THE PEOPLE v. CHRISTIAN MARTINEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN MARTINEZ, Defendant and Appellant.

B223375

Decided: February 28, 2011

Christian Martinez, in pro. per.;   Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

An information charged Christian Martinez with one count of second degree robbery (Pen.Code, § 211),1 one count of assault with a deadly weapon (§ 245, subd. (a)(1)) and one count of carrying a dirk and dagger (§ 12020, subd. (a)(4)).   The victim in the robbery and assault was Victor Lopez.   The information alleged that Martinez personally used a deadly and dangerous weapon, a knife, in the commission of the robbery. (§ 12022, subd. (b)(1).)   It also alleged that Martinez had two prior convictions of a serious or violent felony (§§ 667, subds.(a)(1) & (b)-(i), 1170.12, subds. (a)-(d)), and had served two prior prison terms within the meaning of section 667.5, subdivision (b).

Evidence presented at trial showed that, at about 11:30 p.m. on December 12, 2008, Martinez walked into the yard of an apartment building and approached Victor Lopez and Juan Chavez.2  Lopez and Chavez had been drinking beer.   After asking Lopez and Chavez “ ‘where are you from,’ ” Martinez placed a knife against Lopez's ribs and demanded a beer.   Lopez described the knife as “a kitchen knife.”   Lopez gave the beers to Martinez.   Lopez and Chavez left the area.   When they returned, Martinez was gone and so were the beers.   Lopez testified that he called 911, but the police did not respond to the scene and he did not make a report to the police at that time.

On March 17, 2009, Lopez saw Martinez walking around his neighborhood and told his mother that Martinez was the man who had threatened him with a knife.   His mother called 911.   The police responded.   Both Lopez and Chavez gave statements to the police about the incident.

Also on March 17, 2009, a police officer detained Martinez after determining that he matched the description of a man reported to be armed with knives.   The officer searched Martinez and recovered two concealed knives which the officer described as “kitchen knives.”   One knife was concealed in Martinez's sleeve and the other one was in his pocket.   In closing argument, Martinez's counsel conceded that the prosecution had proved count 3, carrying a dirk and dagger.

Before the jury finished deliberating, Martinez admitted one of the prior convictions that was alleged in the information as a prior strike and serious felony, and the court struck the other one on the prosecutor's motion.   Martinez also admitted the two prior prison term allegations.   The jury convicted Martinez on all three counts charged in the information and found true the knife-use allegation.

On March 25, 2010, the day of the sentencing hearing, Martinez made a Marsden motion 3 and a motion for new trial, which the court denied.   The trial court sentenced him to 15 years in prison:  the upper term of five years on the robbery,4 doubled to 10 years for the prior strike, plus five years for the serious felony allegation (§ 667, subd. (a)(1)).   The court struck the knife-use enhancement and the prior prison term enhancement (the one related to the prior conviction that the court had not used already to enhance the sentence).   The court stayed the three-year sentence for the assault with a deadly and dangerous weapon and imposed a concurrent two-year term for carrying a dirk and dagger.

Martinez appealed.   We appointed counsel to represent him on appeal.   After examination of the record, counsel filed an opening brief raising no issues and asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436.   On November 8, 2010, we advised Martinez that he personally had 30 days to submit any contentions or issues he wished us to consider.   We also directed his appointed counsel to send the record and opening brief to Martinez immediately.   On November 15, 2010, Martinez filed a handwritten letter brief.   He submitted another handwritten letter brief on December 21, 2010, which we granted him permission to file.5

Martinez raises the same issues in both of his letter briefs.   First, he asserts that his trial attorney did not cooperate with or assist him, did not properly investigate his case and ignored potential evidence that he brought to her attention.   Specifically, he complains that his attorney did not give him paperwork, visit him in jail or listen to his “story.”   He also states that she failed to comply with his requests that she obtain (1) copies of the recordings from the 911 calls made on the date of the incident and the date of his arrest and (2) pictures of the location where the crimes occurred.   He further states that, although his attorney “put down” two of the alibi witnesses he told her about, she failed to also “mention” the relatives of one of those two witnesses.6  Martinez also apparently faults her for the lack of an in-person lineup in his case.   This is a claim of ineffective assistance of counsel.

“ ‘To establish ineffective assistance of counsel, a [defendant] must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the [defendant] to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the [defendant].  [Citations] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  [Citation.]’  [Citation.]”  (In re Jones (1996) 13 Cal.4th 552, 566.)

Martinez's ineffective of assistance counsel claim fails.   He has not explained how the omitted evidence might have aided his defense.   The record does not indicate that his counsel's representation was deficient.   Based on our review of the record and the evidence presented at trial, Martinez cannot show a reasonable probability that any of the things his attorney “failed” to do would have resulted in a more favorable outcome for him.

The second issue Martinez raises in his letter briefs is that “there was no interpreter to help [him] understand better in trial.”   Nothing in the record indicates that Martinez requested or needed an interpreter.

We have examined the entire record, including the confidential transcript from the March 25, 2010 hearing on Martinez's Marsden motion, and are satisfied that Martinez's counsel has fully complied with his responsibilities and that no arguable issues exist.  (People v. Kelly (2006) 40 Cal.4th 106, 109-110;  People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Further statutory references are to the Penal Code..  FN1. Further statutory references are to the Penal Code.

FN2. Both Lopez and Chavez identified Martinez in court as the man who had robbed and assaulted Lopez..  FN2. Both Lopez and Chavez identified Martinez in court as the man who had robbed and assaulted Lopez.

FN3. People v. Marsden (1970) 2 Cal.3d 118..  FN3. People v. Marsden (1970) 2 Cal.3d 118.

FN4. The trial court listed several factors in aggravation, including the threat of bodily injury involved in the robbery and Martinez's prior prison terms..  FN4. The trial court listed several factors in aggravation, including the threat of bodily injury involved in the robbery and Martinez's prior prison terms.

FN5. Along with his December 21, 2010 letter brief, Martinez submitted to this court a medication consent form, indicating that in November 2010 he agreed to take certain medication that was prescribed for him in prison.   It is not clear how or if this form relates to the claims set forth in his letter briefs..  FN5. Along with his December 21, 2010 letter brief, Martinez submitted to this court a medication consent form, indicating that in November 2010 he agreed to take certain medication that was prescribed for him in prison.   It is not clear how or if this form relates to the claims set forth in his letter briefs.

FN6. Martinez did not testify at trial or present evidence of an alibi..  FN6. Martinez did not testify at trial or present evidence of an alibi.

ROTHSCHILD, Acting P. J. JOHNSON, J.