People v. Martinez

246 Cal. Rptr. 3d 442, 34 Cal. App. 5th 721
California Court of Appeal, 5th District·Decided April 24, 2019·No. 2d Crim. No. B289639·Published·Cited by 12 cases

Opinion

TANGEMAN, J.

*723Sometimes a witness wears two hats: that of a witness, and that of an accomplice. California law permits placing the burden to prove such a witness's accomplice status on a defendant. ( People v. Tewksbury (1976) 15 Cal.3d 953, 963-968, 127 Cal.Rptr. 135, 544 P.2d 1335 ( Tewksbury ).) This is because, in general, whether a witness is an accomplice is not an element of the defendant's crimes. ( Id . at p. 965, 127 Cal.Rptr. 135, 544 P.2d 1335.) But certain crimes, such as sexual penetration in concert and rape in concert, require proof that the defendant acted with an accomplice. (See Pen. Code,1 § 264.1, subd. (a).) Because the witness's accomplice status is an element of these crimes, the prosecution must bear the burden to prove that status beyond a reasonable doubt. (See Tewksbury , at pp. 963-964, 127 Cal.Rptr. 135, 544 P.2d 1335.) The portion of CALCRIM No. 334 that instructs the jury otherwise-i.e., that tells jurors that the burden is on the defendant to prove that it is more likely than not that *444the witness was an accomplice-should be omitted when the defendant is charged with in concert crimes.

Jesus Efrain Martinez appeals from the judgment after a jury convicted him of sexual penetration in concert ( §§ 264.1, subd. (a) /289, subd. (a)(1)(A) ) and *724rape in concert ( §§ 264.1, subd. (a) /261, subd. (a)(2) ). The trial court sentenced him to 18 years in state prison. Martinez contends the judgment should be reversed because the jury instructions lowered the prosecution's burden of proof. We affirm.

FACTUAL AND PROCEDURAL HISTORY

M.C. lived in Santa Barbara. In February 2016, M.C. went to a party. When she arrived, about 10 to 15 people were there, including Martinez and Bailey Smith. M.C. had met both men previously.

Around 4:00 a.m., people started to leave the party. M.C. invited Martinez and Smith back to her apartment. Once they arrived, the trio drank liquor and played "Truth or Dare." During the game, they took "body shots"2 and dared each other to remove layers of clothing.

M.C. grew uncomfortable, so she suggested they all go out to the patio. M.C. put on sweatpants and gave each man a cigarette. As they walked to the patio, Smith and Martinez grabbed M.C. and moved her to a bed. Smith lay on the bed, with M.C. above him. Martinez stood behind them. M.C. struggled to get free as she straddled Smith.

Martinez pulled down M.C.'s sweatpants and told Smith to "hold her down." M.C. told them to stop. Smith held M.C. and told Martinez to "go at it." Martinez penetrated her vagina with his fingers and penis, and bit her buttocks. Smith also put his fingers in M.C.'s vagina. He put his hand over M.C.'s mouth when she tried to scream.

M.C.'s vagina, hips, and arms were in pain. She realized she could not get away from the men so she gave up fighting. The assault ended when Martinez went to the bathroom with a bloody nose.

M.C. asked Smith if she could go to her car to get a pack of cigarettes. When he agreed, she went outside, got into her car, and drove to a friend's house. She cried the whole way.

M.C. called 911 from her friend's house. She described Martinez and Smith, and told the operator she had scratched Smith and bit his shoulder. M.C. appeared distraught when police arrived. She told the responding officer she had been raped by two men at her apartment. She described Martinez and Smith. The officer transmitted their descriptions and M.C.'s apartment location to other officers.

*725Several officers responded to M.C.'s apartment. They found Martinez and Smith asleep inside. Smith had scratches on his face, neck, and chest, and circular marks on his shoulder and chest. Martinez had blood on his chin and neck. Both men appeared to be intoxicated.

When an officer asked Smith why there were scratches on his body, he replied, "She likes to scratch." Martinez told the police, "We-we really didn't do nothin'. I'm still questionin' why you guys are here." A detective replied they were trying to figure out why the men were in an apartment that was not theirs. Smith said, " 'Cause we were tryin' to work a threesome with like a beezy."

M.C. identified Martinez and Smith as the men who raped her. Police arrested them. Smith said, "Bitch wasn't worth it.

*445She was square as fuck." In the patrol car Smith denied that he had sex with M.C.

A detective interviewed Martinez at the police station. Martinez denied that he had sex with M.C. He could not remember her or Smith's name. The detective collected DNA from Martinez's body, including from his penis. Before the detective swabbed it, Martinez wiped his penis with his hand.

M.C.'s DNA was under Martinez's fingernails. It was consistent with digital penetration. Her DNA was also on his penis. The high amount of M.C.'s DNA found on Martinez's penis indicated that it came from body fluids. It was consistent with vaginal intercourse.

The same detective interviewed Smith. Smith told the detective that he went to the apartment of "some beezy that, uh, [he] and the other homie met." He said he did not remember Martinez's name, and explained that he did not "want to know somebody's name when [he was] trying to work a threesome."

Smith said he played a drinking game with M.C. and Martinez. At one point they were all naked. He put his fingers in M.C.'s vagina, but did not have sex with her. M.C. left the bite marks and scratches on his body. Her DNA was on his fingers and under his fingernails.

Smith claimed he did not know why M.C. called the police. He believed she enjoyed herself. He did not remember her saying "no" or "stop" at any point.

After the detective told him the encounter appeared nonconsensual, Smith "start[ed] to question everything." He could not think of a reason M.C. would lie. He said he probably stopped participating "if it was like rapey" or "if [M.C.] did say 'no.' "

*726Police left Martinez and Smith in a room together as they awaited transport to jail.

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People v. Martinez, 246 Cal. Rptr. 3d 442, 34 Cal. App. 5th 721 (Cal. Ct. App. 2019).

246 Cal. Rptr. 3d 442 (People v. Martinez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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