Opinion
E052516 Super.Ct.No. RIF152001
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. MARIO MARTINEZ, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth, Judge. Affirmed.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
On September 27, 2010, an amended information alleged that on or about 2003, defendant and appellant Mario Martinez (defendant) committed (1) two counts of committing a lewd and lascivious act upon a minor, in violation of Penal Code section 288, subdivision (a) (counts 1 & 2); and one count of penetration of the genital opening by use of force, violence, duress, and fear, in violation of section 289, subdivision (a)(1) (count 3).
All statutory references are to the Penal Code unless otherwise specified.
At the conclusion of a jury trial, the trial court granted defendant's motion to dismiss count 3 under section 1118.1. Thereafter, the jury found defendant guilty of two counts of committing a lewd and lascivious act upon a minor under section 288, subdivision (a). Defendant was placed on formal probation for 60 months with the condition that he serve 365 days in county jail.
Defendant filed a timely notice of appeal.
STATEMENT OF FACTS
I. Prosecution Case
Jane Doe's earliest memories of defendant, her uncle, were of playing together when he would visit her family. She loved and trusted him until he molested her when she was nine years old. The molestation occurred on two different occasions.
The first incident occurred while defendant was living with Doe and her family. While her mother was in the shower, Doe was in the living room standing by the computer where defendant was seated. Defendant reached over and placed his hand down the front of Doe's pajama bottom. He moved his fingers in and out of her vagina. Doe did not respond verbally. Doe believed that the incident lasted approximately two minutes. Doe did not tell anyone about this molestation at the time it occurred.
About one week later, Doe was in her bedroom with defendant and her brother. Defendant asked the brother to get him a tissue. When the brother left the room, defendant told Doe to kiss him. Doe complied with defendant's request. Defendant again placed his hand inside her clothing and penetrated her vagina with his finger. Doe did not reveal this incident to her mother at the time.
Sometime after the second incident, defendant moved out of Doe's house. Approximately two years later, defendant began visiting her family again. During this period of time, defendant asked Doe to accompany him to church. On the drive home from church, defendant asked Doe to forgive him for "everything I've done."
Approximately three years after defendant's apology, Doe told her best friend, J.P., about the two incidences of sexual molestation and defendant's apology. This disclosure occurred during a sleepover at Doe's house. Roughly one month later, Doe was associating with a couple of girls who were wearing signs saying, "Kiss me, I'm Mexican," as a take-off on "Kiss Me, I'm Irish." Doe's brother observed this behavior and reported it to their mother. When Doe came home from school, her mother chastised her. About an hour later, the brother confronted Doe about her behavior at school. At that time, Doe told her brother "everything" about the sexual molestation by defendant. The brother immediately told Doe's mother. Doe's disclosures occurred when she was 14 years old. She was subsequently interviewed by a female social worker.
J.P. had been Doe's friend since elementary school. J.P. never met defendant. J.P. recalled receiving a telephone call from Doe asking her to come to Doe's house. Doe was distraught and crying over an argument she had with her brother. J.P. was not planning to spend the night and did not do so. After Doe calmed down over the conflict with her brother, Doe told J.P. that defendant had touched her inappropriately. J.P. did not want to discuss the details for fear that Doe would become more traumatized. Although Doe extracted a promise that J.P. would not disclose the information to anyone, J.P. encouraged Doe to tell her parents. Two weeks later, Doe's mother asked J.P. if Doe had discussed the molestation with her. In keeping with her promise not to tell, J.P. at first denied any knowledge regarding the incident. However, J.P. later admitted to Doe's mom that Doe told J.P. about the molestation.
Doe's brother stated that defendant lived with his family for about three years. Doe was nine or 10 at the time. During this time, the brother noticed that Doe began to withdraw from contact with people. When Doe was 14 years old, she disclosed to her brother that defendant had sexually abused her. Doe was crying when she told the brother. He immediately told their mother. The brother had argued earlier in the afternoon with Doe about her attitude. The brother did not recall the incident where defendant asked him to get a tissue when they were living together.
Doe's mother stated that when Doe was approximately nine years old, defendant lived with their family for about one year. During that time, Doe was a lovable and outgoing girl. Starting around the age of nine or 10, Doe began to wet her bed. Doe also became more withdrawn socially. The mother took Doe to the doctor three times but no medication was prescribed.
When Doe entered the sixth grade, the mother began to believe that something was bothering Doe. The mother would try to speak with Doe but Doe would get very upset. Doe's grades in school also started to drop. The mother also observed that Doe would attempt not to be home alone with defendant. Defendant abruptly left when Doe was 10 years old.
Defendant started to visit the family approximately two or three years later. When defendant asked Doe to go somewhere with him, Doe would ask her brothers to accompany them. After Doe disclosed that defendant had sexually molested her, Doe's grades improved and she became more outgoing.
II. Defense Case
R.M. is the father of defendant and Doe's father, and Doe's grandfather. In approximately the spring of 2003, the grandfather, defendant and defendant's younger brother, Eric, were living with Doe's family. In the summer of 2003, he and defendant lived with Doe's family for several months. During these times when they were living together, the grandfather observed defendant playing with the children on a weekly basis. Defendant did not favor any child. The grandfather never observed any inappropriate behavior or flirting between defendant and Doe. The grandfather never observed any behavioral changes in Doe who always appeared to be happy. When defendant visited Doe's family after he moved out, Doe appeared happy to see defendant. In the grandfather's opinion, defendant was not the type of person who would molest a child.
Defendant testified that his relationship with Doe's family had been terminated in March 2009. In 2002, defendant lived with Doe's family in Roland Heights for approximately two weeks, and with his father in the same apartment complex for about six months. During this time, he had a good relationship with all of the children.
Approximately six to seven months later, defendant and his father moved in with Doe's family in Riverside. Defendant worked full time but would play sports with the children in the evenings and on Sundays. Defendant did not spend time alone with Doe. Defendant had no memory of ever communicating with or being next to Doe while using a computer. Doe wanted to be around defendant and called him her favorite uncle. Defendant never placed his hands inside Doe's pants and never kissed her on the mouth.
After defendant moved out of Doe's house, he would visit approximately once a week. Doe acted pleased to see him. In 2008, defendant had a girlfriend but did not tell Doe about her. Defendant recalled that the last time he spoke with Doe was in the fall of 2008. Defendant never invited only Doe to accompany him to church. He did, however, recall apologizing to Doe during a car ride before church. The apology was not related to any sexual molestation. Instead, defendant apologized to Doe in response to her asking why he did not visit more often and that she was hurt by his absence.
Although defendant never told Doe that he had a girlfriend, he believed that Doe fabricated the story of sexual molestation because she was jealous. Defendant did not believe that Doe had a "crush" on him. Defendant did not believe that Doe was angered by the fact he was visiting less often.
Eric is a younger brother of defendant. Eric visited Doe's family on multiple occasions beginning in 2001 when defendant was also present. Defendant's interactions with the children were always positive. Eric never observed any inappropriate touching of any of the children by defendant. Eric visited Doe's family on two or three occasions when they lived in Riverside. Defendant's interactions with the children were again very positive. Defendant did not appear to favor any particular child. Doe never appeared to be avoiding defendant. In Eric's opinion, defendant is not the type of person who would molest a child.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Ramirez
P.J.
Miller
J.