Opinion
B227832
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. RAMON MARTINEZ et al., Defendants and Appellants.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant Ramon Martinez. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant Mario R. Vargas. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Dana M. Ali, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA369898)
APPEAL from judgments of the Superior Court of Los Angeles County. William R. Pounders, Judge. Affirmed.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant Ramon Martinez.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant Mario R. Vargas.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Ramon Martinez and Mario R. Vargas appeal from their convictions for second degree robbery. We affirm.
FACTS
On the night of April 5, 2010, Abraham Gutierrez Lopez was robbed by Martinez and Vargas. Lopez had taken the bus home after dinner with friends and was walking from the corner of Hollywood and Normandie when he encountered Martinez, whom he knew from the neighborhood. Martinez asked him for a beer and Lopez obliged, buying two beers from a nearby liquor store. Lopez and Martinez each drank a beer and talked for about 15 minutes. Lopez finished his beer and started to walk home when Vargas arrived. Vargas and Martinez called to Lopez as he approached the gate to his building. Martinez asked Lopez to give him his iPod. Lopez refused. Vargas and Martinez then hit and kicked Lopez, who fell to the ground. They took his shoes, iPod, cell phone and approximately $5 dollars. Lopez suffered a broken tooth, which affected the way he could eat for a week. Lopez was also bleeding from the face and the back of his head and his chest was bruised but he refused to go to the hospital because he did not have health insurance. He was shaking and crying.
A passerby called the police. Lopez told Los Angeles police officers where to find Vargas and Martinez. Vargas's father answered the door and let the officers in. Martinez was in the kitchen and Vargas was in bed. Lopez's iPod was found on Vargas and his shoes were next to the bed. The officers also found Lopez's cell phone and three $1 bills on Martinez. The officers returned the items to Lopez.
At trial, the prosecution presented evidence of the facts stated above. The defense presented testimony from a neighbor that the apartment in which Vargas and Martinez were found had surveillance cameras mounted outside of the building and could have captured the incident. The officer who responded to the incident admitted he only looked to see whether Martinez's building had cameras, but not any adjacent buildings.
Martinez and Vargas were convicted in a jury trial of second degree robbery. (Pen. Code, § 211.) In a bifurcated bench trial, the trial court found Vargas had suffered a prior conviction for a serious or violent felony and a prior serious conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a)(1).) Martinez was denied probation and sentenced to three years in state prison. Vargas was sentenced to prison for the mid-term of three years, doubled to six years because of the strike, with an additional five years imposed for the prior conviction for a total of 11 years. Both timely appealed and were appointed counsel.
Martinez and Vargas separately appeal the judgments against them. They also filed separate briefs. For convenience and to avoid repetition, we address their arguments in one opinion.
DISCUSSION
I. Martinez's Appeal
On appeal, Martinez contends the court abused its discretion by failing to take into consideration all of the facts in the case when it denied probation. We disagree.
Although the probation department recommended probation for Martinez, the sentencing court refused to grant it, stating that it was "shocked" with the "unnecessary violence" he used against a "helpless" and "intoxicated" victim. According to the sentencing court the message sent was: "We own the street. We're going to take whatever we want from you, and there is nothing you can do about it." As a result, Martinez was sentenced to the middle term of three years in state prison.
Martinez listed the following factors in mitigation in support of granting probation: the minor nature of the crime, the minor injuries suffered by Lopez, Martinez's complete lack of a criminal record or history of substance abuse and mental problems and his gainful employment which established he was a productive and responsible citizen. Further he would have no problem abiding by a restraining order as he lived and worked in Carson and not Hollywood. According to Martinez, all of these factors contributed to the conclusion that he would not be a risk to public safety if released on probation. Martinez also argues imprisonment would prevent him from supporting himself and his child.
The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; Pen. Code, § 1203.1.) The Penal Code requires the sentencing court to state the reasons for its sentence. (Pen. Code, § 1170 subd. (c).) "Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant." (Cal. Rules of Court, rule 4.414.) Facts relating to the crime include: "(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; (2) Whether the defendant was armed with or used a weapon; (3) The vulnerability of the victim; (4) Whether the defendant inflicted physical or emotional injury; (5) The degree of monetary loss to the victim; (6) Whether the defendant was an active or a passive participant; (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime." (Cal. Rules of Court, rule 4.414(a).)
The trial court must also consider a defendant's prior criminal record, prior performance on probation or parole, willingness and ability to comply with the terms of probation, the adverse consequence of a felony conviction on the defendant, the likely effect of imprisonment on the defendant and his dependents, the defendant's remorse and whether the defendant will be a danger to others. (Cal. Rules of Court, rule 4.414(b).) The court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation unless the record affirmatively reflects otherwise. (Cal. Rules of Court, rule 4.409.)
Here, the sentencing court confirmed it reviewed the parties' sentencing memoranda as well as the one provided by the probation department. The court also invited and heard oral argument from Martinez's counsel. It is apparent from the record that the sentencing court considered all factors relevant to this matter in deciding to deny probation, including those pointed out by Martinez in the current appeal. There is nothing in the record to indicate the sentencing court abdicated its duty and only considered one or two factors, as Martinez contends. Further, the court was within its power to reject the probation department's report and recommendations. (People v. Warner (1978) 20 Cal.3d 678, 683.)
There is also no legal support for a finding that the sentencing court abused its discretion. The cases on which Martinez relies to argue it did are inapposite. (People v. Bolton (1979) 23 Cal.3d 208 [court improperly considered fact that defendant fathered children out of wedlock and received welfare]; People v. Warner, supra, 20 Cal.3d at p. 683 [it was an abuse of discretion to grant probation to a defendant who plead guilty to committing a lewd or lascivious act upon a child when he had an extensive criminal history of lewd acts against young boys and showed no evidence of rehabilitation].)
II. Vargas' Appeal
Vargas's appointed counsel filed an opening brief raising no issues. We mailed a letter to Vargas on April 12, 2011, advising him that he could submit any argument or contention he wished this court to consider. We have received no correspondence from him. We have independently reviewed the record submitted for this appeal and find that Vargas's appointed counsel has fulfilled her duty, and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.)
DISPOSITION
The judgments against Vargas and Martinez are affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
FLIER, J.