P. v. Martinez
Filed 5/20/13
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
BENJAMIN J. MARTINEZ,
Defendant and
Appellant.
F063218
(Super.
Ct. No. BF136720B)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court of
Thomas
Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
Appellant,
Benjamin J. Martinez, was charged in an amended information filed on July 21,
2011, with felony second degree burglary
(Pen. Code, § 460, subd. (b), count 1)
one count of resisting arrest, a misdemeanor (§ 148, subd. (a)(1), count
2). The information further alleged
three prior prison term enhancements (§ 667.5, subd. (b)).
On July 25,
2011, a jury found appellant guilty of both counts.
found the three prior prison term enhancements to be true. At the sentencing hearing on August 22, 2011,
the court sentenced appellant to the upper term of three years on count 1 plus
three consecutive one-year terms for each of the prison term enhancements for a
total sentence of six years. The court
imposed a restitution fine of $200 and granted custody credits of 111 days and
conduct credits of 111 days for total custody
credits of 222 days. Appellate counsel has filed a brief pursuant
to People v. Wende (1979) 25 Cal.3d 436 (Wende).
On May 4,
2011, James Kephart left his business on Niles Street in Bakersfield at 5:00
p.m. The back of the property was
surrounded by a six-foot fence with two locked gates. When Kephart left the property, he locked the
doors to the building and the fence gates.
At about 9:00 p.m., Kephart met police officers at his business after
receiving a call from his alarm company.
When
Kephart arrived at his business, he found a large, freshly cut hole in his
chain-link fence. The glass to a sliding
glass door into the building had been broken and the door pried open. Officers showed Kephart two chain saws and a boom
box that had been removed from the building and were placed in the yard. No one had permission to remove or take the
items.
Bakersfield
Police Officer Travis Harless responded to the scene of the burglary and formed
part of a perimeter of the area. It was
dark. Harless heard movement and shined
his flashlight on appellant and codefendant, Juan Macias. Appellant and Macias started to run. Harless, who was dressed in his police
uniform, yelled at the two, “Stop police.â€
Harless
climbed on a roof and observed the two suspects from there. Appellant climbed onto an air-conditioning
unit, placed his hands on the roof, and got onto the roof. When appellant saw Harless, he jumped back to
the air-conditioning unit. Appellant
went into a crouching position next to the air-conditioning unit and removed
white socks from his hands. Harless
jumped from the roof and detained appellant.
Appellant
was read, and waived, his Miranda
Appellant told Officer Perkins he was at the business to get
couches. Appellant did not know how he
entered the yard.
Codefendant
Macias testified that he went alone to the property, entering the property
through a large hole in the fence. A
garage door was open and Macias removed two chainsaws and a radio. He also saw some refrigerators. Macias went to get someone to help with the
refrigerators and found appellant in the alley.
Macias told appellant he would pay
appellant money from the sale of the refrigerators if he helpled. Appellant said he would help, but had to
first do some chores. The two men returned
later about 9:00 p.m. that evening but had no tools with them. They were at the business about 10 or 15
minutes looking for a dolly to move the refrigerators before the police
arrived.
Appellant
testified that he met Macias in the alley near the business around 5:00
p.m. Macias asked appellant to help him
move a couch and a couple of refrigerators.
Appellant told Macias he had something to do at home. Appellant returned to the property around
9:00 p.m. and entered through a hole that had been cut in the fence. When officers arrived, appellant ran from
them because he had been assaulted by Bakersfield police officers in the
past.
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 August 22, 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
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Kane, J., and Franson, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code.
