P. v. Martinez

Filed 5/16/06 P. v. Martinez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Gabriel Martinez appeals from a judgment entered following a trial in which a jury found him guilty of two felony counts of sexual battery by restraint (Pen. Code, § 243.4, subd. (a)) and two counts of committing a lewd act upon a child age 14 to 15 (Pen. Code, § 288, subd. (c)(1)). He contends the trial court abused its discretion by denying his motion to introduce evidence of the victim's prior sexual conduct, which he claims was relevant to the victim's credibility. We affirm.

Factual And Procedural Background

Jane Doe grew up in Japan and moved with her family to Fremont, where she lived for one year before her family moved to Danville. In September 2004, when she was 15 years old, Jane began attending San Ramon Valley High School.

During the lunch period on September 14, 2004, Jane was smoking a cigarette behind the school's baseball field in an area that cannot be seen from the school's main campus. A man she later identified as Martinez walked up to her. Concerned she would get in trouble for smoking, Jane threw away the cigarette. As she started to leave the area, Martinez called out to her to stop. She asked if he was a teacher. He explained that he worked at the school cleaning the field and asked her for a cigarette. He told her his name was Gabriel Martinez and asked how old she was. She told him she was 15. He responded that he was 25. At the time, Martinez was in his early 30's.

After their brief conversation, Martinez touched Jane's left arm, then he kissed her lips while holding her so that she could not move. She told him to stop but Martinez did not comply. Instead, he lifted up her shirt and touched her stomach and breast, first over and then under her bra. He kissed her breasts. She again told Martinez to stop and unsuccessfully attempted to pull away from him. She did not scream because she was shocked and afraid. When the school bell rang, Martinez released her after she said she had to go.

Later that day, Jane called her best friend Brenda, whom she had met while attending school in Fremont. Jane did not remember exactly what she told Brenda. She did not tell school authorities or her parents what happened because she was embarrassed and was afraid she would get in trouble for smoking.

The following day, Jane was assigned to pick up trash during the lunch period as punishment for arriving late to class on several occasions. Because she was embarrassed about picking up trash in front of other students, she went to the soccer field, which is close to the baseball field. When she was walking around the baseball field, Martinez and another man passed by. Jane decided to walk back toward the main campus but was approached from behind by Martinez. She was scared and stopped. She was also worried about getting in trouble for smoking. Martinez said he just wanted to talk.

Martinez told her to sit down on his lap. After she did so, he started touching her. She tried to get up but could not because Martinez was holding her firmly. He grabbed her hand and forced her to touch his â€