P. v. Martinez

Filed 3/29/07 P. v. Martinez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
PETE MARTINEZ,
Defendant and Appellant.
F048870
(Super. Ct. No. F03905803-3)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Lawrence
Jones, Judge.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Melissa
Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Pete Martinez appeals his convictions for sexual abuse of and for committing lewd
acts against a child under the age of 14. He contends that the trial court erred in
admitting evidence of prior sex offenses and in instructing the jury pursuant to CALJIC

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No. 2.50.01. He also contends that his trial counsel provided ineffective assistance by
failing to raise a challenge to his sentence under Blakely v. Washington (2004) 542 U.S.
296 (Blakely). We affirm his convictions, and remand for resentencing.
STATEMENT OF THE CASE
In an information filed June 3, 2005, the Fresno County District Attorney charged
Martinez with one count of continuous sexual abuse against Stephanie V., a child under
the age of 14, with a special allegation that he engaged in three or more acts of
substantial sexual contact within the meaning of Penal Code section 1203.066,
subdivision (b), while residing with the victim (Pen. Code, § 288.5, count one),1 two
counts of committing a lewd act upon Stephanie (§ 288, subd. (a), counts two & three),
and two counts of committing a forcible lewd act upon Stephanie (§ 288, subd. (b)(1),
counts four and five). On June 15, 2005, Martinez pled not guilty to all the charges.
On August 10, 2005, the court impaneled a jury. On August 17, 2005, the jury
found Martinez guilty of counts one through four and not guilty on count five.
On September 14, 2005, the court denied Martinez’s application for probation and
sentenced him to state prison for 24 years calculated as follows: upper term of 16 years
for count one with a consecutive full upper term of eight years, pursuant to section 667.6,
subdivision (b), for count four. The court struck counts two and three pursuant to section
288.5. Martinez received 800 days for time served and statutory credit. He also was
ordered to pay a restitution fine of $800. A second $800 restitution fine was imposed but
suspended pending successful completion of parole.
The trial court sentenced Martinez to the aggravated term based upon three
aggravating factors: (1) the vulnerability of the victim; (2) the abuse of a position of trust
or confidence; and (3) the engagement in violent conduct indicating a serious danger to
1 All sections cited are to the Penal Code, unless otherwise stated.

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society. Although Martinez’s counsel argued that there were no aggravating
circumstances that would justify the aggravated sentences, he did not challenge the
sentencing on the ground that it violated Blakely.
On September 14, 2005, Martinez filed a timely notice of appeal.
FACTS
In 1995, when the victim, Stephanie, was five years old, Martinez and her mother,
Vera, started dating. Shortly thereafter Martinez moved into the residence with
Stephanie, Vera and Stephanie’s older sister, Lena. In 1996, Vera gave birth to
Martinez’s child, Pamela. Although Vera and Martinez did not marry, Stephanie
considered Martinez her stepfather.
Martinez started molesting Stephanie when she was 10 years old. The molestation
occurred about once a week when Stephanie was 10 years old, and somewhat less
frequently when she was 11 years old. Stephanie did not tell anyone because she feared
Martinez.
After Martinez and Vera ended their relationship, Martinez and Pamela moved
into an apartment with Martinez’s mother, Andrea. Stephanie would occasionally go to
Andrea’s apartment to visit Pamela. During these visits, Martinez continued to molest
Stephanie.
On July 4, 2003, Stephanie went to Martinez’s home to attend a fireworks display
with his family. Stephanie and Pamela started out sleeping on the floor, but Martinez
told them to get into bed with him. Martinez started to unbutton Stephanie’s pants, but
she tried to stop him, pointing out that Pamela was laying next to her. Martinez said
Pamela was sleeping and continued to try to touch Stephanie and persuade her to
cooperate. Stephanie continued to push his hands away and protest. Martinez then woke
Pamela and told her to move to the floor. Stephanie continued to protest, but eventually
Martinez was able to reach inside Stephanie’s pants and digitally penetrate her vagina.
He tried to pull her pants off her body, but Stephanie would not let him. Martinez placed

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himself on top of Stephanie and tried to penetrate her vagina with his penis, but was not
able to fully penetrate her. Stephanie told Martinez to stop because he was hurting her.
Martinez would stop for a moment, but then resumed trying to penetrate Stephanie’s
vagina. Martinez did not stop trying to molest Stephanie until she threatened to scream
and wake his mother sleeping in the next bedroom.
In June of 2003, Stephanie told a friend about the molestation. The friend urged
her to report it. In early August of 2003, Stephanie told her sister Lena about the
molestation. That night Lena drove Stephanie to the police station to make a report.
Martinez was arrested and subsequently charged as previously set forth.
DISCUSSION
I.
Evidence of Prior Sex Offenses
Martinez’s first claim of error is that the trial court erred in admitting evidence of
prior sex offenses pursuant to Evidence Code section 1108. The prosecution introduced
evidence that Martinez had prior consensual sexual relationships with two victims,
Bernice H. and Sheena C.
Bernice testified that she met Martinez on a telephone chat line when she was 16
years old. Martinez told Bernice that he was 26 years old when he was actually 34 years
old at the time. Bernice told Martinez that she was 16 years old. Martinez and Bernice
had a consensual sexual relationship. They dated for approximately 11 months.
Sheena testified that she met Martinez on a chat line for teenagers when she was
17 years old. Sheena told Martinez that she was 17; he told her that he was 26 years old
even though he was actually 35 years old at the time. Martinez and Sheena had a
consensual sexual relationship. They dated for approximately a year and a half.
Before trial, Martinez had pled guilty to two counts of statutory rape pursuant to
section 261.5, subdivision (c), relating to these two relationships.

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On August 9, 2005, the trial court heard the prosecutor’s motion in limine to allow
evidence of Martinez’s convictions for statutory rape of Bernice and Sheena, pursuant to
Evidence Code section 1108.2 Defense counsel objected to the introduction of evidence
relating to the section 261.5 offenses on the ground that it should be excluded under
Evidence Code section 352 because the prior offenses involved a consensual relationship
with a 16 or 17 year old, whereas the instant case involved sexual conduct with a child
between ages 10 and 12. On appeal, Martinez repeats the same objection.
In a prosecution for a sexual offense, Evidence Code section 1108 permits
evidence of the commission of another sexual offense provided that it is not inadmissible
under Evidence Code section 352 (prejudicial effect of the evidence outweighs its
probative value). “By reason of section 1108, trial courts may no longer deem
‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing
process under section 352. Rather than admit or exclude every sex offense a defendant
commits, 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. Falsetta (1999) 21 Cal.4th 903, 916-917.) We will
not disturb a trial court’s exercise of discretion under 352 unless it is shown that the trial
2 Section 1108 provides in part: “(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.”

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court exercised it “‘in an arbitrary, capricious or patently absurd manner.’” (People v.
Frye (1998) 18 Cal.4th 894, 948; accord, People v. Sanders (1995) 11 Cal.4th 475, 512.)
The court’s ruling admitting the prior sex offenses was not an abuse of discretion.
Martinez contends that evidence of his prior consensual sex acts with teenaged girls was
not probative of Martinez’s propensity to sexually abuse 10 to 12 year old girls. While
we agree that there are obvious differences between the prior sex offenses and the
charged offenses, Evidence Code section 1108 contains no predicate requirement that
there be an unusually high degree of similarity. As this court noted in People v. Soto
(1998) 64 Cal.App.4th 966, the Legislature deliberately chose not to add a similarity
requirement to Evidence Code section 1108 because doing so could reintroduce the
strictures of prior law which the statute was designed to overcome “‘and could often
prevent the admission and consideration of evidence of other sexual offenses in
circumstances where it is rationally probative. Many sex offenders are not “specialist”,
and commit a variety of offenses which differ in specific character.’” (People v. Soto,
supra, 64 Cal.App.4th at p. 984, quoting Historical Note, 29B pt. 3, West’s Ann. Evid.
Code (1998 pocket supp.) foll. § 1108, pp. 31-32.) Thus, evidence can be presented to
permit a “reasonable inference” that “the defendant has a disposition to commit sex
crimes from evidence the defendant has committed other sex offenses.” (People v.
Reliford (2003) 29 Cal.4th 1007, 1012 (Reliford).)3
Martinez nevertheless contends that the ruling was an abuse of discretion because
he maintains the prior sex offenses had no probative value to the charged offenses, and
thus there was nothing to balance the prejudice in allowing the jury to consider the
evidence. We disagree. Evidence that Martinez had engaged in sex acts with under-aged
3 The Supreme Court specifically left open the issue of “whether the uncharged sex
acts must be similar to the charged offenses in order to support the inference.” (Reliford,
supra, 29 Cal.4th at p. 1012, fn. 1.)

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girls is probative of the current charges that he sexually abused and engaged in sex acts
with his under-aged stepdaughter. This evidence tended to support the victim’s claim
that Martinez sexually abused her. (See People v. Fitch (1997) 55 Cal.App.4th 172, 182
[“The Legislature has determined the need for this evidence is ‘critical’ given the serious
and secretive nature of sex crimes and the often resulting credibility contest at trial.”].)
The trial court did not abuse its discretion in allowing the jury to consider the prior sex
offenses.
II.
CALJIC No. 2.50.01
Martinez next complains that he was prejudiced by the court instructing the jury
that it could consider the evidence of Martinez’s prior sex offenses to show propensity to
commit sexual offenses, pursuant to CALJIC No. 2.50.01 (2002 rev.).4 He contends that
this instruction improperly allowed the jury to convict him on evidence of prior crimes
that were proven by a preponderance of the evidence, and thus violated the due process
clause of the California and United States Constitutions.
4 The trial court instructed the jury pursuant to CALJIC No. 2.50.01 (2002 rev.) as
follows: “Evidence has been introduced for the purpose of showing that the defendant
engaged in a sexual offense on one or more occasions other than that charged in the case.
[¶ … ¶] If you find that the defendant committed a prior sexual offense, you may, but
are not required to, infer that the defendant had a disposition to commit sexual offenses.
If you find that the defendant had this disposition, you may, but are not required to, infer
that he was likely to commit and did commit the crimes of which he is accused. [¶]
However, if you find by a preponderance of the evidence that the defendant committed a
prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt
that he committed the charged offenses. If you determine an inference properly can be
drawn from this evidence, this inference is simply one item for you to consider, along
with all other evidence, in determining whether the defendant has been proved guilty
beyond a reasonable doubt of the charged crime. [¶] Unless you are otherwise instructed,
you must not consider this evidence for any other purpose.”

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8.
The California Supreme Court has rejected this contention. In Reliford, supra, the
Court proclaimed that “the 1999 version of CALJIC No. 2.50.01 correctly states the
law.” (Reliford, supra, 29 Cal.4th at p. 1009.) The Court rejected any suggestion the
instruction was likely to mislead the jury regarding the prosecution’s burden of proof.
(Id. at p. 1015.) The Court also rejected an argument that the instruction was too
complicated for jurors to apply. (Id. at p. 1016.)
The Reliford court noted that the 2002 revised version of the instruction instructs
the jury “that the inference they may draw from prior sexual offenses is simply one item
to consider, along with all other evidence, in determining whether the defendant has been
proved guilty beyond a reasonable doubt of the charged crime.” (Reliford, supra, 29
Cal.4th at p. 1015.) The court referred to this sentence as “an improvement,” explaining
that it “provides additional guidance on the permissible use of the other-acts evidence and
reminds the jury of the standard of proof for a conviction of the charged offenses.” (Id. at
p. 1016.) However, the court concluded that “the constitutionality of the instruction does
not depend on this sentence.” (Id. at p. 1015, fn. omitted.)
Here, the trial court used the 2002 revised version of CALJIC No. 2.50.01 which
was approved by the Supreme Court in Reliford. We are compelled to follow Reliford
and reject Martinez’s claim that CALJIC NO. 2.50.01 violates due process. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III.
Ineffective Assistance of Counsel
Finally, Martinez complains that his trial counsel provided ineffective assistance
because trial counsel did not challenge his sentence as unconstitutionally excessive in
light of Blakely. We initially rejected this claim concluding that Martinez could not show
prejudice because, under People v. Black (2005) 35 Cal.4th 1238 (Black), the term was
not unconstitutionally excessive.

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9.
Almost three weeks after we filed an opinion in this case, the United States
Supreme Court overruled Black and held that California’s Determinate Sentencing Law
“violates Apprendi’s bright line rule: Except for a prior conviction, ‘any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham
v. California (2007) 549 U.S. ___ [127 S.Ct. 856; 2007 WL 135687 at p. *11]
(Cunningham).) Thus, the middle term prescribed under California law, not the upper
term, is the relevant statutory maximum. (Ibid.)
Based upon Cunningham, Martinez filed a motion for relief from default and a
petition for rehearing. We granted the motion of relief from default, and modified the
sentence, and denied the petition for rehearing. Our decision to modify the sentence was
based upon well-established law that “‘[a]n appellate court is not restricted to the
remedies of affirming or reversing a judgment. Where the prejudicial error goes only to
the degree of the offense for which the defendant was convicted, the appellate court may
reduce the conviction to a lesser degree and affirm the judgment as modified, thereby
obviating the necessity for a retrial. (See Penal Code, § 1260; People v. Harris (1968)
266 Cal.App.2d 426, 434-435.)’ (People v. Alexander (1983) 140 Cal.App.3d 647,
666.)” (People v. Edwards (1985) 39 Cal.3d 107, 118.)
Like Cunningham, Martinez was convicted of violations of section 288.5,
subdivision (a) (count one) and section 288, subdivision (b)(1) (counts two, three, and
four). The court imposed an upper term of 16 years for count one, a consecutive upper
term of 8 years for count four and stayed imposition of sentence for counts two and three
pursuant to section 654. The upper terms were based on three aggravating factors: the
vulnerability of the victim, the crime involved an abuse of a position of trust or
confidence, and Martinez’s violent conduct, which indicated a serious danger to society.
None of these factors were found by a jury based on proof beyond a reasonable doubt.
Thus, we concluded that the aggravated sentence could not be supported by these factors.

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10.
The People subsequently filed a petition for rehearing. The People argued that we
should affirm the sentence because the trial court could have relied upon Martinez’s prior
convictions. We asked Martinez to file a response brief. In the response brief, Martinez
contended that our decision to modify the judgment was correct under Cunningham
given that the trial court did not rely upon the prior convictions as a basis for the
aggravated sentence even though the People specifically asked the trial court to rely upon
the prior convictions. After reviewing the petition and the response, we granted the
People’s petition for rehearing. We granted the petition because, while the United States
Supreme Court in Cunningham invalidated the process by which the trial court here
imposed the upper term, we cannot say for certain on this record that the same term may
not be imposed anew, consistent with Cunningham.
DISPOSITION
The convictions are affirmed. Accordingly, the judgment of sentence is vacated
with directions as follows: If the People do not bring the matter before the trial court for
a contested resentencing hearing within 60 days after the filing of the remittitur in the
trial court, the trial court shall proceed as if the remittitur constituted a modification of
the judgment to reflect a sentence of the middle term of 12 years for count one and
imposition of a consecutive middle term of 6 years on count four. The People shall in
writing notify the trial court and defendant’s trial counsel of their intentions in this regard
within 30 day after the filing of the remittitur; should the People state an intention to not
contest the modification to the middle term or fail to timely notify the trial court and

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unless the trial court on its own decides to set a resentencing hearing, the trial court shall
promptly modify the abstract of judgment as provided herein.
_____________________
Ardaiz, P.J.
WE CONCUR:
_____________________
Vartabedian, J.
_____________________
Wiseman, J.

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