P. v. Martinez-Lezama

Filed 4/24/07 P. v. Martinez-Lezama CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, David Wesley, Judge. Affirmed.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Andy Martinez-Lezama appeals from a judgment entered following his no contest plea to taking a motor vehicle in possession of another, count 4 (Pen. Code,  215, subd. (a)) and kidnapping, count 11 (Pen. Code,  207, subd. (a)). As to both counts, he admitted he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). He was sentenced to prison for a total of 20 years, consisting of the middle term of five years, plus 10 years for the firearm enhancement, for count 4 and the middle term of one year and eight months, plus three years and four months for the firearm enhancement, for count 11.[1]

On October 18, 2005, the matter was set for a motion to vacate the plea. Appellant was a miss out and did not appear. He was ordered to be transported from jail for an October 21, 2005 hearing.

On October 21, 2005, appellant was not present in court but pursuant to his counsels request, the matter was placed off calendar.

On October 28, 2005, appellant filed an appeal and request for certificate of probable cause. In his request for a certificate of probable cause, he stated he received ineffective assistance of counsel because counsel told him he could not win or even defend [him] because he didnt feel confident [enough] to win or defend [him] during trial. Counsel knew appellant had been threatened and was in fear for [his] life because of one of [his] co-defendants. It was stated and noted to the court that appellant had been severely beaten. . . . Counsel pressured appellant to take the plea bargain and insulted him for trying to withdraw his plea. Appellant claimed he did not commit the crime. The request for certificate of probable cause was denied.[2]

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On December 27, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist,[3]and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal. 4th 106, 112-113.)[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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Analysis and review provided by Chula Vista Property line attorney.

[1] Appellant and codefendant Jose Luis Martinez were each charged in counts 1, 2, 3, and 4 respectively with first degree robbery of a transit operator, a taxi driver, (Pen. Code,  211), kidnapping to commit another crime (Pen. Code,  209, subd. (b)(1)), making a criminal threat (Pen. Code,  422), and carjacking (Pen. Code,  215, subd. (a)) against victim Jose Constante. In counts 5, 6, and 7 respectively they were each charged with first degree robbery of a transit operator, a taxi driver, (Pen. Code,  211), kidnapping to commit another crime (Pen. Code,  209, subd. (b)(1)), and carjacking (Pen. Code,  215, subd. (a)) against victim Ismat Sunna. In counts 8, 9, and 10 respectively, they were each charged with first degree robbery of a transit operator, a taxi driver, (Pen. Code,  211), kidnapping to commit another crime (Pen. Code,  209, subd. (b)(1)), and carjacking (Pen. Code,  215, subd. (a)) against victim Igor Shteynberg. It was further alleged as to all counts that appellant and codefendant Jose Luis Martinez personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b). Codefendant Marco Tulio Dubon was charged with the same crimes alleged in counts 1 through 7 and it was alleged that he personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b), a principal was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1), and that Dubon personally inflicted great bodily injury upon Ismat Sunna within the meaning of Penal Code section 12022.7, subdivision (a). Pursuant to appellants negotiated plea, counts 1, 2, 3, 5, 6, 7, 8, 9, and 10 were dismissed and count 11, kidnapping of Ismat Sunna was added.

[2] The record reflects that on August 10, 2005, appellants counsel stated appellant ha[d] been beaten [in] jail. [] [Counsel indicated] all thats left that you can visualize now is a black eye, but he has two skull fractures. He may lose some of the sight in one eye, according to [appellant.] [] These injuries were incurred soon after Mr. Dubon was granted pro per status, and I would just like to make a record of [appellants] injuries at this point in the case.

[3] Having failed to obtain a certificate of probable cause, appellants appeal following his no contest plea is limited. (See People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

[4]On January 11, 2007, appellant filed a petition for writ of coram nobis/habeas corpus which is being considered separately.