(Super. Ct. No. SF113022A)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Manuel Martinez was charged with molesting two of his daughter's friends, H. and R. A jury found him guilty of two counts of committing lewd acts on H. and one count of annoying or molesting R. (which was when R. participated in giving defendant a back massage).
On appeal, defendant raises the following four contentions: (1) there was insufficient evidence he annoyed or molested R.; (2) the court erred in excluding the testimony of H.'s fifth grade teacher; (3) the court erred in admitting rebuttal evidence that he molested his niece Y.; and (4) the court erred in refusing to excuse Juror No. 4. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution's Case-In-Chief
Defendant was raising his 11-year-old daughter J. alone in a house they lived in together. At the time of the charged molests, J. was in fifth grade with her friends H. and R., who were about the same age.
H. and J. became friends in teacher L.B.'s fifth grade class, and H. started going over to J.'s house in the winter of that year, 2008. H. was 10 years old at the time. During one visit, perhaps the first, defendant had H. sit on his lap and he put his hands underneath her clothes, touching her near her breasts and pubic area. H. told J. what her father had done, and J. responded, " 'Yeah, he does that to all my friends.' "
Another time, defendant took H. and J. to a movie and then to the Dollar Tree where defendant bought H. some trinkets. Upon returning to J.'s house where H. was going to spend the night, defendant touched H. underneath her clothes near her breasts and pubic area. Later that night, defendant suggested J. and H. rub lotion on his back, and they complied. The girls were on defendant's bed when this happened and defendant was lying down shirtless on his stomach. The girls then went to sleep on the floor in defendant's bedroom.
The last incident with H. occurred when defendant took H. and J. to the snow. H.'s clothes got wet while she was climbing up a mountain, so she went back into defendant's truck to change clothes. While she was changing, she saw defendant looking inside the truck, watching her change, which made her uncomfortable.
Later that day, H. told her sister and her sister's friend about "what happened" and her sister told their mother, who in turn called police. When San Joaquin County Sheriff Deputy Robert Cleary responded, H.'s mother said she had information that "this had happened to other girls as well."
H. told San Joaquin County Sheriff Deputy Nicholas Moreno, Jr., during an interview at the Child Advocacy Center that defendant had also molested three of her friends and J. During an interview, J. told San Joaquin Sheriff Deputy Nelida Stone that H. said defendant had touched H., but J. did not know of her father touching anyone else.
H.'s fourth grade teacher was Laura Viss. During the first quarter of the school year, Viss wrote the following on H.'s report card: H. " 'needs to remember . . . to be telling the truth at all times.' " Viss explained at trial that H. "had a tendency to lie over everything; small things, big things, it got to the point where I couldn't rely on [H.'s] word." The small things were why she did not get her homework done or what happened to her pencil or textbook. The big things were " 'problems out on the playground for the most part, name calling and swearing.' " The situation improved after H. was put on medication, which Viss knew H. was on through the end of fourth grade.
R. was another one of J.'s fifth grade classmates who spent time at J.'s house, including sleeping over. One time, when R. was 10 years old, defendant took R. and J. to a movie and then dinner. When they got home, defendant went into his room to watch television, and the girls went into the living room to play. The girls then came into defendant's room and continued playing. Defendant, who by then was wearing only a pair of exercise pants, told J., " 'Oh, my back hurts.' " J. responded, " 'Okay. I'm going to give you a massage.' " J. and R. began rubbing defendant's back with lotion while defendant was on his bed lying face down on his stomach. R. could not remember whose idea it was for her to help. R. felt uncomfortable. After the girls were done massaging defendant's back, all three went to sleep on defendant's bed.
About one to two months before the massage, defendant took J. and R. to Wal-Mart and bought them each an outfit. He then took the girls out to dinner. At some point, defendant asked R. to call him " 'daddy.' " She did so, which upset R.'s father when he heard R. talking to defendant on R.'s cell phone and referring to defendant as "daddy."
David Love testified regarding child sexual abuse accommodation syndrome. The syndrome consists of the following five symptoms that children who have been molested may display: secrecy, helplessness, entrapment, delayed disclosure, and retraction. Love described the syndrome generally and had no information about this case.
Defendant testified on his own behalf. He was a laborer who often had a sore back. When his back was sore, J. "want[ed] to help [her father]" relieve his pain, so she would volunteer to rub his back. The night R. helped rub his back, R. was the one who asked to help. H. never gave him a back rub. He never put his hand up H.'s shirt or down her pants.
In addition to his own testimony, defendant presented a number of character witnesses. E. was J.'s classmate who had been to J.'s house multiple times and spent the night, and nothing happened between E. and defendant. Both of E.'s parents knew defendant and never saw him do anything that caused them concern. Both of defendant's employers never saw him behave inappropriately with any girls. Defendant's brother and ...