THE PEOPLE OF THE STATE OF CALIFORNIA v. SANDRO MARTINEZ (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

A jury convicted appellant, Sandro Martinez, of one count of lewd and lascivious conduct with a child under the age of 14 (Pen.Code, § 288, subd. (a)).  In a separate proceeding the court found true a prior prison term enhancement (Pen.Code, § 667.5, subd. (b)).

On September 4, 2009, the court sentenced Martinez to an aggregate nine year term:  the aggravated term of eight years on the substantive offense and a one-year prior prison term enhancement.

On appeal, Martinez contends:  1) the court erred when it excluded certain evidence;  and 2) he was denied his right to a jury trial on the prior prison term enhancement.   We will affirm.

V.A. (mother) testified that she had three daughters, ages five and seven, and the victim, who was nine years old when the underlying incident in this matter occurred.   On the days V.A. worked, she would leave her daughters at the home of her mother, E. (grandmother), in Madera.   Martinez and his brother, Jaime, also lived there.

On Sunday October 19, 2008, mother left her daughters at grandmother's house and went to work.   Shortly thereafter, the victim was watching television when Martinez called her into his bedroom.   The victim went into the room and Martinez shut the door.   He then grabbed her hand and placed her on the bed, lying down.   When the victim asked Martinez what he was doing, Martinez motioned for her to be quiet and got on top of her.   Martinez then positioned himself with his hips on top of her hips and his hands on the bed, as if he were going to do pushups.   He then moved his hips up and down for a few seconds.

The victim told Martinez to get off of her and pushed him off.   She then got up, got a phone, and called mother from the backyard.   Approximately 50 minutes after arriving at work, mother received a call from the victim, who was crying.   Mother asked her what was wrong and she replied that she was scared and wanted to go home.   Mother kept asking the victim what was wrong, but she would not tell her.   The victim then told mother, “He told me not to tell you nothing, Mom.” Mother told the victim to run to grandmother's room and get her on the phone.   The victim went to grandmother's room and handed the phone to grandmother.   Mother could hear the victim explaining to grandmother what happened and left work after speaking with grandmother.   When mother got to grandmother's house, both her brothers and their wives and children were there.   The victim was in grandmother's bedroom, sitting up on the bed, crying and explaining what Martinez had done to her.

Mother was told that Martinez was in the back and went to confront him.   Mother asked Martinez why the victim would call her at work and say that he had done things to her.   Martinez would not look her in the eyes and replied that the victim was lying.   Mother asked him why the victim would lie about that and Martinez responded by asking mother how she could believe the victim.   After five to ten minutes, mother got frustrated with Martinez and began slapping and punching him, but Martinez did not hit her back.

Mother then returned to grandmother's bedroom, where her daughter was still explaining what had happened.   When Martinez went in the house and sat on a couch, mother ran at him and began repeatedly hitting him until she had an anxiety attack and had to sit down.

Mother had gone to school with Martinez and had known him for 15 years.   She considered Martinez her best friend and had asked grandmother to let him move in with her.

During cross-examination, mother testified that she never threatened Jaime or anyone else with reporting them for child molestation if they did not behave.

Grandmother testified that when the victim came into her bedroom, the victim was shaking and crying and kept looking at the door.   The victim told grandmother that Martinez told her to go into the room and had tried to get into her pants.   Grandmother confronted Martinez outside the house and asked him “Why did you do this to her?”   Martinez denied doing anything to the victim and said that the victim was lying.

The victim's seven-year-old sister testified that on the day Martinez was arrested, she saw Martinez and the victim “in his bedroom” with the door shut.

Martinez testified that the day of the incident, he was watching a football game on television.   Martinez was upset after the game because his team lost and went outside to smoke a cigarette.   While outside, grandmother and the victim approached him and grandmother asked him what he had done.   Grandmother then went into the living room and Martinez followed because he wanted to know what she was talking about and grandmother had not really told him anything.   Grandmother told Martinez he was lucky she did not call the police and Martinez told her to go ahead.   Martinez expected that someone would call the police and if nobody had, he would have called them.

Martinez denied taking the victim into his room that night or doing anything to her.   He acknowledged that prior to the underlying incident, he had a great relationship with the victim.   He also acknowledged that he had been friends with mother for 15 years and considered her his best friend.   Martinez was impeached with a conviction for false imprisonment.

The Excluded Evidence

On the third day of trial, defense counsel informed the court that he had gotten some information from Martinez's ex-wife, N.S., which might make Martinez's brother, Jaime, a witness.   According to N.S., Jaime told her that mother had warned Jaime that if he did not straighten up she would “get him accused of [child molestation].”   Defense counsel told the court he had spoken with Jaime, but he denied the statement.   However, if he confronted Jaime about the statement and he denied it, counsel could have N.S. testify that Jaime told her that mother made that statement to him.   Defense counsel further stated that there were two levels of hearsay-the first level was the statement from mother to Jaime and the second level was the statement from Jaime to N.S. According to defense counsel, the first level, i.e., the statement from mother to Jaime, would be admissible as a “statement of independent significance” because it was a threat.   The second level, i.e., the statement from Jaime to N.S., would be admissible as a prior inconsistent statement if Jaime denied that mother made the threat to him and N.S. testified that he repeated the threat to her.

The prosecutor objected on hearsay and relevance grounds and because N.S. had been in the courtroom during the trial even though the court had granted a motion to exclude witnesses.   In denying defense counsel's request, the court found that mother's and Jaime's statements were hearsay and that even if Jaime testified that mother did not make the statement attributed to her, mother's statement would not be admissible as a prior inconsistent statement.

Nevertheless, at the prosecutor's request, the court conducted an Evidence Code section 402 hearing on the matter during a break in the trial testimony.   During this hearing, N.S. testified that Jaime and mother were involved in a romantic relationship.   Sometime during the end of May 2009, Jaime told N.S. that he was having problems with mother and that mother told him she was going to accuse Jaime of touching the victim.   Jaime told N.S. he wished he had had a recorder at the time so that he could have recorded mother.   N.S. offered to get a cell phone with a recorder for him, but he said he could get a recorder.

Jaime testified that mother had previously threatened to turn him in to probation.   However, he denied that mother had ever threatened to accuse him of molesting one of her children.

After the hearing, the court reaffirmed its decision to exclude Jaime's testimony on the alleged threat by mother.   Thereafter, defense counsel advised the court that he would not be calling N.S. to testify in light of its ruling.

DISCUSSION

The Exclusion of Evidence Regarding the Alleged Threat by Mother

Martinez contends that the evidence that mother threatened to accuse Jaime of molesting one of her children would have provided circumstantial evidence explaining why the victim would have falsely accused Martinez of molesting her.   Thus, according to Martinez, the court erred when it excluded this evidence because doing so denied Martinez his constitutional right to due process.   We will reject this contention.

“The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence.  [Citation.]  ․ Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.  [Citation.]”  (People v. Guerra (2006) 37 Cal.4th, 1067, 1113.)

Here, the court sustained the objection to mother's statement to Jaime on relevance and hearsay grounds.   We will not discuss whether the court correctly excluded it on hearsay grounds because we will conclude that it correctly excluded it on relevance grounds.

“Evidence is relevant if it has any tendency in reason to prove a disputed material fact.  [Citation.]”  (People v. Guerra, supra, 37 Cal.4th 1067, 1113.)

Martinez intended to introduce mother's purported statement to Jaime threatening to accuse Jaime of child molestation if he did not “shape up,” presumably to show that the victim accused Martinez of molesting her because mother put her up to it.   However, since mother's alleged threat was directed at Martinez's brother, it did not have any tendency to prove that mother caused the victim to falsely report that she had been molested by Martinez.   Further, unlike Jaime, who, according to defense counsel's representations, apparently did something to pique mother's ire, it was undisputed that prior to this incident mother and Martinez were “best friends” and the defense did not provide any evidence suggesting a rift ever developed in their relationship.   These circumstances and the timing of the alleged statement, approximately eight months after the molestation occurred, support the court's ruling sustaining the prosecutor's objection to mother's statement on relevance grounds.   The court did not abuse its discretion when it ruled mother's statement inadmissible.

The Jury Trial Issue

After the case was submitted to the jury, the prosecutor and defense counsel “stipulated” to a court trial on the prior prison term enhancement.   Martinez was not advised of his right to a jury trial with respect to the enhancement or asked to join in the stipulation.   Following a court trial, the court found the enhancement true.   Martinez contends this procedure violated his constitutional right to a jury trial on the prior prison term enhancement.   We disagree.

Martinez acknowledges that in People v. Vera (1997) 15 Cal.4th 269, the Supreme Court held that the right to a jury trial on an enhancement allegation is statutory in origin and can be waived by counsel on the defendant's behalf absent a timely objection by the defendant in the trial court.   Martinez raises this issue in order to preserve it for federal review.   In accord with Vera, we reject Martinez's contentions that he had a constitutional right to a jury trial on the prior prison term enhancement and that his right to a jury trial was violated by the procedure followed here.

DISPOSITION

The judgment is affirmed.

THE COURT