P. v.
Filed 3/25/13 P. v. Martinez CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
LEONARD DUARTE
MARTINEZ, JR.,
Defendant and Appellant.
C072178
(Super. Ct. No.
CRF11-0549)
Appointed
counsel for defendant Leonard Duarte Martinez, Jr., has filed an opening brief
that sets forth the facts of the case and asks this court to review the record
and determine whether there are any arguable
issues on appeal. (
Finding no arguable error that would result in a disposition more favorable
to defendant, we affirm the judgment.
We
provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
During
the summer of 2010, defendant began molesting nine-year-old M., his biological
granddaughter and adopted daughter.
name="_ftnref1" title="">[1] Between summer 2010 and November 28, 2010,
defendant performed oral copulation on M. “a little more than five times,†had
her perform oral copulation on him “about four times,†attempted vaginal
intercourse with her “three times or so,†and attempted anal intercourse with
her “about three times.†M. reported
pain and bleeding from the sexual acts.
A criminalist analyzed samples that had been taken from M.’s vaginal
area during a medical
examination. The samples contained
DNA that matched a sample obtained from defendant.
Defendant
pleaded guilty to continuous sexual abuse of a child under age 14 (Pen. Code,
§ 288.5, subd. (a))
name="_ftnref2" title="">[2]
and admitted an allegation that he caused bodily injury to the child victim
(§ 1203.066, subd. (a)(2)). In
exchange, counts of sexual intercourse by an adult with a child age 10 years or
younger (§ 288.7, subd. (a)), oral copulation by an adult with a child age
10 years or younger (§ 288.7, subd. (b)), and lewd acts with a child under
age 14 (§ 288, subd. (a)) were dismissed.
Defendant
was sentenced to state prison for the
stipulated middle term of 12 years, awarded a stipulated 504 days of custody
credit and 89 days of conduct credit, ordered to register as a sexual offender
(Pen. Code, § 290), and ordered to pay a $2,400 restitution fine (
restitution fine suspended unless parole is revoked (id., § 1202.45), a $40 court operations fee (
$30 court facilities assessment (Gov. Code, § 70373). Defendant’s request for a certificate of
probable cause was denied.
DISCUSSION
Defendant
appeals. We appointed
appeal. Counsel filed an opening brief
that sets forth the facts of the case and requests this court to review the
record and determine whether there are any arguable issues on appeal. (Wende,
supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right
to file a supplemental brief within 30 days of the date of filing of the
opening brief.
Supplemental Brief
Defendant
filed a supplemental brief stating in relevant part: “I don[’]t know what I can bring to the
court[’]s attention. Only that I am
innocent.†In the argument that follows,
defendant challenges the prosecution case, addresses his own conduct, raises
the possibility of contamination of prosecution DNA evidence, explains why his
own DNA would be found on the victim’s panties, claims his trial counsel
rendered ineffective assistance by failing to address various items of
favorable evidence, and argues he entered his plea under “extreme pressure.â€
Defendant’s
arguments are not properly before us because he pleaded guilty and the trial
court denied his request for a certificate
of probable cause.
(§ 1237.5.) Contentions
asserting defendant’s innocence and claiming counsel’s ineffectiveness
challenge the validity of the plea and cannot be raised without a certificate
of probable cause. (People v.
1098-1099; People
(1996) 13 Cal.4th 68, 74-75.)
Defendant
asks this court to “look into Penal Code [section] 1192.7[, subdivision] (b)
and something that has to do with [the] prosecutor must state on [the] record
the reason.†We address this contention
as best we understand it.
Section
1192.7, subdivision (b) defines the term “plea bargaining,†but it does not
impose any obligation upon the prosecutor.
The immediately preceding provision, section 1192.7, subdivision (a)(3),
does impose upon the prosecutor a
duty to state on the record why a sentence under certain statutory provisions,
including section 288.7, was not
sought. Any error with respect to the
prosecutor’s failure to make such a statement in this case does not prejudice
defendant and does not entitle him to reversal of the judgment.
Errors Addressed
Our
review discloses some minor errors in the clerk’s sentencing minutes of
July 31, 2012, and on the abstract of judgment also prepared on that
date.
First,
although the trial court orally pronounced stayed and unstayed restitution
fines in the amount of $2,400, the minutes and the abstract mistakenly reflect
restitution fines in the amount of $2,800.
We shall direct the trial court to correct its records accordingly.
Second,
on the abstract of judgment, the box indicating that local conduct credits were
calculated pursuant to section 2933.1 must be checked (item No. 14).
Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
DISPOSITION
The
judgment is affirmed. The trial court is
directed to correct the clerk’s minutes and abstract of judgment as described
above and to forward a certified copy of the corrected abstract to the
BUTZ , J.
We concur:
HULL , Acting P. J.
HOCH , J.
name="_ftn1" title="">[1] Because the matter was resolved by plea and
defendant waived referral to the probation department, our statement of facts
is taken from the transcript of the preliminary examination.
name="_ftn2" title="">[2] Undesignated
statutory references are to the Penal Code in effect at the time of defendant’s
2010 crimes.
