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People v. Martinez

California Court of Appeals, Fourth District, Second Division
Apr 30, 2009
No. E046819 (Cal. Ct. App. Apr. 30, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. BLF004017, James S. Hawkins, Judge. Affirmed.

Richard De La Sota for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

Gaut J.

Defendant Gilberto Garcia Martinez (defendant) and codefendant Isaac Paul Aguirre burglarized two residences in the Wind River Resort on the Colorado River, near Blythe. They also stole vehicles located on the two properties and various other items.

Defendant was convicted by jury of first degree residential burglary (Pen. Code, § 459; counts 1 and 2); unlawful taking or driving a vehicle, a Honda quad (Veh. Code, § 10851, subd. (a); count 3); unlawful taking or driving a vehicle, a Jeep (Veh. Code, § 10851, subd. (a); count 4); unlawful taking or driving a vehicle, a boat trailer (Veh. Code, § 10851, subd. (a); count 5); grand theft of a Craftsman air compressor (§ 487, subd. (a); count 6); and grand theft of a firearm (§ 487, subd. (d)(2); count 7). In a bifurcated trial, the court found true a prior prison term allegation. (§ 667.5, subd. (b).) The trial court sentenced defendant to an aggregate prison term of 10 years four months.

Unless otherwise noted, all statutory references are to the Penal Code.

Defendant appealed his conviction and this court, in an unpublished opinion entered on May 12, 2008 (case No. E041835), reversed the judgment as follows: Defendant’s conviction for grand theft of the air compressor (count 6) was reduced to a conviction for petty theft (§ 490), with all other convictions affirmed; defendant’s consecutive sentence on count 5 (unlawful taking or driving the boat trailer) was reversed under section 654, with directions the trial court order defendant’s sentence on count 5 stayed; and defendant’s upper term sentences for burglary (counts 1 and 2) were reversed under Cunningham and remanded for resentencing on counts 1 and 2.

We note the trial court actually imposed the midterm on count 2, not the upper term.

Cunningham v. California (2007) 549 U.S. 270, 274.

This court concluded there was Cunningham error on the ground the trial court imposed the upper term on count 1 based upon factual findings that the evidence showed planning and sophistication, and the takings and attempted takings were of great value.

On remand, the trial court resentenced defendant in accordance with this court’s decision and instructions for resentencing on counts 1, 2, 5, and 6. As to count 1, the trial court reimposed the upper term based on defendant’s criminal record. The trial court reimposed the middle term on count 1. The sentences on counts 2, 3, and 4 remained consecutive, as originally imposed.

With regard to count 5, the court imposed one-third the middle term, but stayed the sentence under section 654, as instructed by this court. The trial court imposed a stayed sentence of six months in jail for count 6, which was reduced to misdemeanor theft, as instructed by this court. (§§ 19, 490.1, subd. (a).) Defendant’s aggregate sentence was reduced to nine years eight months.

We do not elaborate on the facts in this case since they are stated in our previous decision (No. E041835) and are not relevant to this appeal since defendant’s notice of appeal only raises the issue of resentencing.

On October 6, 2008, defendant appealed judgment entered following resentencing on September 18, 2008, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and requesting this court to undertake a review of the entire record, including judicially noticing the record in defendant’s previous appeal, case No. E041835. We granted judicial notice of the record in case No. E041835 and offered the defendant an opportunity to file a personal supplemental brief, which he has not done.

The primary issue on appeal is the propriety of defendant’s sentence on remand from his previous appeal and reimposition of the upper term sentence for defendant’s count 1 burglary conviction. Defendant suggests the trial court may have improperly used defendant’s record both to justify the upper term on count 1 and to impose consecutive terms. (Cal. Rules of Court, rule 4.425(b)(1).)

The trial court did not state, when sentencing defendant originally or during resentencing, that it relied on defendant’s record as a factor in imposing consecutive sentencing. The trial court only mentioned defendant’s record as a factor when resentencing defendant to the upper term on count 1. The trial court stated when defendant was originally sentenced defendant that it was imposing consecutive sentences under California Rules of Court, rule 4.425(a), because each count involved separate places and independent objectives. During resentencing, the court did not specify any reasons for imposing consecutive sentencing.

Based on the record, there does not appear to be any sentencing error. There is no indication that the trial court improperly relied on defendant’s record both as a factor justifying the upper term on count 1 and as a basis for imposing consecutive terms in violation of California Rules of Court, rule 4.425(b)(1).

We have now concluded our independent review of the record under People v. Kelly (2006) 40 Cal.4th 106, and find no arguable issues.

3. Disposition

The judgment is affirmed.

We concur: McKinster Acting P. J., King J.


Summaries of

People v. Martinez

California Court of Appeals, Fourth District, Second Division
Apr 30, 2009
No. E046819 (Cal. Ct. App. Apr. 30, 2009)
Case details for

People v. Martinez

Case Details

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

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 30, 2009

Citations

No. E046819 (Cal. Ct. App. Apr. 30, 2009)