People v. Martinez CA3 ( 2021 )

Filed 1/27/21 P. v. Martinez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C089269
Plaintiff and Respondent, (Super. Ct. No.
STK-CR-FE-2018-0002284)
v.
JOE HENRY MARTINEZ, JR.,
Defendant and Appellant.
A jury found defendant Joe Henry Martinez, Jr., guilty of possessing child
pornography. The trial court sentenced him to the middle term of two years in state
prison. On appeal, defendant contends the trial court abused its discretion in admitting
evidence of uncharged conduct under Evidence Code section 1101 resulting in the
violation of his right to due process. We conclude the trial court did not abuse its
discretion and affirm the judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
In December 2017, Sergeant Andrew Theodore conducted a proactive search of
Internet protocol (IP) addresses in San Joaquin County for files containing images of
children being sexually abused. He received notification of an IP address that contained
“images of infants slash toddlers and prepubescent children being sexually assaulted.”
There were approximately 4,669 files, 4,645 of those files were “of investigative interest
regarding child exploitation.” Theodore was able to download 207 of those files. He
confirmed those files to be images of children being sexually exploited and abused. (One
hundred of those images would later be shown to the jury.)
Sergeant Theodore confirmed the IP address was registered to defendant.
Theodore then obtained a search warrant for defendant’s home, where he lived with his
wife and three minor children. He, along with other officers, executed that warrant on
February 14, 2018.
In the master bedroom of defendant’s home, the officers found a desktop
computer. Just below the computer’s screen, on the left, the officers also found a “thumb
drive.” An initial screening of the thumb drive revealed images of children being
sexually exploited and abused. The officers screened other devices in the home and none
of the other devices outside of the master bedroom contained similar images.
After advising defendant of his Miranda1 rights, Sergeant Theodore interviewed
defendant. Defendant told Theodore the computer in the master bedroom was his.
Defendant said his wife did not use the computer in the master bedroom and she had her
own computer in the living room. Theodore also found a laptop computer in the home,
which defendant identified as his daughter’s.
1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
2
Sergeant Theodore focused his investigation on the computer and the thumb drive
found in the master bedroom. The computer contained a program used to share files
depicting child exploitation. The computer’s operating system had only one user
assigned to it: “Joey.” The computer also had files with defendant’s name, including a
file on the computer’s hard drive, created in the word processing program and signed by
“Joe Martinez.” Theodore also found “various stories that were in the same text format”
depicting children being sexually exploited by an adult.
Included in those stories was a story titled “My Little Shower Mate 1.” The nearly
24-page-long story describes in graphic detail an adult man repeatedly sexually abusing
his 11-year-old stepdaughter over a period of months, including his increased sexual
arousal when she is scared or in pain.
Sergeant Theodore’s investigation revealed the thumb drive found near the
computer in the master bedroom had, in fact, been plugged in to that computer. The
thumb drive contained no fewer than 17,000 visual depictions of child sexual abuse and
exploitation, including videos and still photographs of children under the age of 12 being
sexually assaulted. Images of a female child between three and four years old being
sexually assaulted by two adults, a man and a woman, were also on the thumb drive. In
the computer’s recycle bin, Theodore found another 20-30 photographs depicting the
exploitation of children. At trial, Theodore testified these images had to be moved
intentionally to the thumb drive and the recycle bin.
Defendant was subsequently arrested, and the People charged him with a single
count of possessing child pornography, to which he pleaded not guilty. (Pen. Code,
§ 311.11, subd. (a).) Before trial, defendant moved to exclude admission of “My Little
Shower Mate 1” (the story) from evidence. The People argued the story demonstrated
that defendant was a person who collected this particular genre of child exploitation and
abuse. Thus, the story was evidence that defendant did not possess visual images of
children being exploited and abused by adults on accident.
3
Defendant argued the story was inadmissible character evidence. The story, he
asserted, could only demonstrate that defendant “had the character to view these
things . . . .”
The trial court ruled the story was admissible only to show lack of mistake and
instructed the jury accordingly.
The jury found defendant guilty as charged. The trial court sentenced defendant to
the middle term of two years in state prison.
DISCUSSION
Defendant contends the trial court abused its discretion in admitting into evidence
“My Little Shower Mate 1,” a story describing the repeated sexual abuse of a child by her
stepfather that was found on his computer. The trial court admitted the story over
defendant’s objection, finding it relevant to prove lack of mistake under Evidence Code
section 1101. Defendant now argues the evidence was not admissible to prove lack of
mistake because he never put into issue that his conduct was the result of inadvertence or
mistake. He further argues that even if the evidence were relevant, its prejudicial impact
outweighed its probative value and should have been excluded under Evidence Code
section 352. These errors, defendant contends, resulted in a violation of his right to due
process. We are not persuaded.2
A. Applicable Legal Principles
Generally, the prosecution may not use a defendant’s uncharged conduct as
evidence of a disposition to commit a charged criminal act. (Evid. Code, § 1101,
subd. (a).) But such evidence is admissible “when relevant to prove some fact . . . such
2 The People contend defendant has forfeited his claim. Defendant responds: if the
claim was forfeited, then he received ineffective assistance of counsel at trial. Because a
claim for ineffective assistance of counsel would likely require us to address the merits of
defendant’s claim anyway, we address the merits of defendant’s claim without deciding
whether the issue was forfeited.
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as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
or accident . . . other than his or her disposition to commit such an act.” (Evid. Code,
§ 1101, subd. (b).)
Because evidence of other conduct may be highly inflammatory, the admission of
such evidence must “ ‘ “not contravene other policies limiting admission, such as those
contained in Evidence Code section 352.” ’ [Citation.]” (People v. Lewis (2001)
25 Cal.4th 610, 637.) Under Evidence Code section 352, the probative value of a
defendant’s prior act must not be substantially outweighed by the probability that its
admission would create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404; Evid. Code, § 352.)
“We review for abuse of discretion a trial court’s rulings on relevance and admission or
exclusion of evidence under Evidence Code sections 1101 and 352.” (People v. Cole
(2004) 33 Cal.4th 1158, 1195.)
In order to convict a person under Penal Code section 311.11, subdivision (a), the
prosecution must prove beyond a reasonable doubt that a person possessed or controlled
in any manner, representation of information, data or image, namely photos or videos,
that contained or incorporated in any manner, any film or filmstrip, the production of
which involved the use of a person under the age of 18, personally engaging in or
simulating sexual conduct; and that the person who possessed or controlled that matter
knew that a person depicting in engaging in or simulating sexual contact was under the
age of 18.
B. Analysis
Defendant’s possession of “My Little Shower Mate 1” was relevant to prove it
was not a mistake that defendant also possessed sexually explicit photos of children on
his computer. The presence of the story on defendant’s computer provided context for
defendant’s crime. The graphic, written description of an adult man sexually abusing a
child demonstrates that the presence of photographs depicting the sexual abuse of
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children was not an accident or mistake, but rather an intentional acquisition by a person
who collects depictions of children being sexually abused.
Notwithstanding defendant’s argument to the contrary, whether defendant knew
the photos he possessed depicted the sexual abuse of children was at issue. A
“[d]efendant’s not guilty plea put[s] in issue all of the elements of the offense[]” and even
if an element of the crime is conceded by the defendant at trial, “the prosecution is still
entitled to prove its case and especially to prove a fact so central to the basic question of
guilt as intent.” (People v. Steele (2002) 27 Cal.4th 1230, 1243; see Pen. Code, § 1019.)
The uncharged evidence was related to the charged offense, in that both involved
depictions of children being sexually abused by adults. Moreover, possession of the story
describing the sexual abuse of a child by her stepfather was no more serious or disturbing
than the 100 photos depicting the sexual abuse of children that were presented to the jury.
The story carried no more than the prejudice inherent in any uncharged conduct. Thus, in
light of the relevance of the evidence, it was not an abuse of discretion to admit it.
Because the evidence was properly admitted, defendant’s due process contention
is without merit. (See People v. Johnson (2015) 61 Cal.4th 734, 763 [“when evidence is
properly admitted under the Evidence Code, there is no violation of due process”].)
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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
MAURO, J.
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