People v. Martinez CA1/5

Filed 5/26/22 P. v. Martinez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for pur- poses of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A162809 v. FLEMIN FERNANDO (Napa County MARTINEZ, Super. Ct. No. 19CR002944) Defendant and Appellant.

Appellant Flemin Fernando Martinez was tried before a jury and convicted of multiple sexual offenses against four separate child victims. He contends that detectives were erroneously allowed to testify that although appellant had made several incriminating statements during a police interview concerning his sexual contact with one of the victims, he was not telling the whole truth because he denied having intercourse. Appellant argues that this amounted to an improper lay opinion regarding his truthfulness and his guilt of the one of the charges, which requires the reversal of at least one of the counts. We question whether this issue was adequately preserved, but in any event, any error was clearly harmless. We affirm.

1

I. BACKGROUND Given the nature of the sole issue on appeal, a detailed recitation of the facts is unnecessary. Suffice it to say that over a several-year period, appellant sexually molested two nieces with whom he lived (Jane Doe 1 and Jane Doe 3), one of their cousins (Jane Doe 2) and a neighbor who came over to the house to play (Jane Doe 4). The conduct began when the girls were as young as seven or eight and continued until Jane Doe 1 (the eldest) was 16. The last assault was committed as Jane Doe 1 was preparing to go to work. Appellant forced her into his room and had sexual intercourse with her. Later, Jane Doe 1 told a friend that she had lost her virginity to her uncle, and that the sexual contact had been happening since she was younger. The friend told her own father, who called the police. Detectives Barrera and Keown interviewed appellant, assisted by Detective Dodd, who had interviewed three of the victims. After appellant admitted having videos of the child victims on his cell phone, the detectives searched the phone and discovered several explicit videos of Jane Doe 1. One video appeared to depict Jane Doe 1 and appellant having sex, although it did not show penetration. In the first interview with the detectives, appellant admitted that he had “crossed the line” with Jane Doe 1, but although he acknowledged caressing her, getting naked with her, kissing her, and having oral sex, he denied penetration. Detective Dodd employed a ruse whereby he put on some gloves, picked up a cup from which appellant had been drinking, left the