P. v. Martinez CA3 ( 2013 )

Filed 3/14/13 P. v. Martinez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C068863
Plaintiff and Respondent, (Super. Ct. No. SF113022A)
v.
MANUEL MARTINEZ,
Defendant and Appellant.
Defendant Manuel Martinez was charged with molesting two of his daughter’s
friends, H. and R. A jury found him guilty of two counts of committing lewd acts on H.
and one count of annoying or molesting R. (which was when R. participated in giving
defendant a back massage).
On appeal, defendant raises the following four contentions: (1) there was
insufficient evidence he annoyed or molested R.; (2) the court erred in excluding the
testimony of H.’s fifth grade teacher; (3) the court erred in admitting rebuttal evidence
that he molested his niece Y.; and (4) the court erred in refusing to excuse Juror No. 4.
Finding no merit in these contentions, we affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case-In-Chief
Defendant was raising his 11-year-old daughter J. alone in a house they lived in
together. At the time of the charged molests, J. was in fifth grade with her friends H. and
R., who were about the same age.
H. and J. became friends in teacher L.B.’s fifth grade class, and H. started going
over to J.’s house in the winter of that year, 2008. H. was 10 years old at the time.
During one visit, perhaps the first, defendant had H. sit on his lap and he put his hands
underneath her clothes, touching her near her breasts and pubic area. H. told J. what her
father had done, and J. responded, “ ‘Yeah, he does that to all my friends.’ ”
Another time, defendant took H. and J. to a movie and then to the Dollar Tree
where defendant bought H. some trinkets. Upon returning to J.’s house where H. was
going to spend the night, defendant touched H. underneath her clothes near her breasts
and pubic area. Later that night, defendant suggested J. and H. rub lotion on his back,
and they complied. The girls were on defendant’s bed when this happened and defendant
was lying down shirtless on his stomach. The girls then went to sleep on the floor in
defendant’s bedroom.
The last incident with H. occurred when defendant took H. and J. to the snow.
H.’s clothes got wet while she was climbing up a mountain, so she went back into
defendant’s truck to change clothes. While she was changing, she saw defendant looking
inside the truck, watching her change, which made her uncomfortable.
Later that day, H. told her sister and her sister’s friend about “what happened” and
her sister told their mother, who in turn called police. When San Joaquin County Sheriff
Deputy Robert Cleary responded, H.’s mother said she had information that “this had
happened to other girls as well.”
2
H. told San Joaquin County Sheriff Deputy Nicholas Moreno, Jr., during an
interview at the Child Advocacy Center that defendant had also molested three of her
friends and J. During an interview, J. told San Joaquin Sheriff Deputy Nelida Stone that
H. said defendant had touched H., but J. did not know of her father touching anyone else.
H.’s fourth grade teacher was Laura Viss. During the first quarter of the school
year, Viss wrote the following on H.’s report card: H. “ ‘needs to remember . . . to be
telling the truth at all times.’ ” Viss explained at trial that H. “had a tendency to lie over
everything; small things, big things, it got to the point where I couldn’t rely on [H.’s]
word.” The small things were why she did not get her homework done or what happened
to her pencil or textbook. The big things were “ ‘problems out on the playground for the
most part, name calling and swearing.’ ” The situation improved after H. was put on
medication, which Viss knew H. was on through the end of fourth grade.
R. was another one of J.’s fifth grade classmates who spent time at J.’s house,
including sleeping over. One time, when R. was 10 years old, defendant took R. and J. to
a movie and then dinner. When they got home, defendant went into his room to watch
television, and the girls went into the living room to play. The girls then came into
defendant’s room and continued playing. Defendant, who by then was wearing only a
pair of exercise pants, told J., “ ‘Oh, my back hurts.’ ” J. responded, “ ‘Okay. I’m going
to give you a massage.’ ” J. and R. began rubbing defendant’s back with lotion while
defendant was on his bed lying face down on his stomach. R. could not remember whose
idea it was for her to help. R. felt uncomfortable. After the girls were done massaging
defendant’s back, all three went to sleep on defendant’s bed.
About one to two months before the massage, defendant took J. and R. to Wal-
Mart and bought them each an outfit. He then took the girls out to dinner. At some
point, defendant asked R. to call him “ ‘daddy.’ ” She did so, which upset R.’s father
when he heard R. talking to defendant on R.’s cell phone and referring to defendant as
“daddy.”
3
David Love testified regarding child sexual abuse accommodation syndrome. The
syndrome consists of the following five symptoms that children who have been molested
may display: secrecy, helplessness, entrapment, delayed disclosure, and retraction.
Love described the syndrome generally and had no information about this case.
B
The Defense
Defendant testified on his own behalf. He was a laborer who often had a sore
back. When his back was sore, J. “want[ed] to help [her father]” relieve his pain, so she
would volunteer to rub his back. The night R. helped rub his back, R. was the one who
asked to help. H. never gave him a back rub. He never put his hand up H.’s shirt or
down her pants.
In addition to his own testimony, defendant presented a number of character
witnesses. E. was J.’s classmate who had been to J.’s house multiple times and spent the
night, and nothing happened between E. and defendant. Both of E.’s parents knew
defendant and never saw him do anything that caused them concern. Both of defendant’s
employers never saw him behave inappropriately with any girls. Defendant’s brother and
defendant’s nephew also noticed nothing unusual about the way defendant interacted
with J. or other girls.
C
Rebuttal
Y. was defendant’s niece. When she was 11 or 12 years old, defendant forced her
to keep hugging him, and when she tried to move away, he “accidently touched [her]
boob.” The incident made her feel “uncomfortable,” so she told her mom.
4
DISCUSSION
I
There Was Sufficient Evidence Defendant Annoyed Or Molested R.
Defendant challenges his conviction for annoying or molesting R., claiming there
was insufficient evidence his conduct was such that (1) a normal person would
unhesitatingly be irritated by it and (2) it was motivated by an unnatural or abnormal
sexual interest in R. We disagree.
A defendant is guilty of a misdemeanor if he “annoys or molests any child under
18 years of age.” (Pen. Code, § 647.6, subd. (a).) The words “annoy” and “molest” in
Penal Code section 647.6 “are synonymous and generally refer to conduct designed to
disturb, irritate, offend, injure, or at least tend to injure, another person.” (People v.
Lopez (1998) 19 Cal.4th 282, 289.) The statute “does not require a touching [citation]
but does require (1) conduct a ‘ “normal person would unhesitatingly be irritated by” ’
[citations] and (2) conduct ‘ “motivated by an unnatural or abnormal sexual interest” ’ in
the victim [citations].” (Ibid.) While Penal Code section 647.6 is often applied to
incidents of explicit sexual conduct, it may also apply to conduct that is more ambiguous.
(People v. Kongs (1994) 30 Cal.App.4th 1741, 1749-1750.) For example, it applied
where the defendants offered to give the child victims a ride in their car, but refused to let
the child victims out of the car after driving a short distance (In re Sheridan (1964) 230
Cal.App.2d 365, 370-371, 374); where the defendant repeatedly drove alongside a 12-
year-old girl riding her bicycle, stared at her, and made gestures toward her with his hand
and lips (People v. Thompson (1988) 206 Cal.App.3d 459, 461-462, 468); and where the
defendant took photographs of young girls while “surreptitiously aiming his camera up a
child’s dress rather than photographing her face or entire clothed body” (Kongs, at p.
1751).
Here, the evidence could have supported two different interpretations. One
possible interpretation was that defendant innocently mentioned his back was hurting to
5
his daughter, which led to a spontaneous and unexpected massage in which R. joined in.
But this interpretation was one that ignored defendant’s conduct leading up to the
massage and directly following it and also ignored his similar conduct with H., a girl the
same age as R., which was unquestionably sexually motivated, given where defendant
touched H.
The other possible interpretation, the one the jury accepted, was that defendant’s
behavior enticed R. to participate in a massage defendant knew was going to take place.
There was sufficient evidence to support this interpretation. Defendant, a man with a
young daughter himself, began grooming 10-year-old R. about a month or two before
implicitly soliciting the massage. He bought her an outfit and took her along for dinner.
He asked her to call him “daddy” and talked to her on her cell phone. Right before the
massage, he took R. along for dinner and a movie with his daughter. When the three
returned to defendant’s house, defendant allowed the girls in his bedroom. Then, in R.’s
presence, he commented his back hurt, knowing from past experience that would lead his
daughter to give him a massage. It could be inferred defendant suspected R. might join
in because he had ingratiated himself toward her over the last few months. At the end of
the shirtless massage, the three went to sleep together in the same bed, something they
had never done before.
This conduct supported the inference defendant had a sexual interest in R. He
cultivated a relationship with her that culminated in her participating in giving him a
shirtless massage on his bed and then spent the night with him on that bed. His behavior
toward R. was similar to his behavior toward H., which was unquestionably sexually
motivated, given his touching of H. near her breasts and pubic area. (See People v.
6
Martinez (1995) 11 Cal.4th 434, 445 [a sexual intent or motivation may be inferred from
the circumstances, including other acts of lewd conduct].)1
Under these circumstances, jurors reasonably could find that a normal person
would unhesitatingly be irritated or disturbed by defendant’s behavior. Defendant was an
adult who took advantage of his daughter’s friendship with R. to foster his own
relationship with the 10 year old and then used that relationship to impliedly entice her to
massage his naked back.
Accordingly, the verdict was supported by substantial evidence.
II
The Trial Court Did Not Err In Excluding
The Testimony Of H.’s Fifth Grade Teacher
Defendant contends the trial court abused its discretion and violated his due
process right to present a defense when it excluded the testimony of H.’s fifth grade
teacher, L.B. Defendant argues the testimony was relevant to H.’s “character for
dishonesty and fabrication.” As we explain, there was no error because the evidence was
not relevant.
At a hearing outside the presence of the jury, L.B. testified H. had a “tendency to
exaggerate” and gave two examples. The first was H. “said that she was related to one of
the teachers at our school. They were cousins. They are cousins, but they’re very, very
distant cousins, like five or six.” The second was “something that would happen on . . .
1 Defendant argues we cannot consider defendant’s conduct toward H. because the
jury was never instructed it could consider this evidence as going toward proving motive
or intent with respect to his conduct toward R. Defendant’s argument is misplaced
because nothing in the instructions or the law prevented the jury from so considering.
Moreover, when the prosecutor in closing argued to the jury it should consider this
evidence when determining defendant’s intent with R., defendant did not object.
7
the playground.” H. “might” report hearing a bad word “like the f-word” but H. “didn’t
hear it properly” because the word was actually “ ‘fudge.’ ”
The trial court excluded this testimony because it “d[id]n’t find this testimony is
relevant to [H.’s] credibility in any way.” The court explained that the relative was
indeed a cousin and the playground incident was not that H. actually lied about the bad
word being uttered but that H. thought she heard a bad word.
Defendant contends the court erred in excluding this evidence because it reflected
the veracity of H.’s allegations against him. According to defendant, this evidence
showed H. would “falsely implicate” a fellow student and exaggerate about the “close
relationship” she had with a teacher.
Defendant’s argument as to why this evidence was relevant ignores L.B.’s actual
testimony. L.B. did not testify H. “falsely implicate[d]” a fellow student. Rather, L.B.
testified H. misheard her fellow student uttering the “ ‘f-word’ ” but it was “ ‘fudge.’ ”
H. reporting what she had misheard did not bear on her character for dishonesty and
fabrication because there was no evidence H. reported something she knew to be untrue.
Similarly, L.B. did not testify H. exaggerated about the “close relationship” H. had with a
teacher. Rather, L.B. testified H. said she was “related” to one of the teachers but H. and
the teacher were actually distant cousins. Again, H. stating she was related to one of the
teachers without qualifying that relationship as close or distant did not bear on H.’s
character for dishonesty or fabrication because there was no evidence H. lied when she
said the two were related -- they in fact were.
Because L.B.’s testimony had no “tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action,” it was not
relevant. (Evid. Code, § 210.) The court therefore did not abuse its discretion or deny
defendant his due process right to present a defense in excluding that evidence. (People
v. Babbitt (1988) 45 Cal.3d 660, 685 [exclusion of irrelevant evidence “did not implicate
any due process concerns”].)
8
III
The Trial Court Did Not Err In Admitting
Defendant’s Niece’s Testimony As Rebuttal Evidence
Defendant contends the trial court abused its discretion and violated his due
process right to a fair trial when it allowed the People to present evidence during their
case in rebuttal that defendant had touched his niece Y. in a manner that made her
uncomfortable. He claims it was actually the People who opened the door to defendant’s
character, and he presented evidence of his own good character only in response to the
People’s evidence that defendant molested girls other than H. As we explain, there was
no error because the factual premise of defendant’s contention is incorrect and the
evidence was proper rebuttal evidence.
Defendant was the one who first opened the door that he might have molested
other girls during defense counsel’s cross-examination of H.’s mother. Defense counsel
asked, “Now [H.] told you that she had information that other girls had been touched by
[defendant] also, right?” H.’s mother responded affirmatively and that it was R. and
defendant’s daughter J. In fact, except for two instances, all the evidence presented
during the People’s case-in-chief about whether defendant had molested other girls was
elicited by the defense during cross-examination.2 This evidence included (1) H.’s
mother’s testimony, which we have just recounted; (2) Deputy Moreno’s testimony that
H. told him defendant had touched J.; (3) Deputy Cleary’s testimony that H.’s mother
told him, “she had information that this had happened to other girls as well”; (4) J.’s
testimony that both H. and R. helped her give back massages to defendant but that other
2 The two instances where the People elicited that defendant had molested other
girls were: (1) H.’s testimony (that came after her mother’s testimony) that J. told her,
“ ‘Yeah, he does that to all my friends’ ”; and (2) H.’s interview with the Child Advocacy
Center in which H. said defendant molested three of her friends and J.
9
girls had never slept over and/or met defendant; and (5) Detective Stone’s testimony that
J. told her H. said defendant touched H. but she did not know of her father touching
anyone else. What counsel was effectively doing with this evidence was setting the stage
to present testimony during the defense case that defendant was a man of good character
who did not molest any girls.
This testimony came from at least seven witnesses, including (1) E., who was J.’s
classmate, who testified that she went over to defendant’s house multiple times and spent
the night, and nothing happened ; (2&3) both of E’s parents, who testified they knew
defendant and never saw him do anything that caused them concern; (4&5) both of
defendant’s employers, who testified they never saw defendant behave inappropriately
with any girls; and (6&7) both defendant’s brother and defendant’s nephew, who also
testified they noticed nothing unusual about the way defendant interacted with J. or other
girls.
It was only after all of this defense evidence that the People sought to introduce
Y.’s testimony to rebut evidence of defendant’s good character. That testimony was that
when Y. was around 11 or 12 years old, defendant forced her to keep hugging him and
when she tried to move away, he “accidently touched [her] boob.” The incident made
her feel “uncomfortable,” so she told her mom. As we explain next, this evidence was
proper in rebuttal.
A defendant may “ ‘elect[] to initiate inquiry into his own character’ ” but “ ‘the
price a defendant must pay for attempting to prove his good name is to throw open a vast
subject which the law has kept closed to shield him.’ ” (People v. Tuggles (2009) 179
Cal.App.4th 339, 357.) The court’s decision to allow this type of rebuttal evidence is
reviewed for abuse of discretion. (People v. Young (2005) 34 Cal.4th 1149, 1199
[standard of review].) Here, there was no abuse. As the trial court explained when
admitting the evidence: the rebuttal evidence was relevant because, “[t]he defense has
brought in a number of witnesses to testify that . . . they’ve never seen [defendant] do
10
anything inappropriate with any young girls” and “[d]efense counsel pretty much asked
all the witnesses who testified, ‘Did you ever see anything of any concern that [defendant
has] done around young girls?’ [¶] So he has opened the door.” It was also not unduly
prejudicial because, as the trial court explained, Y. was similar in age to the alleged
victims, the incident involving Y. was not as egregious as that involving victim H., and
the defense could cross-examine Y. on her belief she thought the touching was an
accident. “Given our conclusion, we also reject defendant’s constitutional claim.
Application of the ordinary rules of evidence does not infringe on a defendant’s
constitutional rights.” (People v. Uecker (2009) 172 Cal.App.4th 583, 599, fn. 11.)
IV
The Court Did Not Err In Keeping Juror No. 4 On The Panel
Defendant’s final contention is the trial court erred in keeping Juror No. 4 on the
panel because she (1) attended a seminar that the prosecutor attended as well) where the
keynote speaker was the People’s expert witness; and (2) committed misconduct in
failing to reveal certain biases during jury selection. As we explain, the trial court did not
err because: (1) there was substantial evidence to support the trial court’s conclusion that
it had not been shown Juror No. 4’s inability to fairly and impartially serve appeared as a
demonstrable reality; and (2) on our independent review, we conclude Juror No. 4 did not
hide any bias and was not actually bias against defendant.
A
Factual Background Relating To Juror No. 4
Prior to jury selection, each prospective juror filled out a questionnaire. On her
questionnaire, Juror No. 4 stated she was a social worker for San Joaquin County, which
she later explained entailed working with “pregnant or parenting teens.” She attended the
child abuse symposium annually. In regard to children’s allegations of abuse, Juror No. 4
felt “for the most part that children are innocent victims. When they say they have been
abused it is true for the most part. Sometimes, however, in rare instances you will have
11
an adult make them say things [and] accuse someone for their own motives.” She had
experience with groups whose objective was influencing the laws. She had followed the
Shaniya Davis case in the media, which she later explained was a “high-profile case out
of North Carolina” to which she did not have a connection but “took very hard.”
During trial, the prosecutor alerted the court she had seen Juror No. 4 at a child
abuse symposium the prosecutor had attended the previous day where the People’s
expert, David Love, was the keynote speaker. Love’s lecture was about teen suicide, but
it also covered child sexual abuse accommodation syndrome. The prosecutor did not talk
with the juror or try to make eye contact.
The court questioned Juror No. 4. Juror No. 4 stated that during the lecture, the
case was “totally out of [her] mind.” While Love “did talk about like child abuse,” Juror
No. 4 never thought the information he imparted should be considered during jury
deliberation. When asked if anything Love said at the lecture would affect her ability to
be fair, Juror No. 4 responded, “it was a long presentation” and that “after a while” she
“kind of like tuned out” or “just didn’t focus” on it. Love “just kind of sounded like
Charlie Brown’s teacher after awhile.” She “absolutely” could be fair to both sides and
keep an open mind.
Defendant made a motion to have Juror No. 4 removed because the juror did not
reveal she would be attending the seminar during this trial and because the keynote
speaker was the People’s expert in this trial. The court denied the motion, noting that
Juror No. 4 disclosed she attended the symposium annually and crediting the juror’s
response that she could be fair to both sides.
Following the guilty verdicts, defendant filed a new trial motion alleging, among
other things, Juror No. 4 “affirmatively failed to disclose [her] bias.” To support his
claim, defendant attached a printout of an online petition Juror No. 4 had signed the year
before trial advocating for passage of a federal one-strike sentencing law for defendants
who had committed enumerated sex offenses against children. On the petition, Juror No.
12
4 wrote, “All children should have the right to live in this world. To have a happy and
peaceful life without a sadistic predator trying to cause harm to them and ruin their
innocence or take their life. Love you Shaniya!”
The court denied the motion, explaining Juror No. 4 disclosed her feelings about
child sexual abuse, did not “hid[e] any bias,” and did not have any actual bias against
defendant.
B
There Was Substantial Evidence Juror No. 4’s
Ability To Fairly And Impartially Serve Appeared As A Demonstrable Reality
Defendant contends the court erred when it refused to discharge Juror No. 4 after
it was revealed she attended the child abuse symposium at which Love was the keynote
speaker. Defendant explains his contention as follows: “[He] is not suggesting that
[Juror No. 4] committed any misconduct in attending the symposium. Admittedly, she
had revealed during jury selection that she attends the symposium annually, and the court
never instructed her not to attend this year. However, once it was revealed that she did
attend and that she heard . . . Love speak, the court had a duty to discharge her because
her exposure to the speech had the potential of influencing her view of . . . Love’s
credibility as a witness.”
“Before an appellate court will find error in failing to excuse a seated juror, the
juror’s inability to perform a juror’s functions must be shown by the record to be a
‘demonstrable reality.’ The court will not presume bias, and will uphold the trial court’s
exercise of discretion on whether a seated juror should be discharged . . . if supported by
substantial evidence.” (People v. Holt (1997) 15 Cal.4th 619, 659.) Applying this
standard, defendant’s contention fails.
Contrary to defendant’s contention, the issue is not whether Juror No. 4’s exposure
to Love’s lecture “had the potential of influencing her view” or “arguably created a
substantial likelihood of bias on her part.” Rather, the issue is whether her inability to
13
perform a juror’s functions appeared as a demonstrable reality. It did not, based on the
juror’s own responses, which the court credited. Juror No. 4 denied there was anything
about Love’s lecture that made her think about this case. During the lecture, the case was
“totally out of [her] mind.” While Love “did talk about like child abuse,” she never
thought the information he imparted should be considered during jury deliberation.
When asked if anything Love said at the lecture would affect her ability to be fair, she
responded that “it was a long presentation” and that “after a while” she “kind of tuned
out” or “just didn’t focus” on it. She “absolutely” could be fair to both sides and keep an
open mind. On this record, there was substantial evidence to support the trial court’s
ruling keeping Juror No. 4 on the panel.
C
The Court Did Not Err In Denying The Motion For New Trial Because Juror No. 4
Did Not Hide Any Bias Or Was Not Actually Bias Against Defendant
Defendant contends the court erred when it denied his motion for a new trial based
on Juror No. 4’s misconduct, which was her failure to disclose certain biases she had.
Specifically, defendant claims she “failed to disclose . . . she had signed a petition calling
for harsh penalties on child sex offenders and included with her signature a comment
referring to child abusers as ‘sadistic predators.’ ”
We review independently the trial court’s denial of a new trial motion based on
alleged juror misconduct. (People v. Ault (2004) 33 Cal.4th 1250, 1261–1262.)
However, we accept the trial court’s credibility determinations and findings on questions
of historical fact if supported by substantial evidence. (People v. Gamache (2010) 48
Cal.4th 347, 396.)
Here, defendant’s new trial motion was based on Juror No. 4’s failure to disclose
she had signed an online petition the year before trial advocating passage of a federal
one-strike sentencing law for defendants convicted of enumerated sex offenses against
children. The court denied the motion, explaining Juror No. 4 disclosed her feeling about
14
child sexual abuse, did not “hid[e] any bias” and did not have any actual bias against
defendant.
On our independent review, we agree Juror No. 4 did not hide any bias and was
not actually bias against defendant based on her support of the petition. On her juror
questionnaire, Juror No. 4 admitted the following: she had experience with groups whose
objective is influencing the law; and she felt that in regard to allegations of child sexual
abuse, “for the most part that children are innocent victims. When they say they have
been abused it is true for the most part. Sometimes, however, in rare instances you will
have an adult make them say things and accuse someone for their own motives.”
Although it could seem as though Juror No. 4 might have been predisposed to believe a
child victim, she clarified during voir dire that she has learned, “you have to look at all
the evidence before you come to a conclusion . . . [and] have an open mind and hearing
everything out before you actually decide whether it’s true or not.” In light of her
response in the questionnaire that she had participated in efforts to change laws and
during voir dire that she had to look at all the evidence before coming to a conclusion, we
find substantial evidence to support the trial court’s conclusion that she did not hide any
bias against defendant and indeed lacked bias against defendant. While defendant relies
on Juror No. 4’s comment on the petition that children have the right to live without “a
sadistic predator” to show she had bias against those “accused of sexual abuse,”
defendant’s reliance is misplaced. Juror No. 4’s comment was directed at those who
commit child sexual abuse not those simply accused of abuse. The court properly denied
the new trial motion.
15
DISPOSITION
The judgment is affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
DUARTE , J.
16