Opinion
E076711
10-01-2021
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP JESUS MARTINEZ, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB17001907 William Jefferson Powell IV, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON, Acting P. J.
I. INTRODUCTION
Defendant and appellant Phillip Jesus Martinez appeals from the judgment entered following this court's remand for resentencing to correct the trial court's unauthorized sentence. Appointed appellate counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of the record, and indicating he has not identified any arguable issues for reversal on appeal following his review of the record. We also have identified no arguable issues after our own independent review of the record of the proceedings following remand. We thus affirm the judgment.
The background is taken from this court's nonpublished opinion in defendant's prior appeal, case No. E071964. (People v. Martinez (June 24, 2020, E071964) [nonpub. opn.] (Martinez I).)
In October 2018, a jury convicted defendant of assault with a deadly weapon (a knife) (Pen. Code, § 245, subd. (a)(1); count 1) upon L.G., felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 4), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 5), and possession of methamphetamine while armed with an operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 6). The jury also found true that defendant had previously been convicted of two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)) and two prior serious or violent felony strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to a total term of 36 years four months to life in prison. (Martinez I, supra, E071964 at p. 2.)
A mistrial was declared as to count 2, street terrorism (Pen. Code, § 186.22, subd. (a)), and count 3, assault with a deadly weapon (a knife) (Pen. Code, § 245, subd. (a)(1)) upon C.H.
Following defendant's first appeal, we concluded “the trial court erred in imposing a consecutive term on count 4 of one-third the middle term instead of the full base term because the indeterminate and determinate terms must be calculated separately. [Citations.]” (Martinez I, supra, E071964 at p. 13.) We further determined the trial court also “erred in identifying count 4 as the principal term for purposes of computing the aggregate determinate sentence.” (Id. at p. 14.) We explained that “[c]ount 4 cannot serve as the principal term in this case because it does not carry the greatest base term.” (Ibid.) In addition, we found the trial court had erred by imposing $120 in court construction fees (Gov. Code, § 70373, subd. (a)(1)) and $160 in court operations fees (Pen. Code, § 1465.8, subd. (a)(1)), without first determining defendant had the ability to pay those fees. (Martinez I, supra, E071964 at pp. 10-11.)
The matter was remanded with directions for the trial court to “impose the full base term on count 6 (after selecting the lower, middle, or upper term), ” but noted the court had “discretion whether to impose the term as a consecutive or concurrent term.” (Martinez I, supra, E071964 at p. 14, fn. omitted.) We further stated “if the trial court again declines to strike defendant's prior serious or violent felony strike convictions, the court shall double the term on count 6. [Citation.]” (Ibid.) We also held that, “[u]pon remand, defendant can raise the issue of whether he has the ability to pay the restitution fine and fees.” (Id. at p. 11, fn. omitted.)
On remand, the trial court imposed 25 years to life on count 1, a consecutive term of four years (the lower term of two years, doubled due to the prior strike convictions) on count 6, and five years each for the two prior serious felony convictions pursuant to Penal Code section 667, subdivision (a)(1). The court imposed two years each on counts 4 and 5, but stayed those terms pursuant to Penal Code section 654. The court found defendant did not have the ability to pay the court construction and operating fees and struck those fees. The court also reduced the restitution fine and the parole revocation fine because defendant had been unable to work while in prison due to the pandemic. Defendant timely appealed.
III. DISCUSSION
We appointed counsel to represent defendant on appeal. After reviewing the record, counsel filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, a summary of the procedural background and a potential arguable issue, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744.)
We have independently examined the record for potential error and are satisfied defendant's appointed appellate counsel fully complied with the responsibilities of counsel and no arguable issue exists that would result in a disposition more favorable to defendant. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-119; Wende, supra, 25 Cal.3d at pp. 441-442.)
IV. DISPOSITION
The judgment is affirmed.
We concur: FIELDS J.RAPHAEL J.