P. v. Martinez
Filed 9/26/11 P. v. Martinez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
| THE PEOPLE, Plaintiff and Respondent, v. ARMANDO MARTINEZ, Defendant and Appellant. | 2d Crim. No. B224760 (Super. Ct. No. SA070468-01) (Los Angeles County) |
Armando Martinez appeals a judgment following conviction of three counts of child molestation with a finding that he committed lewd acts against more than one child. (Pen. Code, §§ 288, subd. (a), 288, subd. (c)(1), 288.5, subd. (a), 667.61, subds. (b) & (e)(4).)[1] We affirm.
FACTS AND PROCEDURAL HISTORY
Martinez and his wife Teresa lived with their daughter L. and their son A. in Culver City. Teresa's daughter V. also lived with them.
Molestation of V.
(Count 4)
In the fall of 2008, V. informed her mother that Martinez had molested her. At her mother's urging, V. spoke with Culver City Police Detective Leon Lopez regarding Martinez's improper acts. During a videotaped interview, V. stated that when she was six years old, Martinez touched her inappropriately. The molestation continued for approximately eight years. V. described Martinez's acts of touching her vaginal area over and under her clothing. She also stated that he once had asked her to hand him soap while he was showering. As she did so, he pushed her face toward his penis. Over defense objection, the prosecutor played the videotape of the interview at trial.
At the preliminary examination and at trial, V. recanted her interview statements. She stated that on several occasions, an unidentified man touched her vagina over and under her clothing. V. did not remember the man, however, and his face was "blur[ry]" in her mind. She also stated that she did not remember the man in the shower incident. In sum, V. denied that Martinez had molested her, and stated: "I just said a whole bunch of things [to Detective Lopez]. . . . I probably talked out of anger . . . because most of the things I said were not true."
V. testified at trial, however, that Martinez peered into her bedroom through cracks in the wall separating her bedroom from his bedroom. V. stated that on one occasion, A. saw Martinez peering into V.'s bedroom. V. was uncomfortable changing her clothing in her bedroom because she believed that Martinez was watching her.
When V. was 15 years old, she became pregnant and moved from the Martinez home. She stated at trial that she "didn't feel safe" at home with her stepfather and that he was angry that she had a boyfriend. After giving birth, V. returned home with the baby. She later left the home with her boyfriend and baby, but returned when she became pregnant again.
Molestation of L.
(Counts 1 & 2)
In 2006, Teresa spent a night at the hospital with A. The following morning, L. awoke to find Martinez in her bed. In the evening of April 12, 2008, Teresa and V. went to the hospital. A. went to L.'s bedroom and saw Martinez sleeping in L.'s bed. A. was "uncomfortable" because his sister and father were "a little too close." A. testified that "it didn't look right," and for that reason, he awoke L. and took her to the living room.
L. later disclosed to a therapist that her father had touched her inappropriately. The therapist reported the molestation to police officers.
On September 16, 2008, Detective Lopez interviewed L. She recounted three incidents where her father lay in her bed and rubbed her stomach, chest, and breasts. On one occasion, she felt his penis against her back. L. was 13 years old during two of the three incidents, and 14 years old during the third incident.
At trial, L. testified that she did not recall her father touching her inappropriately. She also stated that she did not inform her therapist that her father had molested her. A. testified and stated that he did not witness any improper sexual behavior by his father against L. A. explained that he "overreacted" when he saw his father in L.'s bed. He also denied seeing his father peer into V.'s bedroom through cracks in the wall.
The children testified that they loved Martinez and that they felt pressure from family members regarding their testimony. Prior to testifying, V. asked the prosecutor if she could "lie and just say whatever" at trial.
Martinez testified that he loved his children and denied touching them inappropriately. He also presented character evidence from employers and church members concerning his traits for honesty and kindness. Martinez presented evidence of a videotaped interview with Detective Lopez wherein he denied touching V. or L. inappropriately.
Substitution of Trial Judge
Judge James R. Dabney presided at trial initially and for four days until he became ill. Trial was continued for several days to allow Judge Dabney to recover. On November 4, 2009, Judge Dabney informed the court that he did not believe he would recover from his illness quickly, and Judge Scott Millington substituted in his place. Martinez refused to stipulate to the substitution and moved for a mistrial. Judge Millington denied the motion and trial proceeded. The following day, Martinez moved for a judgment of acquittal pursuant to section 1118.1. Judge Millington denied the motion and presided over trial until the time of sentencing. By that time, Judge Dabney had recovered and returned to sentence Martinez.
The jury found Martinez guilty of committing a lewd act on a child under 14 years of age (count 1 - L.); one count of committing a lewd act on a 14-year-old child who is 10 years younger than him (count 2 - L.); and one count of continuous sexual abuse of a child under 14 years of age (count 3 - V.). (§§ 288, subds. (a) & (c)(1), 288.5, subd. (a).) The jury also found that Martinez molested more than one child. (§ 667.61, subds. (b) & (e)(4).) The trial court sentenced him to 31 years to life imprisonment, consisting of 15 years to life for count 1, a one-year low-term for count 2, and 15 years to life for count 3. The court also imposed various fines and fees and awarded Martinez 469 days of presentence custody credit.
Martinez appeals and contends that: 1) insufficient evidence supports his conviction of continuous sexual abuse of V.; 2) videotaped evidence of V.'s police interview was inadmissible hearsay and unduly prejudicial; 3) insufficient evidence supports his conviction of child molestation of L.; 4) the trial court erred by permitting A.'s conclusionary testimony; and 5) the trial court improperly substituted a trial judge during trial. Martinez asserts there is cumulative error that resulted in a fundamentally unfair trial.
DISCUSSION
I.
Martinez argues there is insufficient evidence that he committed continuous sexual abuse of V. He asserts that V.'s interview statements are not credible because she was only 6 to 14 years old during the alleged molestations. Martinez points out that other extended family members lived in their small apartment and that young men visited a teenage aunt residing in the household. He relies on V.'s recantation at trial and her explanation of anger when she learned he was her stepfather, not her father.[2]
In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Solomon (2010) 49 Cal.4th 792, 811.) Our review is the same in prosecutions primarily resting upon circumstantial evidence. (Ibid.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151.) The testimony of a single witness may sufficiently prove any fact. (People v. Richardson (2008) 43 Cal.4th 959, 1030-1031.)
Sufficient evidence supports Martinez's conviction of the continuous sexual abuse of V. within the meaning of section 288.5, subdivision (a). V. informed Detective Lopez that Martinez touched her inappropriately for many years. She stated that he "dry hump[ed]" her, placed his hands inside her pants, tried to remove her pants while she slept, squeezed her breasts, and touched her vagina. V. estimated that Martinez molested her as often as 20 times a month. She stated that she was six years old when the molestation began and 14 years old when it ceased. V. also described an incident when Martinez pushed her head toward his penis while he bathed. We do not reweigh the evidence or reassess the jury's determination of witness credibility. (People v. Guerra, supra, 37 Cal.4th 1067, 1129.) We view V.'s recantation at trial as being rejected by the trier of fact for want of sufficient verity.
II.
Martinez asserts that the trial court improperly admitted evidence of V.'s videotaped interview with Detective Lopez. He argues that the interview is inadmissible hearsay and not a prior inconsistent statement because V. stated at trial that she was untruthful during the interview. Martinez adds that evidence of the interview was unduly prejudicial pursuant to Evidence Code section 352 because it repeated the recanted allegations. He adds that evidence of the interview denied him due process of law pursuant to the United States and California Constitutions.
The trial court properly admitted evidence of the videotaped interview. Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing . . . ." Plainly, V.'s interview statements are inconsistent with her trial testimony. "That [inconsistent] character does not change simply because she admitted making them." (People v. Brown (1995) 35 Cal.App.4th 1585, 1597.) Moreover, Evidence Code section 1235 does not violate a defendant's constitutional witness-confrontation rights by permitting prior inconsistent statements as substantive evidence. (Ibid.)
The trial court also did not abuse its discretion by finding the interview evidence more probative than prejudicial. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [standard of review of trial court's decision to admit or exclude evidence].) In considering the admissibility of the videotape, the trial judge stated: "[T]he fact that the jurors will have the ability to see and hear . . . the witness's prior statement will be helpful . . . in them deciding what weight to give to those prior statements as opposed to her testimony here in court. So they can compare and contrast the two. . . . [T]he trier of fact will benefit from being able to observe the demeanor of the witness when she made those prior statements." The court properly found that the videotaped interview was relevant, highly probative, but not prejudicial in the manner of evoking an emotional bias against Martinez. (People v. Karis (1988) 46 Cal.3d 612, 638 ["'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues'"].)
To the extent that Martinez argues that the videotaped interview mentions irrelevant matters that are allegedly prejudicial, the trial court's decision in permitting the statements was not erroneous. The matters concern Martinez's uncle-relationship to V., V.'s reference to being "hit" by her mother and stepfather, and Detective Lopez's comment that Martinez's acts were "not right." The references are brief and would not cause a reasonable trier of fact to prejudge Martinez on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)
III.
Martinez contends insufficient evidence supports his conviction of two counts of child molestation against L. (§ 288, subds. (a) & (c)(1).) He relies upon L.'s trial testimony that she did not recall her father committing any lewd acts against her, and A.'s trial testimony that he "overreacted" to seeing Martinez and L. in bed together.
Sufficient evidence supports Martinez's conviction of counts 1 and 2. (People v. Solomon, supra, 49 Cal.4th 792, 811 [standard of review]; People v. Guerra, supra, 37 Cal.4th 1067, 1129 [same].) Detective Lopez testified that L. informed him that in 2007, when she was 13 years old, she awoke to find Martinez rubbing her chest and stomach. A few months later, she awoke to find him squeezing her breasts. On April 12, 2008, Martinez was in L.'s bed and rubbed her back. L. was then 14 years old. We do not reweigh the evidence nor do we reassess the credibility of witnesses in our review of sufficient evidence to support a conviction. (Guerra, at p. 1129.)
IV.
Martinez asserts that the trial court erred by permitting A. to testify that he was uncomfortable because "[his] dad was kind of a little too close [in bed] to [his] sister." He also argues that A.'s testimony that L. "was afraid or something" is speculative.
Martinez has forfeited this argument because he did not object on the specific ground that A.'s testimony was speculative or conclusionary. (People v. Demetrulias (2006) 39 Cal.4th 1, 22 [objector to evidence cannot make "placeholder" objection stating only general grounds]; People v. Clark (1992) 3 Cal.4th 41, 125-126.) "In the absence of a timely and specific objection on the ground sought to be urged on appeal, the trial court's rulings on admissibility of evidence will not be reviewed." (Clark, at pp. 125-126.) Forfeiture aside, A.'s testimony that L. was "afraid or something" supported Martinez's defense that he fell asleep on L.'s bed as he comforted her or checked on her well-being.
V.
Martinez contends that the trial court improperly substituted the trial judge during the evidentiary portion of trial. He asserts that due process of law requires that his motion for acquittal be decided by the trial judge presiding over the evidentiary portion of trial.
Section 1053 provides: "If after the commencement of the trial of a criminal action or proceeding in any court the judge or justice presiding at the trial shall die, become ill, or for any other reason be unable to proceed with the trial, any other judge or justice of the court in which the trial is proceeding may proceed with and finish the trial." Our Supreme Court recently rejected the contention that due process of law and the constitutional right to a jury trial require the same judge to preside over all stages of a criminal proceeding. (People v. Cowan (2010) 50 Cal.4th 401, 459 [substitute judge may rule on motion to modify death penalty verdict].) "[S]ection 1053, which provides for the substitution of a new judge when the original judge in a criminal trial is unable to proceed, is not unconstitutional. [Fn. omitted.] This rule is now settled law." (Ibid.)
Judge Millington properly substituted for Judge Dabney pursuant to section 1053 when Judge Dabney fell ill. Judge Millington also properly denied the motion for acquittal. In discussing his ruling, Judge Millington displayed knowledge of the evidentiary portion of trial over which he had not presided. Section 1118.1 does not require that a motion for acquittal must be decided by the trial judge who presided at trial. In analogous circumstances, our Supreme Court has rejected the contention that a substitute trial judge who had not personally heard guilt phase testimony could not fully exercise independent judgment when ruling on a motion to modify a death penalty verdict. (People v. Espinoza (1992) 3 Cal.4th 806, 829-830.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
COFFEE, J.
James R. Dabney, Judge
Superior Court County of Los Angeles
______________________________
Earl Broady, Jr. for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
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