People v. Martinez CA6

Filed 1/23/14 P. v. Martinez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038317 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F21962)

v.

QUINTILO URBANO MARTINEZ,

Defendant and Appellant.

Defendant Quintilo Urbano Martinez was convicted after jury trial of dissuading a witness from reporting a crime, and misdemeanor battery. (Pen. Code, §§ 136.1, subd. (b)(1); 242).1 On appeal, defendant asserts instructional error related to the battery conviction,2 and error related to the no-contact order imposed by the court. STATEMENT OF THE FACTS AND CASE N.B. was married to defendant for seven years. She met defendant when her daughter, S. was two-and-one-half years old. In December 2011, S. was around eight- years old. S. told N.B. that she no longer wanted to call defendant “Dad,” and that she

1 All further unspecified statutory references are to the Penal Code. 2 In defendant’s opening brief, he argued instructional error with regard to the dissuading a witness charge in addition to the arguments addressed in this opinion. However, prior to the Attorney General filing its response brief, defendant withdrew the argument related to dissuading a witness.

and her siblings wanted N.B. to leave defendant. N.B. tried to talk to S. to see if something happened between her and defendant. Eventually, S. told N.B. that defendant had touched her a few days prior. S. said that she was trying to sleep, but her brother was bothering her. Defendant told S. to come and sleep in his bed. S. went to defendant’s bed, and fell asleep there, awakening when she felt defendant’s hand in her underpants. S. jumped out of bed and ran to the kitchen. Defendant followed S., and said that if she told anyone about what happened, he would go to jail and would die there. Defendant stated that on the day of the incident, he and the children went to bed to take a nap. He awoke to hear the children arguing. Defendant separated them, and told S. she could sleep in his bed with him. S. lay down in the bed, and defendant’s back was to her. Defendant went to sleep on his side, and as he rolled over he accidentally touched S. between her legs and over her clothes. S. woke up and became upset. Defendant stated he had no sexual intent. Defendant was charged with lewd act on a child (§ 288, subd. (a)), and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)). The information also alleged substantial sexual conduct with regard to the lewd act. (§ 1203.066, subd. (a)(8)). Defendant was tried by a jury and acquitted of the lewd act count, but found guilty of the lesser offense of misdemeanor battery (§ 242). Defendant was also found guilty of dissuading a witness (§ 136.1, subd. (b)(1)). Defendant was sentenced to three years in state prison on the dissuading count, and 180 days in county jail on the battery charge, to run concurrent. DISCUSSION On appeal, defendant asserts instructional error related to lesser included offense of battery, and error in regard to the no contact order imposed by the court.