P. v. Martinez



















Filed 3/19/13
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA

FIFTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. JULIO PANTOJA MARTINEZ, Defendant and Appellant.

F064431 (Super. Ct. No. F10905012) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Rosendo Peña, Judge.

Deborah
Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.

-ooOoo-



>STATEMENT OF THE CASE

Appellant,
Julio Pantoja Martinez, was charged in a criminal
complaint, filed on October 1, 2010, with four felony counts of attempted
home invasion robbery in concert with two or more persons (Pen. Code,
§§ 664, 213, subd. (a)(1)(A), counts 1-4).href="#_ftn2" name="_ftnref2" title="">^[1] The
complaint also alleged an enhancement for each count that appellant used a gun
(§ 12022.53, subd. (b)). An
information was filed with the same allegations on March 9, 2011. On April 22, 2011, the trial court denied
appellant’s motion for new counsel made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

On May 2, 2011, criminal
proceedings were suspended pursuant to section 1368. The court directed a href="http://www.sandiegohealthdirectory.com/">psychologist to examine
appellant. Dr. Harold L. Seymour
evaluated appellant on May 12, 2011. Dr.
Seymour found appellant’s attention to be focused, his memory grossly intact,
and his thinking processes linear and on topic.
Although appellant was undergoing anxiety concerning his trial, Dr.
Seymour found no major mental disorder that would interfere with appellant’s
ability to be a competent defendant. Dr.
Seymour found appellant competent to stand trial and with the ability to
competently assist his legal counsel. On
May 27, 2011, the trial court found appellant competent to stand trial and
reinstated criminal proceedings.

On December 15, 2011, a second >Marsden motion was denied by the trial
court. On that date, appellant entered into a href="http://www.fearnotlaw.com/">plea agreement wherein he would admit the
allegations in the information and receive a stipulated prison term of 13
years. Appellant executed a felony
advisement, waiver of rights, and plea form acknowledging the terms of the plea
agreement, the consequences of his plea, and his href="http://www.mcmillanlaw.com/">constitutional rights pursuant to >Boykin/Tahl.href="#_ftn3"
name="_ftnref3" title="">^[2]
Appellant waived his Boykin/Tahl rights
in the form. At the hearing, the trial
court verified that appellant understood the terms of the plea agreement, the
consequences of the plea, and had executed and initialed the change of plea
form. The parties stipulated that the
preliminary hearing transcript constituted a factual basis for the plea. Appellant pled no contest to all four counts
and admitted the gun use enhancement as to each count.href="#_ftn4" name="_ftnref4" title="">^[3]

On January 17, 2012, the trial court
sentenced appellant to prison for a term of three years on count one, plus a
consecutive term of ten years for the gun use enhancement for a total term of
13 years. The court sentenced appellant
to concurrent sentences on the remaining counts and enhancements. The court imposed a $2,600 restitution fine
and granted petitioner 547 days of custody credits consisting of 476 actual
days in custody, plus 71 conduct credit days.
Appellant did not obtain a certificate of probable cause. Appellate counsel has filed a brief pursuant
to People
v. Wende (1979) 25 Cal.3d 436 (>Wende).

FACTS

On May 5, 2010, at about 6:30 a.m.,
three males armed with guns forced their way into a residence on Hayes Street
in Fresno. The armed robbers demanded
drugs from three residents in the home.
A fourth resident was on her bedroom floor during the robbery and
telephoned her brother who lived next door.
She saw appellant pointing a shotgun at her uncle. The brother ran next door and interrupted the
robbery. The victims explained that the
robbers were all wearing body armor and law enforcement badges. The robbers fled, leaving behind a shotgun,
body armor, a flannel jacket, and a police badge near the residence. Appellant’s DNA was found on the clothing. Two codefendants were later arrested and
admitted being involved in the robbery with appellant.

APPELLATE COURT REVIEW

Appellant’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.
(Wende, supra, 25 Cal.3d 436.) The
opening brief also includes the declaration of appellate counsel indicating
that appellant was advised he could file his own brief with this court. By letter on June 29, 2012, we invited
appellant 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.