P. v. Martinez
Filed 8/7/07 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL MARTINEZ, Defendant and Appellant. | B192791 (Los Angeles County Super. Ct. No. MA027456) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol Koppel, Judge. Affirmed.
Jonathan B. Steiner and Larry Pizarro, under appointments by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
Samuel Martinez appeals from the judgment entered following his no contest plea to second degree robbery. (Pen. Code, 211.)[1]Pursuant to his negotiated plea, he was released on his own recognizance with the understanding that he was to pick up no new offenses, report to probation within 72 hours for his interview for the probation and sentencing report. . . . And appear timely for sentencing. It was agreed that if he complied, the agreed-upon disposition will be the one year in county jail. All the credit that [he had] already accumulated and [he will] be given three years of probation; however[,] if [he] violate[s] any of those conditions[,] the sentencing judge could sentence [him] up to five years in prison.
Thereafter, appellant failed to appear for sentencing and a bench warrant was issued.
On October 29, 2004, appellant was remanded to custody on the warrant.
On January 3, 2005, counsel declared a doubt as to appellants competency and the matter was transferred to Department 95 for an evaluation.
On February 17, 2005, the court found appellant to be mentally competent to stand trial.
On February 23, 2005, the Los Angeles Sheriffs Department was authorized to use any force necessary to extract appellant from his cell to compel his appearance in court.
On February 24, 2005, a removal order was issued for appellant and sentencing was scheduled for February 25, 2005.
On May 3, 2005, appellant sat mute when addressed by the court. He then abruptly stood up in court, struggled with deputies and turned over counsel table. Proceedings were passed. The matter was, thereafter, called out of the presence of appellant and trailed.
On July 13, 2005, the court declared a doubt as to appellants mental competence pursuant to Penal Code, section 1368. Appellants counsel concurred and Drs. Knapke and Sharma were appointed to examine appellant pursuant to Evidence Code, section 730 and to report back to the court.
On September 29, 2005, appellants counsel refused to submit the issue of appellants competence on the reports and a hearing was set.
On October 12, 2005, appellant continually disrupted proceedings when he was brought to the courtroom and was removed to lockup.
On October 18, 2005, the matter was set for a jury trial on appellants mental competence pursuant to Penal Code, section 1368. Outside the presence of the jury, appellant refused to sit, did not respond to the courts direct inquiries and did not comply with the courts directions. Appellant verbally disrupted the proceedings and was ordered removed from the courtroom. Appellant was, thereafter, returned to the courtroom and continued to disrupt the proceedings. He was again ordered removed. The panel of prospective jurors was discharged.
On July 25, 2006, the matter was set for a competency hearing pursuant to Penal Code, section 1368. Appellant refused to leave his cell and the hearing was conducted in the lockup of the courthouse. All three experts who examined appellant concluded he was malingering. The court found appellant malingering and competent and ordered criminal proceedings reinstated.
On that same date, appellant was sentenced. The court stated, based on [appellants] violations of the Cruz waiver[2], that was generously offered to him a long time ago, and with respect to count 3, a violation of Penal Code, section 211, the robbery, this defendant is sentenced to high term in state prison. Thats five years.[3] Based on an agreement of the parties, the other charges were dismissed.
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 May 1, 2007, 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, 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.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
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[1] In a complaint filed June 15, 2004, he was charged with two counts of carjacking, counts 1 and 2 (Pen. Code, 215, subd. (a)), second degree robbery, count 3 (Pen. Code, 211), and giving false information to a police officer, count 4 (Pen. Code, 148.9, subd. (a)). It was further alleged he had suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b) - (i)) and served two prior prison terms within the meaning of Penal Code, section 667.5, subdivision (b).
It appears that when the court took the plea, the deputy district attorney mistakenly stated appellant was pleading to first degree robbery. However, the complaint states appellant was charged with second degree robbery, the transcript of the parties understanding of the plea states appellant was going to plead to second degree robbery, and the abstract of judgment states he was convicted of second degree robbery.
[2]People v. Cruz (1988) 44 Cal.3d 1247.
[3] Appellants failure to appear for sentencing was a legitimate factor on which to aggravate his sentence. (See People v. Levingston (1982) 136 Cal.App.3d 724, 730; Pen. Code, 1170, subd. (b).) Appellant did not dispute his failure to appear.
