Opinion
D076746
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ABRAHAM MARTINEZ, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski, and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1702994) APPEAL from a judgment of the Superior Court of Riverside County, Patrick F. Magers, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski, and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
In 2018, a jury convicted Anthony Abraham Martinez of one count of unlawful possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1) and six counts of felony vandalism (§ 594, subd. (a), (b)(2)(A); counts 2, 4, 5, 6, 7, and 8). The jury also found true a gang enhancement under section 186.22, subdivision (a)). The court made true findings on an alleged serious felony prior (§ 667, subd. (a)(1); a strike prior (§ 667, subds. (b)-(i)); and a prison prior (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified. --------
Martinez was originally sentenced to a determinate 12-year term, including a five-year term for the serious felony prior.
Martinez appealed and this court affirmed his convictions in an unpublished opinion. (People v. Martinez (Jan. 28, 2010, D074695) [nonpub. opn.] (Martinez).) We remanded the case to the trial court to allow the court to exercise its discretion to consider striking the serious felony prior under the court's newly acquired discretion under section 1385. We also directed the court to clarify the abstract of judgment to determine if the vandalism counts are felonies or misdemeanors.
On remand the trial court appointed counsel and held a hearing on the defense's request to strike the prior. The court acknowledged its discretionary power but declined to strike the prior. The court also clarified the vandalism counts were felonies. The court ordered the abstract of judgment amended accordingly.
STATEMENT OF FACTS
The facts of the underlying offenses are fully set forth in our prior opinion. We find no need to repeat them here.
DISCUSSION
Martinez contends the trial court abused its discretion in declining to strike the five-year prior. The record shows the judge presided over the original trial and sentencing and was familiar with the facts and Martinez's background. Martinez was an active gang member engaging in graffiti marking gang territory as part of turf battles between gangs. Martinez was armed with a nine-millimeter pistol, loaded with hollow-point ammunition. (Martinez, supra, D074695, at pp. 2-4, 9.)
The court was aware Martinez had convictions for firearm possession, burglary, attempted grand theft, and assault with a deadly weapon, and had been previously sent to prison.
Trial judges are afforded broad discretion in making sentencing decisions. The fact that another judge might reach a different conclusion in a sentencing process does not signal an abuse. Rather, it illustrates that judges are entitled to make rational choices when deciding to impose a particular sentence.
When a person challenges such decisions, there must be a showing that the decision was irrational, arbitrary, or based on a misunderstanding of the court's authority. We will not set such decisions aside unless there is a clear showing of an abuse of the court's discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-377; People v. Williams (1998) 17 Cal.4th 148, 161.)
Here, the court was aware of the facts of the offenses as well as Martinez's dismal criminal history, gang membership, and continuous use of firearms. The fact Martinez thinks a seven-year term is enough is not justification for this court to interfere with the trial court's exercise of its sound discretion. Rather, the record demonstrates the trial court, fully informed of the circumstances and its authority, acted well within its broad sentencing power when it denied the request to strike the serious felony prior.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. HALLER, J.