Opinion
D076544
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MARTINEZ, Defendant and Appellant.
Justin Behravesh, 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, Michael Pulos and Nora S. Weyl, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF002485) APPEAL from judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Justin Behravesh, 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, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
Anthony Martinez entered a plea bargain in which he pleaded no contest to one count of robbery (Pen. Code, § 211) and admitted a strike prior (§ 667, subds. (b)-(i)) and a serious felony prior (§ 667, subd. (a)(1)). The parties agreed to a stipulated sentence of 11 years, consisting of the middle term of three years, doubled because of the strike prior, plus five years for the serious felony prior.
All further statutory references are to the Penal Code unless otherwise specified.
Although the 11-year sentence was stipulated in the plea bargain, the parties apparently agreed that Martinez could bring a motion under Senate Bill No. 1393, to strike the serious felony prior under section 1385 in the furtherance of justice. The motion was argued at the sentencing hearing. The court denied the motion to strike the serious felony prior and sentenced Martinez to prison for the 11-year term agreed to in the plea bargain.
Martinez appeals contending the court abused its discretion in denying the motion to strike the prior. He argues his age, his limited criminal history and the fact the court considered the "unproven fact" that he used a knife during the offense demonstrate the court should have granted the motion. We are not persuaded and will find the trial court acted well within its discretionary authority in denying the motion.
Although Martinez did not get a certificate of probable cause to allow the appeal, the People raise no objection here because the prosecutor in the trial court took the position that a motion to strike the prior was part of the agreement. --------
STATEMENT OF THE FACTS
This appeal follows a plea without any evidentiary hearing. The parties stipulated the trial court could consider the police report in this case as the factual basis for the plea. We will utilize the police report here to summarize the facts of the current offense.
"On Friday, July 19, 2019, at about 0149 hours, I was dispatched to a just occurred robbery at the Jack in the Box . . . . El Centro Police Department [] dispatch advised over the radio a Hispanic male adult wearing a gray shirt and white pants had a knife and was trying to take money from the business.
"Upon arrival I contacted employee (Victim) Raymundo [C.] and asked him to explain what happened. The following is a summary of his statement. Raymundo was inside the business assisting a customer at the drive through window. Raymundo noticed a male suspect, later identified as [Martinez], walk behind the front cash register counter and was wielding a knife in his right hand. [Martinez] told Raymundo, 'Give me the money.' Raymundo said he automatically reacted by removing the cash from the drive through cash register and placed it into a paper Jack in the Box bag. Raymundo estimated the stolen cash to be about $200-$500 dollars in various denominations. Raymundo gave [Martinez] the bag due to fearing for his life he may be stabbed. Another Jack in the Box employee, Joel [H.], began to approach [Martinez] from behind. Raymundo told Joel to stay back after [Martinez] turned toward, possibly to lunge at him. Raymundo regained [Martinez's] attention by asking him if he also wanted the change in the register and he said no.
"After [Martinez] took the cash he told Raymundo, 'tell CNN I took your money' and he fled the business through the south front door. Raymundo watched [Martinez] walk south through the parking lot and managed to capture a photo of him on his cellphone. In the photo [Martinez] is wearing a black hat, black shirt, white shorts with a black stripe, black shoes, and his is seen carrying a black and white colored flannel. Raymundo lost sight of [Martinez] as he walked away and was eventually contacted by me.
"I spoke with employee Joel and asked him to explain what happened. The following is a summary of his statement. Joel was preparing food for customers at the grill when he turned around and saw Raymundo talking to [Martinez]. Joel saw [Martinez] was armed with a knife in his right hand and said he demanded money from Raymundo. Joel approached [Martinez] to stop the threat, but stopped after [Martinez] pointed the knife at him. Raymundo told Joel to back up and he did because he feared for his life that [Martinez] would stab him. Joel said once [Martinez] was given the case he fled the location.
"I spoke with employee Daniel [L.] and asked him to explain what happened. The following is a summary of his statement. Daniel was outside on break when he noticed [Martinez] pass by him and enter the business. Daniel assumed [Martinez] was just a customer. Daniel still wore his headset and informed that he communicates with Raymundo and Joel through it. As Daniel was outside he heard, 'Just give me the fucking money I'm gonna shank you.' Daniel looked at Raymundo inside and saw [Martinez] was behind the front counter armed with a knife in his right hand. Daniel immediately called 911 to report the incident. Daniel remained outside until [Martinez] fled south from the location. Daniel said [Martinez] may have arrived in a small red vehicle seen parked off in the distance but he was not sure.
"I spoke with customer Zachery [M.] and asked him to explain what happened. The following is a summary of his statement. Zachery was eating inside the business when he heard someone behind the front counter yell, 'I want all your shit in the register. Coins everything. I have a weapon.' Zachery moved to witness what was happening behind the front counter and saw [Martinez] standing there next to Raymundo. Zachery did not see any weapons on [Martinez] but once he was given cash he fled the business.
"I spoke with customer Diantha [B.] and asked her to explain what happened. The following is a summary of her statement. Diantha was eating inside the business when she heard someone behind the front counter demanding for money from the register. Diantha could not recall the exact words used. Diantha didn't see what was happening but saw Joel make a phone with his hands and put it up to his ear. Diantha believed Joel was in fear and was telling her to call the police. Diantha dialed 911 and saw [Martinez] fled the business carrying a plastic bag.
"I spoke with customer Seth [B.] and asked him to explain what happened. The following is a summary of his statement. Seth was eating inside the business when he heard someone behind the front counter say, 'Give me the money in the register.' Seth didn't see what was happening so he moved and saw [Martinez] standing next to Raymundo. Seth heard Raymundo ask [Martinez] if he wanted the change in register too but once he was given a bag he fled the business through the south front door. Seth did not see [Martinez] with any weapon.
"I spoke with customer Travis [O.] and asked him to explain what happened. The following is a summary of his statement. Travis was eating inside the business when he saw [Martinez] walk behind the front counter begin screaming. Travis walked outside and soon [Martinez] did the same. Travis saw [Martinez] had a knife in his right hand and a flannel in his left. Travis said [Martinez] fled on foot southbound from the business."
DISCUSSION
A. Legal Principles
Effective January 1, 2019, section 1385 was amended to permit trial courts to exercise their discretion to strike serious felony prior convictions in the furtherance of justice. (Sen. Bill No. 1393; People v. Garcia (2018) 28 Cal.App.5th 961, 971; People v. Ellis (2019) 43 Cal.App.5th 925, 944, review granted Feb. 26, 2020, S260261).
Trial courts have discretion to strike serious felony priors under section 1385. Accordingly, we review such decisions under the abuse of discretion standard of review. (People v. Taylor (2020) 43 Cal.App.5th 1102, 1113.)
Under the abuse of discretion standard, the burden is on the challenging party to show the sentencing decision was irrational or arbitrary. Reviewing courts will not set aside such a decision because reasonable people might disagree as to the appropriateness of the sentencing choice. (People v. Carmony (2004) 33 Cal.4th 367, 376-377; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978). It is only where the trial court's decision is unreasonable or arbitrary and no reasonable person would make such choice, should the reviewing court set aside the decision. (Carmony, at p. 377.)
B. Analysis
Martinez does not meet his burden to show the trial court's decision was an abuse of discretion. He offers reasons, which he thinks would justify a ruling in his favor, but he does not show that no reasonable trial judge would make the same decision. He argues the trial court should not have given weight to the evidence of the use of a knife because it was unproven. He further argues that his age and limited criminal history required the court to strike the prior. We will discuss these claims in order.
Dealing first with the use of a knife. The police did not recover a weapon, and Martinez was not required to admit the alleged weapon enhancement. However, the factual basis for the plea includes statement of witnesses that they saw Martinez with a knife. He certainly claimed he had a weapon and threatened the victim that he would use it. The court considered the factual basis and recognized in any event that Martinez placed the victim in fear with threats of violence and appeared to brandish a knife.
For some reason, Martinez argues his age is a mitigating factor. He claims he was "only 30-years old." We are at a loss to understand what there is about being a mature 30-year old adult that mitigates his culpability for robbery either with a knife or with a claim of a knife. Nothing about his age was mitigating. Nor would it compel a reasonable person to believe the enhancement must be stricken.
Finally, he argues his "limited record" was mitigating. The trial court did not find anything about his criminal record to be beneficial. Martinez had two prior misdemeanor convictions; resisting an officer and battery. However, Martinez had also been convicted of robbery and sentenced to prison for two years in 2017. By mid-2019, Martinez had been released from prison and quickly committed the current robbery with threats of violence and a weapon or claimed weapon. The court found Martinez had learned nothing from his prior contacts with the criminal justice system and was a person prone to violence. Respectfully, Martinez's criminal record is an aggravating factor under these facts, and it is not even remotely sufficient to persuade, let alone compel, a trial judge to grant the section 1385 motion.
There is nothing in this record to suggest any abuse of discretion in this case. Martinez has not met his burden on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.