Filed 12/18/15 P. v. Martinez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066479

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN303877)

MAURO MARCELO MARTINEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Sim Von Kalinowski, Judge. Affirmed as modified.



         Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney, Julie L. Garland, Assistant Attorney General, Barry

Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
                                     INTRODUCTION

       Mauro Marcelo Martinez pleaded guilty to three counts of committing a lewd act

upon a child (Pen. Code,1 § 288, subd. (a); counts 6-8). A jury further convicted

Martinez of one count of having sexual intercourse with a child under age 10 (§ 288.7,

subd. (a); count 1) and three additional counts of committing a lewd act upon a child

(§ 288, subd. (a); counts 3-5).2 Martinez committed the offenses in count 1 and counts 3

through 5 against victim 1. He committed the offenses in counts 6 through 8 against

victim 2. Accordingly, the jury found true allegations Martinez committed his crimes

against more than one victim (§ 667.61, subds. (b), (c), & (e)(4)).

       The trial court sentenced Martinez to an indeterminate prison term of 25 years to

life for count 1, consecutive prison terms of 15 years to life for counts 3, 4, 5, and 8, and

concurrent determinate prison terms of six years for count 6 and eight years for count 7.

As part of the sentence, the court imposed various fines, fees, and assessments, including

a court operations assessment of $300 (§ 1465.8, subd. (a)(1)) and a court facilities

assessment of $240 (Gov. Code, § 70373, subd. (a)(1)). The court also awarded 870 days

of presentence custody credit. The presentence custody credit was for the actual time




1      Further statutory references are also to the Penal Code unless otherwise stated.

2      The court granted Martinez's section 1118.1 motion to dismiss count 2, which was
an additional charge of sexual intercourse with child under 10 (§ 288.7, subd. (a)),
because there was insufficient evidence the conduct alleged in the charge occurred after
section 288.7's effective date.

                                              2
Martinez spent in custody before sentencing. The court did not award Martinez any

presentence conduct credit.

       Martinez appeals, contending we must reverse his conviction because the court

prejudicially erred by denying his severance motion, admitting evidence of other charged

sex offenses, and admitting a videotape of him committing the other charged sex

offenses. He also contends the cumulative prejudicial effect of these errors deprived him

of a fair trial. He further contends the court operations and court facilities assessments

imposed by the court exceeded the amount authorized by statute. Finally, he contends the

court erred by failing to award him presentence conduct credit under section 2933.1,

subdivision (a). The People concede the latter two points and we modify the judgment to

reduce the court operations and court facilities assessments to $280 and $210,

respectively, and to include an award of 130 days of presentence conduct credit under

section 2933.1, subdivision (a). In all other respects, we affirm the judgment.

                                     BACKGROUND3

Victim 1

       Martinez had sexual intercourse with victim 1 approximately 2 to 3 times a month

when she was between ages four and 10. On a few of those occasions, he also put his

fingers in her vagina. After victim 1 began menstruating, around age 11, the frequency of

the sexual intercourse diminished, occurring between two to six more times.


3       To preserve the confidentiality of the victims' identities, our summary omits
certain details, which, while superficially relevant to the issues raised on appeal, are not
critical to our analysis.

                                              3
       Among the instances of sexual intercourse, when victim 1 was four, Martinez

came into her room while she was sleeping, lifted up her nightgown, placed his penis in

her vagina, and started having sex with her. When she was four or five, he laid her on a

couch, pulled her pants down, and had sexual intercourse with her. When she was six, he

laid her on a counter and had sexual intercourse with her. When she was 11 and was lying

down sleeping, he touched her vagina and her breasts under her shirt and then had sexual

intercourse with her.

       Although victim 1 had multiple opportunities to report Martinez's actions to child

protective services workers, she never did and never planned to do so because she was

afraid of the repercussions. Instead, when asked, she denied Martinez had ever touched

her inappropriately. She did not reveal Martinez's actions until she was 13 and receiving

anger management counseling.

Victim 2

       Martinez lewdly touched victim 2 when she was under age 12. The touching

included kissing victim 2 and fondling victim 2's breasts and vagina, both over and under

her clothing (counts 6-8).4 Victim 1 and her brother, who were then age six or seven,

videotaped the lewd touching. The police learned of the videotape while investigating

the crimes against victim 1. Martinez tried, but failed, to destroy the videotape.



4     Victim 2 told police Martinez lewdly touched her on more than one occasion;
however, the court limited the evidence of Martinez's crimes against victim 2 to the
conduct depicted in the videotape because the evidence was more certain and, therefore,
more probative of Martinez's propensity to engage in such conduct.

                                             4
Martinez's Admissions and Defense

       Martinez initially denied any sexual conduct with the victims. After being

confronted with the existence of a videotape of his conduct with victim 2, he admitted he

kissed victim 2 and touched her breasts with his hand and mouth. He also admitted to

once touching victim 1's vagina with his hand and penis when she was five or six.

       After the court denied Martinez's motion to sever the trial of charges involving

victim 1 from the trial of the charges involving victim 2 (see Discussion part I, post),

Martinez pleaded guilty to the charges involving victim 2. As the factual basis for his

guilty plea, Martinez admitted he "kissed [victim 2] on [the] lips, touched [victim 2] on

her breast with [his] hand [and] mouth with a sexual intent."

       At trial, Martinez defended the charges involving victim 1 and the multiple victim

enhancement allegations largely on the theory victim 1 fabricated her sexual abuse claims

at the behest of a disgruntled former love interest of his. Among the key evidence

supporting the defense was evidence the love interest had repeatedly reported Martinez to

child protective services, victim 1 repeatedly told child protective services workers

Martinez had not touched her inappropriately and, after victim 1 came forward with her

claims of sexual abuse, the love interest coached her to tell authorities Martinez had a

distinguishing mark on his penis.




                                             5
                                       DISCUSSION

                                               I

                                     Severance Motion

                                              A

       Before trial, Martinez moved to sever the trial of the charges related to victim 1

from the trial of the charges related to victim 2. The court denied the motion, finding the

crimes against both victims were of the same class, the evidence for each set of crimes

was cross-admissible, and, although the evidence of the crimes against victim 2 was

stronger than the evidence of the crimes against victim 1, the crimes against victim 2

were less inflammatory than the crimes against victim 1.

                                              B

       "Section 954 authorizes the joinder of 'two or more different offenses connected

together in their commission . . . or two or more different offenses of the same class of

crimes or offenses, under separate counts . . . .' " (People v. Merriman (2014) 60 Cal.4th

1, 36 (Merriman).) The law favors joinder because it promotes efficiency. (Id. at p. 37.)

Joinder was authorized in this case because the offenses charged against Martinez were

of the same class. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1112-1113 [for

joinder purposes, sexual offenses are of the same class].)

       Nonetheless, "a trial court has discretion to order that properly joined charges be

tried separately." (Merriman, supra, 60 Cal.4th at p. 37.) "In exercising its discretion in

this regard, the court weighs 'the potential prejudice of joinder against the state's strong

interest in the efficiency of a joint trial. [Citation.]' [Citation.] To succeed on a claim

                                              6
that the trial court abused its discretion in denying severance or ordering consolidation,

the defendant must make a ' "clear showing of prejudice" ' and establish that the ruling

fell ' " ' " 'outside the bounds of reason.' " ' " ' [Citations.] An appellate court evaluates

such claims in light of the showings made and the facts known by the trial court at the

time of the court's ruling." (Id. at p. 37.)

       " ' "The relevant factors are whether (1) the evidence would be cross-admissible in

separate trials, (2) some charges are unusually likely to inflame the jury against the

defendant, (3) a weak case has been joined with a strong case, or with another weak case,

so that the total evidence may unfairly alter the outcome on some or all charges, and (4)

one of the charges is a capital offense, or joinder of the charges converts the matter into a

capital case." [Citation.] "[I]f evidence underlying the offenses in question would be

'cross-admissible' in separate trials of other charges, that circumstance normally is

sufficient, standing alone, to dispel any prejudice and justify a trial court's refusal to sever

the charged offenses." ' " (People v. Scott (2011) 52 Cal.4th 452, 469-470; Merriman,

supra, 60 Cal.4th at p. 38.)

       Here, the evidence of Martinez's conduct with each of the victims would have

been cross-admissible at separate trials under Evidence Code section 1108, subdivision

(a).5 Thus, the court was justified in denying Martinez's motion.



5      Evidence Code section 1108, subdivision (a), provides: "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." (See part II.B, post.)

                                               7
       Even if evidence had not been cross-admissible, severance was not required

because the factors weighing in favor of severance—converting the charges into a capital

offense, unduly inflaming the jury, and bolstering a weak case with a strong case—were

either absent or inconsequential. (People v. Scott, supra, 52 Cal.4th at p. 473; People v.

Soper (2009) 45 Cal.4th 759, 779-780 (Soper) [absence of cross-admissibility by itself is

not sufficient to establish abuse of discretion in denying severance motion; reviewing

court must consider and weigh the other three factors as well].) The joinder of the two

sets of charges did not convert the matter into a capital case and the evidence related to

one set of charges was not more inflammatory than the evidence related to the other set of

charges. Additionally, the evidence supporting Martinez's guilt of each set of charges

was of comparable strength. While the videotape evidence strengthened the prosecution's

case for the charges related to victim 2, other evidence strengthened the prosecution's

case for the charges related to victim 1, including Martinez's admission he touched victim

1's vagina with his penis when she was a small child. "In any event, as between any two

charges, it always is possible to point to individual aspects of one case and argue that one

is stronger than the other. A mere imbalance in the evidence, however, will not indicate a

risk of prejudicial 'spillover effect,' militating against the benefits of joinder and

warranting severance of properly joined charges. [Citation.] Furthermore, the benefits of

joinder are not outweighed—and severance is not required—merely because properly

joined charges might make it more difficult for a defendant to avoid conviction compared

with his or her chances were the charges to be separately tried." (Soper, supra, at p. 781.)



                                               8
Accordingly, Martinez has not met his burden of establishing the court's decision to deny

his severance motion fell outside the bounds of reason.

       Notwithstanding this conclusion, we must still determine whether, considering the

same factors in hindsight, the joinder of the charges involving victim 1 with the multiple

victim enhancement allegations involving both victims, "actually resulted in 'gross

unfairness' amounting to a denial of [Martinez's] constitutional right to fair trial or due

process of law."6 (Merriman, supra, 60 Cal.4th at p. 46; Soper, supra, 45 Cal.4th at

pp. 783-784.) Martinez has not persuaded us it did.

       The relevance and cross-admissibility of the evidence of Martinez's conduct

involving victim 2 increased as the trial progressed because Martinez's chief defense

against the charges involving victim 1 and the multiple victim enhancement allegations

was that victim 1 had fabricated her claims. The joinder of the charges and allegations

did not alter the relative strength of the prosecution's case beyond that inherent in the

admission of other sexual offense evidence under Evidence Code section 1108,

subdivision (a) (see part II.B.1, post). In addition, the joinder did not cause the conduct

involving one victim to become more inflammatory than the conduct involving the other

victim. The joinder also did not cause this case to be converted into a capital case. "A

fortiori, [Martinez] has not shown actual prejudice amounting to a denial of fundamental

fairness and due process." (People v. Scott, supra, 52 Cal.4th at p. 473.)


6      We need not make this same determination regarding the charges involving victim
2 as Martinez plea of guilty to these charges precluded them from being tried jointly with
the charges involving victim 1.

                                              9
                                              II

                                    Propensity Evidence

                                              A

       Before trial, the prosecution moved to admit the videotape of Martinez's sexual

conduct with victim 2 as propensity evidence under Evidence Code section 1108.

Martinez opposed the motion, arguing the evidence was irrelevant and the court should

exclude it under Evidence Code section 352. The court granted the motion, finding the

evidence was admissible under Evidence Code section 1108 and the factors favoring

exclusion under Evidence Code section 352 did not apply.

                                              B

                                              1

       "Character evidence, sometimes described as evidence of a propensity or

disposition to engage in a type of conduct, is generally inadmissible to prove a person's

conduct on a specified occasion. ([Evid. Code, § 1101, subd. (a)].) This ban against

admitting character evidence to prove conduct, however, does not prohibit admission of

specific acts of misconduct to establish a material fact like intent, common design or

plan, or identity ([id., subd. (b)]), and does not affect the admissibility of evidence

regarding the credibility of a witness (id., subd. (c)). [Citation.] The Legislature has also

created specific exceptions to the rule against admitting character evidence in cases

involving sexual offenses ([Evid. Code, § 1108, subd. (a)]) . . . . (See [Evid. Code,]

§ 1101 [, subd.] (a).)



                                              10
         "As relevant here, [Evidence Code] section 1108, subdivision (a), provides: '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 [Evidence Code section] 1101, if the evidence is not inadmissible pursuant to

[Evidence Code section] 352.' Enacted in 1995, [Evidence Code] section 1108 'implicitly

abrogates prior decisions of [the California Supreme Court] indicating that "propensity"

evidence is per se unduly prejudicial to the defense.' [Citation.] 'As the legislative

history indicates, the Legislature's principal justification for adopting [Evidence Code]

section 1108 was a practical one: By their very nature, sex crimes are usually committed

in seclusion without third party witnesses or substantial corroborating evidence. The

ensuing trial often presents conflicting versions of the event and requires the trier of fact

to make difficult credibility determinations. [Evidence Code section] 1108 provides the

trier of fact in a sex offense case the opportunity to learn of the defendant's possible

disposition to commit sex crimes.' " (People v. Villatoro (2012) 54 Cal.4th 1152, 1159-

1160.)

                                              2

         Although Martinez reluctantly acknowledges the evidence of his crimes against

victim 2 was generally admissible under Evidence Code section 1108, he nonetheless

contends the court erred by not excluding the evidence under Evidence Code section 352.

Evidence Code section 352 "gives the trial court discretion to exclude evidence if its

probative value is substantially outweighed by the probability that its admission will

necessitate undue time consumption or create substantial danger of undue prejudice,

                                              11
confusing the issues, or misleading the jury. In exercising this discretion as to a sexual

offense, 'trial judges must consider such factors as its nature, relevance, and possible

remoteness, the degree of certainty of its commission and the likelihood of confusing,

misleading, or distracting the jurors from their main inquiry, its similarity to the charged

offense, its likely prejudicial impact on the jurors, the burden on the defendant in

defending against the uncharged offense, and the availability of less prejudicial

alternatives to its outright admission, such as admitting some but not all of the

defendant's other sex offenses, or excluding irrelevant though inflammatory details

surrounding the offense.' " (People v. Loy (2011) 52 Cal.4th 46, 61 (Loy).) We review

the court's ruling for abuse of discretion. (Ibid.)

       Martinez's conviction for the crimes against victim 2 strongly supported admission

of the evidence of the crimes because his commission of them was established and he

"bore no new burden of defending against [them]." (Loy, supra, 52 Cal.4th at p. 61.)

Additionally, the jury would not be tempted to punish him for the crimes against victim 2

by finding him guilty of the charges against victim 1, and "there was little danger of

confusing the issues or requiring an inefficient minitrial to determine [his] guilt" of the

crime. (Ibid.).

       Admission of the evidence also did not distract the jury from its main inquiry.

"The Legislature has determined that [prior sexual offense] evidence is ' "particularly

probative" ' in sex cases." (Loy, supra, 52 Cal.4th at p. 61.) The main inquiry in this case

was whether victim 1 fabricated her allegations against Martinez. The evidence of

Martinez's prior crimes against victim 2 assisted in the jury's inquiry into victim 1's

                                              12
credibility, particularly since the crimes against victim 2 occurred within the time frame

the crimes against victim 1 were alleged to have occurred. (See id. at p. 62.)

       Although criminal history evidence "inevitably has some prejudicial effect," this

circumstance is not sufficient to exclude it. (Loy, supra, 52 Cal.4th at p. 62.)

" '[Evidence Code] section 1108 affects the practical operation of [Evidence Code]

section 352 balancing " 'because admission and consideration of evidence of other sexual

offenses to show character or disposition would be no longer treated as intrinsically

prejudicial or impermissible. Hence, evidence offered under [Evidence Code section]

1108 could not be excluded on the basis of [Evidence Code section] 352 unless "the

probability that its admission will . . . create substantial danger of undue

prejudice" . . . substantially outweighed its probative value concerning the defendant's

disposition to commit the sexual offense or offenses with which he is charged and other

matters relevant to the determination of the charge. As with other forms of relevant

evidence that are not subject to any exclusionary principle, the presumption will be in

favor of admission.' " ' " (Loy, at p. 62.)

       Nothing about the evidence of Martinez's crimes against victim 2 required the

court to find this presumption was overcome. The facts of the crimes against victim 2

were no more and arguably less inflammatory than the facts of the crimes against victim

1, the presentation of the evidence of the crimes against victim 2 was limited in scope and

consumed relatively little trial time, and the crimes against victim 2 were not too remote

to be probative. (Loy, supra, 52 Cal.4th at p. 62.) Accordingly, we conclude Martinez



                                              13
has not established the court abused its discretion by declining to exclude the evidence of

the crimes against victim 2 under Evidence Code section 352.

                                             III

                                    Videotape Evidence

                                             A

       After the court granted the prosecution's motion to admit evidence of Martinez's

crimes against victim 2 as propensity evidence and Martinez pleaded guilty to those

crimes, Martinez argued the court was required to conduct a new, item-by-item analysis

of the propensity evidence under Evidence Code section 352. More particularly,

Martinez argued the court should exclude the videotape of Martinez engaging in sexual

conduct with victim 2 because the videotape was excessively inflammatory, especially

since Martinez admitted committing the crimes against victim 2.

       The court agreed it was required to conduct a new analysis under Evidence Code

section 352. After doing so, the court declined to exclude the videotape, finding its

probative value outweighed its prejudicial effect in part because the videotape was brief

(a little over a minute long), it did not convey any irrelevant or inflammatory details, and

relying on witness testimony in lieu of the videotape would be problematic because

victim 2 was a reluctant witness, and victim 1 and her brother were too young when the

crimes occurred to be good witnesses.

                                             B

       We review the court's decision to admit the videotape under the same standards

discussed in part II.B.2, ante. For the reasons discussed in that part as well as the reasons

                                             14
given by the court when it rendered it decision, we conclude Martinez has not established

the court abused its discretion in admitting the videotape into evidence.

                                             IV

                                     Cumulative Error

        Martinez contends we must reverse his conviction because the accumulation of the

above claims of error deprived him of a fair trial. Because we have rejected the above

claims of error, we must necessarily reject Martinez's cumulative error claim as well.

(People v. Vieira (2005) 35 Cal.4th 264, 294; People v. Bolin (1998) 18 Cal.4th 297,

335.)

                                             V

                    Court Operations and Court Facilities Assessments

        Martinez contends the court erred by imposing court operations and court facilities

assessments in excess of the statutorily authorized amounts. The People concede and we

agree the court so erred.

        With certain exceptions inapplicable here, section 1465.8, subdivision (a)(1),

requires the court to impose a court operations assessment of $40 on every criminal

conviction and Government Code section 70373, subdivision (a)(1), requires the court to

impose a court facilities assessment of $30 on every felony conviction. Courts have

interpreted these assessments as applying to each count of which a defendant is

convicted. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484.) Because the jury

convicted Martinez of seven counts, the court was required to impose a court operations

assessment of $280 and a court facilities assessment of $210. (See, e.g., People v. Walz

                                             15
(2008) 160 Cal.App.4th 1364, 1372.) As the court imposed assessments exceeding these

amounts, we modify the judgment to reduce the assessments to the statutorily authorized

amounts.

                                            VI

                               Presentence Conduct Credits

       During the sentencing hearing, the court did not award Martinez any presentence

conduct credit, finding he was not entitled to receive such credit. Martinez contends, the

People concede, and we agree Martinez was entitled to an award of presentence conduct

credit equivalent to 15 percent of his actual days in custody, or 130 days.

       At the time of sentencing, the court must determine a defendant's entitlement to

presentence conduct credit. Generally, a defendant receives conduct credit against his

term of imprisonment for good behavior and willingness to work during time served

before sentencing. (People v. Brewer (2011) 192 Cal.App.4th 457, 461.) A defendant

convicted of a felony offense listed in section 667.5, subdivision (c), may not receive

conduct credit in excess of 15 percent of time served. (§ 2933.1, subd. (a).) This limit

applies here because Martinez was convicted of violating section 288, subdivision (a),

which is one of the felony offenses listed in section 667.5, subdivision (c). (§ 667.5,

subd. (c)(6); People v. Goldman (2014) 225 Cal.App.4th 950, 962; People v. Brewer,




                                             16
supra, at pp. 462-464.) We, therefore, modify the judgment to include an award of 130

days of conduct credit under section 2933.1, subdivision (a).7

                                      DISPOSITION

       The judgment is modified to reduce the court operations and court facilities

assessments to $280 and $210, respectively, and to include an award of 130 days of

presentence conduct credit under section 2933.1, subdivision (a). The court is directed to

amend the abstract of judgment to reflect these modifications and to forward a certified

copy of the amended abstract of judgment to the Department of Corrections and

Rehabilitation. In all other respects, the judgment is affirmed.




                                                                       MCCONNELL, P. J.

WE CONCUR:


BENKE, J.


IRION, J.




7      As the People point out, the award of conduct credit does not "affect the
requirement of any statute that the defendant serve a specified period of time prior to
minimum parole eligibility . . . ." (§ 2933.1, subd. (b).)
                                             17
