People v. Martinez

• Decision Date: 06 September 2017
• Docket Number: F071323
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ROGELIO MATA MARTINEZ et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent, v. ROGELIO MATA MARTINEZ et al., Defendants and Appellants.

F071323

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

September 6, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. VCF284117A, VCF284117B & VCF284117C)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Mata Martinez.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant Armando Mata.

Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Mata.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Following a joint jury trial, defendants Rogelio Mata Martinez (Martinez), Rogelio Mata, and Armando Mata were convicted as follows:

Martinez

Count 1: Lewd act (pulling down pants) on Va., a child under 14 (Pen. Code,¹ § 288, subd. (a));

Count 2: Lewd act involving substantial sexual conduct (penis to body) on Va., a child under 14 (§§ 288, subd. (a), 1203.066, subd. (a)(8));

Count 3: Attempted sodomy by a person 18 years of age or older with Va., a child 10 years of age or younger (§§ 288.7, subd. (a), 664);

Rogelio Mata

Count 4: Forcible lewd act involving substantial sexual conduct (penis to vagina, first time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));

Count 5: Forcible lewd act involving substantial sexual conduct (penis to vagina, next time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));

Count 6: Forcible lewd act involving substantial sexual conduct (penis to vagina, last time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));

Count 7: Forcible lewd act involving substantial sexual conduct (penis to buttocks, first time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));

Count 8: Forcible lewd act involving substantial sexual conduct (penis to buttocks, next time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));

Count 9: Forcible lewd act involving substantial sexual conduct (penis to buttocks, last time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));

Count 10: Forcible lewd act (mouth to breast, first time) on Va., a child under 14 (§ 288, subd. (b)(1));

Count 11: Forcible lewd act (mouth to breast, next time) on Va., a child under 14 (§ 288, subd. (b)(1));

Count 12: Forcible lewd act (mouth to breast, last time) on Va., a child under 14 (§ 288, subd. (b)(1));

Count 13: Forcible lewd act involving substantial sexual conduct (finger to vagina) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));

Armando Mata

Count 14: Digital penetration (first time) by a person 18 years of age or older with Va., a child 10 years of age or younger (§ 288.7, subd. (b));

Count 15: Digital penetration (last time) by a person 18 years of age or older with Va., a child 10 years of age or younger (§ 288.7, subd. (b));

Count 16: Lewd act involving substantial sexual conduct (finger to vagina, first time) on Va., a child under 14 (§§ 288, subd. (a), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b));

Count 17: Lewd act involving substantial sexual conduct (finger to vagina, last time) on Va., a child under 14 (§§ 288, subd. (a), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b));

Count 18: Lewd act (hand to buttocks) on Va., who was 14 years old, by a person at least 10 years older (§ 288, subd. (c)(1));

Count 19: Lewd act (hand to breast) on Va., who was 14 years old, by a person at least 10 years older (§ 288, subd. (c)(1)); Count 20: Attempted forcible lewd act on Va., a child under 14 (§§ 288, subd. (b)(1), 664);

Count 21: Sexual intercourse by a person 18 years of age or older with Vi., a child 10 years of age or younger (§ 288.7, subd. (a));

Count 22: Forcible lewd act involving substantial sexual conduct (penis to vagina) on Vi., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b));

Count 23: Forcible lewd act involving substantial sexual conduct (hand to vagina) on Vi., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b)).

Martinez was sentenced to a total of 11 years in prison. Rogelio Mata was sentenced to a total of 80 years in prison. Armando Mata was sentenced to a total of 12 years eight months plus 55 years to life in prison. All were ordered to pay various fees, fines, and assessments, and to register as sex offenders.

Defendants now contend they should not have been jointly tried, and that they are entitled to reversal due to cumulative error. Martinez also claims (1) count 3 must be reversed on ex post facto grounds, (2) defense counsel was ineffective for failing to object to admission of the portion of Rogelio Mata's police interview that directly incriminated Martinez, (3) he was denied a fair trial by the inclusion of irrelevant and inflammatory information in Va.'s testimony, (4) the sentence on count 1 should have been stayed pursuant to section 654, and (5) defense counsel was ineffective for failing to object to the consideration of two factors in aggravation that were not supported by substantial evidence. Rogelio Mata and Armando Mata claim their trial attorneys were ineffective for failing to object to or seek suppression of their confessions based on inadequate Miranda² advisements. In addition, Rogelio Mata contends (1) there was insufficient evidence his crimes were committed by force, violence, duress, menace, or threat, and (2) resentencing is required because there was insufficient evidence the offenses were committed on separate occasions, as required for full consecutive sentencing under section 667.6, subdivision (d). Armando Mata contends his convictions on counts 14 and 15 were not supported by substantial evidence. We conclude Martinez must be resentenced due to section 654 error, while Rogelio Mata's sentence on counts 9 through 13 must be vacated and remanded for resentencing due to insufficient evidence of separate occasions. We otherwise affirm as to Martinez and Rogelio Mata, and affirm the judgment in its entirety as to Armando Mata.

FACTS

Va. was born in 1998. Martinez was her father. Rogelio Mata and Armando Mata were two of her brothers. At the time of events, Va., Martinez, Rogelio Mata, and other family members resided together in Tulare County. Armando Mata sometimes stayed at the house while visiting from Washington.

Va. recalled that when she was about six or nine years old, she was napping on the floor in the kitchen area. Her mother was at the dining table nearby. Va. heard Martinez, whose walk she recognized, come into the kitchen. All of a sudden, Va., who was "like mid sleeping, mid awake," felt Martinez, who was drunk, pull down her pants. He pulled his pants down, too, and she felt his penis touch her buttocks. Her mother became aware and got mad at Martinez and asked why he was doing that. She then asked Va. why Va. did not wake up faster and tell her. She was angry and yelling. Va. thought she was angry at Va., and did not say anything about Martinez's penis touching her buttocks because she was scared to tell.³

On two occasions, Va. was sleeping in bed when she woke to find the mattress wet and white, slimy stuff — which she now knew was sperm — on the blanket. On one of these occasions, there was a soggy adult-sized T-shirt on the bed. It had not been there when Va. fell asleep that night. The shirt could have belonged to Martinez or to one of Va.'s brothers. Va. was sleeping in pants and a shirt. Her pants were loose but had not been pulled down. Va. never found a bandage on her bed that came from Martinez's prosthetic leg.⁴ Sometimes when she woke, she would find her pants on only one leg, whereas they had been on both legs when she went to sleep. This happened when she was in seventh or eighth grade, so she would have been about 11 or 12 years old.

When Va. was in sixth grade to around eighth grade, Rogelio Mata would show her pornography and then take her to his room.⁵ He had four bricks near the door to his room to keep people from going in to play with his Xbox, and he would put them against the door. He would then pull down both their pants. Although he did not put his penis inside Va., it would touch her vagina and buttocks. Sometimes he was on top of her, while other times he was behind her as she lay on her side. Other times, she was on her hands and knees on the floor with him behind her. This happened more than five times. He also touched her vagina with his finger and her breasts with his hands. This also happened more than once. He touched his mouth to her breast more than five times. This happened in her room or in his room or on the sofa. Rogelio Mata, who was about six or seven years older than Va. and who had always been bigger than her, would tell her not to tell anyone, or he would tell their parents something. Va. knew he would make something up. He would also tell her that he would hurt her. Although he did not say how, sometimes he would lift up his fist or get the BB rifle that he had in his room. Sometimes he had that gun in his hands, and pointed it at her and threatened to shoot her, when he...