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People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 6, 2012
F061208 (Cal. Ct. App. Feb. 6, 2012)

Opinion

F061208

02-06-2012

THE PEOPLE, Plaintiff and Respondent, v. ANGEL REYES MARTINEZ, Defendant and Appellant.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. F09905717)


OPINION


THE COURT

Before Levy, Acting P.J., Dawson, J. and Detjen, J.

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Angel Reyes Martinez contends the trial court impermissibly imposed the upper term of imprisonment and that his trial counsel was constitutionally ineffective for failing to object to the court's error. We will affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In the early evening of October 2, 2009, defendant emerged from his hiding place in the bushes along a bike trail in Fresno County and grabbed the victim, B., who had been walking on the trail. He threw her to the ground and, as she struggled to get away, struck her repeatedly, tried to choke her, and tried to remove her jogging shorts. After about 10 minutes, three passers-by intervened. Defendant fled on his bicycle and was arrested a short time later. The victim suffered cuts and bruises, as well as facial injuries and broken ribs.

Defendant was charged with assault with intent to commit rape (count 1, Pen. Code, § 220), with a great bodily injury enhancement (id., § 12022.8), and assault by means of force likely to produce great bodily injury (count 2, id., § 245, subd. (a)(1)), with a great bodily injury enhancement (id., § 12022.7). A jury found defendant guilty on both counts and found true the enhancement allegations.

At the October 26, 2010, sentencing hearing, the court imposed the upper term of six years in prison on count 1 and imposed the five-year enhancement prescribed by Penal Code section 12022.8. The court imposed sentence on count 2 and stayed that punishment pursuant to Penal Code section 654. In imposing the upper term on count 1, which is the subject of this appeal, the court found that the aggravating circumstances outweighed the mitigating circumstances, and that the "overarching circumstance in this case is the one that probation reflects at the end [of the presentence report]. The defendant here, Mr. Martinez, [] engaged in violent conduct which indicates a serious danger to society." (See Cal. Rules of Court, rule 4.421(b)(1) [aggravating factors include "defendant has engaged in violent conduct that indicates a serious danger to society"].) The court explained that defendant's violent sexual assault on a "complete stranger" who had not put herself in a dangerous circumstance constituted the basis for the aggravating factor and the upper term.

DISCUSSION

Defendant asserts that the trial court erred in two ways: First, he says the fact that defendant and the victim were strangers "does not make an offense distinctively worse so as to be an aggravating factor." Second, he says the court's reliance on violence constitutes an impermissible dual use of facts because violation of Penal Code section 220 requires, as an element, an action by the defendant "that would probably result in the application of force to a person." While he recognizes that there was no objection to the aggravating factor raised in the trial court—and that the absence of such an objection is usually fatal to an appeal based on such a claim of error (People v. Scott (1994) 9 Cal.4th 331, 348; People v. Steele (2000) 83 Cal.App.4th 212, 226)—defendant contends we should address the issues anyway because (a) we have discretion to do so and (b) the failure to object constituted prejudicial ineffectiveness of trial counsel.

To the extent we have discretion to review the claimed error in the trial court's statement of reasons for imposing the upper term (see People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6), we decline to exercise our discretion to do so. We decline to review the alleged errors because defendant has not begun to establish that the upper term sentence constitutes a miscarriage of justice. Even if, as defendant contends, the trial court erred in focusing its comments on the fact that the assault was upon a stranger in a public place (as opposed to an assault upon an equally vulnerable acquaintance in the privacy of a home, for example), an issue we do not reach, defendant's contention misses the trial court's main point: The persistent violence of this crime far exceeded the show of force necessary as an element of assault, and the violence continued even beyond the acts that resulted in great bodily injury (throwing the victim to the ground and punching her, thereby breaking her ribs). Because such violence exceeded the force necessary for the crime and was different and additional to the great bodily injury, imposition of the upper term based on such violence did not constitute a dual use of facts prohibited by California Rules of Court, rule 4.420(c) and (d). (See People v. Parrish (1985) 170 Cal.App.3d 336, 343-344.) Thus, the record amply supports the upper term sentence. If defendant had objected to the court's formulation of reasons for sentence in a timely manner, the court could easily have clarified its intent and corrected any error. (See People v. Scott, supra, 9 Cal.4th at p. 351.)

For the same reason, we reject defendant's contention that his trial counsel was constitutionally ineffective for failing to object to the trial court's statement reasons for imposing the upper term sentence. In order to establish constitutionally ineffective assistance of trial counsel an appellant must establish both deficient performance of counsel and prejudice arising from that deficient performance; to establish prejudice, the appellant must show that counsel's deficient performance renders the trial result unreliable or the proceeding fundamentally unfair. (In re Hardy (2007) 41 Cal.4th 977, 1018; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 215-216.) In the present case, because of the overwhelming grounds for selection of the upper term of imprisonment, there is no "reasonable probability that, but for counsel's unprofessional errors [if any], the result of the proceeding would have been" more favorable to defendant. (Strickland v. Washington, supra, 466 U.S. at p. 694.) For the type of error alleged in this appeal, if the alleged error did not result in a greater sentence, the proceeding is not unreliable or unfair. (See Lockhart v. Fretwell (1993) 506 U.S. 364, 372.)

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 6, 2012
F061208 (Cal. Ct. App. Feb. 6, 2012)
Case details for

People v. Martinez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANGEL REYES MARTINEZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 6, 2012

Citations

F061208 (Cal. Ct. App. Feb. 6, 2012)