People v. MartinezPeople v. Martinez
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
We address three issues in this case: (1) What remedy to impose when a jury returns verdicts on all charges against a defendant because a trial court failed to instruct the jury that the charges before it were in the alternative; (2) Whether sufficient evidence supported Martinez‘s conviction on count 5 for lewd acts by force, fear, or duress; and (3) Whether the trial court abused its discretion when answering the jury‘s question regarding the meaning of “sexual penetration” using specific anatomical language not discussed during trial.
On the first issue we asked for supplemental briefing. The parties agree, as do we, that the court‘s omission of instructions explaining charges in the alternative resulted in prejudicial error requiring remand. Where the sides disagree is what directive to give the trial court when the case is returned to it. Appellant says the court‘s mistake requires us to order a new trial, or at a minimum, return the matter to the trial court for further hearing to determine on what count(s) to sentence. The respondent (the People) maintains that we should order the trial court to hold a hearing to determine on which count(s) to vacate the jury verdict(s). We find little guidance in this area, but after
On the second question we find the record provides ample evidence on which a jury could base its verdict convicting defendant of committing a lewd act on a child while using force, fear, or duress, in violation of
Finally, we find no error in the court‘s answer to the jury‘s question. The jurors themselves used specific language to refer to a part of Jane Doe‘s body and the trial court incorporated that into its answer. The term is widely known and requires no specialized training to understand. In this instance no error occurred.
Therefore, we remand for a hearing and resentencing but otherwise affirm the trial court.
II. FACTS
A. The Abuse
Jane Doe‘s mother began dating Martinez in 2011 or 2012, when Doe was six or seven years old. Martinez taught at Doe‘s elementary school, where he and her mother met. Martinez dated Doe‘s mother for approximately 10 or 11 years; Martinez lived at their house during some of that time.
Martinez began molesting Doe when she was about seven years old. Doe knew what Martinez did to her was wrong, but she was “terrified” and scared that no one would listen to her because she was the victim of prior abuse by someone else that went unreported. In addition to molesting her, Martinez made Doe feel uncomfortable by making inappropriate comments about her body. Sometimes Doe‘s mother heard Martinez make these comments, but the mother never did or said anything in response.
The first time Martinez molested Doe, she was sleeping on the couch in the living room while her grandmother stayed in Doe‘s bedroom. Martinez sat down on the couch next to Doe‘s head, putting his hand under Doe‘s blanket and underwear. He began touching her on the outside of her vagina. He then grabbed and held Doe‘s hand, while moving it up and down on his penis. Doe was “really scared” and unsure what was going to happen next. Out of fear, she did not tell anyone what happened.
Martinez continued to molest Doe in the same manner for about four more years. The abuse happened “so many times” and when it occurred, Doe “would just sit there and wait for it to be over.”
The relationship between Doe and Martinez changed when she was 11 or 12 years old and entering middle school. She became enraged and wanted no relationship with Martinez. About this time, Martinez stopped molesting Doe. He was still in Doe‘s life after the molestations ended, and Doe remained “too afraid” to tell anyone what he did to her.
In July 2021, while seeing a therapist for anxiety and panic attacks, Doe told the therapist about the sexual abuse by Martinez. Because the therapist was a mandatory reporter, she informed Doe‘s mother about the abuse and called law enforcement.
Soon after her disclosure to the therapist, a Riverside County Department of Children‘s Services interviewer spoke with Doe. Doe disclosed that on several occasions Martinez molested her. In August 2021, Riverside County Sheriff‘s Department investigators assisted Doe in making a recorded, pretext phone call to Martinez to get Martinez to admit to the sexual abuse allegations. Doe made specific statements to Martinez about what he did to Doe. Martinez did not deny the acts, mostly remaining quiet. Law enforcement officers later arrested Martinez at his house.
B. Trial and Sentencing
In December 2022, a jury convicted Martinez of attempted sexual penetration of a child under 10 years of age (
In January 2023, the trial court sentenced Martinez to prison for the indeterminate term of 15 years to life, and the determinate term of 21 years
III. DISCUSSION
A. Martinez‘s Convictions Violate Section 288.5, Subdivision (c)
Here, the law prohibited the jury from convicting Martinez on counts 1, 2, 4 and 5 (defined sexual assault crimes) while also finding him guilty on count 3 (continuous sexual abuse). Rather, the jury could return guilty verdicts on counts 1, 2, 4 and 5 while acquitting on count 3 or, convict on count 3 and acquit on counts 1, 2, 4, and 5.
Prior to trial the court asked the prosecutor and defense attorney for suggested jury instructions. The parties conveyed their requests to the court through a check-the-box type form. But neither side requested CALCRIM No. 3516 (entitled, “Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited“) which instructs on charges in the alternative and a jury‘s requirement to convict on one of the alternatives, but to acquit on the other.
Later, at sentencing, the probation department representative, also apparently unaware of
On this topic CALCRIM gives conflicting guidance. CALCRIM No. 1120, defining continuous child abuse, informs us in its Related Issues section, that where defined child molest crimes are charged and there is a continuous sexual abuse count also alleged for the same period, then the trial court has “a sua sponte duty to give CALCRIM No. 3516.” If one cross-checks CALCRIM No. 1120‘s directive against CALCRIM No. 3516‘s Bench Notes section, one finds disagreement with the court having any duty, much less a sua sponte duty, to use CALCRIM No. 3516: ”Because the law is unclear in this area, the court must decide whether to give this instruction if the defendant is charged with specific sexual offenses and, in the alternative, with continuous sexual abuse under Penal Code section 288.5.”3 (Italics added.)
Given the convictions in this matter violate
B. Appropriate Remedy
1. Standard of Review
Martinez‘s claim here involves statutory interpretation and issues of law. Therefore, we review the matter de novo. (See People v. McCarthy (2016) 244 Cal.App.4th 1096, 1103–1104.)
2. Section 288.5
The parties agree, as do we, that Martinez‘s convictions violate
The legislature enacted
In response, lawmakers determined that there was “an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse,” (Stats. 1989, ch. 1402, § 1, subd. (a))
But, important here, lawmakers also placed limits on the new code section by excepting it from
of their obligation to decide between convicting a defendant on defined sexual acts against a child and acquitting on the continuous sexual abuse count, or vice versa. The trial court in this matter failed to give the jury that information. As a result, the jury returned verdicts on all counts. This violated
C. The Remedy Is to Remand to the Trial Court for Resentencing
The inquiry then turns to determining a remedy where
In so concluding we reject Martinez‘s argument that he was deprived of due process protections because a jury might have convicted him of only count 3, which carried a lower prison term than count 1. On the other hand, like the People, we recognize that in a case where the trial court exercised sentencing discretion, as here by imposing on Martinez the middle term on
count 3, the better approach is to allow the trial court to revisit this case rather than impose our own sentencing decision.
This differs from how Torres and other cases approached this error. They assert the most appropriate sentence will always be the one which imposes the longest prison term. (See, e.g., People v. Patton (2024) 101 Cal.App.5th 922, 931 [“Generally, this means ‘upholding whichever conviction[s] resulted in the greater aggregate penalty and vacating the less serious count[s]’ “], People v. Rojas (2015) 237 Cal.App.4th 1298, 1309–1310
However, we depart from Torres, Rojas, Patton, and other such cases because of the nuances in this matter. The jurors asked six questions during deliberations seeking clarification of different issues (one we discuss, post). They also asked for readback of witnesses. The relevance, implications, and meaning of these inquiries lead us to believe the trial judge who also heard the evidence, watched the witnesses testify, and observed the witnesses’ demeanor, is in the best position to determine which offense or offenses would “leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability.” (Torres, supra, 102 Cal.App.4th at p. 1059.)6 Therefore, we remand this case to the trial court for a hearing on that question after which the trial court can decide which count or counts best describe Martinez‘s behavior based on the evidence received at trial. The court would then vacate the verdict(s) on the alternative count(s), dismiss that charge, or those charges, and conduct a complete resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ “].)
D. Substantial Evidence Supports the Jury‘s Verdict on Count 5
Martinez claims we must reverse his conviction on count 5, lewd act on a child “by use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury,” a violation of
1. Standard of Review
” ‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it
2. The Definition of Duress in Section 288, Subdivision (b)(1)
The trial court instructed the jury that count 5 related to the incidents when Martinez made Doe touch his penis with her hand.
” ’ “Duress” ’ ” as used in
In determining whether a sexual offense was accomplished by duress, the trier of fact must consider the totality of the circumstances, including the victim‘s age and relationship to the defendant. (People v. Barton (2020) 56 Cal.App.5th 496, 518; see CALCRIM No. 1111.) ” ‘Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim’ is relevant to the existence of duress.” (People v. Senior (1992) 3 Cal.App.4th 765, 775 (Senior).)
3. Substantial Evidence Supports the Jury‘s Verdict on Count 5
On the record before us we conclude substantial evidence supports the jury‘s finding on count 5 that Martinez used duress to commit the sexual offense against Doe.7
In addition, Doe testified that in connection with count 5, she was “really scared,” “terrified,” and did not know what was going to happen to her when Martinez grabbed her hand, placed it on his penis, and moved it up and down. Doe felt too scared to tell anyone what Martinez did, including her own mother, because she feared disrupting the family and her mother‘s relationship with Martinez. Doe also believed her mother would not protect her from Martinez because she did nothing in 2005 after an older girl molested Doe, and she did nothing when Martinez made sexual comments about Doe‘s body in front of her.
Where a defendant occupies a father-figure role over a young child, multiple cases have found duress in situations lacking force, violence, or threats. (See Veale, supra, 160 Cal.App.4th at pp. 46–47 [although stepfather
who molested seven-year-old girl did not use violence or explicit threats, evidence supported a finding of duress based on “the disparity between [the victim] and defendant‘s age and size,” the “defendant‘s position of authority in the family,” and that the victim feared defendant and believed he would kill her or her mother if she told about the molestation]; People v. Cochran (2002) 103 Cal.App.4th 8, 15–16 (Cochran) [duress present in father‘s molestation of his nine-year-old daughter despite absence of violence or threats where the victim was a “vulnerable and isolated child who engaged in sex acts only in response to her father‘s parental and physical authority,” and “[h]er compliance was derived from intimidation and the psychological control he exercised over her“], disapproved on another ground [victim‘s consent is not a defense to crime of aggravated lewd acts on child under 14] in People v. Soto, supra, 51 Cal.4th 229; Senior, supra, 3 Cal.App.4th at p. 775 [father‘s molestation of his fourteen-year-old daughter included duress because “several psychological pressures related to his molestations” including the fact he was the victim‘s father and an authority figure to her].)
Considering the totality of the circumstances here, we conclude substantial evidence supports the finding that Martinez used his position as a father figure with authority over seven-year-old Doe to manipulate and coerce her into putting her hand on his penis. (See Veale, supra, 160 Cal.App.4th at pp. 46–47; accord, Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6 [noting that “as a factual matter, when the victim is as young as [nine years old] and is molested by her father in the family home, in all but the rarest cases duress will be present“].) We reject this claim of error.
E. The Court Did Not Abuse its Discretion When Answering the Jury‘s Question on Sexual Penetration
Martinez next requests we reverse his conviction on count 2, claiming the trial court abused its discretion when responding to the jury‘s question on the definition of sexual penetration in connection with counts 1 and 2.8 We are not persuaded.
1. Standard of Review
“We review for an abuse of discretion any error under
2. The Jury Note
During deliberations the jury sent a note to the trial court which asked: “Provide an exact definition of sexual penetration. Does ‘sexual penetration’ occur if a body part simply moves through or separates the labia major [sic], the labia minora, or the butt cheeks?”
In response, the court wrote: “Sexual penetration is defined in Jury Instruction 1128 as penetration, however slight, of the genital or anal opening of the other person by any foreign object, substance, instrument, device, or
3. The Court Properly Responded to the Jury Note
“When a jury asks a question after retiring for deliberation . . . ‘the court [has] a duty to provide the jury with information the jury desires on points of law.’ (People v. Smithey (1999) 20 Cal.4th 936, 985.) . . . ‘[T]he court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury‘s request for information.’ ” (Eid, supra, 187 Cal.App.4th at pp. 881–882; People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).)
Martinez concedes the trial court‘s response to the jury note correctly stated the law. (See People v. Quintana (2001) 89 Cal.App.4th 1362, 1364, 1371 [“we hold that the . . .
First, the jury‘s question to the trial court showed it knew the physical distinction between labia majora and labia minora. The jury specifically requested clarification on whether separating the labia majora, labia minora, or the butt cheeks qualified as sexual penetration under the law. The jury would not use terms in its question that it did not understand.
Second, the jury‘s verdicts on count 1 and count 2 do not suggest the jury was confused by the terms: labia majora and labia minora. Rather, the different verdicts reflect that counts 1 and 2 involved entirely distinct instances involving
Third, even if the jury did not understand the physical distinction between labia majora and labia minora, Martinez is unable to show any resulting prejudice. (See Beardslee, supra, 53 Cal.3d at p. 97; People v. Lua (2017) 10 Cal.App.5th 1004, 1017; Hodges, supra, 213 Cal.App.4th at p. 539.) Substantial evidence supported finding Martinez sexually penetrated Doe during movie nights. As the trial court properly instructed the jury, sexual penetration means “penetration, however slight, of the genital or anal opening of the other person . . . .” Based on Doe‘s testimony, regardless of whether the jury fully understood the difference between labia majora and labia minora, any reasonable jury could conclude that Martinez‘s act of rubbing the “inner-outside” and the “inside” part of Doe‘s vagina constituted “penetration, however slight, of the genital or anal opening.”
Moreover, the fact that the jury convicted Martinez of the lesser included offense of attempted sexual penetration on count 1 demonstrates the jury was able to distinguish between “just on the outside” versus the “inner-outside” and the “inside” part when differentiating guilt on count 1 as opposed to count 2. Accordingly, even without the alleged error in the trial court‘s jury question response, it is not reasonably probable that a more favorable outcome for Martinez would result. (See Beardslee, supra, 53 Cal.3d at p. 97; Lua, supra, 10 Cal.App.5th at p. 1017; Hodges, supra, 213 Cal.App.4th at p. 539.)
We conclude the trial court did not abuse its discretion when it gave a correct statement of law in response to the jury‘s question, using the same language employed by jurors. Separately, Martinez is unable to show any resulting prejudice from the trial court‘s response to the jury note. We affirm Martinez‘s conviction on count 2.
The judgment is reversed to allow the trial court to hold a hearing regarding on which count(s) to sentence Martinez, and the alternative charge(s) to dismiss. In all other respects, the judgment is affirmed.
RUBIN, J.
WE CONCUR:
McCONNELL, P. J.
KELETY, J.