People v. Martinez-Gurule CA1/5 ( 2023 )

Filed 12/21/23 P. v. Martinez-Gurule CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A165704
v.
MICHAEL MARTINEZ-GURULE, (Contra Costa County
Super. Ct. No. 02003343860)
Defendant and Appellant.
Defendant (and appellant) Michael Martinez-Gurule appeals from a
judgment of conviction and sentence imposed after a jury found him guilty of
committing a lewd act on a child and a forcible lewd act on a child (Pen. Code,
§ 288, subd. (a), (b)(1)).1 He contends the trial court erred by instructing the
jury with CALCRIM No. 361, which allowed the jury to consider any failure
by Martinez-Gurule to explain or deny certain evidence against him. We
conclude there was no prejudicial error and affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In a Second Amended Information, the Contra Costa County District
Attorney charged Martinez-Gurule with four counts of committing a forcible
lewd act on a child under the age of 14 years (§ 288, subd. (b)(1)). The matter
proceeded to a jury trial.
1 All statutory references herein are to the Penal Code.
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A. Prosecution Case
Martinez-Gurule dated and lived with Jane Doe’s mother (Y.) for eight
years. He was not Jane Doe’s biological father, but he acted as her stepfather
and she called him daddy. Born in 2012, she was nine at the time of trial.
Jane Doe testified that Martinez-Gurule had her touch his “private
part” on one to five occasions while her mother was at work. Jane Doe did
not want to touch his private parts.
The first person Jane Doe told about the touching was her uncle (John
Doe, born in 2009) in December 2020.
John Doe testified about that conversation with Jane Doe. She said
Martinez-Gurule told her to do something that she did not feel comfortable
doing, and “he was trying to force her to do it.” It had something to do with
Martinez-Gurule’s “private part,” meaning his penis. Jane Doe asked John
Doe not to tell anyone because she did not want Martinez-Gurule to get in
trouble. During the conversation, she appeared scared, started crying, and
said she did not feel comfortable or safe at home. She informed John Doe
that Martinez-Gurule put his penis close to her face.
Two days after talking with John Doe, Jane Doe sent him a TikTok
video about what Martinez-Gurule was doing. The video showed an
animated male on top of a smaller animated female; a larger animated
female walks in, the male quickly gets off the smaller female, and the larger
female says, “What?! Are you kidding me? She’s a kid bro. You’re 22.” The
video was played for the jury.
Jane Doe's TikTok account was linked to her grandmother’s phone
number, so the grandmother could view messages sent and received in the
account. Jane Doe testified that she sent the video because she wanted her
grandmother to know what was happening.
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Jane Doe’s grandmother testified that she saw the video Jane Doe sent
to John Doe and a text message telling John Doe that Martinez-Gurule “is
like this to me,” referring to the video. The grandmother asked John Doe to
explain the video. As a result of that conversation, the grandmother spoke to
Jane Doe, who said that Martinez-Gurule was telling her to touch his private
part. Jane Doe used her hands to demonstrate how he made her touch him.
She also cried and said she was sorry for not saying anything earlier.
Law enforcement was notified, and Richmond Police Detective Jaime
Guzman arranged for Jane Doe to be interviewed at the Children’s Interview
Center. A recording of the forensic interview was played for the jury. Jane
Doe told the interviewer, Pat Mori, that Martinez-Gurule would “always put
his private part up” when her mother was at work. She said “he would
always make me touch it,” and this took place 19 or 20 times when she was
seven or eight years old. Martinez-Gurule would call her, pull his pants
down, and make her “touch it.” “He would just pull [her] hand and put it on”
and would not let her pull her hand away.
Detective Guzman also arranged for Mori to interview John Doe at the
Children’s Interview Center. A recording of this interview was played for the
jury as well. In the interview, John Doe reported that Jane Doe said
Martinez-Gurule made her “touch his pri- his spot that no one’s supposed to
know about.” She said she was afraid to get out of her bed to use the
restroom because Martinez-Gurule would be awake and naked, and once he
told her to go into the bathroom with him and touch “his part that, you know,
people aren’t supposed to touch if they aren’t engaged.” Jane Doe told John
Doe “that something white would be out of it” and Martinez-Gurule “put his
thing” towards her face and wanted her to “touch it and try it” and “put it in
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her mouth.” John Doe confirmed that when he referred to Martinez-Gurule’s
private area, he was referring to his penis.
After Jane Doe was interviewed, Detective Guzman arranged for Y. to
make a pretext call to Martinez-Gurule. They spoke, and after Y. hung up
the phone, Martinez-Gurule called her back and they spoke for another 11 or
12 minutes.
That same day, after the pretext call, Martinez-Gurule was interviewed
by police detectives. A recording of the interview was played for the jury.
After waiving his rights, Martinez-Gurule initially denied having Jane Doe
touch his penis. But when a detective said, “as men . . . sometimes we do
things and we don’t think,” Martinez-Gurule replied, “I wasn’t thinkin’ at all.
I don’t even know what was in my head at that time.” Martinez-Gurule
claimed it started when Jane Doe was around five years old and occurred
“[j]ust four” times.
Martinez-Gurule recounted for police that the first incident occurred
when he was lying in bed, watching TV, and “touchin’ [himself] by [himself]
for a while.” When Jane Doe walked in, he told her to “come here” and had
her touch his erect penis. When he realized what he was doing, he “sent her
out.” After the second time this happened, he apologized to her and said he
would never do it again. The third time it happened, he was in the shower
and asked her to bring him a towel. By the time she brought the towel, he
“was already playing with [himself] before [he] had [Jane Doe] do anything.”
As for the fourth time, Martinez-Gurule was dressing and had an erection
when Jane Doe walked in. He told her to “[c]ome and touch it,” and “she did.”
At the end of the interview, Martinez-Gurule agreed to write an
apology letter to Y. and an apology letter to Jane Doe. In his letter to Jane
Doe (which investigators did not deliver to her), he wrote: “[M]y baby girl,
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daddy is so sorry. I never meant to hurt you. I never wanted to put you in
harm. Daddy did things to you that should not have happened. I hope one
day I can see you again . . . . Don’t be mean to [B.]. Take care of your
brother. Be a good girl for mommy . . . . I’ll be gone for a while but know I’m
in your heart forever. I miss you and love you so much. Your daddy.” (Italics
added.)
B. Defense Case
Martinez-Gurule testified that the molestation allegations were untrue
and that he never showed Jane Doe his penis or had her touch it. Although
he told Y. in the pretext call that he had Jane Doe touch his penis on four
occasions, he claimed he said that only because he was stressed and Y. had
told him he would not see the children again unless he confessed. Similarly,
while he admitted to police that there were four occasions when Jane Doe
touched his penis, he claimed he made the admission because the authorities
were threatening to take away the children, and he thought that if he
confessed, they might not take them away from Y. at least. He acknowledged
telling officers the details about the first molestation. He acknowledged
telling officers that on the third occasion of molestation, he had been in the
shower and told Jane Doe to come and touch it, and demonstrating to those
officers how he had Jane Doe grip his penis. He acknowledged writing the
apology letter to Jane Doe, telling her he was sorry for what he had done, but
he claimed the letter was untrue.
C. Jury Verdict and Sentence
The jury found Martinez-Gurule guilty of the lesser offense on count 1
of committing a lewd act on a child (§ 288, subd. (a)) and guilty on count 3 of
committing a forcible lewd act on a child (§ 288, subd. (b)(1)). The jury was
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unable to reach a verdict on the remaining counts, which were dismissed
after the prosecution elected not to retry them.
Martinez-Gurule was sentenced to state prison for 10 years, based on
the mid-term of 8 years on count 3 and two years (one-third the mid-term) on
count 1. He filed a timely notice of appeal.
II. DISCUSSION
Martinez-Gurule contends the trial court erred by instructing the jury
with CALCRIM No. 361, which provides that the jury may consider a
defendant’s failure to explain or deny adverse evidence within his knowledge.
He fails to establish reversible error.
Defense counsel had opposed the prosecution’s request to give
CALCRIM No. 361 because he could not “recall what it might apply to.” The
trial court believed “there could be an argument that not everything was
explained in [Martinez-Gurule’s] testimony,” but defense counsel countered
that he had not failed completely to explain or deny the evidence. Noting
that Martinez-Gurule had not explained the TikTok video, the court observed
that the prosecution could argue that he lacked a good explanation for things
even if the instruction was not given, and the instruction said a failure to
explain or deny the evidence was not enough to prove guilt. The court
therefore ruled: “I’ll give it. If it doesn’t apply—the jury finds facts that it
doesn’t apply, then it doesn’t apply.”
Consistent with CALCRIM No. 361, the jury was instructed: “If the
defendant failed in his testimony to explain or deny evidence against him,
and if he could reasonably be expected to have done so based on what he
knew, you may consider his failure to explain or deny in evaluating that
evidence. [¶] Any such failure is not enough by itself to prove guilt. The
People must still prove the defendant guilty beyond a reasonable doubt. If
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the defendant failed to explain or deny, it is up to you to decide the meaning
and importance of that failure.”
In determining whether a CALCRIM No. 361 instruction was improper,
we “ ‘ascertain if [the] defendant . . . failed to explain or deny any fact or
evidence that was within the scope of relevant cross-examination’ and was
‘within [the defendant’s] knowledge which he did not explain or deny.’ ”
(People v. Grandberry (2019) 35 Cal.App.5th 599, 606; see People v. Cortez
(2016) 63 Cal.4th 101, 117 (Cortez) [instruction “applies only when a
defendant completely fails to explain or deny incriminating evidence, or
claims to lack knowledge and it appears from the evidence that the defendant
could reasonably be expected to have that knowledge”].) Testimony from the
defendant that is merely vague, improbable, or unbelievable is not enough to
support the giving of the instruction. (Cortez, at p. 117.)
Martinez-Gurule urges that there was no fact or evidence he completely
failed to explain or deny and that he did not claim a lack of knowledge about
something he could reasonably be expected to know. Respondent counters
that Martinez-Gurule failed to explain why he did not ask police, during his
interview, what would happen to the children, even though his supposed
reason for confessing to the sexual abuse was to avoid having them taken
away from him or Y. Respondent further argues that Martinez-Gurule did
not explain the TikTok video that Jane Doe sent to John Doe.2 We need not
decide whether this provided a sufficient basis for giving CALCRIM No. 361,
because even if it was error to give the instruction, the error was harmless.
2 In closing argument, the prosecutor referred briefly to the instruction,
asserting that Martinez-Gurule failed to explain corroborating evidence such
as the TikTok video.
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To obtain a reversal, Martinez-Gurule must show a reasonable
probability that he would have obtained a more favorable result at trial if the
instruction had not been given. (See People v. Watson (1956) 46 Cal.2d 818,
836; People v. Saddler (1979) 24 Cal.3d 671, 683–684 (Saddler) [assessing the
harmlessness of an instruction under CALJIC 2.62, the precursor to
CALCRIM No. 361].) He failed to do so.
CALCRIM No. 361 is a conditional instruction, leaving it to the jury to
determine, based on the jury’s view of the evidence, whether the instruction
applies. In particular, the instruction informed the jury that if
Martinez-Gurule failed to explain or deny evidence and if he could reasonably
be expected to have done so based on what he knew, the jury could (but need
not) consider his failure to explain or deny that evidence in evaluating its
weight. In addition, the trial court instructed the jury, pursuant to
CALCRIM No. 200, that “[s]ome of these instructions may not apply,
depending on your findings about the facts of the case,” the jury should “not
assume just because [the court gave] a particular instruction that [the court
was] suggesting anything about the facts,” and after deciding the facts the
jury was to “follow the instructions that do apply to the facts as you find
them.” We presume the jury followed CALCRIM No. 200. (People v. Cain
(1995) 10 Cal.4th 1, 34.) Thus, if CALCRIM No. 361 was given erroneously
because Martinez-Gurule had not failed to deny or explain adverse evidence
within his knowledge, the jury would have disregarded the instruction; any
error in giving it was therefore harmless. (Saddler, supra, 24 Cal.3d at
p. 684; People v. Lamer (2003) 110 Cal.App.4th 1463, 1472 (Lamer) [“courts
have routinely found that the improper giving of CALJIC No. 2.62 constitutes
harmless error” in light of its text and another CALJIC instruction
mitigating its prejudicial effect]; People v. Vega (2015) 236 Cal.App.4th 484,
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503 (Vega) [CALCRIM No. 200 mitigated any prejudice from giving
CALCRIM No. 361].)
Furthermore, if the jury did find that CALCRIM No. 361 applied, the
instruction makes clear that the defendant’s failure to explain or deny
evidence “is not enough by itself to prove guilt” and that the prosecution
“must still prove the defendant guilty beyond a reasonable doubt.” Rather
than requiring the jury to draw an adverse inference, the instruction leaves it
to the jury to “decide the meaning and importance” of the defendant’s failure
to explain or deny. (People v. Ballard (1991) 1 Cal.App.4th 752, 756–757;
Lamer, supra, 110 Cal.App.4th at p. 1472; Vega, supra, 236 Cal.App.4th at
pp. 502–503.)
Finally, overwhelming evidence supported counts 1 and 3, whether the
jury was instructed with CALCRIM No. 361 or not. Jane Doe told the jury
under oath that Martinez-Gurule had her touch his “private part” up to five
times. John Doe testified that Jane Doe told him about the touching and that
it was “kind of forced.” Her grandmother testified to Jane Doe’s tearful
disclosure that Martinez-Gurule had her touch his private parts. In their
recorded forensic interviews, played for the jury, Jane Doe described the
molestation and John Doe reported Jane Doe’s statements about it.
Martinez-Gurule admitted during a pretext call with Y. that he had Jane Doe
touch his penis four times. He confessed to police that he molested Jane Doe
four times, giving details about at least two of them. His apology letter,
which he intended to go to Jane Doe, admitted he “did things to [her] that
should not have happened.” His sole excuse for confessing his crimes to Y.
and the police was that he thought he would not be able to see Y. and Jane
Doe unless he confessed. A jury likely found this excuse not credible. In fact,
both in his apology letter and in his police interview, he acknowledged he was
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not going to go home to see Jane Doe even though he had confessed. Ample
evidence pointed to Martinez-Gurule’s guilt on the counts for which he was
convicted.
Martinez-Gurule argues that the instruction may have influenced the
jury because this was a “close” case, noting the jury hung on two of the four
counts and one of his convictions was for a lesser offense. The jury’s inability
to reach a verdict on counts 2 and 4, however, does not mean there was a
close call as to counts 1 and 3. The jury may have reasonably concluded that
the evidence supporting counts 1 and 3 was more detailed and persuasive. At
any rate, we find no reasonable probability that Martinez-Gurule would have
obtained a more favorable outcome if CALCRIM No. 361 had not been given.
III. DISPOSITION
The judgment is affirmed.
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CHOU, J.
We concur.
JACKSON, P. J.
SIMONS, J.
People v. Martinez-Gurule / A165704
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