Opinion
B296646
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JAIME MARTIN, Defendant and Appellant.
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran, Deputy Attorney General, and Shezad H. Thakor, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA068140) APPEAL from a judgment of the Superior Court of Los Angeles County, Charles A. Chung, Judge. Affirmed. Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran, Deputy Attorney General, and Shezad H. Thakor, Deputy Attorney General, for Plaintiff and Respondent.
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In this appeal, Jaime Martin (defendant) appeals for a second time from the 30-year-to-life-sentence imposed on him from his convictions for making criminal threats (Pen. Code, § 422) and assault with a deadly weapon (§ 245, subd. (a)(1)). He makes two sets of arguments: (1) he complains that the trial court should have ordered a supplemental probation report, and (2) he renews several arguments we already rejected on their merits in the prior appeal of his convictions (see People v. Martin (Jan. 31, 2019, B280393) [nonpub. opn.] (Martin I)). Because these arguments provide no basis for relief, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
"In March 2016, defendant approached a teenage boy as the boy got out of his parents' car to open the driveway gate to the long-term hotel where the boy and his family lived. Defendant was carrying an oval-shaped rock approximately eight to nine inches across. He told the boy, 'Today it's rocks and tomorrow it's bullets.'" (Martin I, supra, B280393, 2019 Cal. App. Unpub. LEXIS 772, at p. 3.)
"Defendant walked over to one of the nearby apartments and knocked on the door using the rock. A young woman came to the door. When the woman's father came to the door and asked her to call the police, defendant became 'furious' and said, 'The police can grab my dick.' Defendant then raised his arm as if to throw the rock and, with the rock in his hand, told the father, 'I'm going to kill you.'" (Ibid.)
"At that moment, the teenage boy's father got out of the car and approached defendant, urging him to put the rock down and to relax. When the boy's father was about six to ten feet away from defendant, defendant said, 'I'm also going to fuck you over' and threw the rock at the man's head. The man ducked, and the rock struck him on the shoulder before slamming into a wall behind him and breaking into several smaller pieces. The rock hit with enough force to bruise the man's shoulder and to damage the wall behind him." (Ibid.)
"At that point, a melee broke out between defendant, the two fathers, and their families. Defendant ended up sustaining physical injuries in the fight." (Id. at p. 4.)
"Defendant was under the influence of amphetamines, cocaine and marijuana at the time." (Ibid.)
II. Procedural Background
A. Initial charges
As pertinent here, the People charged defendant with (1) making criminal threats against the woman's father and (2) assault with a deadly weapon for striking the boy's father with the rock. The People further alleged that the two robbery convictions that defendant sustained in 2002—each involving holding a victim at gunpoint—constituted "strikes" within the meaning of the Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12) as well as prior serious felonies (§ 667, subd. (a)) and prior prison terms (§ 667.5, subd. (b).) (Martin I, supra, B280393, 2019 Cal. App. Unpub. LEXIS 772, at pp. 1, 4.)
B. Trial , conviction and sentencing—first Romero motion
The matter proceeded to a jury trial, and the jury convicted defendant of making criminal threats and assault with a deadly weapon. At a subsequent bench trial, the court found both prior robbery conviction allegations to be true. In January 2017, the court then sentenced defendant to 35 years to life on each count (to be served concurrently), calculated as 25 years to life (because each was a third "strike") plus two, five-year consecutive enhancements for each prior serious felony. In imposing this sentence, the trial court denied defendant's motion to dismiss the two prior "strike" convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (Martin I, supra, B280393, 2019 Cal. App. Unpub. LEXIS 772, at pp. 4-5.)
The People had also charged defendant with four counts of assault by means of force likely to produce great bodily injury against some of the other participants in the melee (§ 245, subd. (a)(4)) and three additional counts of making criminal threats against some of the other participants in the melee. The jury acquitted defendant of these counts. (Martin I, supra, B280393, 2019 Cal. App. Unpub. LEXIS 772, at p. 4, fn. 3.)
C. Resentencing —second Romero motion
In April 2018, the trial court re-sentenced defendant to 30 years to life for each offense (to be served concurrently), calculated with the same base sentence of 25 years to life but only one five-year enhancement for a prior serious felony. Prior to and at that hearing, defendant asked the court to "reconsider" its denial of defendant's previous motion to dismiss the prior strikes. The trial court declined.
D. Prior appeal
Defendant appealed, and his appeal challenged the trial court's denial of his two Romero motions, asserted that his 30-year-to-life sentence constituted cruel and unusual punishment, and urged this court to remand the matter back to the trial court to exercise its newly conferred discretion to strike the prior serious felony enhancement. (Martin I, supra, B280393, 2019 Cal. App. Unpub. LEXIS 772, at p. 2.) We rejected defendant's first two claims on their merits and remanded for the trial court to exercise its newfound discretion. (Id. at pp. 5-12, 13.)
E. Resentencing on remand —third Romero motion
In March 2019, the trial court held a sentencing hearing on remand. The court declined to exercise its newfound discretion to dismiss the prior serious felony enhancement. Defendant asked the court to "reconsider" his Romero motion one more time, and the trial court again declined to do so.
Defendant also filed a petition for a writ of habeas corpus challenging the lawfulness of the trial court's finding that defendant's prior two "robbery" convictions constitute separate "strikes." The trial court denied that petition.
F. Appeal
Defendant again appealed.
DISCUSSION
I. Supplemental Probation Report
Defendant argues that the trial court erred in not ordering a supplemental probation report in advance of the March 2019 sentencing hearing on remand because, by that time, nearly three years had elapsed since the initial pretrial probation report had been prepared. For support, defendant cites the line of authority requiring a trial court to order a supplemental probation report if "a significant period of time has passed since the original [probation] report was prepared." (Cal. Rules of Court, rule 4.411(a)(2); People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181 (Dobbins) [eight months between original probation report and resentencing necessitates supplemental report]; People v. Mercant (1989) 216 Cal.App.3d 1192, 1194-1196 [three years between original sentencing date and actual sentencing]; People v. Conners (2008) 168 Cal.App.4th 443, 457 [no probation report initially created]; see also People v. Mariano (1983) 144 Cal.App.3d 814, 824-825.)
We reject defendant's argument because the authority he cites does not apply to him. The rule requiring a supplemental probation report has a longstanding exception—namely, that "a supplemental report is required only if the defendant is eligible for probation." (People v. Johnson (1999) 70 Cal.App.4th 1429, 1432 (Johnson); People v. Llamas (1998) 67 Cal.App.4th 35, 39 (Llamas); People v. Goldstein (1990) 223 Cal.App.3d 465, 471-472 (Goldstein); People v. Webb (1986) 186 Cal.App.3d 401, 408-409; People v. McClure (1987) 191 Cal.App.3d 1303, 1306 (McClure); People v. Franco (2014) 232 Cal.App.4th 831, 834 (Franco); People v. Murray (2012) 203 Cal.App.4th 277, 289, overruled on other grounds in People v. Gutierrez (2014) 58 Cal.4th 1354, 1370-1371.) Where a defendant is ineligible for probation—even presumptively so—the trial court has the option to order a supplemental report "in [its] discretion." (§ 1203, subd. (g) ["If a person is not eligible for probation, . . . [t]he judge, in [his or her] discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person."]; see also Goldstein, at pp. 471-472; McClure, at p. 1306.)
Because defendant's prior strike convictions and his current conviction for assault with a deadly weapon render him presumptively ineligible for probation (§ 667, subd. (c)(2) [prior "strike" conviction renders a defendant ineligible for probation]; § 1203, subd. (e)(2) [persons who "used . . . a deadly weapon upon a human being" presumptively ineligible for probation]), the trial court did not commit any error under the line of authority applicable to defendant for two reasons. First, defendant did not request a supplemental probation report and the failure to do so is fatal when preparation of the report is discretionary. (Franco, supra, 232 Cal.App.4th at p. 834; People v. Myers (1999) 69 Cal.App.4th 305, 311; cf. Dobbins, supra, 127 Cal.App.4th at p. 181 [when preparation of supplemental report is mandatory, absence of report cannot be forfeited].) Second, defendant has not otherwise demonstrated that the trial court abused its discretion in not ordering a supplemental probation report. (See Llamas, supra, 67 Cal.App.4th at p. 40.) That is because defendant points to nothing to indicate that "a current report would have provided the court with any essentially useful information for purposes of resentencing." (McClure, supra, 191 Cal.App.3d at p. 1306.)
Defendant makes two arguments in response.
First, he argues that he is entitled to a probation report because he "would have been eligible . . . had the trial court struck both of his prior strikes." (Italics added.) We reject this argument because a court's duty to obtain a supplemental probation report turns on whether the defendant is "eligible for probation" (§ 1203, subd. (g); Johnson, supra, 70 Cal.App.4th at p. 1432), not whether he would be eligible on a hypothetical set of facts that may or may not come to pass. If, as defendant suggests, hypothetical eligibility were the test, the duty to obtain supplemental reports would be vastly broadened; defendant cites no authority to support such an expansion.
Second, defendant urges that the solid wall of precedent declaring that supplemental probation reports are discretionary rather than mandatory is wrongly decided in light of our Supreme Court's decision in In re Cortez (1971) 6 Cal.3d 78 (Cortez). Cortez is inapt. Cortez spelled out the procedures to be followed for defendants entitled to resentencing after the Supreme Court declared unconstitutional a prior statute depriving trial courts of all discretion to dismiss certain allegations in drug cases, and more specifically, Cortez held that one of those procedures was the preparation of a supplemental probation report. (Id. at pp. 82, 89.) In other words, Cortez held that a supplemental probation report was required when a defendant becomes eligible for probation because a prior bar to eligibility for probation is removed. Cortez does not speak to the situation we have here, where the defendant is ineligible for probation.
II. Renewal of Previously Rejected Arguments
Defendant also argues that the trial court erred in rejecting his third Romero motion and his claim that his 30-years-to-life sentence is unconstitutional. Defendant litigated these precise claims in Martin I, and our resolution of them on the merits means that our rejection of them is now law of the case and cannot be revisited "'absent some significant change in circumstances.'" (People v. Boyer (2006) 38 Cal.4th 412, 441.) There is no such change. Most of defendant's challenges in this appeal are identical to those we already rejected—namely, his arguments that the trial court erred in characterizing his criminal history as "lengthy," that he is outside the spirit of the Three Strikes Law, and that his sentence is cruel and unusual. The only challenge that is new or different from the prior appeal is his argument that the trial court, in denying his Romero motion, was wrong to rely upon the conduct underlying some of the counts of which the jury acquitted him. But this argument was available to defendant when he litigated the prior appeal and, more to the point, it lacks merit. (People v. Towne (2008) 44 Cal.4th 63, 70-71, 86.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
CHAVEZ