P. v. Martinez

Filed 4/20/06 P. v. Martinez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Defendant Lorenzo Moreno Martinez pleaded guilty to possession of a semi-automatic assault weapon (Pen. Code, § 12280, subd. (b))^[1], with enhancements for wearing a body vest (§ 12022.2, subd. (b)), and acting for the benefit of a street gang (§ 186.22, subd. (b)(1)). As part of the plea agreement, Martinez reserved the right to move to strike the body vest enhancement. This motion was denied. He now argues that the trial court erred in denying his motion because the enhancement is inapplicable to his underlying conviction. We disagree and affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was stopped for driving with an expired registration. When he was pat searched, the police discovered he was wearing a bullet-proof vest under his shirt. A backpack behind defendant's seat contained a semiautomatic assault pistol with a fully loaded magazine and a round in the chamber.

Defendant pleaded guilty to one count of possession of an assault weapon, and admitted two enhancements--that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that he wore a body vest in the commission of a violent felony offense (§ 12022.2, subd. (b)). He moved to strike the vest enhancement as a matter of law and this motion was denied. Defendant was sentenced to the mid-term of two years for possession of an assault weapon, three years for the gang enhancement and an additional two years for the vest enhancement. The court suspended execution of the sentence and placed defendant on probation for five years. This timely appeal followed.

III. DISCUSSION

The sole issue in this appeal is whether the court erred in imposing a two-year enhancement under section 12022.2, subdivision (b), which applies when a defendant is found to have worn a body vest in the commission of a violent felony offense. Defendant contends the felony violation to which he pled guilty--that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1))--is not a violent felony offense and, therefore, the court erred in imposing an enhancement under section 12022.2, subdivision (b). We disagree.

In order to address this issue, we must first look at three related sentencing statutes. First, section 12022.2, subdivision (b) provides: â€