Monday, November 25, 2002
Defendant Wins Reversal of Conviction for Stealing From Lawyer
By KENNETH OFGANG, Staff Writer/Appellate Courts
A pro per defendant who drew a three-strikes sentence for embezzling from a criminal defense lawyer, then fought all the way to the U.S. Supreme Court in an unsuccessful bid to represent himself on appeal, had his conviction thrown out on Friday.
Orange County prosecutors blocked Salvador Martinez from obtaining due process when they failed to divulge material that could have impeached a key prosecution witness, Presiding Justice David Sills wrote for the Fourth District’s Div. Three.
Martinez’s case, Sills said, “must be the ultimate proof of that old cliché—only a fool has himself for a client.”
Martinez, who had served two prior prison terms in Texas, was working for Lawrence Merryman as a paralegal in 1998, when he was arrested for taking $6,000 that had been entrusted to him by a client’s girlfriend.
The woman had contacted the office while Merryman—a former Orange County lawyer who now lists a Bakersfield address—and office manager Juan Esquivel were on vacation. She was trying to get her boyfriend out of jail, and Martinez told her it could be done if she gave him $6,000 for bail.
The bail was actually $620,000, which Martinez knew. Esquivel testified that he knew nothing about the money until he and Merryman returned from vacation, and were told by the woman that she had given Martinez the money.
Merryman and Esquivel said they couldn’t find Martinez or the money. Police were contacted, arranged surveillance, and eventually arrested Martinez outside his motel room.
Martinez, representing himself—he said “there wasn’t an attorney on earth who’d believe me once he saw my past [criminal record]”—asked Esquivel if he had ever been convicted of a felony, which he denied. He also attempted to question him about a pending spousal abuse charge, but Orange Superior Court Judge Daniel Didier sustained a prosecution objection.
In fact, Esquivel had been convicted on three worthless-check charges, but the convictions had been expunged. The spousal abuse charge resulted in his being placed on probation, two months after Martinez was sentenced.
He also had been arrested for several drug offenses, although the cases were ultimately dismissed.
Martinez told police he had contacted a bail bondsman and been told the bond would cost $6,000. He said he gave the money to a courier, although he could not remember and didn’t write down the man’s name and didn’t know which bail bondsman he worked for.
At trial, he recanted that story, saying he didn’t want to tell police the truth before speaking to Merryman or Esquivel. He swore that he told Esquivel about the money, put it in a cabinet behind Merryman’s desk as instructed by the office manager, and told Merryman in a phone conversation that he had done so.
He was on a short vacation of his own when he was arrested, he claimed. He knew that the bond premium should have been 10 percent of the bond amount, but miscalculated, he said.
Merryman said he called the office twice during vacation and could not remember whether Martinez mentioned receiving any money.
Martinez was convicted and sentenced to 25 years to life in prison. On appeal, he requested permission to represent himself, but was turned down.
After unsuccessfully seeking review in the California Supreme Court, he petitioned the nation’s highest court for certiorari. The justices granted the writ, and appointed counsel to argue for Martinez.
In Martinez v. Court of Appeal of California (2000) 528 U.S. 152, however, the justices unanimously declined to extend the right of self-representation to appeals. The case returned to Div. Three, where an appointed lawyer, Cindi Mishkin of Appellate Defenders, Inc. in San Diego, won Martinez a new trial on Friday.
While there is some question as to whether the expunged convictions would have been admitted at trial, Sills wrote, the prosecution should have obtained Esquivel’s “rap sheet” and divulged it to Martinez. The disclosure might have helped Martinez win an acquittal, the presiding justice wrote, by making it seem plausible that Esquivel was the thief.
In addition, Sills reasoned, the disclosure that Esquivel was charged with spousal battery would have led to the further revelation that Merryman was representing him, suggesting a motive for the attorney to be less than candid in his testimony.
The case is People v. Martinez, 02 S.O.S. 5690.
Copyright 2002, Metropolitan News Company