P. v.
Filed 8/20/12 P. v. Martinez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
SANTOS
ARTURO MARTINEZ,
Defendant and
Appellant.
F063415
(Super.
Ct. No. 11CM1149)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. Thomas
DeSantos, Judge.
Steven A.
Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California,
for Plaintiff and Respondent.
-ooOoo-
On May 6, 2011, an information was filed
in Kings County Superior Court, charging defendant Santos Arturo Martinez with
driving under the influence of alcohol or drugs (DUI) (Veh. Code, § 23152,
subd. (a); count 1), driving with a blood-alcohol content (BAC) of 0.08 percent
or more (id., subd. (b); count 2),
and driving with a suspended or revoked license (id., § 14601.2, subd. (a); count 3). As to counts 1 and 2, it was further alleged,
pursuant to Vehicle Code section 23578, that defendant had a BAC of 0.15
percent or higher; and, pursuant to Vehicle Code sections 23550 and
23550.5, that he had suffered three prior DUI convictions within the preceding
10 years, making counts 1 and 2 felonies.
On May 19, 2011, a
pursuant to Boykin v. Alabama (1969)
395 U.S. 238
and In re Tahl (1969) 1 Cal.3d
122. The court advised him of the
consequences of pleading guilty, including that he faced a maximum sentence of
three years in prison. The prosecutor
set out the factual basis for defendant’s plea, which was that on the date
alleged, defendant was observed driving a motor vehicle in excess of the speed
limit; upon being stopped for a traffic violation, he was found to be under the
influence of alcohol; he took a test that resulted in a BAC reading of 0.15
percent; and it was determined he had three prior DUI convictions. Defendant and his attorney concurred with the
factual basis as stated by the prosecutor.
Defendant
pled guilty to count 2, admitted the Vehicle Code section 23578
allegation, and admitted having suffered the three prior DUI convictions
alleged in the information. The court
found the plea and admissions to have been knowingly, intelligently, and
voluntarily given and, in accord with the plea agreement, dismissed counts 1
and 3.
On the date
set for sentencing, the prosecutor announced that during preparation for
sentencing, it was discovered defendant had suffered two prior “strike”
convictions. She asked leave to file an
amended information to allege those convictions, with the understanding doing
so would entitle defendant to withdraw his guilty plea. Over defense objection, the court allowed the
amended information to be filed. In
addition to what was contained in the original information, the amended
information alleged that in 1997, defendant was convicted of robbery and
Superior Court, and that both offenses were serious or violent felonies
pursuant to Penal Code sections 667, subdivisions (b)-(i) and 1170.12,
subdivisions (a)-(d). The court
permitted defendant to reserve the right to withdraw his plea or demur to the
amended information, in order to allow defense
counsel to investigate the Los Angeles
case and the prosecution’s supporting documentation.
On August 4, 2011, the trial court
explained to defendant that it had reviewed the documentation and determined
the prior convictions constituted two strikes, even though defendant was
sentenced concurrently on them. Because
defendant had prior strike convictions, the “Three Strikes” law prevented the
court from sentencing him as if those convictions did not exist, even though
defendant had already pleaded guilty.
The court further explained defendant had the right to withdraw his plea
and go to trial, but he would be facing a sentence of 25 years to life if
convicted. The court stated its
willingness to erase one of the strikes for purposes of this proceeding, if
defendant did not withdraw his plea, so that the maximum punishment defendant
would face would be six years in prison.
Defense
counsel stated defendant would admit the one strike and take the deal. The trial court noted defendant had never
withdrawn his previous plea and admissions, but, out of an abundance of
caution, retook defendant’s waiver of his constitutional rights, advised defendant
of the consequences of admitting the allegations, had the prosecutor again set
out a factual basis in which defense counsel concurred, and stated it had
itself reviewed the prior conviction packets.
Defendant then pled guilty to count 2 of the amended information,
admitted the BAC level and prior DUI conviction allegations, and admitted
having suffered a prior robbery conviction that constituted a strike. The court dismissed the attempted robbery
conviction allegation in the interests of justice and because allowing it to
move forward would result in a penalty that would be unduly harsh given the
actions defendant took in this case, and it dismissed counts 1 and 3.
A probation
officer’s report having already been prepared, the parties agreed to immediate
sentencing. The trial court stated its
tentative sentence was to impose a two-year prison term, doubled to four years
for the prior strike, and it set out the factors it considered in reaching that
determination. The parties submitted the
matter; the court adopted its tentative decision, awarded time credits, and
ordered defendant to pay various fees and fines. With respect to another case in which
defendant previously admitted violating probation, the court terminated
probation, sentenced defendant to 365 days in custody to run concurrent to the
prison sentence, and ordered the balance of any fees and fines converted to a
civil judgment in that matter.
Defendant
filed a timely notice of appeal and
obtained a certificate of probable cause.
APPELLATE COURT REVIEW
Defendant’s
appointed appellate counsel has filed an opening brief that summarizes the
pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the
declaration of appellate counsel stating that defendant was advised he could
file his own brief with this court. By
letter dated January 3, 2012, we invited defendant to submit additional
briefing. To date, he has not done so.
After
independent review of the record, we have concluded there are no reasonably
arguable legal or factual issues.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J. and Detjen, J.
