P. v. Martinez

Filed 4/6/06 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On May 6, 2005, the Kings County District Attorney filed an information in superior court charging appellant Michael Anthony Martinez as follows: count I--violation of sexual offender registration requirements (Pen. Code, § 290, subd. (a)(1)(A)) and count II--violation of sexual offender registration requirements (§ 290, subd. (a)(1)(C)). As to both counts the district attorney alleged appellant had suffered a prior prison term (§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

On May 9, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On May 24, 2005, the court filed an order requiring appellant to submit to DNA profiling (Pen. Code, § 296, subd. (a)(1)).

On the same date, appellant entered into a plea agreement, withdrew his not guilty plea, entered a guilty plea to count I, admitted the strike prior, and agreed to a stipulated sentence of four years (a presumptive middle term of two years doubled by virtue of the strike prior). In exchange, the prosecution agreed to dismissal of count II and the remaining special allegations.

On the same date, appellant agreed to waive a formal probation report and requested immediate sentencing. The court then denied appellant probation and sentenced him to a total term of four years (consisting of the presumptive middle term of two years doubled by reason of the prior strike). The court imposed a $800 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and imposed a $20 court security fee (§ 1465.8).

On July 20, 2005, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

The following facts are taken from appellant's opening brief on appeal:

"The defendant, known to Kings County police as a transient, had been convicted of a Penal Code section 288 offense in 1989, which required him to register his whereabouts with law enforcement authorities. The defendant stipulated to a factual basis for the current charges, to wit, that he was required to register and failed to do so."

DISCUSSION

Appellant's appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court independently to review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter of October 11, 2005, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider.

On October 19, 2005, appellant filed a letter brief stating:

"On 10-12-05, I received said transcripts on my appellant[']s opening briefs. And on [page] (4) it says I was picked up on a fugitive parol[e] warrant but my said warrant consisted for not complying and failing to reg[i]ster (290) but I was denied any credits for said term and to my knowledge I was rejected [on] my said credits if I was picked up on said charges on a violation. I feel and deserve[d] said credits. Also I understand it is very vital to register but failed[.] But the court … system is real[ly] looking upon me as a bad person which my offense (288) occur[r]ed about 16 years ago[.] So I feel the courts were harsh on [me] due to my past history and I feel I was doubled jeopardy because I was on a violation for the same charges as in my new offense. I feel my court appointed lawyer James B. Oliver didn^['^]t argue in my behalf. So I hope ... this appellate [court] finds the errors. [T]his is all I have to add. I hope it helps. [T]hank you for your patience and cooperation."

We address each of his contentions in turn.

Custody Credits

The following exchange occurred at sentencing:

"THE COURT: [¶] ... [¶] He's advised that, with certain exceptions, the law permits an award of conduct or work time credits up to a third [or] half the sentence imposed by the Court. I think ... this is an exception, and I believe it's a 15 percent limitation, but that's the responsibility of the Department of Corrections from this point forward to calculate those. [¶] Do we have them calculated yet, Mr. Baker, the presentence credits?

"MR. BAKER: Your Honor, it's my understanding he's serving a commitment on an unrelated matter in CDC [California Department of Corrections] custody.^[[1]]

"MR. OLIVER [defense counsel]: He was picked up on a fugitive parolee warrant, so he would not be entitled to credits.

"THE COURT: All right, there would not be any presentence credits, then?

"MR. OLIVER: Correct."

Generally speaking, a defendant in a criminal case is entitled to custody credits toward his term of imprisonment for all days spent in custody prior to the imposition of sentence. (Pen. Code, § 2900.5.) A partial day in custody, including the day of sentencing, is treated as a whole day for presentence custody credit purposes. (In re Marquez (2003) 30 Cal.4th 14, 25-26; People v. Smith (1989) 211 Cal.App.3d 523, 526.) A defendant may not receive credit for time spent in jail awaiting disposition of criminal proceedings during the period a defendant is also serving a prison sentence on another conviction. (People v. Wiley (1994) 25 Cal.App.4th 159, 165.)

In the instant case, appellant's apparent commitment to the CDC precluded the award of presentence custody credits in the instant case.

Double Jeopardy

The state and federal Constitutions declare that no person shall twice be placed in jeopardy for the same offense. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The double jeopardy clause protects criminal defendants in three ways: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. (People v. Massie (1998) 19 Cal.4th 550, 563.)

Recidivist statutes do not impose a second punishment for the first offense in violation of the double jeopardy clause of the United States Constitution. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520.) Moreover, the registration requirement imposed by Penal Code section 290 does not constitute punishment within the meaning of the federal and state Constitutions. (See People v. Castellanos (1999) 21 Cal.4th 785, 788-789 [ex post facto analysis]; People v. Allen (1999) 76 Cal.App.4th 999, 1003-1004 [ex post facto analysis].)

Appellant's assertion of a violation of double jeopardy arising from Penal Code section 290 registration requirement must be rejected.

Ineffective Assistance of Counsel

Appellant summarily contends his trial counsel was ineffective by failing to "argue in my behalf."

Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. (In re Resendiz (2001) 25 Cal.4th 230, 239-240.) A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) Prejudice exists when there is a probability that, but for counsel's failings, the result would have been more favorable to the appellant. A reasonable probability is one sufficient to undermine confidence in the outcome. (In re Neely (1993) 6 Cal.4th 901, 908-909.)

An appellant bears the burden of proving ineffective assistance of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) A claim of ineffective assistance will not be accepted on direct appeal unless the appellate record makes clear that the challenged act or omission was a mistake beyond the range of reasonable competence. (People v. Montiel (1993) 5 Cal.4th 877, 911.) If a defendant has failed to show the challenged actions of counsel were prejudicial, the court may deny his or her claim of ineffectiveness without determining whether counsel's performance at trial was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. (People v. Hart (1999) 20 Cal.4th 546, 623-624.) Generally speaking, where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for writ of habeas corpus. In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of. (People v. Pope, supra, 23 Cal.3d at p. 426.) The instant record does not illuminate the basis for trial counsel's conduct and we must affirm the judgment. Our independent review discloses no other reasonably arguable appellate issues. "[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Levy, J. and Dawson, J.

^[1] The prosecutor subsequently noted that appellant was in CDC custody at the Wasco correctional facility at the time of the instant sentencing hearing.