P. v. Martin

Filed 7/24/07 P. v. Martin CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Stephen Craig Martin appeals from a judgment imposed after the revocation of probation and imposition of a term of imprisonment. Appellants counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

On June 26, 2002, pursuant to a plea agreement, appellant pleaded no contest to the felony offense of assault with the intent to cause great bodily injury (Pen. Code,  245, subd.(a)(1)). The court agreed to suspend sentence and place appellant on probation for five years subject to the standard terms and conditions of probation and a six month term in jail. Appellant understood that if he violated the conditions of his probation, he would be subject to a state prison term of two, three, or four years. On July 23, 2002, the court imposed the promised probationary term.

On March 22, 2006, the district attorney filed a petition to revoke appellants probation. The motion was based on a new arrest for the offenses of kidnapping (Pen. Code,  209, subd. (b)(1)), first degree burglary (Pen. Code,  459), forcible copulation (Pen. Code,  288[a], subd. (c)(2)), and false imprisonment (Pen. Code,  236.)

At the three-day revocation hearing,[1] the prosecutor called three witnesses: the female victim and two Emeryville police officers. The victim testified that at about 10:30 p.m. on March 17, 2006, she left her Emeryville home to shop for certain necessities. While walking back to her home at about midnight, she was accosted by appellant. Armed with a pocket knife, appellant got out of the passenger seat of a car, grabbed the victims purse and pushed her into the car. The car was big like a Cadillac. The victim identified appellant in court as her kidnapper. Appellant took two twenty dollar bills from the victims purse and gave the money to the driver to buy crack cocaine. The man driving the car appeared to be appellants friend. They drove to a motel in Oakland. While holding the victims arm tightly, appellant took her to room on the second floor of the motel. After appellant unlocked the door, he, the victim and the driver of the car entered the room. At appellants request, the driver left the room to get some crack. After locking the door, appellant undressed and he demanded that the victim undress and orally copulate him. Scared and crying, the victim complied by orally copulating appellant at least four or five times over a period of several hours. Appellant threatened to kill the victim, telling her he would shoot her with a gun. Some time in the early morning of March 18, appellant got dressed and left the room. The victim dressed and ran out of the room. She did not take her purse. The victim called 911, and Oakland police officers responded. The Oakland police notified the Emeryville police because the crime began in Emeryville. When Emeryville police officers arrived, the victim told them what had happened the previous evening. The police did not knock on the motel room identified by the victim; they only looked in the parking lot and saw that the suspects car was not there. The police took the victim home.

At home, the victim told her husband about the incident. They walked back to the motel because the victim wanted to get her purse and her husband wanted to see the motel room. At the motel, the victims husband knocked on the motel room door. When the victim saw the appellant at the window of the room, she recognized him as her assailant, and she and her husband attempted to get into the room. Using the handle of a knife that she had brought with her, the victim broke the window. The motel manager heard the breaking window and called the police.

Oakland police officers responded to the motel. The victim identified appellant as her assailant. After arresting appellant, the police did not search the motel room. Some time later, the police looked through items found in the motel room by the motels resident managers, but did not find a gun, a knife, or the victims purse.

Appellant did not testify. He called three witnesses. His friend, William Taylor, testified that some time on the evening of March 17, he drove appellant to a motel because appellant needed a place to stay. Taylor and appellant stayed in the motel room for a couple of hours. The men drank liquor and watched television. At some time during the evening, appellant left the motel room to buy liquor and returned to the room. About 15 to 30 minutes after appellants return, a woman came into the room; Taylor could not describe the woman. Five or ten minutes after the woman came into the room, Taylor left the room and went home. When the police later questioned Taylor, he had difficulty remembering what had happened. During the evening in question, Taylor had been drinking heavily; he admittedly was very drunk, and he did not remember a lot of things clearly. Taylor did not know what appellant had done after Taylor left the room, nor did Taylor know whether appellant had gone out in some kind of Cadillac. Taylor denied that he had kidnapped anyone or that he had been driving his car when appellant got out and forced a woman into the back of the car.[2] One of the motels resident managers testified that in the early morning hours of March 18, a woman and a man asked him to help them get into a motel room. The manager refused because he did not know them and the people staying in the motel rooms were sleeping. The manager went back to sleep, but was later awaken by his wife when she heard a window being broken. An investigator employed by the Alameda County Public Defenders Office testified that on September 18 and 19, 2006, he took photographs of the area of the kidnapping.

After closing arguments, the court found by a preponderance of the evidence that appellant had violated his probation. The court explained the reasons for its decision, including that the victim was very forthright and truthful in her testimony and her demeanor and actions after the incident evidenced that she was not a willing participant, and Taylor admitted at the hearing that he did not remember the evening because he was drinking heavily.

At sentencing on November 9, 2006, the court indicated it had read the probation departments updated report. After argument from counsel, the court stated its reasons for permanently revoking probation and imposing the middle term of three years on the earlier assault offense. The court awarded appellant credit for time served of 821 days, including credit for actual days served and good conduct.

As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellants counsel has filed a Wende brief raising no arguable issues, counsel has informed appellant of his right to file a supplemental brief, and appellant has not filed such a brief. After a review of the record, we agree with appellants counsel that there are no arguable issues that warrant further briefing. Substantial evidence supports the courts finding that appellant violated the conditions of his probation by committing new criminal offenses.

However, there is an error in the judgment requiring correction. Penal Code section 1465.8 directs the trial court to impose a mandatory $20 court security fee for every conviction of a criminal offense to ensure and maintain adequate funding for court security. (Pen. Code,  1465.8, subd. (a)(1).) Instead of imposing a $20 fee, the court directed payment of a $10 court security fee. Accordingly, we modify the judgment to strike the imposition of the $10 fee, and direct the imposition of a $20 fee.

DISPOSITION

The judgment is modified by striking the imposition of a $10 court security fee and directing the imposition of a $20 court security fee. As so modified, the judgment is affirmed. The court is directed to prepare an amended abstract of judgment that reflects the modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Pollak, J.

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Analysis and review provided by La Mesa Property line Lawyers.

[1] At the beginning of the third day of the hearing, appellant moved to relieve his assigned attorney and for appointment of new counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The court appropriately questioned both appellant and his counsel before it denied the motion for new counsel. After the testimony of the final defense witness, appellant requested a hearing to complain about his counsel. Treating appellants request as a Marsden motion, the court appropriately questioned both appellant and counsel before denying the request. After the second denial, appellant immediately asked whether he could represent himself. The court appropriately exercised its discretion in denying as untimely appellants request to represent himself. (See People v. Marshall (1996) 13 Cal.4th 799, 827-828.)

[2] During her testimony, the victim was shown pictures of Taylors car and agreed that it was not the car used to kidnap her. The victim described the driver of the car. The court found that the description matched in some aspects Taylors appearance in court.