Filed 9/28/17 P. v. Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Arnold Eduardo Martinez of attempted kidnapping to commit rape (Pen. Code, §§ 209, subd. (b)(1), 664 [count 1; victim C.G.], all statutory citations are to the Penal Code unless otherwise indicated), assault with intent to commit rape (§ 220, subd. (a) [count 2; victim C.G.]), kidnapping to commit rape (§ 209, subd. (b)(1) [count 3; victim S.T.]), assault with intent to commit rape (§ 220, subd. (a) [count 4; victim S.T.]), kidnapping to commit rape while personally inflicting great bodily injury (§§ 209, subd. (b)(1), 12022.7, subd. (a)) [count 5; victim L.N.]), assault with intent to commit rape while personally inflicting great bodily injury (§§ 220, subd. (a), 12022.8 [count 6; victim L.N.]), battery with serious bodily injury (§ 243, subd. (d) [count 7; victim L.N.], and false personation (§ 529, subd. (a)(3)). Martinez challenges the sufficiency of the evidence to support his convictions involving S.T. (counts 3 & 4). We conclude substantial evidence supports the convictions and therefore affirm the judgment.

I

Factual and Procedural Background

In the predawn hours of July 18, 2008, 21-year-old C.G. sat on a bench smoking a cigarette in Westminster’s Sigler Park. A white, four-door Chevrolet pulled up. The driver got out, sat next to C.G., asked for a cigarette and attempted to engage her in conversation. She finished her cigarette and walked away. The man followed and C.G. began running. He caught her, put his hand over her mouth and dragged her toward his car. They fell to the ground when C.G. fought back, and the assailant fled when she screamed. C.G. called 911 and described her attacker as investigators prepared a sketch of the assailant. A few months before trial in May 2016, C.G. selected Martinez’s photograph from a six-photo array, and she also identified him at trial.

Six days later, on July 24, 2008 around 4:00 a.m., 57-year-old S.T. was walking her dog in Sigler Park. A man standing near a white four-door car approached and asked her a question. Without waiting for a response, he struck her in the face and dragged her to a bush approximately 150 feet away. S.T. resisted, and the man fled in the white car. A few months before trial, S.T. pointed to Martinez’s photograph from a six-photo array and stated “it might be him,” and she “kind of remembered the hair.” She explained at trial she was unsure of her identification because she never really saw the attacker’s face, but she selected his picture because he looked “somewhat tall.”

On January 14, 2009, around 5:00 a.m., 44-year-old L.N. was walking to church in Westminster. A young man, later identified as Martinez, attempted to pull her into his white car. She briefly extricated herself and ran, but he caught her, struck her in the face, and dragged her approximately 180 feet into a bush. He continued striking her, pulled on her pants and touched her genital area. She screamed and Martinez released her and walked away. L.N. received treatment at a hospital for head and back injuries.

In February 2016, investigators matched DNA from Martinez to DNA found on L.N.’s breasts, mouth and clothing. Department of Motor Vehicle records reflected Martinez registered a white four-door Chevrolet at a Westminster address near Sigler Park in July 2008.

Police officers stopped Martinez in Jacksonville, Florida, on July 25, 2010. He presented a driver’s license bearing his photograph and the name Arian Aguero. Investigators learned later that Aguero lived in Huntington Beach and sometime between 2002 and 2006 lost his driver’s license. He did not know Martinez and had not given him his license.

Uncharged Sexual Crimes Evidence (Evidence Code section 1101, subdivision (b))[1]

On the evening of July 3, 2010, Shelley J. was walking to a liquor store in Jacksonville, Florida. A man approached from behind, grabbed her by the neck, and dragged her into a white van, where a male passenger waited. Shelley J. pleaded with the men not to hurt her. The driver drove to a house, took Shelley inside, and raped her. Two weeks after the attack, she identified Martinez as the rapist from a photographic array, and later identified him in court. The prosecution introduced a record of Martinez’s Florida conviction.

In the early morning hours of July 11, 2010, 53-year-old Sharon L. was waiting for a taxi in Jacksonville, Florida. A man standing behind her pulled her into a car, covered her mouth and threatened she would die if she screamed. She screamed and he cut her chin with a knife. The man took her to a park, where he pulled her from the car, sat her on a bench, and ordered her to take off her clothes. She removed her top, and he groped her breasts. When she resisted, he cut her throat. She fell and he left in his car. A few weeks after the attack, Sharon identified Martinez as her assailant, but she could not identify him in court.

Following trial in May 2016, a jury convicted Martinez as noted above. In June 2016, the court sentenced Martinez to a determinate term of 10 years, 8 months, followed by two consecutive terms of life imprisonment with the possibility of parole. This sentence was to be served consecutive to and after completion of the sentence Martinez was serving in Florida.

II

Discussion

Sufficient Evidence Supports Martinez’s Convictions for Offenses Against S.T.

Martinez contends there is insufficient evidence to support his convictions against S.T. for kidnapping to commit rape (§ 209, subd. (b)(1) [count 3]) and assault with intent to commit rape (§ 220, subd. (a) [count 4]). We disagree.

On appeal, we must view the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Johnson (1980) 26 Cal.3d 557, 577-578.) The question is whether the evidence is of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Albillar (2010) 51 Cal.4th 47, 60.) It is the jury’s exclusive province to weigh the evidence, assess the credibility of the witnesses, and resolve conflicts in the testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) The appellate court must presume in support of the judgment the existence of facts reasonably drawn by inference from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139; see People v. Stanley (1995) 10 Cal.4th 764, 792 [same deferential standard of review applies to circumstantial evidence].) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933; People v. Bassett (1968) 69 Cal.2d 122, 139.) Consequently, an appellant “bears an enormous burden” in challenging the sufficiency of the evidence. (Sanchez, at p. 330.)

Martinez argues no reasonable jury could have identified him as the perpetrator of the offenses against S.T. He notes the attack occurred in predawn darkness and S.T. did not identify him in court as her attacker. Although S.T. selected Martinez’s photo from a six-photo array before trial, stating “it might be him,” she did not remember or recognize his face, and said she selected the photo because the person looked “somewhat tall,” even though the photographs were taken from the chest up and did not reveal height. She also “kind of remembered the hair” of her assailant. Martinez also notes S.T. had been punched in the face and had a swollen eye.

Substantial evidence supports Martinez’s identification as the perpetrator of the attack against S.T. Even if S.T. stated she could not recall her attacker’s face some seven years after the assault, she selected Martinez’s photo from the photgraphic lineup. (See People v. Cuevas (1995) 12 Cal.4th 252, 257 [out-of-court identification sufficient to sustain a conviction].) She said she picked the person appearing the most similar to her attacker. Other evidence bolstered the identification. Her attacker drove a white car, and Martinez owned a white car in July 2008. Martinez lived in Westminster a short distance away from the park where the attack occurred. The attack bore similarities to one occurring six days earlier involving C.G., who selected Martinez’s photograph from a six-photo array, and identified him at trial. C.G. also described her attacker as tall. The attack was also highly similar to the sexual assault on L.N. six months later in January 2009, by a man who drove a white car. The attack occurred near Martinez’s residence and the same park where S.T. was attacked. DNA evidence established Martinez perpetrated the offenses against L.N. The evidence sufficiently established Martinez’s identity as S.T.’s attacker.

III

Disposition

The judgment is affirmed.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.