Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC626907, CC626926
Premo, J.
Defendant Silvio Bacar Martinez, Jr., appeals from a sentence imposed following his plea of no contest to a variety of charges in two consolidated cases.
We appointed counsel to represent Martinez in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Martinez of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Martinez.
As Martinez pleaded no contest, we derive the facts from the probation report and other documents in the record on appeal.
I. Factual and Procedural Background
A. Santa Clara County Superior Court Case No. CC626907
On February 9, 2006, San Jose Police responded to a report of a burglary at the home of Martinez’s ex-girlfriend, Veronica Vargas. Vargas reported that Martinez had come over and began banging on the front door of her home. When she refused to let him in, he forced his way in through an unlocked window. Martinez then punched Vargas in the back of the head, three or four times, and told her that he would kill her the next time. After hitting her, Martinez grabbed Vargas’s purse, which contained her California ID, credit card and $200 in cash, and fled. Vargas had a visible bruise on the top rear part of her head and her face was swollen. She reported feeling dizzy and pain in the back of her head.
On June 27, 2008, Martinez was charged by information with one count of first degree robbery (Pen. Code, § 211, count 1), one misdemeanor count of battery on a person in a dating relationship (§ 243, subd. (e), count 2), one count of first degree burglary (§ 459, count 3) and one count of threatening to commit a crime resulting in death or great bodily injury (§ 422). The information further alleged that Martinez had a prison prior (§ 667.5, subd. (b)).
All further unspecified statutory references are to the Penal Code.
B. Santa Clara County Superior Court Case No. CC626926
On April 2, 2006, San Jose Police were dispatched to a report of domestic violence at the home of Martinez’s girlfriend, Rachael Acosta. Acosta said that she and Martinez had been out the previous night, drinking, and got into an argument when they arrived home. After she pushed Martinez in the chest, he punched her in the face with his fist. Acosta fell to the floor. When she tried to call 911 on her cell phone, Martinez grabbed the phone from her.
Acosta then tried to run from Martinez, but he grabbed her by the hair, dragged her back into the house and strangled her until she passed out. She awoke when Martinez poured water on her face.
When Martinez went to use the bathroom, she again tried to flee. Martinez caught her, dragging her back inside by the hair. Acosta sought to lock herself in the bathroom, but Martinez kicked in the door and began punching her in the chest and the leg with his closed fist. At some point, Acosta lost consciousness again and, when she awoke, Martinez was gone. Martinez had taken Acosta’s car, house keys, cell phone and purse.
The responding officer observed damage to the bedroom door and bruising on Acosta’s neck, throat, arms and legs. Acosta complained of overall soreness in her body, and had difficulty swallowing and breathing.
On July 18, 2008, an information was filed charging Martinez with one count of first degree robbery (§ 211, count 5), one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count 6), one count of theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a), count 7), one count of false imprisonment (§§ 236, 237, count 8), one count of misdemeanor petty theft of personal property (§ 484, count 9) and one count of misdemeanor vandalism (§ 594, subds. (a), & (b)(2)(A), count 10).
The six counts alleged in this information were renumbered counts 5 through 10 when a subsequent information consolidating case No. CC626907 with case No. CC626926 was filed on August 8, 2008. As there was no change in the substance of the supporting allegations, we use the count numbers set forth in the August 8, 2008 information.
C. Court proceedings
On July 1, 2008, Martinez’s Marsden motion was heard and denied.
People v. Marsden (1970) 2 Cal.3d 118.
On November 10, 2008, motions in limine were heard, and the People’s motion to dismiss counts 8, 9 and 10 in the interests of justice was granted.
On November 12, 2008, Martinez pleaded no contest to the remaining seven counts and admitted the prison prior, on condition that he be sentenced to no more than five years in prison.
At sentencing, the court imposed sentence as follows: (1) the midterm of four years on count 1; (2) a concurrent jail term of 90 days on count 2; (3) the midterm of four years on count 3, stayed pursuant to section 654; (4) a concurrent midterm of two years for count 4; (5) a concurrent midterm of four years on count 5; (6) a concurrent midterm of three years on count 6; and (7) a concurrent term of two years on count 7. Punishment for the prison prior was stricken pursuant to section 1385. Martinez’s total prison term was four years.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
II. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.