Opinion
F073389
11-03-2017
THE PEOPLE, Plaintiff and Respondent, v. THOMAS MARTINEZ MEDINA, Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF308794)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
A jury convicted appellant Thomas Martinez Medina of five counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)/counts 1-5) and it found true allegations in counts 1 and 2 that Medina had substantial sexual contact with the child (Pen. Code, § 1203.066, subd. (a)(8)).
On March 9, 2016, the court sentenced Medina to prison for an aggregate 12-year term consisting of the aggravated term of eight years on count 1, consecutive two-year terms on counts 2 and 5, and concurrent eight-year terms on counts 3 and 4.
On appeal, Medina contends the court erred in admitting evidence of prior acts of sexual misconduct and, alternatively, that he was denied the effective assistance of counsel if he forfeited this issue by defense counsel's failure to object. We affirm.
FACTS
Background
On March 11, 2015, the Tulare County District Attorney filed an information that charged Medina with five counts of lewd and lascivious conduct with a child under the age of 14.
Count 1 alleged that Medina touched Alicia A. on her vagina, count 2 alleged that Medina placed Alicia's hand on his penis, count 3 alleged that he touched her on her buttocks, and count 4 alleged that he touched her on her breast. Count 5 originally charged Medina with touching Alicia's buttocks and was subsequently amended to allege that he touched her on her lower back.
On July 29, 2015, the prosecutor filed a trial brief that included her motions in limine, including one in which the prosecutor asked the court to allow her to introduce evidence of Medina's prior acts of sexual misconduct involving five girls. In her moving papers, the prosecutor argued that Evidence Code section 1108 allowed the admission of past sexual misconduct by Medina if it was not inadmissible pursuant to section 352 and she paraphrased the text of section 352, including its requirement that the court weigh the probative value of admitting the evidence against its prejudicial effect. The prosecutor also argued that the introduction of evidence regarding Medina's past sexual misconduct was not prejudicial and it was relevant to show Medina's intent, common plan or scheme.
All further statutory references are to the Evidence Code.
On February 2, 2016, before the taking of testimony, the court tentatively ruled that the prosecutor could introduce evidence regarding Medina's past sexual misconduct involving three of the five alleged victims of his prior misconduct, K.G., Amanda J., and Reyna F. In doing so, the court noted it had reviewed the prosecutor's trial brief. It also found the evidence relating to these three girls admissible because Medina's conduct in their cases was the "same type" of conduct as alleged in the instant case and showed the same modus operandi and the same type of common plan or scheme. In explaining its ruling on the record, the court mentioned sections 1101 and 1108, but did not mention section 352. Nor did it state that it weighed the probative value of admitting this evidence against its prejudicial effect. Defense counsel did not object to the court's ruling and when the court asked him if he wanted to say anything, counsel replied that he did not.
The court excluded evidence relating to an incident during which Medina allegedly entered a bedroom in the middle of the night and rubbed the ankle of a 19-year-old female relative and an incident when Medina allegedly tried to enter a locked bathroom while an 18-year-old female relative was taking a shower.
On February 3, 2016, in deciding whether to allow the prosecutor to introduce documentary evidence of Medina's prior misdemeanor conviction for child annoyance, the court noted that the prior conviction was admissible pursuant to a case cited by the prosecutor. The court then stated:
"However, the Court still must exercise its discretion pursuant to ... section 352. And in weighing the process and doing the weighing process, the Court finds that the nature of the prior offense is of the same class ...." (Italics added.)
The court then cited section 352 and referred to several circumstances that were relevant to its determination whether to admit this evidence before concluding:
"So weighing the prejudicial effect versus the probative value [of admitting the prior conviction], the Court finds that the probative value exceeds the prejudicial effect and will allow the prior conviction to be admitted ... pursuant to ... section 1108." (Italics added.)
When the court asked defense counsel if he wanted to be heard, defense counsel stated only that he submitted on the matter.
The Trial
Medina was the stepgrandfather of Alicia's mother. Alicia testified that when she was seven or eight years old, as she looked out of a kitchen window at Medina's apartment, Medina approached her from behind and leaned up against her. Medina then touched her breast under her shirt with his hand, slid his hand down under her underwear to her private area, and moved his fingers in a circular motion around her vagina. Medina also grabbed Alicia's buttocks under her underwear and moved his hands up and down. Alicia became scared and worried and eventually she went to the living room and sat down. No one else was in the kitchen during the incident, which lasted about a minute.
When the trial was held in February 2016, Alicia was 14 years old and Medina was approximately 76 years old. --------
Half an hour later, Alicia got in the backseat of Medina's truck, ostensibly to go with him to the store. However, after letting her get in the truck, Medina sat next to Alicia and closed the door. He then unzipped his pants, exposed his penis, and placed Alicia's hand on it. Medina moved her hand up and down for approximately five seconds until Alicia's mother came out of the apartment and he got out of the truck. Alicia's mother asked her what she was doing, but Alicia did not tell her because she was scared.
Alicia further testified that every time Medina saw her, he would hug her and then move his hand to her lower back, to the area of her buttocks.
Alicia first told her mother about the molestations around March 2014, when she was 13 years old. In May 2014, Alicia was raped. The next day when she spoke to police officers about the rape, she also told them about the incidents with Medina.
On November 3, 2015, Tulare Police Detective Rosario Moreno interviewed Medina at the police station. During the interview, Medina stated he found out about Alicia's allegations against him three months earlier from Alicia's grandmother. Medina initially denied the allegations but eventually admitted they were true. He also admitted that he was sexually attracted to children 12 to 16 years of age. Medina then stated that the day he and Alicia were looking out the kitchen window they were standing side by side and he hugged her. As he brought his hand down it brushed against Alicia's chest, but without any malice on his part.
Afterwards, he went outside and as he sat on the driver's seat of his truck listening to music, Alicia got in the truck and sat on the front passenger's seat. Medina again hugged Alicia as they sat side by side and his hands "just kinda slipped down" and brushed her chest. Alicia left when her mother came out of the apartment.
Later during the interview, Medina stated that while they were in the kitchen, Alicia walked up to him and unzipped his pants. She then reached inside, pulled his penis out, and moved her hand up and down on it as Medina stood there with his arms crossed. During the encounter, which lasted approximately two minutes, Medina's hand may have slid down and touched her buttocks. Alicia allegedly also grabbed his hand twice and put it on her vagina. Afterwards, Medina went outside to get the mail and Alicia grabbed his hand and said, "Let's go to the bedroom Grandpa." Medina told her he could not do that and he went to his truck and sat on the driver's seat. Alicia followed and sat next to him as he listened to music. Alicia then reached over and began rubbing his penis over his pants. By the time he realized what was happening, it was too late to stop her and he did not attempt to. Medina admitted he became aroused and thought of "abusing her." Medina characterized the two incidents as Alicia molesting him.
Medina was married to K.G.'s grandmother. K.G., who was 31 years old at the time of the trial, testified to prior sexual misconduct by Medina that involved her and her sister. According to K.G., during the 1990's when she was less than 10 years old, she and her sister Amanda, who was one year older, would sit on Medina's lap and he would grope them. K.G. testified to one incident during which Medina took her sister into a room and after sitting her on his lap, Medina began caressing Amanda's inner thigh area. K.G. also testified that on more than one occasion when she sat on Medina's lap, he would caress her inner thigh and put his fingers in her vagina. K.G. recalled that she went to court over these incidents and Medina only received a "slap on the wrist."
Medina was Reyna's stepgrandfather. Reyna, who was 34 years old at the time of the trial, testified when she was eight or nine years old, Medina would touch her face and shoulders and then fondle her vaginal area.
The prosecutor also introduced several documents relating to Medina's prior misdemeanor conviction for child annoyance, including a certified copy of an information that was filed on June 6, 1990. The information charged Medina with three counts of lewd and lascivious conduct with a child under 14 years of age, two involving Amanda and one involving K.G. Another document showed that on September 27, 1990, Medina pled no contest in that matter to misdemeanor annoying or molesting a child and was sentenced to serve 270 days in county jail.
The defense did not present any evidence.
DISCUSSION
Medina contends the court erred in admitting K.G.'s and Reyna's testimony because in doing so, it failed to mention section 352 or reference the word "prejudice" or the factors the court must consider in making a determination under that section. According to Medina, this indicates the court did not engage in the weighing process required by section 352. He further contends the court's error prejudiced him with respect to his conviction in count 5, which alleged that Medina touched Alicia's lower back. Alternatively, Medina contends he was denied the effective assistance of counsel if this issue was forfeited by defense counsel's failure to object.
Medina forfeited his right to challenge the admission of evidence of his prior sexual misconduct by his failure to object to its admission in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 434.) Nevertheless, in order to resolve Medina's ineffective assistance of counsel claim we must address his contention that the court erred in admitting this evidence.
Section 1101, subdivisions (a) and (b), in pertinent part, provide:
"(a) Except as provided in this section and in [Section] ... 1108, ... evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Section 1108, subdivision (a), provides:
"(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Section 352 provides:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"Before section 1108 was enacted, ... section 1101 governed the admission of prior criminal conduct, and a body of law developed concerning how similar the prior conduct had to be to the charged crime; the required degree of similarity varied depending on the use for which the evidence was offered. [Citation.] 'All of that radically changed with respect to sex crime prosecutions with the advent of section 1108. ... [S]ection 1108 now "permit[s] the jury in sex offense ... cases to consider evidence of prior offenses for any relevant purpose" ([citation], italics added), subject only to the prejudicial effect versus probative value weighing process required by ... section 352.' [Citation.] 'In enacting ... section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of ... section 1101.' [Citation.] Or, as another court put it, '[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under ... section 1101, otherwise ... section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.' " (People v. Loy (2011) 52 Cal.4th 46, 63.) Moreover, "the court need make no express statements on these issues so long as the record affirmatively shows that weighing occurred, and there is an adequate basis for appellate review." (People v. Arias (1996) 13 Cal.4th 92, 155.)
In her trial brief, which the court reviewed, the prosecutor argued that Medina's prior acts of sexual misconduct were admissible pursuant to section 1108 if they were not made inadmissible pursuant to section 352. The prosecutor also paraphrased the language of section 352 and argued that the probative value of admitting evidence of Medina's prior sexual misconduct outweighed its prejudicial impact. Prior to admitting the evidence relating to Medina's conviction for misdemeanor child annoyance, the court noted it had to engage in the weighing process required by section 352 and it proceeded to engage in this process on the record. These circumstances indicate the court was aware of its duty to engage in the section 352 weighing process in determining whether to admit the testimonial evidence of Medina's prior sexual misconduct with three victims. Further, the court's failure to mention section 352, or its weighing process, does not indicate it failed to engage in this process. (Cf. People v. Nunez and Satele (2013) 57 Cal.4th 1, 23 [court's failure to state during prosecution's rebuttal case that it engaged in section 352 weighing process before admitting evidence of assault to rebut defense witness's testimony, did not indicate failure to engage in requisite weighing process where during prosecution's case in chief court precluded prosecution's questions about incident because it found prejudicial effect of evidence outweighed its probative value].)
Moreover, the court's decision to exclude evidence of two of the five alleged victims of prior sexual misconduct by Medina provides further proof that the court engaged in the weighing process in deciding to admit testimony of sexual misconduct involving the other three victims. (Cf. People v. Edwards (2013) 57 Cal.4th 658, 724 [trial court found to have implicitly performed the weighing process, in part, based on exclusion of some evidence of prior sexual misconduct].) Accordingly, we reject Medina's contention that the court erred in admitting testimonial evidence of Medina's prior sexual misconduct.
Nor is there any merit to Medina's claim of prejudice. Medina contends the testimonial evidence of his prior sexual misconduct was unduly prejudicial and only marginally relevant. Thus, according to Medina, had the court engaged in the requisite weighing process, it would have excluded this evidence and the jury would not have convicted him on count 5, presumably because it was the weakest charge. We disagree.
Our "review focuses ... on what a ... jury ... is likely to have done in the absence of the error under consideration. [People v. Watson (1956) 46 Cal.2d 818; § 353.] In making that evaluation, [we] may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177.)
In order to prove Medina was guilty of lewd and lascivious conduct, the prosecutor had to prove: (1) Medina willfully touched any part of a child's body either on the bare skin or through the clothing; (2) Medina committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; and (3) the child was under the age of 14 years old at the time of the act. (CALCRIM No. 1110.) The only issue in dispute with respect to count 5 was whether Medina had the requisite intent when he hugged Alicia and then moved his hands to her lower back and to the buttocks area. Even without the testimony of K.G. and Reyna, the record contained compelling evidence from which the jury could infer Medina had the requisite specific intent when he touched Alicia's lower back. Medina admitted he was sexually attracted to children, that he became aroused by Alicia and thought of "abusing" her, and that he committed the acts alleged in counts 1 through 4, albeit his account of the details varied. Additionally, the court admitted evidence that in 1990 Medina was convicted of annoying or molesting a child. Moreover, a hug does not ordinarily involve a lowering of one's hands to the recipient's lower back to the buttocks area and Medina's conduct in doing so was strikingly similar to his other lewd conduct in lowering his hands down Alicia's body to touch her genital area and buttocks, after touching her breast. Thus, the evidence was overwhelming that Medina had a strong sexual attraction to children and that he would act out on this attraction. In view of this, it is not reasonably probable the jury would have found Medina did not have a lustful intent when he touched Alicia on her lower back, and acquitted him on count 5, even if the court had exercised its discretion pursuant to section 352, and excluded the testimonial evidence of his prior sexual misconduct.
Further, to prevail on a claim of ineffective assistance of counsel a defendant "must establish his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) "In considering [such a claim], ... it is not necessary to determine ' "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." ' " (Id. at p. 1008.)
Since Medina has not shown that he was unduly prejudiced by the admission of the testimonial evidence of his prior sexual misconduct, we also reject his ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.