Opinion
H046154
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. ORION MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17CR002042)
Appellant Orion Martinez challenges his conviction for forcible rape while acting in concert (Pen. Code, § 264.1, subd. (a)) on the basis of evidentiary error and the trial court's imposition of various fines and fees at sentencing. For the reasons explained below, we find no error and affirm the judgment.
Unspecified statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
A. Factual Background
On August 11, 2017, an individual described as "John Doe," was housed in the "B Dorm" of the Monterey County Jail, along with Martinez, John Calderon, Deandre Silas, Jr., and Manuel Monreal (collectively, defendants). Around 2:00 a.m. that morning, Doe was sitting on a mattress on the ground with Martinez and Calderon, who were both drinking "pruno." Calderon grabbed Doe's wrist, pushed Doe down, and lifted Doe's legs. Martinez pinned Doe's chest while Calderon threw Doe's legs onto his shoulders and removed Doe's pants. Calderon inserted his finger into Doe's anus. A few minutes later, Calderon removed his finger and set Doe's legs down, but Martinez continued to pin down Doe. Silas and Monreal came over, and Calderon attempted to perform anal sex on Doe. Silas helped Martinez restrain Doe. The defendants abruptly stopped what they were doing, walked away, and came back a few minutes later. Martinez and Calderon held Doe down while Monreal removed Doe's pants and Silas inserted his finger into Doe's anus. Martinez, Silas, and Monreal walked away. Calderon continued to restrain Doe. A few minutes later, Calderon walked away with Doe's pants. Doe retrieved his pants and went to bed.
"Pruno" is "an alcoholic drink brewed illicitly" by inmates. (People v. Abilez (2007) 41 Cal.4th 472, 489.) --------
Later that day, the Monterey County Sheriff's Department, which operates the jail, received an anonymous report that Doe had been raped. Video surveillance from the B Dorm corroborated the reported rape, and jail authorities began to investigate.
B. Procedural Background
On December 14, 2017, the Monterey County District Attorney's Office filed an information charging Martinez, Calderon, Silas, and Monreal of forcible rape while acting in concert (§ 264.1, subd. (a); count 1); forcible sodomy while acting in concert (§ 286, subd. (d)(1); count 2); sexual penetration by a foreign object (against Martinez and Calderon only) (§ 289, subd. (a)(1)(A); count 3); and sexual penetration by a foreign object (§ 289, subd. (a)(1)(A); count 4). The information also alleged that Martinez had one strike prior and one prison prior conviction (§§ 1170.12, subd. (c)(1), 667.5, subd. (b)). At the time of the charged offenses, the victim and defendants were inmates at the Monterey County Jail.
Martinez and the District Attorney entered into a jury trial waiver agreement that provided that, if Martinez were convicted of more than one count following a bench trial, the prosecution would move to dismiss all but one count of conviction. The agreement also provided that the maximum sentence Martinez would receive was the middle term of the determinate term for the count of conviction.
Following a bench trial, the trial court found Martinez guilty of counts 1, 3, and 4. On count 2, the trial court found Martinez guilty of the lesser-included offense of attempted forcible sodomy (§§ 664/286, subd. (d)(1)). The trial court also found true the strike prior and prison prior allegations. Pursuant to the jury trial waiver agreement and at the People's request, the trial court dismissed counts 2, 3, and 4.
On count 1, the trial court sentenced Martinez to the middle term of seven years, doubled. (§§ 667, subd. (e)(1), 1170.12, subd.(c)(1).) The trial court imposed a one-year term for the prison prior allegation, for a total aggregate term of 15 years. The trial court ordered Martinez to pay a fine of $300 (§ 290.3), plus various penalty assessments totaling $1,010; a restitution fine of $4,500 (§ 1202.4); a court operations assessment of $40 (§ 1465.8, subd. (a)(1)); and a court facilities assessment of $30 (Gov. Code, § 70373). Martinez was also ordered to register as a sex offender pursuant to section 290. At the sentencing hearing, defense counsel did not request a hearing on Martinez's ability to pay the fines, fees, and assessments and did not object to the trial court's imposition of them.
II. DISCUSSION
A. Erroneous Exclusion of Evidence
We begin with Martinez's claim that the trial court abused its discretion by excluding the defense expert's opinion that Martinez was not "ordinarily prone" to acts of sexually motivated violence.
1. Background
Prior to trial, defense counsel sought to introduce the opinion of Dr. Flores, a psychologist, to testify about Martinez's ordinary lack of propensity to commit violent or sexually violent acts. Specifically, Dr. Flores's report stated, "From the facts before me at this time, it does not appear clinically probable that Mr. Martinez is ordinarily prone to acts of violence, most especially sexually motivated violence." Defense counsel sought to have Dr. Flores testify so that the defense could "delve into the basis of his opinion."
The prosecution objected to the proffered opinion on relevancy grounds. When questioned about the relevancy of the proffered evidence, defense counsel replied, "If in fact Mr. Martinez is not somebody who would normally engage in or would engage in sexually motivated violence it lends credence to his testimony that, 'I was - I did not have that intent.' It's more—it would be more of character evidence I guess." The trial court asked whether defense counsel had case authority to show that a party may call expert witnesses to testify as to propensity or lack thereof. Defense counsel replied that he did not.
The trial court did not admit into evidence Dr. Flores's proffered testimony. The court stated, "I think it's pretty commonly understood that individuals go into the jail setting and engage in sexual activity that is not something they would normally do outside the jail setting. [¶] So based on what's been presented I don't see a whole lot of probative value here. [¶] My indication is to preclude the testimony of Dr. Flores for that purpose. . . . I'm having a hard time seeing how that would be admissible unless the parties want to bring me authority on it. So right now I'm going to deny the admissibility of Dr. Flores to show that type of profile or that kind of propensity."
2. Legal Standard
"Under the Evidence Code, all relevant evidence is admissible unless prohibited by statute." (People v. Young (2019) 7 Cal.5th 905, 930.) " 'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " (People v. Bivert (2011) 52 Cal.4th 96, 116-117.) Where relevancy turns on the existence of a preliminary fact, the proponent of the proffered evidence bears the "burden of producing evidence as to the existence of the preliminary fact." (Evid. Code, § 403, subd. (a); see People v. Cottone (2013) 57 Cal.4th 269, 283.) "[D]isputed evidence is inadmissible unless the court finds evidence sufficient to sustain a finding that those pertinent preliminary facts exist. (Evid. Code, § 403.)" (People v. Melendez (2016) 2 Cal.5th 1, 23 (Melendez).) " '[T]he trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal absent an abuse of that discretion.' " (People v. Hardy (2018) 5 Cal.5th 56, 87 (Hardy).) Evidentiary error requires reversal if it is established that there was a reasonable probability of a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).)
3. Analysis
a. Exclusion of Evidence
Martinez argues that the trial court was unaware of its authority to admit Dr. Flores's proposed testimony pursuant to People v. Stoll (1989) 49 Cal.3d 1136 (Stoll) and therefore abused its discretion by excluding this evidence based on "a misunderstanding of the law." We disagree.
Only relevant evidence is admissible. (Evid. Code, § 350.) As the proponent of the proffered evidence, Martinez had the burden of showing that Dr. Flores's proposed testimony was relevant, probative, and otherwise admissible. (Evid. Code, §§ 350, 352, 400, 401, 403.) In response to the trial court's inquiry about the relevancy or admissibility of Dr. Flores's testimony, defense counsel asserted that his testimony would "lend[] credence to [Martinez's] testimony that . . . '[he] did not have that intent.' " The prosecution objected to the proposed testimony on relevancy grounds and argued that this was "a unique circumstance in a jail where people behave differently." The trial court determined that because the charged offenses occurred in a "jail setting," where individuals might engage in behavior outside the normal range, it "[didn't] see a whole lot of probative value here."
Dr. Flores expressly qualified his opinion about Martinez's lack of propensity for violent or sexually violent acts with the word " 'ordinarily.' " As Stoll confirms, even though propensity evidence could be admissible, it is still subject to other "traditional limits" governing admissibility. (Stoll, supra, 49 Cal.3d at p. 1140.) Martinez did not explain how his propensity in an ordinary setting was relevant to his propensity for such acts in a jail setting and thus failed to carry his burden of showing the existence of this preliminary fact. (Evid. Code, § 403.) Absent such a showing, Dr. Flores's opinion was not relevant and therefore not admissible pursuant to Evidence Code section 350. (Melendez, supra, 2 Cal.5th at p. 23.) We therefore conclude that the trial court did not abuse its discretion in excluding Dr. Flores's testimony. (Hardy, supra, 5 Cal.5th at p. 87.)
Even assuming that Dr. Flores's testimony was admissible, Martinez does not demonstrate prejudicial error by the trial court. Martinez sought to introduce Dr. Flores's testimony to bolster the credibility of Martinez's testimony that he lacked the intent to commit violent or sexually violent acts. However, the record contains strong indications that the trial court, who also sat as the trier of fact, would have accorded little evidentiary weight to Dr. Flores's testimony, even if admitted. The trial court already indicated that Dr. Flores's testimony carried little probative value, and " 'the factfinder has the ultimate responsibility to assess how probative a particular diagnosis is.' " (People v. Johnson (2015) 235 Cal.App.4th 80, 90.) Following the presentation of evidence, the trial court determined the victim's testimony to be "very credible" and "corroborated by the video exhibits entered into evidence" but characterized Martinez's version of events as "unbelievable." Thus, any ameliorative effect of Dr. Flores's testimony would have been marginal at best, and Martinez's contention of evidentiary error fails because he cannot show a reasonable probability of a more favorable result. (Watson, supra, 46 Cal.2d at p. 837.)
b. Ineffective Assistance of Counsel
Martinez argues that defense counsel was prejudicially ineffective by failing to provide the trial court with relevant legal authority on the admissibility of Dr. Flores's testimony, and that there is a reasonable probability of a more favorable outcome but for counsel's errors. (See Strickland v. Washington (1984) 466 U.S. 668, 686.) To prevail on an ineffective assistance of counsel claim, Martinez must affirmatively establish that trial counsel had no rational tactical purpose for the challenged act or omission. (People v. Woodruff (2018) 5 Cal.5th 697, 746.) Martinez contends "there could not possibly be a satisfactory explanation for failing to research the law" regarding admissibility of Dr. Flores's expert opinion. However, even if Dr. Flores's testimony were admissible under the principles enunciated in Stoll, it was not admissible absent a threshold showing of relevance. (People v. Alexander (2010) 49 Cal.4th 846, 904 [describing relevancy as a "threshold requirement"].) We conclude that defense counsel's performance was therefore not deficient in failing to cite Stoll and related authority. In light of this conclusion, we need not address whether Martinez can demonstrate the requisite prejudice for his claim of ineffective assistance of counsel. (Strickland, at p. 687.)
B. Ability to Pay
Martinez also contends that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court's imposition at sentencing of various fines and fees without first making an ability to pay determination violated Martinez's right to due process under the California and federal Constitutions. Martinez argues that, since he is indigent and the prosecution presented no evidence of his ability to pay, the fines and fees imposed must be stayed. The Attorney General counters that Martinez, unlike the defendant in Dueñas, did not raise an objection at sentencing and has therefore forfeited this issue for appellate review. Martinez responds that this issue is cognizable on appeal because the trial court failed to exercise its discretion to hold an ability to pay hearing, the imposition of fines and fees without an ability to pay determination constitutes an unauthorized sentence, and a contemporaneous objection would have been futile.
Based on our review of the record and the parties' briefing, we conclude that Martinez has forfeited his challenge to the trial court's imposition of various fines and fees by failing to object to them at sentencing. A defendant's failure to object to the imposition of fines and fees at sentencing constitutes a forfeiture of the right to challenge those fines and fees on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Trujillo (2015) 60 Cal.4th 850, 853-854; People v. McCullough (2013) 56 Cal.4th 589, 596-597; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Avila (2009) 46 Cal.4th 680, 729; People v. Tillman (2000) 22 Cal.4th 300, 302-303.)
In the context of appeals raising the application of the principles articulated in Dueñas, Martinez contends that "[o]nly Division Eight of the Second District has found forfeiture." He urges us to follow the decision of a different panel of this court in People v. Santos (2019) 38 Cal.App.5th 923, in which the court concluded that forfeiture is not applicable to a Dueñas challenge to the imposition of an $80 court operations assessment fee (§ 1465.8) and a $60 court facilities fee (Gov. Code, § 70373). We note that, because the court in Santos did not consider a challenge to a restitution fine imposed pursuant to section 1202.4, subdivision (b) (Santos, at p. 934), the decision does not directly control here.
Martinez generally argues that we should conclude that an objection to the mandatory fines and fees at issue at sentencing would have been futile. Since the issuance of the decision in Dueñas, Courts of Appeal have taken conflicting positions on forfeiture due to failure to object to fines and fees. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 [not forfeited]; People v. Fransden (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [forfeited]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [forfeited]; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 [not forfeited]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez) [forfeited]; People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 [not forfeited].) Martinez argues that "[t]he failure to object does not forfeit an issue if the change in the law was unforeseeable and it is not reasonable to expect trial counsel to anticipate that change," citing People v. Black (2007) 41 Cal.4th 799, 810.
We disagree. "Dueñas applied law that was old, not new." (Frandsen, supra, 33 Cal.App.5th at p. 1155 [stating that Dueñas relied on Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660].) We are bound to follow precedent from a court of higher jurisdiction that speaks directly to an issue before us because " 'it is established that a holding of the Supreme Court binds all of the lower courts in the state, including an intermediate appellate court.' " (K.R. v. Superior Court (2017) 3 Cal.5th 295, 308.) In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court held "that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal" and explicitly "disapprove[d] any contrary view or holdings expressed by the Courts of Appeal." (Id. at p. 356.)
Moreover, "as Frandsen correctly notes, even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge." (Gutierrez, supra, at p. 1033, review den. (Sept. 18, 2019) [citing Frandsen, supra, 33 Cal.App.5th at p. 1154].) We conclude that, by failing to object in the trial court to the restitution fine and by failing to request a hearing on his ability to pay, Martinez has forfeited any challenge to it on appeal.
III. DISPOSITION
The judgment is affirmed.
/s/_________
DANNER, J. I CONCUR: /s/_________
GROVER, J. Greenwood, P.J., concurring
I agree with the majority's analysis and conclusion regarding the claim of erroneously excluded evidence, and I concur with the disposition. With the exception of the restitution fine, however, I respectfully disagree that Martinez forfeited his claim under People v. Dueñas (2019) 30 Cal.App.5th 1557 (Dueñas) by failing to object below. In my view, Martinez did not forfeit his claim because Dueñas had not been decided at the time of his sentencing, and the claim is based on a newly announced constitutional principle that trial counsel could not have reasonably anticipated. (People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano).) I would only find forfeiture with respect to the restitution fine because the trial court imposed an amount above the statutory minimum, affording Martinez the opportunity to lodge an objection that would not have been futile. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen).)
In Dueñas, the Court of Appeal for the Second District held it violated due process under both the United States and California Constitutions to impose certain fines and fees without first determining the defendant's ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 242.) We requested supplemental briefing on whether the trial court in Martinez's case similarly erred in its imposition of fines and fees without determining his ability to pay. The majority now concludes that Martinez forfeited his claim because he could have lodged a viable objection based on then-existing case law at the time of his sentencing.
I respectfully disagree. I recognize that failure to object to imposition of fines and fees generally constitutes forfeiture of the claim on appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 864.) But the forfeiture rule does not apply " 'when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.' [Citations.]" (People v. Black (2007) 41 Cal.4th 799, 810.) That exception should apply here. "No court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court's consideration of a defendant's ability to pay. . . . When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Castellano, supra, 33 Cal.App.5th at p. 489.) I have no doubt that an objection would have been futile. (See People v. Welch (1993) 5 Cal.4th 228, 237 [reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile].)
Accordingly, except for the restitution fine, I would consider the merits of Martinez's claim under Dueñas. Nonetheless, I would further conclude that we must affirm the judgment because the record shows Martinez—who is serving a term of 15 years in state prison—has the ability to pay. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages].) With respect to the restitution fine—imposed in the amount of $4,500, well above the statutory minimum—I would find Martinez forfeited any claim under Dueñas. Because only the minimum amount is mandatory under Penal Code section 1202.4, trial counsel could have objected to the greater-than-minimum amount, and such an objection would not necessarily have been futile. Accordingly, Martinez forfeited any such claim by failing to object. (Frandsen, supra, 33 Cal.App.5th at p. 1154.)
For the reasons above, I concur.
/s/_________
Greenwood, P.J.