P. v. Martinez
Filed 2/25/09 P. v. Martinez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO MARTINEZ, Defendant and Appellant. | A121904 (San Mateo County Super. Ct. No. SCO64783) |
Counsel for appellant Armando Martinez has filed a brief raising no specific issues and asking for our independent review of the record pursuant to People v. Wende(1979) 25 Cal.3d 436. Counsel has also notified appellant of this filing and of his right to inform the court of any appellate issues. We have received no communication from appellant himself. Having conducted the requisite review, we conclude no arguable issues exist on appeal and affirm.
Facts
Appellant was charged in a criminal complaint with the following crimes: Count one, willful, deliberate and premeditated attempted murder (Pen. Code, 664/187, subd. (a)/ 189.) The complaint also alleged that the offense was committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1) ), that appellant personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a) ), and that he personally used a deadly weapon (Pen. Code, 12022, subd. (b).) It was further alleged that the offense was a serious felony within the meaning of Penal Code section 1192.7(8), (9), and (28). Count two alleges assault with a deadly weapon (Pen. Code, 245, subd. (a)(1). The same enhancements and allegations alleged in count one were also alleged in count two.
The evidence presented at the preliminary hearing indicated that the victim of the stabbing, Merlin Jones, and at least one eyewitness, Kevin Garcia, identified the appellant as the person who stabbed Jones. Prior to the stabbing, a friend of appellant was observed placing an object in the rim of a tire near the crime scene. Also, appellant was seen cell-phoning this friend asking where he had placed the object. Once the call was completed, appellant went to the tire and was seen by witnesses with a knife that was used to stab Jones. At the time he stabbed Jones, appellant told him you try to attack me last time and payback is a bitch. Jones was taken to Stanford Hospital where he remained for a week and had three surgeries because of his injuries. For the purposes of the preliminary hearing, the parties stipulated to the infliction of great bodily injury and the gang enhancement.
At the completion of the preliminary hearing, the magistrate did not hold appellant on the premeditation allegation in count one. When the prosecution filed the information, it restated the premeditation allegation in count one, the crime of attempted murder. At a hearing pursuant to Penal Code section 995, a judge of the superior court determined that the evidence presented at the preliminary hearing was sufficient for a holding on the premeditation allegation.
On May 19, 2008, the date set for trial, the parties reached a negotiated disposition of the case. Appellant signed a Change of Plea form, acknowledging he waived his rights and agreed to enter a no contest plea to count one of the information, the crime of premeditated and deliberate attempted murder, and also admitted the infliction of great bodily injury on the victim. Appellant acknowledged the offense was a serious felony and a strike. Defense counsel stipulated at the time of the plea that there was a factual basis for the plea based on the evidence presented at the preliminary hearing. In exchange for the plea of no contest, the People dismissed the remaining charges and allegations. In taking the no contest plea, the trial court asked questions that satisfied the Boykin-Tahl (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122)standards, and reviewed the written plea form filled out by appellant and his counsel.
The appellant waived time for sentencing and waived a formal presentence report. The trial court sentenced the appellant on count one (attempted murder) to seven years in prison, with the punishment on the great bodily injury allegation (Pen. Code, 12022.7, subd. (a)) stayed. Having reviewed the entire record, we conclude that no arguable issues exist on appeal.
DISPOSITION
The judgment is affirmed.
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DONDERO, J. *
We concur:
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JONES, P. J.
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SIMONS, J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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