P. v. Martin
Filed 9/18/06 P. v. Martin CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. RICHARD MARTIN, Defendant and Appellant. | H029698 (Santa Clara County Super. Ct. No. CC467177) |
Defendant Richard Martin was charged by information filed December 22, 2004 with one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)).[1] The information further alleged that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that defendant had served a prior prison term (§ 667.5, subd. (b)). On March 4, 2005, defendant entered a negotiated no contest plea to the charge and admitted the enhancement allegations. Conditions of the plea were that defendant would be sentenced to no more 12 years in state prison, and that he would be permitted to bring a motion requesting that the court strike the punishment for the gang enhancement pursuant to section 186.22, subdivision (g).
The probation report summarized defendant’s offense as follows. Around 9:44 p.m. on September 20, 2004, San Jose police officers responded to the area of Nancy Lane due to a report of a robbery. There, Eberardo Lozano told officers that he was standing outside with several others when a vehicle drove slowly by several times. A few minutes later, defendant and another male walked up to Lozano from the direction the car had gone. Defendant asked Lozano, “ ‘Are you a Sureno?’ “ When Lozano responded negatively, defendant grabbed the baseball cap from Lozano’s head and spit and stepped on it.
Defendant then grabbed Lozano’s wallet from his front pocket. Although fearful, Lozano grabbed the wallet back. Defendant told Lozano that he needed money, but Lozano refused to give him some. Defendant then said that he needed money for gas. Lozano took $20 from his wallet and gave it to defendant. Defendant demanded more money and his cohort said he only needed $20. Defendant grabbed Lozano’s wallet and he, his cohort, and the five or six other Hispanic male juveniles who had been standing behind them during the incident fled. Lozano and his friends ran after them, to no avail. The wallet had contained Lozano’s ID, approximately $1,500 in cash, and a check for $1,350 from Lozano’s employer.
The police investigation determined that defendant’s cohort was a juvenile who lived nearby. The cohort admitted his and defendant’s involvement in the incident. Defendant was on parole at the time of the incident, and was a validated member of a local Norteno gang. Defendant admitted to the probation officer that he was present at the incident, but he denied participating in it and said that he was not the person who grabbed the victim’s wallet. He also said that he did not know why his cohort identified him as the person who took the wallet. Defendant has a gang tattoo on the back of his head which he said he got in 2003. The probation officer recommended that the court impose a 12-year prison sentence.
On September 1, 2005, defendant filed a motion to strike the additional punishment for the gang enhancement under section 186.22. The prosecutor filed opposition to the motion.
Defendant appeared for sentencing on October 27, 2005. The court stated that it had read defendant’s motion, the prosecutor’s opposition, and the probation report. Defendant and his wife both made statements to the court on defendant’s behalf. Defendant’s counsel asked the court to strike the enhancement and to simply consider the gang nature of the offense when deciding whether to impose the mitigated, middle or aggravated term. The prosecutor argued that there were no unusual circumstances warranting the striking of the punishment for the gang enhancement. The court found this to not be an unusual case where the interests of justice would be best served by striking the punishment for the gang enhancement. The court found that defendant had not accepted responsibility for the present offense, although he took a leadership role in it, and had continued to associate with gang members, get a gang tattoo, and violate laws after committing his previous felony offense. Therefore, the court sentenced defendant to 12 years in prison, the sentence consisting of the mitigated term of two years for the substantive offense plus 10 years for the gang enhancement. The court struck the punishment under section 667.5, subdivision (b) pursuant to section 1385, and granted defendant 420 days of custody credits. Defendant filed a timely notice of appeal. (Cal. Rules of Court, rule 30(b)(4)(B).) We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issues. We notified defendant of his right to file written argument in his own behalf within 30 days. Defendant has exercised that right by filing a brief on August 7, 2006, contending that the trial court erred or abused its discretion by refusing to strike the punishment for the street gang enhancement in violation of defendant’s state and federal constitutional rights to due process. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and defendant’s brief and have concluded that there is no arguable issue on appeal.
The judgment is affirmed.
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Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
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MIHARA, J.
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MCADAMS, J.
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