People v. Gonzalez CA4/1

Filed 5/22/23 P. v. Gonzalez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079697
Plaintiff and Respondent,
v. (Super. Ct. No. SCN395653)
MARTIN LUIS GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kelly C. Mok, Judge. Affirmed.
Laura P. Gordon, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
A jury found Martin Luis Gonzalez guilty of five counts of aggravated
sexual assault on a child under 14 years old (Pen. Code,1 § 269, subd. (a);
1 Undesignated statutory references are to the Penal Code.
counts 1-5) and 11 counts of forcible lewd acts upon a child under 14 years old
(§ 288, subd. (b); counts 6-16). As to counts six to 11, the jury also found true
that the offenses involved substantial sexual conduct (§ 1203.066, subd.
(a)(8)).
The trial court sentenced Gonzalez to a determinate term of 60 years on
counts six and counts 12 through 16 (consisting of 10-year upper terms on
each count), followed by an indeterminate term of 75 years to life on counts
one through five (consisting of consecutive 15 to life terms on each count).
The court stayed sentence on counts seven through 11 under section 654. It
awarded 1,015 days of custody credit, plus 152 days under section 2933.1, for
a total of 1,167 days. It imposed a $10,000 restitution fine (§ 1202.4, subd. (b)
& § 1202.45 (stayed)), a $640 court security fee (§ 1465.8), a $480 criminal
conviction assessment (Gov. Code, § 70373), and a $300 sex offender
registration fee (§ 290.3) but stayed the fees and assessment pending a
determination of Gonzalez’s ability to pay.
The trial court later issued a minute order modifying the sentence by
reducing the section 1202.4, subdivision (b), and 1202.45 fines to the
minimum mandatory of $300 based on Gonzalez’s inability to pay and
reduced the determinate terms on counts six and 12 through 16 to the eight-
year middle terms, which resulted in an aggregate determinate term of 48
years. The court made a general order of restitution to the victim in an
amount to be determined (§ 1202.4, subd. (f)). It also ordered Gonzalez to
submit to DNA testing (§ 296) and AIDS testing (§ 1202.1, subd. (e)(6), (a)(3),
to register as a sex offender (§ 290), and to have no contact with the victim for
10 years.
Gonzalez’s counsel on appeal has filed an opening brief asking this
court to conduct an independent review of the record pursuant to Anders v.
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California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d
436 (Wende). We granted Gonzalez the opportunity to file a supplemental
brief on his own behalf and he has done so. After reviewing the briefing
submitted by counsel and by Gonzalez, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe2 and her mother, L.S. (Mother), moved into Gonzalez’s two-
story apartment. When Jane was 10 years old, Mother and Gonzalez had
their first child together, a girl. Her second half-sister was born two years
later. Over time, Gonzalez became mean and rude to Jane. He took Jane’s
half-sisters places but left her at the apartment. Sometimes he locked her
out when she would go to the park or the library.
When Jane was 11 to 13 years old, Gonzalez started touching her
bottom, vagina and breasts. Gonzalez first touched Jane’s vagina on the
outside of her clothing. He then started putting his hand inside her pants or
pulled her pants down. He also put his fingers inside her vagina. Once when
she was washing dishes, he touched her over her clothes and then under
them, including the outside and inside of her vagina.
Gonzalez touched Jane’s breasts, both over and under her clothing. He
also touched the back of her buttocks with his penis in the upstairs bedroom
and tried to put his penis inside her anus. Once when Jane showered,
Gonzalez got in, touched his penis to her behind and then against her vagina.
Other times, while Jane lay on her stomach or back, Gonzalez got on top of
her, without clothes, humping and moaning. Once he ejaculated on her face.
Sometimes Gonzalez grabbed her hands, put his hand on her hands
and had her masturbate him. One time Gonzalez put his penis inside her
2 We refer to the victim as Jane Doe and Doe’s mother by her initials.
(See Cal. Rules of Court, rule 8.90(b)(4), (11).)
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mouth. Gonzalez also put his mouth on her vagina and breasts. One time
Gonzalez licked her vagina. Several times he put his mouth on her breasts.
Jane was confused by Gonzalez’s touching and did not understand what
was happening until she had a sex education class in the seventh grade. She
never spoke to Mother about the abuse because Gonzalez told her that
Mother had a heart condition and could die of a heart attack if she became
worried or stressed. When Jane decided to tell Mother, she was really scared
because she feared Mother would be mad at her. Jane underwent a sexual
abuse examination but no DNA was collected. Jane also participated in a
pretext call to Gonzalez with a police detective, which the jury heard.
During the pretext call, Gonzalez claimed he “never did anything
[Jane] didn’t want” him to do. When Jane stated she had sores because
Gonzalez put his “that” in her behind, he denied having any infection and
claimed he was “clean.” When Jane accused Gonzalez of trying to put his
“that” in her mouth, he admitted this conduct. When Jane expressed fear
about getting pregnant, Gonzalez told her “there was no vaginal
introduction . . . you can only get pregnant vaginally.” When Jane told him
that some of the white sticky stuff “got in her mouth,” he responded that she
could not get pregnant through her mouth.
Gonzalez testified in his defense. He denied trying to kiss Jane on the
mouth, putting his mouth on her breasts, touching her breasts or vagina,
putting his fingers inside her vagina, or having anal or oral sex with her.
Gonzalez told Jane that Mother could have a heart attack if she heard
upsetting news but did not say she would have a heart attack if Jane told
Mother he was sexually abusing her. He admitted locking Jane out, claiming
he did so because she would leave without saying where she was going. He
claimed that on many occasions Jane said she would “do everything she
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could” to get Gonzalez out of the apartment because she could not “put up
with [him] anymore.”
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and
proceedings below. She presented no argument for reversal but asked this
court to review the record for error as mandated by Wende, supra, 25 Cal.3d
436. Counsel raised no specific issues on appeal and instead, identified four
possible, but not arguable, issues pursuant to Anders, supra, 386 U.S. 738 as
follows, whether: (1) the element of duress was proven beyond a reasonable
doubt as to each charge; (2) the evidence regarding the work and school
schedules of each of the occupants of the residence made it impossible for
Gonzalez to have committed the crimes against Jane; (3) the trial court erred
in overruling the defense objection to Mother being present in the courtroom
during Jane’s preliminary hearing testimony; and (4) prosecution of acts of
child molestation on the basis of generic evidence, without specificity as to
dates and times, is unconstitutional unless charged under section 288.5.
We granted Gonzalez permission to file a brief on his own behalf.
Gonzalez filed a two-page handwritten brief3 arguing, to the best we can
discern, that: (1) his convictions should be reversed because Jane lacked
mental capacity to accuse him; (2) the trial court erred when it allowed Jane
to testify at trial differently from what she testified to at the preliminary
hearing; (3) insufficient evidence supports his convictions because the
prosecution presented no forensic evidence suggesting he had penetrated
Jane’s anus or vagina; and (4) a call that led to his arrest came from a
3 Gonzalez wrote his brief in Spanish. Appellate counsel provided us a
copy of the brief translated into English.
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telephone number that did not belong to Mother. Gonzalez’s brief does not
develop any argument nor cite to the record.
When the appellant raises specific issues in a Wende proceeding, we
must expressly address them in our opinion and if they fail, explain why.
(People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Below we address the
issues identified by appellate counsel and Gonzalez in chronological order.
As we will explain, the issues identified by counsel and Gonzalez lack
arguable merit.
A. Sufficiency of the Evidence
1. Legal Principles
Where a defendant challenges the sufficiency of the evidence
supporting a conviction, we examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We
presume in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence. (Ibid.) Reversal for
insufficient evidence is warranted only when it appears that under no
hypothesis whatsoever is there sufficient evidence to support the jury’s
verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The testimony of a
single witness, if believed by the trier of fact, is sufficient to support a
conviction, unless that testimony is physically impossible or inherently
improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
2. Jane’s Mental Capacity
Gonzalez asserts his convictions should be reversed because Jane
lacked mental capacity to accuse him, claiming Jane has received
“psychological therapies” since age seven, which was first suggested by her
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school and then recommended by her family doctor. Gonzalez forfeited this
contention by failing to object to Jane’s testimony at trial. (Evid. Code, § 353,
subd. (a).)
Even if not forfeited, the contention is not reasonably arguable. “As a
general rule, ‘every person, irrespective of age, is qualified to be a witness
and no person is disqualified to testify to any matter.’ [Citations.] A person
may be disqualified as a witness for one of two reasons: (1) the witness is
incapable of expressing himself or herself so as to be understood, or (2) the
witness is incapable of understanding the duty to tell the truth. [Citation.]
The party challenging the witness bears the burden of proving
disqualification, and a trial court’s determination will be upheld in the
absence of a clear abuse of discretion.” (People v. Mincey (1992) 2 Cal.4th
408, 444.) The record discloses Jane promised to tell the truth, was attentive,
and understood the questions put to her.
3. Duress Element
Appellate counsel suggests it is reasonably arguable that the
prosecution failed to prove the element of duress for each charge beyond a
reasonable doubt. The court instructed the jury on each offense that to find
Gonzalez guilty it had to find beyond a reasonable doubt he committed the
offenses by “force, violence, duress, menace or fear of immediate and unlawful
bodily injury.” (CALCRIM Nos. 220, 1123, 1015, 1045, 1030, 1111.) “Duress
means a direct or implied threat of force, violence, danger, hardship, or
retribution that causes a reasonable person to do or submit to something that
he or she would not otherwise do or submit to. When deciding whether the
act was accomplished by duress, consider all the circumstances, including the
age of the other person and her relationship to the defendant.” (CALCRIM
Nos. 1015, 1045, 1030.) “When the victim is young and is molested by her
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father in the family home, duress will be present in all but the rarest cases.
(People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073.)
At the time of the incidents, Jane was 11 to 13 years old and Gonzalez
was a significantly larger adult male who fathered her half-siblings.
Although not her biological father, Jane described Gonzalez as her “stepdad”
and a “father figure” who disciplined her. She explained that Gonzalez’s
strength, size, and weight made it difficult to get away. This issue is not
reasonably arguable.
4. Work and School Schedule Evidence
Appellate counsel suggests the evidence regarding the work and school
schedules for each of the occupants of the residence made it impossible for
Gonzalez to have committed the crimes against Jane. Mother had a varying
work schedule seven days a week, with 6:00 p.m. being the earliest she came
home and 10:00 p.m. the latest. Jane went to school Monday through Friday
but would sometimes be home alone on the weekends. Gonzalez claimed he
was self-employed, did not have a schedule, and usually left home at 6:00
a.m. and returned home around 10:00 p.m. He admitted, however, that after
Jane’s half-siblings were born, he was sometimes alone in the apartment
with them and Jane. This evidence does not show it was impossible for
Gonzalez to have committed the crimes and the issue is not reasonably
arguable.
5. Lack of Forensic Evidence
Gonzalez claims insufficient evidence supports his convictions because
the prosecution presented no forensic evidence suggesting he had penetrated
Jane’s anus or vagina. To prove Gonzalez guilty of sexual penetration, the
prosecution needed to prove that some penetration occurred, “however slight,
of the genital or anal opening of the other person for the purpose of sexual
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abuse, arousal, or gratification.” (CALCRIM No. 1045; see § 289, subd.
(k)(1).) The court also instructed the jury that a conviction for a sexual
assault crime may be based on the uncorroborated testimony of a
complaining witness alone. (People v. Poggi (1988) 45 Cal.3d 306, 326; see
CALCRIM No. 1190.) This issue is not reasonably arguable.
B. Evidentiary Issues
1. Mother’s Presence at the Preliminary Hearing
Appellate counsel suggests the trial court erred in overruling the
defense objection to Mother being present in the courtroom during the
preliminary hearing testimony. At the start of the preliminary hearing,
defense counsel moved to exclude witnesses and for witnesses to be
admonished to not discuss their testimony. The People responded that
Mother was in the courtroom, would not be called as a witness, and asked
that she be able to stay during the testimony. Defense counsel objected to
Mother’s presence because she would likely be called as a witness at trial.
The trial court ruled that Mother could remain in the courtroom because
nothing was presented to the court suggesting her presence might affect the
testimony of any witness and instructed the prosecution to admonish Mother
not to discuss the testimony with anyone. The court then placed the
prosecution “on notice that their witness -- a potential witness may be in the
courtroom” and this may be an issue to address during trial.
Mother did not testify at trial. Gonzalez presented no evidence
showing Mother communicated with anyone regarding the preliminary
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hearing testimony or how her presence at the preliminary hearing prejudiced
him. This issue is not reasonably arguable.
2. Alleged Change in Jane’s Testimony
Gonzalez asserts the trial court erred when it allowed Jane to testify at
trial differently from what she testified to at the preliminary hearing. “Mere
inconsistencies between a witness’s testimony and her prior statements do
not prove the falsity of the testimony.” (People v. Vines (2011) 51 Cal.4th 830,
874, overruled in part on other grounds in People v. Hardy (2018) 5 Cal.5th
56, 104.) This issue lacks arguable merit because Gonzalez has not identified
how Jane’s trial testimony materially differed from her testimony at the
preliminary hearing. (Cal. Const., art. VI, § 13 [defendant is not entitled to
have judgment set aside absent a showing “that the error complained of has
resulted in a miscarriage of justice”].)
3. Telephone Number
Gonzalez claims the telephone call leading to his arrest came from a
telephone number that did not belong to Mother and he is being framed.
Gonzalez has not cited where in the record we can locate the telephone
number for the call leading to his arrest, or Mother’s telephone number.
Even assuming Mother used a telephone unknown to Gonzalez to make this
call, Gonzalez has not explained how this fact prejudiced him. This issue
lacks arguable merit.
C. Constitutionality of the Convictions
Appellate counsel suggests the prosecution of child molestation based
on generic evidence, without specificity as to dates and times, is
unconstitutional unless charged under section 288.5. In People v. Jones
(1990) 51 Cal.3d 294, our Supreme Court addressed the quantum of proof
necessary to support a conviction in a child molestation case. (Id. at pp. 314–
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316.) The court held that even “generic” testimony regarding multiple
molestations over a period of time—unspecific as to time, place or
circumstance—is sufficiently substantial to support a conviction. (Id. at pp.
313–314.) This issue is not reasonably arguable.
D. Conclusion
Review of the record pursuant to Wende, supra, 25 Cal.3d 436, and
Anders, supra, 386 U.S. 738, including the possible issues referred to by
Gonzalez and his appellate counsel, have disclosed no reasonably arguable
appellate issues. We find that Gonzalez was adequately represented both at
trial and on appeal.
DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
CASTILLO, J.
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