Filed 5/26/22 P. v. Martinez CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A162809
v.
FLEMIN FERNANDO (Napa County
MARTINEZ, Super. Ct. No.
19CR002944)
Defendant and Appellant.
Appellant Flemin Fernando Martinez was tried before a
jury and convicted of multiple sexual offenses against four
separate child victims. He contends that detectives were
erroneously allowed to testify that although appellant had made
several incriminating statements during a police interview
concerning his sexual contact with one of the victims, he was not
telling the whole truth because he denied having intercourse.
Appellant argues that this amounted to an improper lay opinion
regarding his truthfulness and his guilt of the one of the charges,
which requires the reversal of at least one of the counts. We
question whether this issue was adequately preserved, but in any
event, any error was clearly harmless. We affirm.
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I. BACKGROUND
Given the nature of the sole issue on appeal, a detailed
recitation of the facts is unnecessary. Suffice it to say that over a
several-year period, appellant sexually molested two nieces with
whom he lived (Jane Doe 1 and Jane Doe 3), one of their cousins
(Jane Doe 2) and a neighbor who came over to the house to play
(Jane Doe 4). The conduct began when the girls were as young as
seven or eight and continued until Jane Doe 1 (the eldest) was 16.
The last assault was committed as Jane Doe 1 was
preparing to go to work. Appellant forced her into his room and
had sexual intercourse with her. Later, Jane Doe 1 told a friend
that she had lost her virginity to her uncle, and that the sexual
contact had been happening since she was younger. The friend
told her own father, who called the police.
Detectives Barrera and Keown interviewed appellant,
assisted by Detective Dodd, who had interviewed three of the
victims. After appellant admitted having videos of the child
victims on his cell phone, the detectives searched the phone and
discovered several explicit videos of Jane Doe 1. One video
appeared to depict Jane Doe 1 and appellant having sex,
although it did not show penetration.
In the first interview with the detectives, appellant
admitted that he had “crossed the line” with Jane Doe 1, but
although he acknowledged caressing her, getting naked with her,
kissing her, and having oral sex, he denied penetration.
Detective Dodd employed a ruse whereby he put on some gloves,
picked up a cup from which appellant had been drinking, left the
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room, and then typed up a piece of paper stating that appellant’s
DNA was a positive match. Appellant was told that the DNA
evidence showed that he had penetrated Jane Doe 1, but he
continued to deny it. In a second interview the following day,
appellant admitted sexual acts with Jane Does 2, 3 and 4.
Appellant was charged by amended information with six
counts of lewd acts upon a child under the age of 14 against Jane
Doe 1 (Pen. Code, § 288, subd. (a)1; counts 1–6); two counts of oral
copulation/sexual penetration with a child under 10 years of age
against Jane Doe 1 (§ 288.7, subd. (b); counts 7–8); forcible rape
of Jane Doe 1 (§ 261, subd. (a)(2); count 9); two counts of lewd
acts upon a child under the age of 14 against Jane Doe 2 (§ 288,
subd. (a); counts 10–11); two counts of lewd acts upon a child
under the age of 14 against Jane Doe 3 (§ 288, subd. (a); counts
12–13); two counts of lewd acts upon a child under the age of 14
against Jane Doe 4 (§ 288, subd. (a); counts 14–15); using a minor
(Jane Doe 1) to pose for sex acts (§ 311.4, subd. (c); count 16) and
possessing matter depicting a minor engaged in sexual conduct
(§ 311.11; count 17). Several counts included special allegations
under the One Strike law and probation ineligibility statutes.
(§ 667.61, subds. (b), (e), (j)(2), 1203.65, subd. (a), 1203.066, subd.
(a)(7) & (8).) Appellant was sentenced to 195 years to life plus
two years in prison after a jury convicted him of all counts and
found the special allegations to be true.
1 Further statutory references are to the Penal Code.
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II. DISCUSSION
A witness may not offer opinion testimony about the
truthfulness of statements made by another person. (People v.
Melton (1988) 44 Cal.3d 713, 744 (Melton) [lay witness]; People v.
Coffman & Marlowe (2004) 34 Cal.4th 1, 82 (Coffman &
Marlowe) [expert witness].) Nor may a witness give an opinion
as to the guilt or innocence of the accused. (People v. Torres
(1995) 33 Cal.App.4th 37, 46–47.) Appellant contends that his
rights to due process and a fair trial were violated because
detectives testified that they had believed appellant was not
telling the whole truth during one of his police interviews.
Assuming error, reversal is not required.
Count 9 charged appellant with the forcible rape of Jane
Doe 1. In his interview with Detectives Barrera, Keown and
Dodd, appellant admitted committing several sexual acts with
Jane Doe 1, but he maintained that he did not rape her and that
there had been no penetration of her vagina with his penis. The
detectives employed a ruse to try to get him to admit penetration,
by pretending to take his water cup away to be tested for DNA
evidence and then falsely telling him the evidence showed there
had been penetration. After the ruse, appellant acknowledged
that his penis might have hit Jane Doe’s vagina, but he continued
to maintain there had been no penetration.
Detective Dodd testified at trial about the reason for the
DNA ruse: “He was providing some information to Detective
Barrera about being partially naked with I believe it was [Jane
Doe 1]. And he was telling some of the truth, but not all of it.”
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Dodd continued, “When [appellant] started to tell the truth, he
was somewhat all the way there, but he hadn’t told us everything
that had happened.”
Detective Barrera echoed this explanation for the DNA
ruse: “So we used it in this case because one, as we were—as I
was interviewing the defendant, he was giving me disclosures,
kind of like in segments. [¶] He was giving, you know, first it
started with the touching, then the cuddling. After making the
initial disclosure about the Saturday incident, we knew—I knew
about [Jane Doe 1]’s statement prior to that. And it—it just
seemed like he wasn’t giving the entire truth to us, because it
kept getting worse, kept going from cuddling, to then touching
over the clothes, to then being nude. [¶] So it was decided that
we were going to do the DNA ruse to either see if he was going to
deny having sex with [Jane Doe 1], or continue denying it or
would just provide a statement as to how. . . she had been
raped.”
Appellant claims this testimony was an opinion about both
the truthfulness of his statements and his guilt of the rape
charged in count 9, and as such was inadmissible. We assume,
for the sake of argument, that appellant is correct on this point.2
2 The Attorney General argues that lay opinion regarding
truthfulness is not categorically inadmissible when it is based on
personal knowledge of the witness and may assist the jury in
assessing credibility. We need not decide whether this is a
correct interpretation of the law or whether it rendered the
evidence admissible in this case because the detectives knew of
the victims’ statements and the explicit videos of Jane Doe 1
when they interviewed appellant.
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But he did not object to this testimony on the ground of an
improper opinion (or on any other ground) and he has therefore
forfeited his arguments on appeal. (People v. Chatman (2006) 38
Cal.4th 344, 397 [defendant who did not object to a witness’s
observation of defendant’s mental state as improper opinion
testimony cannot raise claim on appeal].) And even if we were to
address his arguments on their merits to forestall his alternative
claim of ineffective assistance of counsel in failing to object
(People v. Scaffidi (1992) 11 Cal.App.4th 145, 151), we would
reject the claim that reversal is required.
The erroneous introduction of opinion evidence is subject to
the standard of review for state law error. (Coffman & Marlowe,
supra, 34 Cal.4th at p. 76.) We will reverse the judgment only
when there has been a miscarriage of justice—when it is
“reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see Melton,
supra, 44 Cal.3d at p. 745 [finding no miscarriage of justice in
evidence suggesting a witness found a statement unworthy of
belief].)
As appellant appears to recognize, the detectives’ testimony
about their belief that appellant was minimizing his conduct by
denying penetration pertains directly only to the forcible rape
charged in count 9. Even if we assume it could have affected the
other counts, the other evidence on all the counts was
overwhelming. The victims’ testimony was compelling and, with
the exception of Jane Doe 1’s testimony regarding penetration,
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was uncontradicted. Appellant made statements to the
detectives admitting the sexual conduct constituting the offenses
other than the rape of Jane Doe 1, and he did not present any
evidence at trial which suggested there was some basis for
mistrusting the victims or for disregarding his admissions. The
jury saw the videos of Jane Doe 1 that appellant kept on his
phone, one of which appeared to depict sexual intercourse, even if
the actual penetration was not captured on film.
“The jury’s exposure to the unsurprising opinions of the
investigating [detectives] that [they] believed the person charged
with the crimes had committed them, and was untruthful in
denying his guilt, could not have influenced the verdict—
especially in light of the overwhelming evidence against
[appellant].” (People v. Riggs (2008) 44 Cal.4th 248, 300–301.)
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
JACKSON, P.J.
SIMONS, J.
People v. Martinez / A162809
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