THE PEOPLE v. OSCAR MARTINEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONPROCEEDINGS

Appellant, Oscar Martinez, was charged in a criminal complaint filed on September 23, 2010, with assault with a deadly weapon likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1), count one).¹  The complaint alleged the victim suffered a great bodily injury (§ 12022.7, subd. (a)), making the offense a violent felony within the meaning of meaning of section 667.5, subdivision (c)(8).

On October 20, 2010, appellant entered into a plea agreement in which he would admit the allegations in exchange for a lid sentence of six years.   Appellant executed a felony advisement, waiver of rights, and plea form acknowledging and waiving his constitutional rights pursuant to Boykin /Tahl,² acknowledging the consequences of his plea, and acknowledging a lid prison term of six years.   The court established that appellant executed the plea form.   The court advised appellant of the consequences of his plea and his constitutional rights, which appellant expressly waived.   The parties stipulated to a factual basis for the change of plea.³  Appellant pled no contest to count one and admitted the great bodily injury enhancement.

On November 22, 2010, the court sentenced appellant to a prison term of three years on count one plus a consecutive term of three years for the enhancement.   Appellant's total prison term is six years.   Appellant received total custody credits of 71 days.⁴  Appellant filed a timely notice of appeal, and the court issued a certificate of probable cause.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (People v. Wende (1979) 25 Cal.3d 436 (Wende ).)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on March 21, 2011, we invited appellant to submit additional briefing.   Appellant replied with a short letter indicating he received notice of the Wende brief from his appellate counsel and wishes to serve the sentence imposed by the trial court.⁵

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122..  FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122.

FN3. There was no preliminary hearing.   According to the probation report, on September 21, 2010, officers responded to a disturbance and found the victim of multiple stab wounds to the torso on an ambulance gurney.   Eyewitnesses said appellant, who had been friends with the victim for years, became jealous of the victim who was promoted and became appellant's supervisor.   Appellant stabbed the victim.   Appellant was arrested.   After waiving his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, appellant said the victim rushed him and struck him in the face.   The victim told investigators that when appellant confronted him with a knife, he began to run, but felt sharp pains in his sides.   The victim turned around and realized he was being stabbed by appellant..  FN3. There was no preliminary hearing.   According to the probation report, on September 21, 2010, officers responded to a disturbance and found the victim of multiple stab wounds to the torso on an ambulance gurney.   Eyewitnesses said appellant, who had been friends with the victim for years, became jealous of the victim who was promoted and became appellant's supervisor.   Appellant stabbed the victim.   Appellant was arrested.   After waiving his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, appellant said the victim rushed him and struck him in the face.   The victim told investigators that when appellant confronted him with a knife, he began to run, but felt sharp pains in his sides.   The victim turned around and realized he was being stabbed by appellant.

FN4. Appellant committed a great bodily injury.   This is a violent felony under section 667.5, subdivision (c)(8).   Appellant is not entitled to extra custody credits pursuant to section 4019 even if they are found to apply retroactively. (§ 4019, subds.(b) & (c).).  FN4. Appellant committed a great bodily injury.   This is a violent felony under section 667.5, subdivision (c)(8).   Appellant is not entitled to extra custody credits pursuant to section 4019 even if they are found to apply retroactively. (§ 4019, subds.(b) & (c).)

FN5. The letter was written in Spanish and translated by a court employee fluent in Spanish..  FN5. The letter was written in Spanish and translated by a court employee fluent in Spanish.

THE COURT * FN*.  Before Cornell, Acting P.J., Gomes, J., and Detjen, J.