Opinion
H025050.
10-17-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY MARTINEZ, Defendant and Appellant.
After trial, a jury convicted defendant Michael Anthony Martinez of three counts of the lewd touching of his stepdaughter, a child under the age of 14, with sexual motivation. (Pen. Code, § 288, subd. (a).) In bifurcated proceedings the trial court found true that defendant had previously been convicted of residential burglary and assault with a deadly weapon involving personal infliction of great bodily injury.
Unspecified section references are to the Penal Code.
After the trial court denied defendants request to strike either of his two serious felony convictions, the trial court sentenced defendant, then age 35, to prison for life under the Three Strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), with three consecutive minimum terms of 25 years for a total term of 75 years to life. The court awarded defendant 137 days in actual custody credits, but denied other credits under section 2933.5, subdivision (a)(2)(J).
On appeal defendant contends that the trial court erred by omitting an instruction to consider oral admissions with caution and that defense counsel erred by neglecting to object to hearsay about an uncharged act of attempted intercourse.
Defendant also contends that the trial court misstated the proof beyond a reasonable doubt standard in preinstructions to the jury before trial commenced. This contention has been mooted since we granted the Attorney Generals motion to correct the reporters transcript.
Defendant also contends that he was erroneously denied other credits. The Attorney General concedes that the case must be remanded for a calculation of other credits, as defendants convictions under section 288, subdivision (a), do not render him ineligible under section 2933.5, subdivision (a)(2)(J). For the reasons stated below, we will reverse the judgment and remand for resentencing.
Section 2933.5, subdivision (2) precludes credit for anyone convicted of: "(J) Lewd or lascivious acts on a child under the age of 14 years, as described in subdivision (b) of Section 288." Section 288, subdivision (b) prohibits forcible lewd acts.
TRIAL EVIDENCE
At trial P. described three separate occasions when defendant fondled her chest. Defendant is P.s stepfather and the father of one of her sisters. Defendant did not testify.
According to P., defendant lived with them when she was in the fifth and sixth grades in 1999 and 2000. Ps mother testified inconsistently about how much defendant lived with them in 1999 and 2000.
On the first occasion, defendant woke P. up one night when she was sleeping on the floor in the living room. She was sleeping on the floor because the three bedrooms of the residence were occupied by her mother, one aunt, and some of her five siblings. Defendant was lying behind her. He reached under her blanket and touched her chest with one hand over her clothes. He tried to kiss her on the mouth. She pushed him away and sat up. He moved away to the middle of the room and went to sleep. She did not tell her mother what happened because she was afraid that her mother would yell at her.
On a second occasion, P. came home from school one day when she was in the fifth grade. Defendant was the only other person home. P. left the door open when she went into the bathroom to wash her hands. Defendant came into the bathroom and closed the door. He was facing her when he touched her chest. He tried to kiss her on the mouth. She moved away. He tried to kiss her again. She pushed him away. She attempted to open the bathroom door, but defendant was holding her hand. He opened the door and she went outside the house. They did not talk about what had happened. She did not tell her mother. She told her classmate and friend, S.
S. testified that she had met P. in the fourth grade. They were best friends. P. occasionally slept over at her house on the weekend. One night P. told S. that defendant had been touching her chest. P. seemed sad and reluctant to tell her. P. said she had told her mother, but her mother did not believe her. They told S.s sister M., who is five years older than S.
We quote part of S.s testimony below beginning on page 4 where relevant to defendants argument.
M. testified that one night during a sleepover P. and S. had something they wanted to tell her. P. was embarrassed to say what it was, so she had S. tell M. P. then confirmed that her stepfather had touched her in private places. P. looked sad. P. asked S. and M. not to tell anyone.
The third occasion was on November 16, 2000, when P. was in the sixth grade. Defendant came into the bedroom where she was sleeping on her side in a t-shirt and sweats. He lay down on the bed behind her outside the covers, reached under the covers, and touched her breasts through her clothes. Defendant got up when he heard her mother walking by the open bedroom door.
According to P.s mother, that night she had been arguing with defendant in their bedroom until he left the room. Fifteen to 20 minutes later, as she was walking down the hall to the bathroom, defendant frog-hopped out of P.s bedroom and grabbed his wifes legs. When she asked what he was doing, defendant said he was trying to scare her. It was not unusual for defendant to joke around like that.
P.s mother turned on the bedroom light and called P.s name three times before P. responded. Her mother asked what defendant was doing in the bedroom and whether he had done anything to her. P. did not answer. When her mother asked her a second time, P. said that he had touched her breasts. Defendant denied he had done so. He could not explain why P. would say that. Her mother threw him out of the house that night and called the police the next day.
About a week later P.s mother spoke to defendant on the telephone. She asked him why he had touched P. and what happened. Defendant did not answer her questions so she hung up on him.
P. said she did not know how many times defendant had touched her in a sexual way, but it was more than three. She was unable to answer when asked if he had touched her with another part of his body.
An expert testified about the child abuse accommodation syndrome, including that it is normal for a child to delay disclosure of being abused and to keep quiet to preserve the family.
1. THE FRESH COMPLAINT
On appeal defendant contends that his trial counsel was constitutionally ineffective in allowing S to present too many details of P.s fresh complaint to her. Defendant relies on the following examination of S.
"Q. Aside from [P.] saying that her step dad had touched her chest, did she say anything else about what was happening?
"A. That he tried to — he tried to
"Q. He tried to do something else?
"A. Yes.
"Q. I know its embarrassing to talk about in front of strangers, and I know its hard to be here. What is the that [sic] [P.] told you that he tried to do?
"A. He tried to put his
"[PROSECUTOR]: Your Honor, may I ask permission to ask a leading question?
"THE COURT: You may.
"Q. [S.], did [P.] say that he had tried to have sex with her?
"A. Yes.
"Q. That is what you were trying to say a minute ago?
"A. Yeah.
"Q. Was that in the same conversation you had had with her?
"A. Yeah."
The jury was instructed in part as follows. "Witnesses [M.] and [S.] have testified that [P.] Doe made statements to them concerning the crime with which the defendant is now being charged. The testimony was admitted for the limited purpose of showing that a complaint was made by [P.] Doe and the circumstances and facts surrounding that complaint. The testimony was not admitted and cannot be used by you as proof of the truth of the contents of [P.] Does statement."
The prosecutor referred to this instruction in opening argument, telling the jury that it meant they could consider the testimony of S. and M. as corroboration of P. Defense counsel argued that the sisters testimony could not be used as proof of the truth of the charges against defendant.
In People v. Brown (1994) 8 Cal.4th 746 (Brown) the California Supreme Court concluded in part: "under principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victims disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of facts determination as to whether the offense occurred." (Id. at pp. 749-750; original italics.)
Brown pointed out that evidence of a fresh complaint could be relevant in several ways: "the circumstances under which the complaint was made may aid the jury in determining whether the alleged offense occurred. Furthermore, admission of evidence that such a prompt complaint was made also will eliminate the risk that the jury, if not apprised of that fact, erroneously will infer that no such prompt complaint was made." (Id. at p. 761.) Some jurors may still assume that real victims complain promptly, though studies have proved this is not so. (Ibid.)
The Supreme Court warned: "Of course, even if this evidence is relevant and therefore otherwise admissible under the foregoing standard, it is subject to exclusion under Evidence Code section 352 in the event the court determines that the probative value of the evidence is outweighed by the risk that the jury will consider it for impermissible hearsay purposes, or that the evidence will otherwise create a danger of undue prejudice or will mislead or confuse the jury. Indeed, in light of the narrow purpose of its admission, evidence of the victims report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose. Caution in this regard is particularly important because, if the details of the victims extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victims statement into a hearsay assertion [citation]." (Brown, supra, 8 Cal.4th at p. 763.)
Defendant contends that the testimony elicited from P.s best friend S. "[n]ot only went beyond the limits of the doctrine regarding the charged incidents, but was extended to include an act of attempted intercourse, a far more serious crime that those charged."
Brown explained that the California Supreme Court had previously considered the fresh complaint doctrine in People v. Burton (1961) 55 Cal.2d 328 (Burton). (Brown, supra, 8 Cal.4th at pp. 755-756.) As the Attorney General points out, Burton concluded: "We therefore accept the view that although details cannot be recounted, it can be shown by the People `that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject [citation]; that is, the alleged victims statement of the nature of the offense and the identity of the asserted offender, without details, is proper." (Burton, supra, 55 Cal.2d at p. 351, italics omitted; cf. Brown, supra, 8 Cal.4th at p. 756.)
The nature of the charged offense was that defendant had lewdly touched P.s chest. We conclude that it was proper for the prosecutor to elicit from S. that P. had told her that defendant had touched her chest without asking for the details of when, where, how, or how often. (People v. Meacham (1984) 152 Cal.App.3d 142, 159-160 [victim complained that the defendant had touched her bottom].)
The prosecutor also elicited that P. had complained to S about defendant trying to have sex with her. The Attorney General contends that this also simply described the nature of the offense without "unnecessary details."
Assuming without deciding that defense counsel should have objected to this testimony, we conclude that defendant was not prejudiced by this extraneous detail. As noted above, the jury was instructed that Ss recounting of P.s complaints could not be considered as proof of the charges. Both counsel reminded the jury of this limitation in argument. As this court has stated before, "we presume jurors are able to and do follow the courts limiting instructions." (People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)
The central question for the jury was whether P. was credible in describing three incidents of defendant fondling her chest. The prosecutor argued to the jury that P. was a credible witness, noting that she was sometimes slow in answering embarrassing questions, as though she was struggling for the words and for the inner strength to describe what happened. The jury evidently believed P. At sentencing, the trial judge noted, "I listened to the evidence, and I believed her."
We see no connection between determining P.s credibility and the extraneous detail recounted by S. We conclude that it is not reasonably probable that a successful objection to this testimony would have yielded a more favorable trial result for defendant. (People v. Meacham, supra, 152 Cal.App.3d 160.) Thus, defendant cannot establish that he was prejudiced by his counsels failure to object.
2. ADMISSION INSTRUCTION
On appeal defendant contends that he was prejudiced by the trial courts failure to instruct the jury sua sponte about a defendants admissions in terms of CALJIC No. 2.71, which states: "An admission is a statement made by the defendant which does not by itself acknowledge his guilt of the crime for which defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [& para;] You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part. [¶] Evidence of an oral admission of the defendant should be viewed with caution." This instruction should be given sua sponte when there is evidence of a defendants admission. (People v. Beagle (1972) 6 Cal.3d 441, 455; People v. Marks (1988) 45 Cal.3d 1335, 1346; People v. Shoals (1992) 8 Cal.App.4th 475, 498.)
The jury was instructed about adoptive admissions in terms of CALJIC No. 2.71.5 as follows. "If you should find from the evidence that there was an occasion when the defendant (1) under conditions which reasonably afforded him an opportunity to reply (2) failed to make a denial in the face of an accusation expressed directly to him in his presence charging him with the crime for which this defendant is now on trial or tending to connect him with the commission, and (3) that he heard the accusation and understood its nature, then the circumstance of his silence on that occasion may be considered against him as indicating an admission that the accusation thus made was true.
"Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence of the accused in the face of it. Unless you find that the defendants silence at the time indicated an admission that that accusatory statement was true, you must entirely disregard the statement." The instruction thus identifies three preconditions for an adoptive admission.
The prosecutor argued to the jury that the adoptive admission instruction pertained to the telephone conversation between defendant and Ps mother. When she asked defendant why he touched her daughter, he did not deny it or express outrage. "The defendant was silent, and you received an instruction on that very issue, that when the defendant is confronted with an accusation under conditions where he had the opportunity to reply, [P.s] mother is waiting on the phone for an answer to her question . . and he failed to make a denial, his silence on that occasion may be considered by you as an admission that the accusation is true. Admission of the fact that he was silent in response to that question can be used by you as an admission that he is guilty. Guilty of touching the daughter. `Why did you touch my daughter? Silence is an admission that he did touch her. He did touch her."
Defendant does not argue that CALJIC No. 2.71.5 should be modified, but that CALJIC No. 2.71 should be given whenever there is evidence of an adoptive admission. The problem with this argument is that a defendants silence cannot be equated with an oral admission. "Oral admissions must consist of verbal utterances." (People v. Atwood (1963) 223 Cal.App.2d 316, 329, disapproved on another ground by People v. Carter (2003) 30 Cal.4th 1166, 1197.) Had defendant made an equivocal statement in response to an express or implied accusation, it might be appropriate to instruct the jury to consider his oral adoptive admission with caution. (Cf. People v. Fauber (1992) 2 Cal.4th 792, 851-853.) But this instruction is inappropriate when defendants admission, if any, consists of his silence. (People v. Atwood, supra, 223 Cal.App.2d at p. 329; cf. People v. Palmer (1978) 80 Cal.App.3d 239, 249.) We conclude that the trial court did not err in failing to give CALJIC No. 2.71 sua sponte.
In any event, we would conclude that defendant was not prejudiced by the omission of a cautionary instruction. The omission of instructions about admissions "does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (People v. Beagle, supra, 6 Cal.3d at p. 455; People v. Carpenter (1996) 15 Cal.4th 312, 393.) "Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately." (People v. Pensinger (1991) 52 Cal.3d 1210, 1268, and cases there cited.)
There was no evidentiary uncertainty in this case about what defendant said. He said nothing. CALJIC No. 2.71.5 cautioned the jurors that they could give meaning to defendants silence only if they found the existence of three preconditions. Although the prosecutor argued that defendants silence was evidence of his guilt, Ps testimony alone was enough to support his conviction. We conclude that it is not reasonably probable that defendant would have obtained a more favorable result had the jury been instructed to view any adoptive admission with caution. (People v. Pensinger, supra, 52 Cal.3d at pp. 1268-1269.)
DISPOSITION
The judgment is reversed and the case is remanded for a recalculation of the credits to which defendant is entitled.
WE CONCUR: WUNDERLICH, J., MIHARA, J.