-scene Fire Captain and an Engineer/Arson Investigator Trainee did not notice anything obviously suspicious about the fire, such as the presence of an incendiary device like a Molotov cocktail or any signs of forcible entry to the garage. They thought that while the cause of ignition of the fire itself was "undetermined," the fire appeared to have been "accidental due to the hot water heater."

iii. Martin Returns to Social Media

Later that same night, S.M. and A.C. both received several text messages from friends that included a screenshot of a "poem" that Martin had posted that night on Snapchat:

"Has the terror sunk in yet, are you not scared now? Think this is a joke, a punk kid I am not, sit here I plan and plot, it may take some time but patience is what I got, next time it'll be you in that fiery plot, it's real shit in what I wrote. [¶] You chose not to listen and that's your fault, take heed to my first note, has the terror sunk in yet, are you not scared now, think this is a fucken joke?!?!"^[8]

S.M. interpreted Martin's reference to the "first note" as the note Martin had left for A.C. on her car in December.

That same night, Martin also left two comments on the Facebook page of the "VISALIA Stringer," who had reported on-line about the fire at 8:19 p.m. The "VISALIA Stringer" apparently was "a guy that goes around, and .. takes videos and stuff of crimes that happen." He had posted in response to other Facebook inquiries as to the fire's cause by saying it "looks like it was the water heater." Using his own name this time, Martin replied, "but how?", followed by, "How the heck does a water heater cause this much damage?"

iv. Andrew Brown

The day after the fire, Martin's long-time friend and acquaintance Andrew Brown called the fire department about the fire. Two Visalia police detectives arranged to meet with Brown later that day.

Brown first told the detectives that he had grown up with Martin and knew him "real good." However, he said that "lately [Martin had] been going off a lot .. [l]ike real bad on drugs and stuff." He added that Martin had been "going all nuts over" S.M. and was "just psycho over her . [a]nd so that's been a long time going" to the point where he thought Martin must be already...