Opinion
D071222
08-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY MARTINEZ, JR., Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF36529) APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed as modified. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Johnny Martinez, Jr., entered a plea of no contest to one count of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a); count 4) and to dissuading a witness or victim from testifying (§ 136.1, subd. (b)(1); count 7). Pursuant to the plea agreement, the balance of the charges were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 758 [defendant may agree to the court's consideration of dismissed counts for sentencing purposes]). The court sentenced Martinez to a stipulated upper term of four years in prison for count 4. The court imposed an upper term sentence of three years for count 7, but stayed punishment for this count pursuant to section 654.
Throughout most of the record, the defendant is referred to as "Johnny Martinez, Jr.," including the operative third amended complaint. A few documents in the record, including the change of plea form and the abstract of judgment, refer to the defendant as "Johnny Martinez," omitting the "Jr." designation. The defendant signed his name using both formulations of his name, without the "Jr." designation on the change of plea form, but with the "Jr." designation on the notice of appeal. We find no indication in the record the defendant informed the court his name was other than as identified in the accusatory pleading, i.e., "Johnny Martinez, Jr." (Pen. Code, § 989.) Therefore, we use this formulation of his name in this appeal. To avoid potential confusion in the future, we direct the trial court on remand to correct the abstract of judgment and criminal protective order to likewise reflect his name as "Johnny Martinez, Jr." (In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151 [a clerical error is correctable at any time].)
Further statutory references are to the Penal Code unless otherwise stated.
The other charges included attempted murder of E.A. (§§ 664, 187, subd. (a); count 1); forcible rape of E.A. (§ 261, subd. (a)(2); count 2); corporal injury to a child (§ 273d, subd. (a); count 3 (male child)); injuring a spouse, cohabitant, fiancé, girlfriend or child's parent as to E.A., "who was mother of defendant's child" (§ 273.5, subd. (a); counts 5-6); and false imprisonment by violence of E.A. (§ 236; count 8).
At the sentencing hearing, the court granted the victim's request for a 10-year criminal protective order for herself and the children she shares with Martinez. Martinez appeals the protective order as an order entered after judgment. He contends (1) there is no statutory basis for the protective order against his children because they were not victims of the crimes to which he pleaded no contest, (2) the court applied an improper standard of review in issuing the protective order because it effectively terminated his parental rights without due process, and (3) the court erred in considering the statement of the victim regarding injuries and harm caused to the children based upon Martinez's domestic violence against the victim because he contends her statement was hearsay and not subject to cross-examination.
We disagree with each of these contentions. We conclude the court properly issued the protective order under section 136.2, subdivision (i)(1), because the children are victims of domestic violence. We conclude Martinez's parental rights were not terminated and, thus, there was no violation of due process. We also conclude Martinez's failure to object to the victim's statement forfeited any claim he may have had. We remand the matter for amendment of the protective order to include reference to section 136.2, subdivision (i)(1), as the statutory basis in accordance with the court's oral pronouncement. In all other respects, we affirm the order.
BACKGROUND
The parties stipulated to the facts in the police reports as the factual basis for the plea. Accordingly, we draw the factual background from the probation officer's report, which summarized the police reports.
The victim, E.A., came to a local police station in June 2016 with some of her family members to report domestic violence. She exhibited bruises on her jaw line and arm. E.A. had been married to Martinez for 12 years and they have two children. Martinez raped E.A. over the years. If E.A. did not want to have sex, Martinez would hit her until she stopped resisting and allowed him to have sex with her. Martinez punched E.A. in the face, kicked her when she was on the ground, and subjected her to emotional abuse. When she tried to leave, he would take her clothes off and make her walk around the residence naked. He told her she could only leave if she was undressed. If she cried for help, Martinez would choke her and tell her, "Now scream."
E.A. reported some fights occurred in front of their children. On one occasion when she was choked and lost consciousness, she awoke to find her son crying at her side. A family member who came with E.A. to the police station reported the choking incident happened in the family member's home with the family member's children present. The family member's children said Martinez had to perform cardiopulmonary resuscitation on E.A. to revive her. When the family member's husband confronted Martinez about the incident, Martinez said this had happened before and if E.A. did not wake up, he would just leave.
E.A. said she received her current injuries from a fight with Martinez in a vehicle. He accused her of cheating and said he did not want her receiving text messages. When she received a text message shortly thereafter, an argument ensued and Martinez struck E.A. in the face multiple times. E.A. tried to escape, but Martinez would not let her leave. Martinez told E.A. he would report her to immigration and hurt E.A.'s brother if she reported anything to the police.
In interviews with probation officers, victim E.A. reported Martinez has abused drugs for many years and gets violent very quickly. She stated he can be calm one minute and angry the next. He acts this way in front of their children. E.A. wanted a criminal protective order which included her children.
At the sentencing hearing, E.A. stated she wanted a protective order for her and her children. She stated she and her children "suffered through many years of violence, so we still live in fear." The victim said, it was "very ugly for my kids" during the last month they lived with Martinez and the children "are very afraid of what will their father do to us when he gets out."
In response to questioning by the court, E.A. stated the corporal injury incident for which Martinez pleaded no contest occurred in the presence of their children. She stated minor son, who was eight years old at the time, defended her by telling his father not to hit E.A. The child hit Martinez, who responded by pushing the child against the wall. When the child tried to run out of the room for help, Martinez slammed the door so the child could not get out and hit the child's head with the door. They took the child to the emergency room. The child had scratches on the side of his head and required follow-up medical care.
E.A. said the children were present on other occasions during instances of domestic violence. If E.A. and Martinez started to fight, the children would say, "Don't fight." They tried to hold their father back from hitting E.A. Martinez would yell at them to stay where they were and threatened to do something to them if they did not obey. E.A. said the children were so fearful they would stay by her side.
The court noted the domestic violence had been ongoing for years. The court concluded the children had been subject to both physical and emotional abuse given the fact they witnessed the toxic relationship between Martinez and E.A. for years. They witnessed the fight at issue in the plea as well as other fights. The eight-year-old child who was trying to protect his mother was injured when Martinez closed a door on his head. The court imposed a criminal protective order pursuant to section 136.2, subdivision (i), prohibiting contact with E.A. and the children for 10 years.
DISCUSSION
I
Martinez contends the court erred in including the minor children in the protective order because they were not victims of the specific crimes for which he pleaded no contest and they were not victims of domestic violence under section 136.2, subdivision (i)(1), or section 273.5, subdivision (j). We disagree.
Section 273.5, subdivision (a) describes the crime of inflicting corporal injury resulting in a traumatic condition on a spouse. Section 273.5, subdivision (j) states: "Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation."
"When interpreting a statute, we view the statutory enactment as a whole; consider the plain, commonsense meaning of the language used in the statute; and seek to effectuate the legislative intent evinced by the statute." (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 (Beckemeyer).)
Section 136.2, subdivision (i)(1) provides, "In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in [s]ection 13700 or in [s]ection 6211 of the Family Code, ..., the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family."
Under section 136.2, subdivision (i)(1), a court may issue a protective order "(1) when the crime qualifies as a 'domestic violence' crime, and (2) the protected person qualifies as a 'victim.' " (Beckemeyer, supra, 238 Cal.App.4th at p. 466.)
Section 13700, subdivision (b), defines "[d]omestic violence" as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." Family Code section 6211, subdivision (e), includes abuse perpetrated against "[a] child of a party" in the definition of " 'domestic violence.' "
For purposes of a protective order issued under section 136.2, "victim" is defined in section 136 as "any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state ... is being or has been perpetrated or attempted to be perpetrated."
In Beckemeyer, supra, 238 Cal.App.4th at page 463, this court concluded a third person assaulted during a domestic violence incident meets the definition of a victim for purposes of a protective order issued pursuant to section 136.2, subdivision (i)(1). In that case, an adult child of the person being beaten in a domestic violence incident attempted to intervene. The perpetrator then attacked the adult child. (Beckemeyer, at p. 464.) We noted the broad definition of "victim" in section 136 for purposes of a section 136.2 protective order included "any person against whom there is reason to believe a crime has been committed." (Beckemeyer, at p. 466.) We concluded "the Legislature was aware of this broad definition of victim generally applicable to section 136.2 protective orders, and it did not enact a provision narrowing its scope for purposes of a postconviction domestic violence protective order." (Ibid; see People v. Clayburg (2012) 211 Cal.App.4th 86, 90-93 [restraining order appropriate under section 646.9, subd. (k)(1), for child of stalking victim who suffered fear and emotional harm from defendant's conduct because the child was also a victim].)
Similarly, we conclude the children in this case were victims of domestic violence within the broad definition of the statutory scheme. The children were present during the violent incident to which Martinez pleaded no contest (count 4) and the minor son attempted to intervene. They were also present during other such incidents over a number of years. The children tried to hold onto Martinez to prevent him from harming their mother, but he would yell at them to stay where they were and threatened to harm them if they did not obey. The children stayed by E.A.'s side throughout the violent incidents out of fear.
Section 136.2, subdivision (i)(1), provides the court must consider issuing a restraining order "at the time of sentencing." Because Martinez agreed to a Harvey waiver, the court was entitled to consider the facts related to the dismissed counts, including the corporal injury to a child count (§ 273d, subd. (a); count 3), for the purposes of sentencing consequences along with those facts transactionally related to the offenses to which Martinez pled. (Harvey, supra, 25 Cal.3d at p. 758.)
When the minor son tried to defend or protect E.A., Martinez pushed him against a wall and slammed a door against his head as the minor tried to leave to find help. The minor son was taken to the emergency room for treatment. The People made an offer of proof during the sentencing hearing that a factual basis for the dissuading a witness charge (§ 136.1, subd. (b)(1); count 7), to which Martinez pleaded no contest, included a threat Martinez made after this incident to turn the car around and not take the minor son to the emergency room if E.A. told the doctors how the injuries on the child's head occurred. Defense counsel objected to this offer of proof as a misconstruction of the evidence, but did not ask to question E.A. or otherwise challenge the plea agreement.
E.A. stated the children were injured on other occasions by Martinez. When the court asked for examples, defense counsel objected to the court's inquiry. The court stated it had a responsibility to understand the relationship and whether or not the children should fall within the protective order.
The minor daughter is afraid of Martinez even though he did not physically harm her. E.A. stated she and the children lived in fear for years and the children are afraid of what Martinez will do when he gets out of prison. The Legislature has found and declared, "[c]hildren, even when they are not physically assaulted, very often suffer deep and lasting emotional effects" of domestic violence. (Welf. & Inst. Code, § 18290.) Therefore, we conclude the court properly included the minor children in the protective order.
These facts are distinguishable from People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212 in which the court determined there was no authority for a protective order under section 136.2, subdivision (i)(1), because there was no evidence the defendant had harmed or attempted to harm the children. The domestic violence victim in that case stated the defendant " 'never touched' " the children and the victim thought they were in another room at the time of the incident. (Delarosarauda, supra, at p. 211.)
The protective order refers to section 273.5, subdivision (j), as the statutory basis, which does not conform to the court's oral pronouncement. "The record of the oral pronouncement of the court controls over the clerk's minute order." (People v. Farell (2002) 28 Cal. 4th 381, 384, fn. 2.) Because we conclude the court properly issued a protective order under the statutory authority of section 136.2, subdivision (i)(1), we do not reach the issue of whether a protective order would also be appropriate under section 273.5, subdivision (j). We remand the matter to the trial court to amend the protective order to refer to section 136.2, subdivision (i)(1), as the statutory basis for the protective order.
II
Martinez next contends the court deprived him of due process by issuing a protective order for his children for 10 years based upon facts found by the court under a preponderance of the evidence standard rather than a clear and convincing evidence standard required for termination of parental rights. We disagree. The court did not terminate Martinez's parental rights, it issued an order provided by statute to protect the safety of E.A. and the children from physical and psychological abuse. Should circumstances change, Martinez may move the court for a modification or termination of the protective order. (See Fam. Code, § 6380, subd. (f) [contemplates modification, extension or termination of criminal protective order in domestic violence cases].)
III
Martinez finally contends the court erred in considering the statement of E.A. regarding facts supporting her request for a protective order for herself and the children as hearsay evidence untested by cross-examination, which denied him due process. We again disagree.
Martinez was on notice from the probation report that the victim was seeking a protective order for herself and the children. "The sentencing court is authorized to consider a much broader range of material than that allowed at trial on the issue of guilt or innocence" so long as there is "a substantial basis for believing the information is reliable." (People v. Lamb (1999) 76 Cal.App.4th 664, 683.)
Martinez did not object to the reliability of E.A.'s testimony at the sentencing hearing. Defense counsel objected to the court's inquiry about the history of other acts of domestic violence involving the children as "irrelevant to the issue of the criminal protective order" and stated the court should not take on the role of gathering information. Counsel did not object based on hearsay or request an opportunity to cross-examine the witness. We conclude Martinez forfeited any such claims. (People v. Stevens (2015) 62 Cal.4th 325, 333 [failure to object to hearsay testimony forfeits an appellate claim]; People v. Redd (2010) 48 Cal.4th 691, 730 [failure to object based upon the confrontation clause forfeits Sixth Amendment claim].)
Even without E.A.'s testimony, the probation report contained sufficient evidence of the emotional abuse of the children based upon their witnessing the prolonged domestic violence inflicted by Martinez upon their mother. Therefore, there is no reasonable probability of a more favorable outcome with regard to the protective order. (Chapman v. California (1967) 386 U.S. 18, 24 & People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The matter is remanded to the trial court to amend the protective order to indicate it was issued pursuant to the authority of section 136.2, subdivision (i)(1). The court is also directed to correct the protective order and the abstract of judgment to indicate the name of the defendant is "Johnny Martinez, Jr.," as stated in the accusatory pleading. The trial court shall forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the protective order is affirmed.
MCCONNELL, P. J. WE CONCUR: HALLER, J. O'ROURKE, J.