P. v.
Filed 8/24/12 P. v. Martinez CA4/3
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
ALBERT OMAR MARTINEZ,
Defendant and Appellant.
G045410
(Super. Ct. No. 09NF2797)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Gary S. Paer, Judge.
Affirmed.
Dennis L. Cava, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon, Jr., and, Susan Miller, Deputy
Attorney Generals, for Plaintiff and Respondent.
A jury found Albert Omar
Martinez guilty of committing a lewd act upon a child (Pen. Code, § 288, subd.
(c)(1), count 1),
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and attempting to commit a lewd act upon a child (§§ 664, 288, subd. (c)(1),
count 2). The trial court sentenced Martinez
to five years supervised formal probation.
Martinez argues his federal
and state due process rights were violated when the court failed to expressly
rule on his motion to reduce his felony convictions to misdemeanors pursuant to
section 17, subdivision (b). We disagree
and affirm the judgment.
FACTS
Martinez
visited Soak City
Water Park
in Buena Park. While in the tidal wave pool, Martinez
put his hands on his hips and thrust his pelvis towards 15-year-old Salina
L. Salina L. told police she felt
something hard touch her butt and saw Martinez
standing behind her. She thought the
hard object was Martinez’s
penis. That same day, 14-year-old Dianne
M. felt someone’s hands on her back three times and saw Martinez
standing behind her. Dianne M.’s
mother’s boyfriend was nearby. He
observed Martinez lean back and
spread his legs behind Dianne M. Martinez
denied having any contact with Salina L. and Dianne M.
The information charged Martinez
with two felony counts of committing a lewd act upon a child (§ 288, subd.
(c)). After hearing the trial testimony,
the jury found Martinez guilty of
committing a lewd act upon a child and attempting to commit a lewd act upon a
child. Before sentencing, Martinez
moved to reduce the felonies to misdemeanors under section 17, subdivision (b).
At the sentencing
hearing, the trial court stated he had read the probation and sentencing
report, the prosecutor’s and defense counsel’s sentencing briefs, psychological
report, and all letters. After the
prosecutor argued for a two-year prison sentence, the court invited defense
counsel’s comments and stated, “I did read your brief. A lot of things you mentioned or rephrased in
the [probation] report. Obviously, you
want probation. You feel he is suitable
for many reasons we have already discussed.â€
When defense counsel submitted, the court granted probation based on
Martinez’s lack of prior felonies, favorable probation report, and positive
psychological report. During sentencing,
the trial court remarked, “the type of touching is different than the quote
other type of [section] 288’s that we normally see, but it’s still a
violation. It’s still illegal. He’s still going to suffer the brunt of the
[section] 288.1 conviction.†The court
sentenced Martinez to five years supervised formal probation.
DISCUSSION
Martinez contends the
trial court’s failure to expressly rule on his
section
17, subdivision (b), motion violated his constitutional
sentencing decision. We disagree.
Section 17, subdivision
(b)(3), provides: “When a crime is
punishable, in the discretion of the court, either by imprisonment in the state
prison or imprisonment in a county jail . . . it is a misdemeanor for all
purposes . . . [¶] When the court grants
probation to a defendant without imposition of sentence and at the time of
granting probation, or on application of the defendant or probation officer
thereafter, the court declares the offense to be a misdemeanor.†In other words, section 17, subdivision
(b)(3), empowers the trial court to declare a wobbler offense a misdemeanor, in
that situation, upon application of the defendant. The decision to reduce a wobbler offense
rests within the trial court’s discretion.
(People v. Superior Court (
demonstrate the trial court’s decision is arbitrary or unreasonable. (Ibid.) Section 288, subdivision (c)(1), is a wobbler
as it is punishable either with prison or jail time.
Although neither party
discusses the case, People v. Erdelen
(1996)
46
Cal.App.4th 86 (Erdelen), is
instructive. In that case, the trial
court stated its reasons for denying probation and imposing the upper term for
a felony offense but failed to provide reasons for not reducing the felony to a
misdemeanor. (Id. at p. 90.) The court
denied probation because defendant had a significant record of similar criminal
acts and would be a danger to society. (
Defendant complained the trial court did not state its reasons for not
reducing the felony offense to a misdemeanor.
(Ibid.) The Court of Appeal opined, “The court’s
statement of its reasons for denying probation and for imposing the upper term
clearly indicate the court would not have considered reducing appellant’s
offense to a misdemeanor.†(
Here, based on the
record before us, we conclude the trial court implicitly denied Martinez’s
section 17, subdivision (b), motion.
Before sentencing, Martinez filed a brief requesting the court reduce
his felony convictions to misdemeanors pursuant to section 17, subdivision
(b). At the sentencing hearing, the
court indicated he read Martinez’s sentencing brief and considered his
arguments. The court provided a detailed
explanation as to why it was granting Martinez probation but did not discuss
Martinez’s request to reduce the felony offenses to misdemeanors. The court explained that although the
touching was through clothing and not the most severe the court had seen,
Martinez’s conduct was “still a violation[]†and was “still illegal.†The court stated Martinez was “going to
suffer the brunt of [his] conviction.â€
Additionally, the court remarked Martinez would be subject to “all the
other normal terms and conditions of a felony
probation.†(Italics added.) The court’s comments demonstrate it did not
intend to reduce Martinez’s felony offenses to misdemeanors.
Additionally, Martinez
waived his claim that the court failed to properly articulate its decision to
deny his section 17, subdivision (b), motion by not objecting at the time of
sentencing. In Erdelen, supra, 46 Cal.App.4th at page 91, after discussing
the Court of Appeal concluded defendant waived any error in the trial court’s
statement of reasons because defendant and his counsel were aware the trial
court would treat the offense as a felony and were silent.
At
the sentencing hearing, Martinez neither renewed his section 17, subdivision
(b), motion nor requested the trial court provide a statement of reasons for
denying the motion. The court allowed
Martinez and his defense counsel ample opportunity to argue the request. Martinez’s counsel argued for probation but
was silent on the section 17, subdivision (b), motion. Because Martinez did not state on the record
any objections to the court’s failure to provide reasons for denying the
section 17, subdivision (b) motion, he did not properly preserve the issue for
appeal.
DISPOSITION
This
judgment is affirmed.
O’LEARY,
P. J.
WE
CONCUR:
RYLAARSDAM,
J.
BEDSWORTH,
J.
references are to the Penal Code.
