People v. Martinez

Opinion

ELKINGTON, J.

Defendant Martinez appeals from a judgment founded upon a jury’s verdicts finding him guilty of violations of Penal Code sections 288 (lewd and lascivious conduct with a child—count I), 288a, subdivision (c) (oral copulation with a person under the age of 14 years—count II), and 285 (incest—count III).

We affirm the judgment for reasons as follows:

The three appellate contentions are considered in the order, and as phrased, by Martinez.

I. Contention: “The failure of the trial court to require the prosecution to elect at the beginning of trial the particular acts on which it would rely to prove the allegations of the information constituted a denial of due process of law.”

The contention’s factual basis, as stated in Martinez’ appellate brief, follows. “In the case at bar, each of the two daughters of appellant

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Martinez testified to a number of sexual acts involving their father. Over defense counsel’s strenuous objections, the trial court permitted the prosecution to question the alleged victims and to elicit testimony about a number of sexual acts without requiring it to tell the jury the specific acts on which it was relying to prove the allegations of the information.

The trial court did require the prosecution to elect the incidents on which it was relying but only after all of the evidence had been virtually introduced.”

(Italics added.)

The record is misstated. Upon Martinez’ motion that the prosecutor elect the incidents relied upon, the prosecutor stated that the two complaining witnesses would testify as to the alleged criminal acts perpetrated upon them in chronological order, and that the first such act so testified to would, as to each count, be the incident relied upon. And at the conclusion of the prosecution’s case, the trial court so advised the jury.

The prosecutor and the court had faithfully followed the rule recently reiterated in