P. v. Martinez

Filed 2/21/07  P. v. Martinez CA4/1

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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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Robert F.  O'Neill and David J. Danielsen, Judges.  Affirmed.

            Pedro Martinez entered a negotiated guilty plea to failing to register as a sex offender (Pen. Code, §  290, subd. (g)(2))^[1] and admitted three prior strike convictions (§§  667, subds.  (b)-(i), 1170.12, 668) and serving a prior prison term (§§  667.5, subd. (b), 668).  The court denied a motion to dismiss the prior strike allegations and sentenced him to prison for 25 years to life for failing to register as a sex offender after being convicted of two prior strike convictions.  It struck the prior prison term enhancement.  The record does not include a certificate of probable cause.  (Cal. Rules of Court, rule  8.304(b), former rule  30(b).)

FACTS

            Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred.  In 1961, Martinez was convicted in San Diego of first degree burglary.  In 1977, he was convicted in Nevada of sexual assault upon a child less than 14 years of age.  In 1991, he was convicted in San  Diego of assault with intent to rape.  In 2002, Martinez registered as a sex offender and acknowledged he had a duty to do so within five days of his birthday.  In 2003, detectives were investigating a homicide.  They contacted Martinez who knew the victim and lived in the same hotel where the homicide occurred.  He agreed to take a polygraph test.  Just before the time of the test, Martinez moved out of his residence.  He never returned.  Martinez was arrested in 2005.  Because Martinez entered a guilty plea, he cannot  challenge the facts underlying the convictions.  (§  1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.)  We need not recite the facts in greater detail.

DISCUSSION

            Appointed appellate counsel has filed a brief setting forth the evidence in the superior court.  Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.  Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible, but not arguable, issue whether the trial court abused its discretion in refusing to dismiss the prior strikes.

            We granted Martinez permission to file a brief on his own behalf.  He has not responded.  A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.  Competent counsel has represented Martinez on this appeal.

DISPOSITION

            The judgment is affirmed.

McCONNELL, P.  J.

WE CONCUR:

                                          BENKE, J.

                                   HUFFMAN, J.

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^[1]           All statutory references are to the Penal Code.