P. v. Martinez
Defendant Julian Jose Martinez was convicted after a jury trial of four counts of aggravated sexual assault by oral copulation of a child under the age of 14 years of age (Pen. Code, § 269, subd. (a)(4)). The court in a bench trial later found true (1) the allegation that defendant had previously been convicted of a violent or serious felony, or strike offense, and (2) the allegation that each of the charged offenses constituted serious felonies. In February 2012, defendant was sentenced to 120 years to life in prison, consecutive to 20 years.
Defendant claims on appeal that the court erred in admitting irrelevant and prejudicial evidence: namely, that the victim suffered from seizures about four years after the last alleged assault and, for that reason, he moved out of the area a few months before trial. He contends that this evidence was used improperly by the prosecution to garner sympathy for the victim. He argues further that, even if the evidence had any relevance, it should have been excluded under Evidence Code section 352[1] because its probative value was substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. As to the second argument, defendant asserts that if his trial counsel failed to object to the evidence in court under section 352, his failure to do so constituted prejudicially ineffective assistance of counsel.
We conclude that the court did not abuse its discretion by admitting the challenged evidence over defendant’s relevance objection. We hold further that even though trial counsel failed to preserve an objection to the evidence under section 352, such failure did not constitute ineffective assistance of counsel warranting the relief sought by defendant. Accordingly, we will affirm the judgment.
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