People v. Martinez CA4/3

Filed 8/22/14 P. v. Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047876

v. (Super. Ct. No. 11CF2795)

CLAUDIO HUERTA MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. David L. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. * * *

INTRODUCTION Defendant Claudio Huerta Martinez was convicted of three counts of sex offenses against a minor. On appeal, defendant argues that his convictions must be reversed because a juror, in violation of the court’s instructions, conducted independent research regarding punishment, constituting prejudicial juror misconduct. Having reviewed the record independently, we conclude that, even if misconduct occurred, it was not prejudicial. We therefore affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY All acts of molestation by defendant against the victim occurred when the victim was between six and eight years of age. The victim was a friend of defendant’s son. She would go to defendant’s apartment to play video games or play outside with defendant’s son. When the victim was about six years old, defendant began molesting her. On the first occasion, defendant grabbed the victim, who was sitting on the floor playing video games, and pulled her onto a bed. Defendant touched the victim’s chest through her shirt, removed his own pants, and told the victim to be quiet and not to be scared. On that occasion, defendant did not sexually penetrate the victim. Another time, defendant saw the victim walking home from school and told her to come to his apartment and play with his son. When the victim arrived, she realized defendant’s son was not home. Defendant threw the victim on the bed, removed his pants and her pants, and engaged in sexual intercourse with her. Defendant told the victim not to be scared. On another occasion, the victim was playing with defendant’s son at defendant’s apartment. After the son went to the bathroom, defendant closed the door to the bedroom, removed his pants, and told the victim to remove her pants and underwear. The victim was afraid defendant would hurt her, and therefore did what he told her to do. Defendant told the victim to move to the bed, and engaged in sexual intercourse with her.