P. v. Martinez

Filed 7/3/07 P. v. Martinez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Tony Martinez appeals a judgment entered upon a plea of guilty to assault by means of force likely to produce great bodily injury. (Pen. Code,  245, subd. (a)(1).)[1] He contends the trial court abused its discretion and denied him due process in sentencing him to the middle term of imprisonment. We affirm.

I. Background

Defendant was charged in count 1 with second degree robbery ( 212.5, subd. (c)), and in count 2 with assault with a firearm ( 245, subd. (a)(2).) Both counts included allegations that defendant had personally used a firearm. ( 12022.5, former subd. (a)(1), & 12022.53, subd. (b).) According to testimony at the preliminary hearing, defendant came up behind the victim, Rashida McBay, as she stood outside a liquor store, and struck her on the back of her head. When she turned to see who had hit her, defendant came around with the gun and told her, Bitch, give me everything you got. They struggled, and defendant pointed the gun first to McBays stomach, and then to her head, while reaching into her pockets and under her clothing. He took $600 from her pocket and retrieved a bundle of narcotics from inside her clothing, then ran away.

Pursuant to a negotiated disposition, the district attorney later amended the information to charge count 2 as a violation of section 245, subdivision (a)(1), assault by means of force likely to produce great bodily injury. Defendant pled guilty to count 2 as amended, and count 1 and the firearm allegations were dismissed. The trial court suspended imposition of sentence, and placed defendant on probation for three years on July 13, 2004.

The district attorney moved on July 27, 2004, to revoke probation. According to a police incident report, defendant was observed engaging in a suspected drug transaction. Police officers pursued and arrested him. They searched him and found cocaine base and $165 in small bills in his possession. Defendant admitted the probation violation and was continued on probation.

Defendant was arrested again in February 2006. The district attorney moved to revoke probation, and a contested hearing took place. According to the evidence at the hearing, defendant was involved in a suspected drug transaction. Defendant fled as officers approached him, and when arrested, was found to have suspected cocaine and marijuana in his possession. He escaped from a police car and fled again, despite being handcuffed.

The trial court found defendant in violation of his probation and revoked probation. It sentenced him on the assault conviction to the middle term of three years in prison, with credit for 613 days. In choosing the midterm, the court found that the circumstance in mitigation, early admission of guilt (Cal. Rules of Court, rule 4.423(b)(3)), was balanced by the circumstance in aggravation, a prior commitment to the California Youth Authority (CYA)[2] for violation of Health and Safety Code section 11355, sale of a substance falsely represented as a controlled substance (Cal. Rules of Court, rule  4.421(b)(3)).

II. Discussion

Defendant contends the trial court abused its discretion and denied him due process by imposing the middle term sentence. He argues that the offense underlying his prior commitment, the sale of non-controlled substances in lieu of a controlled substance, is a different kind of crime from sale of actual narcotics and does not involve moral turpitude. According to defendant, the trial court over weighted the violation of Health and Safety Code section 11355 by treating it as the penal equivalent of the sale of narcotics.

As defendant acknowledges, we review the trial courts sentencing choice for abuse of discretion. Generally, determination of the appropriate term is within the trial courts broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]. Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms. [Citation.] (People v. Lamb (1988) 206 Cal.App.3d 397, 401.)

Here, the trial court was aware of the nature of the prior offense.[3] The court indicated that it was not simply counting circumstances in aggravation and mitigation, but weighing the factors and exercising its discretion. We see no abuse of that discretion or denial of due process.

III. Disposition

The judgment is affirmed.

_________________________

Rivera, J.

We concur:

_________________________

Reardon, Acting P. J.

_________________________

Sepulveda, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2]As of July 1, 2005, the CYA has been renamed the Department of Corrections and Rehabilitation, Juvenile Justice. (See Welf. & Inst. Code, 1710, subd. (a).) However, for the sake of clarity we use the designation CYA because that is the designation used below.

[3] As the Attorney General points out, defendant did not argue below that the prior offense should be treated differently from a sale of actual narcotics because it did not involve moral turpitude. Instead, he argued: I think the early admission clearly outweighs any circumstance in aggravation. That is a prior commitment under [Health and Safety Code section] 11355, selling a substance in lieu of a controlled substance.