P. v. Martinez

Filed 6/24/08 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Fernando Manuel Martinez was charged with a collection of serious felonies comprising three counts of attempted murder, three counts of assault with a semi-automatic firearm, one count of possession of a firearm on school grounds, one count of possession of a firearm by a felon, one count of possession of ammunition by a prohibited person, and one count of street terrorism. It was further alleged that in the commission of the three counts of attempted murder, he had personally discharged a firearm, and that he had personally used a firearm in the assault with a semiautomatic counts. To this were added allegations that the whole thing was done on behalf of a criminal street gang, and that appellant had previously suffered three strike priors, two of which also qualified as priors for enhancement purposes other than the Three Strikes Law. This laundry list of miscreance exposed him to a maximum penalty of eighty-two years and four months in state prison. After several days of trial, however, Martinez withdrew his not guilty pleas and substituted a guilty plea to all counts and all of the enhancements, save one, in exchange for an indicated sentence of 35 years in prison. His request for a certificate of probable cause was denied.

We appointed counsel to represent appellant on appeal. Counsel filed a brief setting forth the facts of the case and possible issues he had considered and rejected as unsupported by the law and the facts of this case. Counsel did not argue against his client, but advised the court no issues had been found that he could argue on appellants behalf. Due to the lack of a certificate of probable cause, it listed only the constitutionality of appellants guilty plea as a possible area for appellate review. We have examined the record ourselves and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.)

Appellant was given the opportunity to file his own brief in the matter and we have reviewed that as well. We still find nothing in the trial record to support an appeal and therefore affirm the judgment.

FACTS

Appellants change of plea form includes his statement that, On 4-29-06 I personall[y] discharged a semi-automatic [sic] firearm toward three human beings with the intent to murder them. I possessed and discharged said firearm on school grounds and after personally [suffering] a felony conviction. I committed said offenses in association with Santa Nita while actively participating therein and with the intent to promote felonious conduct by Santa Nita, a criminal street gang who engages in patterns of criminal activity and whose primary activities I know to be assaults with deadly weapons and auto thefts. These facts, personally admitted by appellant, provide an adequate basis for understanding the issues to be discussed. In an effort to avoid any question about the accuracy or completeness of our reading of the record, we adopt them for the purposes of this appeal.

DISCUSSION

We start with counsels question about the constitutionality of appellants plea. This went nowhere because no certificate of probable cause was obtained. Appellant has not suggested, his attorney could not conceive of, and we cannot imagine a way around that requirement on the facts of this case. A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon, may not obtain review of so-called certificate issues, that is, questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 of the Penal Code and the first paragraph of rule 31(d) of the California Rules of Court which require him to file in the superior court a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and to obtain from the superior court a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1088, fns. omitted.) Defendant having failed to do so and in our opinion, being unable to do so, there being no grounds therefore he is precluded from such a challenge and appellate counsel correctly abandoned that as a ground of appeal.

In fact, without a certificate of probable cause, appellant may obtain review solely of so-called noncertificate issues. These are postplea questions not challenging his pleas validity and/or questions involving a search or seizure whose lawfulness was contested pursuant to section 1538.5. (People v. Mendez, supra, 19 Cal.4th at p. 1088.) And even those would have required a notice of appeal stating noncertificate grounds which does not appear to have been filed here.

This is not a meaningless formality. The certificate of probable cause is designed for situations in which valid, contestable legal issues exist but a party, for whatever reason wishes to plead guilty often to take advantage of a lenient sentence such as the one appellant received. To distinguish those cases from ones in which there is no serious legal issue, we require the trial courts to screen such requests through the certificate process. The trial court, having been there when the plea was entered, is well situated to evaluate the bona fides of issues that might be raised and avoid drains upon the public fisc in pursuit of quixotic arguments. This is most likely not a case in which a certificate of probable cause was overlooked, but one in which there was no grounds for it. And its absence precludes both this challenge and the ones appellant lists in his own letter brief to us.

The first of those is that the jury selection in his case was flawed because the jury was composed entirely of females none of whom was of appellants nationality. There is no right constitutional or statutory to a jury made up of citizens of the same gender as the defendant. Nor is there a right to even one juror of the same nationality. Even if we extend appellants nationality argument to his putative race and assume he is Latino, there is no right to a member of his race on the jury. In the absence of any showing that members of his race were intentionally excluded from the jury on the basis of their race, there is no error. No such evidence is suggested.

Appellant next complains he was denied of my witnesses and of my evidence to be presented to the People by my counsel and counsel also denied my request to properly cross[-examine] the arresting officer and the officer that took my pants from the hospital. He says the arresting officer lied. We are in no position to review this contention, nor would be any appellate court. Appellant pled guilty; that plea waived any right to contest the nature of the evidence and the proceedings against him. We have no way short of habeas corpus of reviewing a contention that witnesses lied or were not properly cross-examined, and we see nothing in the transcript of this case to indicate trial counsel did not perform adequately in this regard.

Appellants next argument is that counsel denied him the right to properly cross-examine. If this is a reference to personal cross-examination, he has no such right. If it is a reference to failure of his attorney to perform adequately, it would have to be brought by way of habeas and, based on this record, would be a prohibitive longshot.

His next complaint is that one of the detectives who investigated the case lied when he said appellant was arrested for possession of a firearm by [running] in a school with possession of a firearm. But the truth of that arrest was for possession of a firearm within a 1,000 feet of school grounds. We cannot find a basis for legal error in this argument.

Appellant complains there was no motive for his crime, and that the one given the jury was made up. But motive is not an element of a crime, and no motive is required. Again, even if we considered this argument without a certificate of probable cause, it would fail.

Appellant next complains, I was given the [guarantee] of a release date from prison by the honorable judge. I know that is a promise. That is the entirety of the argument. We do not understand it. If appellant feels his release date is incorrect, he must first take it up with prison authorities. If he is arguing that he will not be released on that date, he will have to explain why he is convinced the promise will not be honored.

Next he complains he was going through mental problems on the last days of his trial, had lost a lot of sleep and was under a lot of stress. He says he has a history of mental problems. If his contention is that he was not mentally capable at the time he entered his plea, the absence of a certificate of probable cause bars such an argument. If he is raising some other issue, it will have to be done by way of habeas corpus.

Finally he contends, A plea cannot be voluntary and intelligent if the counsels advice led to the defendants detriment. Actually, it can. Appellant complains that his attorney advised him to take the deal because otherwise he was going to be convicted and get life (Appellant is almost 29 years old; a maximum sentence in this case would effectively have been a life sentence, while a 35-year sentence most likely is not). This appears to have been good advice. Appellant is now in state prison, which doubtless seems to him to be a detrimental outcome. But the fact counsel told him he would be better off taking the 35-year bird-in-the-hand rather than rolling the dice on a possible 84-year sentence does not establish any cognizable legal error.

In short, we cannot find any error in this record, appellate counsel could not find any error in it, and the suggestions made by appellant look to us like blind alleys.

DISPOSITION

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

MOORE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com