P. v. Martinez

Filed 8/24/07 P. v. Martinez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

______________________

*Before Harris, A.P.J., Cornell, J., and Kane, J.

In an information filed March 24, 2006, appellant was charged with willful infliction of corporal injury on a spouse or cohabitant (Pen. Code,  273.5^[1]; count 1), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 2), making a criminal threat ( 422; count 3), possession of a controlled substance, viz., amphetamine (Health & Saf. Code, 11377, subd. (a); count 4), possession of more than 28.5 grams of marijuana (Health & Saf. Code, 11357, subd. (c); count 5), and assault with a deadly weapon ( 245, subd. (a)(1); count 6). It was also alleged that appellant had served two separate prison terms for prior felony convictions ( 667.5, subd. (b)), suffered a strike^[2]and personally inflicted great bodily injury under circumstances involving domestic violence in committing the count 1 offense ( 12022.7, subd. (e)).

Pursuant to a plea agreement, on November 16, 2006, appellant pled no contest on count 1 and admitted the great bodily injury enhancement and strike allegations. On December 18, 2006, the court imposed a prison term of nine years, consisting of the three-year midterm on the substantive offense, doubled pursuant the three strikes for a total of six years, and the three-year lower term on the accompanying enhancement.

Appellant did not request, and the court did not issue, a certificate of probable cause ( 1237.5).

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant himself, apparently in response to this courts invitation to supplemental briefing, has submitted a letter in which he poses questions more properly directed to his appellate counsel. And since his letter indicates a copy was sent to his counsel, we assume appellant has done so.^[3]

The report of the probation officer (RPO), filed December 18, 2006, indicates that according to a City of Reedley Police Department report, the following occurred on January 23, 2006: At approximately 4:10 p.m., appellant and the victim, with whom he was living, began to argue. It appeared to the victim that appellant was intoxicated. At some point, appellant wrapped both of his hands around the victims neck, making her unable to breathe. He then forced her to the ground and threatened to kill her. The victim lost consciousness, but awoke to find that appellant was punching her in the face. Thereafter, appellant picked up a brake rotor that was lying on the floor, lifted it over his head in a threatening manner and again threatened to kill the victim. At that point, appellant seemed to realize he had done something wrong, and released his grip on the victim. She then ran to a neighboring apartment and called the police.

The RPO further indicates the following: Police made contact with the victim at the hospital. The victims right eye and cheek were severely swollen, and she had cuts on the inside of her lips, a bloody nose, large bumps on her scalp, and broken blood vessels on the front of her neck.

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.

The judgment is affirmed.

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^[1] Except as otherwise indicated, all statutory references are to the Penal Code.

^[2] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law ( 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[3] In his letter, appellant asks this court to send him reporters transcripts of proceedings conducted in November and December of 2006. In appellants opening brief, appellate counsel avers that he informed appellant by letter that he (counsel) would send appellant the appellants copy of the record on appeal upon appellants request.