People v. Martinez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS269689
- Trial judge
- Garry G. Haehnle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Richard D. Huffman, Sr., Judith D. McConnell
Analysis
The trial court accepted Martinez's guilty plea to continuous sexual abuse of a child and sentenced him to the upper term of 16 years in prison. The Court of Appeal affirmed the judgment after an independent review of the record found no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of guilty plea and imposition of 16-year sentence“A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue.” | de novo | not reached | agree with court The court affirmed the judgment based on an independent review of the record under the Wende/Anders procedure, finding no reasonably arguable issues of error regarding the plea or sentence. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by the court of appeal when appointed counsel files a Wende brief presenting no argument for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to identify potentially meritorious issues and the court to independently review the record to ensure the appeal is not frivolous.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a criminal appeal where appointed counsel presents no argument. The court explicitly states it independently reviewed the entire record and found no reasonably arguable issues, which is the required standard of review in this context.
The trial court accepted Martinez's guilty plea to one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) with an admission of substantial sexual conduct, imposed the upper term of 16 years under a plea agreement that left the choice between 12 and 16 years to the court, and awarded 279 days of presentence credit. On appeal, appointed counsel filed a Wende brief; the Court of Appeal independently reviewed the record, found no reasonably arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of the guilty plea after advisement of constitutional and trial rights and plea consequences, with a factual basis supplied by the written plea form and the defendant's sworn admissions“The court advised Martinez of his constitutional and trial rights and the consequences of his guilty plea.” | unclear | correct | agree with court The opinion recites that Martinez signed a written plea form acknowledging advisement of rights and consequences, was orally advised by the court, and admitted under oath facts (living with the victim under 14 and substantial sexual contact) that satisfy the elements of § 288.5 and the § 1203.066, subd. (a)(8) allegation. On this record the plea appears knowing, voluntary, and supported by a factual basis; the court's Wende conclusion that no arguable issue exists is consistent with the facts recited. |
Imposition of the upper term of 16 years under § 288.5 based on the seven-year duration of the abuse“Because Martinez continuously sexually abused the victim during an extended period of time, the court imposed the upper term of 16 years.” | abuse of discretion | correct | agree with court The plea agreement expressly allowed the court to choose between 12 and 16 years, so the sentence was within the bargain. Section 288.5 requires only three or more acts over at least three months; abuse continuing for seven years and ending only when the victim moved out is a circumstance beyond the minimum elements and a legitimate aggravating factor. A single valid aggravating factor supports an upper term, so no abuse of discretion appears on the recited record. |
Award of 279 days presentence credit (243 actual days plus 36 days conduct credit)“Martinez received 279 days credit, calculated as 243 actual days plus 36 days work time credit.” | unclear | correct | agree with court Continuous sexual abuse under § 288.5 is a violent felony listed in § 667.5, subd. (c)(16), so conduct credit is capped at 15 percent under § 2933.1. Fifteen percent of 243 actual days is 36.45, which truncates to 36 days; the award matches the statutory limit. The opinion does not spell out this calculation, but the result is correct. |
Independent Wende/Anders review of the entire record disclosing no reasonably arguable appellate issue“A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue.” | de novo | correct | agree with court The court followed the required Wende procedure: counsel filed a brief summarizing facts and identifying possible issues, the defendant was given the opportunity to file a supplemental brief and did not, and the court independently reviewed the record. The opinion sets out the facts, the issues counsel raised, and the conclusion, which satisfies the content requirements for a Wende disposition. Nothing in the recited record suggests an arguable issue was overlooked. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may so advise the court but must identify anything in the record that might arguably support the appeal, and the court must then examine the record itself.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, recites the facts and the issues counsel flagged, and reaches a conclusion the recited record supports on the plea advisements, the bargained-for upper term, and the credits (which match the 15 percent cap for a violent felony). It does not expressly discuss the § 2933.1 credit limitation or cite People v. Kelly's content requirements for Wende opinions, but the omissions do not affect the result.
Opinion
Filed 3/2/15 P. v. Martinez CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066659
Plaintiff and Respondent, v. (Super. Ct. No. SCS269689)
JOSE NETZA MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Garry G.
Haehnle, Judge. Affirmed.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Jose Netza Martinez pleaded guilty to one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a))1 and admitted having substantial sexual conduct with a child under the age of 14 years (§ 1203.066, subd. (a)(8)). He also admitted that the victim was under the age of 18 years and that the court's action began prior to the 1 All statutory references are to the Penal Code. victim's 28th birthday. (§ 801.1, subd. (a).) The trial court sentenced Martinez to 16 years in prison and ordered him to pay fines and fees.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). After having independently reviewed the entire record for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2014, Martinez was charged with four counts of committing a lewd act upon a child, four counts of committing a lewd act upon a child 14 or 15 years of age, four counts of unlawful sexual intercourse with a minor under 16 years of age, oral copulation on a person under 16 years of age, four counts of oral copulation of a person under 18 years of age, and one count of secretly filming a person. (§§ 288, subd.
(a), 288, subd. (c)(1), 261.5, subd. (d), 288a, subd. (b)(2), 288a, subd. (b)(1), 647, subd.
(j)(3)(A).) The victim was Martinez' stepdaughter.
On June 23, 2014, Martinez pleaded guilty to one count of continuous sexual abuse of a child and admitted that substantial sexual conduct had occurred when the victim was less than 14 years old. (§§ 288.5, subd. (a), 1203.066, subd. (a)(8).) The prosecution agreed to dismiss the other counts and allow the trial court to determine the length of the sentence, which was to be either 12 or 16 years in state prison. Martinez filed a written guilty plea acknowledging he had been advised of his constitutional rights and the consequences of his guilty plea. He admitted that he lived in the same home with 2 the victim, who was under the age of 14 at the time, and that he had substantial sexual contact with her. The court advised Martinez of his constitutional and trial rights and the consequences of his guilty plea. Martinez, under oath, acknowledged he was advised of his constitutional rights and the charges against him, and wished to plead guilty.
At sentencing, the court found that Martinez' sexual abuse of the victim continued for seven years and stopped only when the victim moved away from home. Because Martinez continuously sexually abused the victim during an extended period of time, the court imposed the upper term of 16 years. Martinez received 279 days credit, calculated as 243 actual days plus 36 days work time credit.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel has presented no argument for reversal, and invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but not arguable, issues:
"1. Was appellant advised of his trial rights and the consequences of his plea prior to entering the plea bargain?
"2. Is there a factual basis for the plea?
"3. Did appellant receive the agreed sentence?
"4. Did appellant receive the correct pre-sentencing credit?
"5. Did the sentencing judge abuse his discretion in imposing the upper term of 16 years?"
3 A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. We granted Martinez permission to file a brief on his own behalf. He has not responded. Martinez has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12