People v. Martinez CA2/6

Filed 10/29/13 P. v. Martinez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245756 (Super. Ct. No. 2009015119) Plaintiff and Respondent, (Ventura County)

v.

ANDRES VARGAS MARTINEZ,

Defendant and Appellant.

Andres Vargas Martinez appeals a judgment following conviction of committing sexual intercourse with a child less than 10 years of age, and committing a lewd act with a child. (Pen. Code, §§ 288.7, subd. (a), 288, subd. (a).)1 We affirm. FACTUAL AND PROCEDURAL HISTORY In April 2009, L.G. lived with her husband and children, including six- year-old J. and seven year-old U., in a bedroom of a Thousand Oaks residence. As many as 16 or 17 people lived in the home, which L.G. likened to "an ant hill." Martinez resided in part of the living room and was "in charge" of the residence. On April 21, 2009, J. and U. were watching television in the living room while L.G. prepared dinner in the kitchen. Martinez and U. sat on the sofa and J. sat on the floor. Martinez directed J. to pull down her pants and underwear and sit on his lap. He then removed his penis from his pants, moistened it with saliva, and placed it against

1 All statutory references are to the Penal Code unless stated otherwise.

J.'s vagina. Martinez's hands touched J.'s vagina and buttocks. U. saw the incident and, at trial, described Martinez's actions. When L.G. went to the living room to check on her children, she saw J. "with her pants down, with her little underwear down, [and Martinez's] hand on her buttocks, and the other one on her vagina." L.G. saw Martinez's penis and his fingers touching J.'s vagina and breasts. Shocked by the sight of Martinez touching J., L.G. summoned her children and examined them. She found that J.'s vagina was "very red." L.G. called her brother and the police. L.G.'s brother then called J.'s teacher, Monica Guzman, who arrived at the residence shortly thereafter. Ventura County sheriff's deputies responded to L.G.'s call and Deputy Jerardo Gomez, a Spanish-speaking officer, spoke with L.G. Meanwhile, U. spoke with Guzman and stated that Martinez "took out the thing he uses to go pee pee with, and he asked my sister to pull down her pants." U. added, "This is not the first time it's happened. It's happened before." Guzman immediately relayed this information to an investigating officer. Subsequently, in a videotaped interview, U. physically demonstrated how J. sat on Martinez's lap and Martinez touched her. U. also stated that he saw Martinez's penis during the incident. Later that evening, Sergeant Anthony Aguirre, an official Spanish-language translator, interviewed J. in a videotaped interview. J. stated that Martinez partially removed his pants as well as her pants, "got out his thing," and placed his penis in her vagina, i.e., "put it in [her]." Deanna McCormick, a nurse trained to perform forensic medical examinations of sexual assault victims, examined J. in the late evening of April 21, 2009. McCormick noted that J. suffered from a fresh abrasion to her labia minor that could have been caused by penetration, masturbation, or a straddle injury. J. also had scar tissue and a notch on her hymen, consistent with "some type of penetration."