Filed 9/13/17 P. v. Martinez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
MARK ANTHONY MARTINEZ,
Defendant and Appellant.
|
F073359
(Super. Ct. No. F14904417)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Glenda S. Allen-Hill, Judge.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Defendant Mark Anthony Martinez entered into a plea bargain on July 24, 2014, waiving his rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.[1] Defendant entered a plea of no contest to commission of one count of felony spousal abuse (Pen. Code, § 273.5, subd. (a)), admission of two prior serious felony convictions within the meaning of the three strikes law, and admission of a prior prison term enhancement. Under the terms of the agreement, the court would dismiss the two prior serious felony convictions and impose and stay a prison term of five years.[2]
At the sentencing hearing on August 25, 2014, the trial court dismissed the two prior strike allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced defendant to the aggravated term of four years plus a consecutive term of one year for the prior prison term enhancement, for a total prison term of five years. The court stayed execution of defendant’s sentence and ordered him on formal probation for three years. Defendant did not appeal his convictions, the trial court’s sentence, or the trial court’s imposition of probation.
Defendant was arraigned on January 27, 2015, for violation of his probation for having tested positive for methamphetamine, failing to test for controlled substances, and failing to enroll in court-ordered treatment programs. Defendant admitted the alleged violations of probation on February 18, 2015, including failing drug tests and failing to enroll in a batterer’s program. Defendant waived custody credits for all purposes and was granted the reinstatement of his probation. The court ordered defendant to serve 365 days in jail, noting he was eligible for early release for a treatment program contingent on the availability of bed space.
Defendant failed to appear in court on March 25, 2015. There were new allegations that he violated his probation by failing to report to his probation officer on March 19, 2015, and by failing to stay in a drug treatment program. A bench warrant was issued for defendant’s arrest and his probation was summarily revoked.
A contested hearing on defendant’s violation of probation was conducted on January 13, 2016. Probation Officer Matthew Railton testified that among the conditions of defendant’s probation were that he attend a substance abuse treatment program. Defendant was directed to go to the Jericho Project in San Francisco. Railton received notice from the Jericho Project that defendant walked away from the program on February 21, 2015, the day after he first reported to the program. Railton did not have contact with defendant until March 19, 2015, when he spoke with him by phone and directed defendant to report in person that afternoon at 1:00 p.m. Defendant did not report to the probation department.
Defendant told Railton he had left the Jericho Project because he was not allowed to have a Bible and someone had made a sexual advance toward him. Defendant told Railton he wanted to enter into the Salvation Army program. Railton contacted the Jericho Project and learned that Bibles are allowed. Defendant entered the Salvation Army program on March 25, 2015, but walked away the next day and did not complete the program.
Defendant testified he was uncomfortable with the Jericho Project because it was not a Bible- and Christian-based program. Someone told him during orientation that he was not allowed to have a Bible. Defendant said he was assigned to someone in the program who made a sexual advance to him by pulling down his pants. Defendant got his property and left. Defendant said he tried to appear at the mandatory court hearing on March 25, 2015, but he may have appeared on the wrong date. According to defendant, his case was never called. Defendant said he was accepted into the Salvation Army program and began treatment. Defendant spent only a day in the Salvation Army program because his mother was about to die. Defendant failed to contact his probation officer, but he had attended AA meetings.
The trial court found defendant in violation of his probation, lifted the stay of execution on his prison sentence of five years, and granted total custody credits of 97 days.
Defendant filed a timely notice of appeal. Defendant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm the judgment.
APPELLATE COURT REVIEW
Defendant’s appointed appellate counsel has filed an opening brief summarizing the pertinent facts, raising no issues, and requesting this court to review the record independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating defendant was advised he could file his own brief with this court. By letter on November 22, 2016, we invited defendant to submit additional briefing. The letter was returned as not deliverable as addressed. Defendant’s address was corrected and the letter resent on December 9, 2016. To date, defendant has not responded with additional briefing.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The trial court’s judgment and orders are affirmed.
*Before Levy, Acting P.J., Franson, J. and Peña, J.
[1]On July 17, 2014, the court conducted an in camera hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 and denied defendant’s motion for new counsel.
[2]The parties stipulated to a factual basis for the plea. According to the police and probation officer’s reports, defendant arrived at the home of his wife’s friend and began a disturbance on May 9, 2014. Defendant’s wife convinced him to leave. While driving home, defendant became irate and accused his wife of dating other men. Defendant reached over and struck his wife’s face with the back of his hand. Defendant’s car ran out of gas. His wife found a citizen with a cell phone and asked her to call 911 because her husband had hit her. Investigating officers observed a bruise on the victim’s cheek and arrested defendant. Defendant initially claimed his wife was lying about him hitting her but later admitted he backhanded her because she was attacking him. Defendant denied being a wife beater.
