P. v. Martinez
Filed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. THOMAS PASQUAL MARTINEZ, Defendant and Appellant. | H029394 ( Super. |
Appellant pleaded no contest to three felonies and two misdemeanors that arose out of domestic violence incidents and admitted six prior strike convictions. Following the denial of appellant's motion to dismiss his prior strike convictions, the trial court sentenced him to a state prison sentence of 25 years to life. Appellant contends that the trial court erred in denying his motion to dismiss the prior strike convictions and that his attorney provided ineffective assistance at the hearing on that motion. We affirm.
Background
Underlying Offenses
In August 2003, appellant was living with Jovita Sanchez, his girlfriend. He tackled her bruising her legs and hurting her lower back. Appellant was arrested and Sanchez was treated at the hospital and released. This incident was originally charged as a felony but, after the information was amended, appellant pleaded no contest to one misdemeanor count of inflicting injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).)
In September 2003, after receiving an anonymous call, the police came to appellant's residence again. Appellant and Sanchez told the police they were having a heated verbal exchange. Appellant attempted to discard a glass pipe and a bag of methamphetamine and was arrested. After his arrest, Sanchez showed the officers multiple bruises and bite marks on her arms. She said that appellant became angry when she woke him up to give him a phone message. He would not let her leave the apartment. He had put her in a headlock and squeezed Sanchez's head until she passed out. He also punched her in the mouth and bit her. She told the officers that appellant had been verbally and physically abusing her since June 2003 but that she was afraid to report these incidents.
Appellant told the police that Sanchez's injuries were a result of bondage sex. Later, he admitted tackling her " in an attempt to 'shut her up.' " As a result of this incident, appellant was charged with and pleaded no contest to one felony count of inflicting injury on a cohabitant, one felony count of false imprisonment, one felony count of possession of methamphetamine, and one misdemeanor count of possession of paraphernalia. (Pen. Code, §§ 273.5, subd. (a), 236-237, Health & Saf. Code, §§ 11377, subd. (a), 11364.)
Motion to Dismiss Prior Strike Convictions
Appellant filed a motion to dismiss his six prior strike convictions. Appellant's prior strike convictions were three counts of assault with intent to commit rape, two counts of kidnapping, and one count of forcible oral copulation. In July 1975, appellant attempted to rape an 18-year-old woman who was selling coupons door-to-door. She sustained several cuts to her lip and bite marks on her body. In August 1976, appellant and two other men invited two teen-age girls to smoke methamphetamine with them. Appellant attempted to rape one of the girls and forced her to orally copulate him while one of the other men raped her. In September 1976, appellant offered a ride to an 18-year-old woman. He drove her to a remote location and attempted to rape her. He punched and strangled her until she lost consciousness. He stopped when she began praying in Spanish. In 1977, appellant was sentenced to four years in prison for these offenses.[1]
In 1983, appellant was sentenced to four years in prison for two counts of violating Penal Code section 273.5, subdivision (a) (inflicting injury on a cohabitant). In 2000, appellant was convicted of a misdemeanor battery on his live-in girlfriend for grabbing her neck and pushing her into a wall. (Pen. Code, §§ 242-243.) He was placed on probation and sentenced to six months in jail.
Appellant filed a spirited and thoughtful motion to dismiss his strike prior convictions. Appellant's childhood was difficult due to " an unresponsive, tyrannical alcoholic father" who was physically abusive. Classified as " incorrigible" as a juvenile, appellant joined the Army as an alternative to the California Youth Authority. Appellant served in
In 2003, appellant overheard the son of his live-in girlfriend boasting that the son was responsible for the killing of a 15-year-old boy about which there was a television news report. Appellant contacted the police. There was a delay in investigating this tip, and, before the son was arrested, he came to appellant's place with three other armed gang members to make appellant pay for informing on him. To escape, appellant jumped off a second story balcony, injuring his back, face and shoulder. Appellant was placed in the witness protection program. In appellant's old neighborhood, posters appeared that said " Tom Rat Martinez known drug dealer, sex offender, turned in Northside Homeboys. For reward money, we want his ass." [2]
At the hearing on appellant's motion to dismiss his prior strike convictions, Dr. David Berke testified as an expert on post traumatic stress disorder (PTSD). Dr. Berke said that appellant suffered from PTSD and needed treatment, although it would be " a long and . . . bumpy road." Dr. Berke reviewed the factors that contributed to appellant suffering from PTSD, including having to escape from the assailants by jumping from the balcony and suffering the resulting injuries. Dr. Berke also considered that appellant had suffered physical abuse as a child, that he had had difficult experiences in
Dr. Berke explained that after the life threatening balcony escape appellant became " discombobulated." Appellant was afraid to go out, he was having nightmares, and he was covering the windows of his apartment with blankets. One aspect of PTSD is being dependent on a person and then showing hostility or anger toward that person. Dr. Berke opined that, when Sanchez became appellant's caretaker as his PTSD symptoms progressed, this aspect of appellant's PTSD led to her physical abuse. Dr. Berke assesses dangerousness and performs risk assessments on a regular basis for the criminal justice system. He said that he interviews at least six or seven criminals a day. He believed that the probation report " mischaracterize[d]" appellant and that appellant had been " predominantly law abiding for the last 30 years." In his opinion, appellant was not a threat to the community.
Appellant told the court that he accepted full responsibility for his actions and that if released or granted probation he had a place to stay and help getting a job. He said that he " was clean for over 25 years" and would attend AA meetings if released. Defense counsel asserted that appellant fell outside the spirit of the three strikes law. Defense counsel argued that appellant's PTSD was a circumstance in mitigation and challenged the probation report's characterization as unfavorable the circumstance in mitigation that the crime was committed because of unusual circumstances such as great provocation which is unlikely to recur. He said that appellant had been a productive, employed, and generally law abiding person since 1983 despite two other domestic violence incidents. He argued that appellant's PTSD significantly worsened when he told the police about the identity of the murderer, had to go into the witness protection program, and escaped from the threat on his life by jumping off the balcony. Counsel agued that appellant needed treatment for his PTSD. Counsel considered appellant " a friend" and said that he " would trust him next door to me if he were living outside." Counsel described appellant's prospects as " excellent."
The court reviewed the circumstances of the present offenses and summarized those of the prior strike convictions. The court noted that appellant was 55 years old and acknowledged that appellant was " under a lot of emotional mental stress as a result of the threat made on his life." The court said, " I believe the record is clear concerning the impact of PTSD on Mr. Martinez. However, it does not – although it may explain the defendant's actions, it certainly does not excuse his criminal conduct." The court noted that although the prior strike convictions were remote, " the majority of the defendant's criminal history involved assaults on women." The court commended defense counsel on the thoroughness of his presentation. The court told appellant, " You have not been crime free which to me would make a difference. And even if you had not been crime free, if your criminal conduct was not . . . involving assaults on women, I think that makes a difference as well." The court concluded that " this is not an appropriate case in which to exercise its discretion pursuant to Penal Code section 1385" and denied the motion to dismiss the prior strike convictions. The court sentenced appellant to a total term of 25 years to life in prison.
Discussion
Appellant contends, " The trial court erred when it denied Martinez's Romero motion by failing to recognize he did not fit the profile of a recidivist and by failing to consider whether defendant's mental illness significantly reduced his culpability." In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, our Supreme Court articulated guidelines for the exercise of a court's discretion to dismiss prior strike convictions. In People v. Williams (1998) 17 Cal.4th 148, our Supreme Court summarized the " deferential" standard of review of a Romero ruling for abuse of discretion as " whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (Id. at p. 162.) The duty of the court in ruling on whether to dismiss a prior strike conviction is to " consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.)
On appeal, " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) " Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. " An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' " (Id. at p. 978.)
Appellant argues that although the trial court " acknowledged Martinez's priors were remote, it discounted this factor because Martinez had not been 'crime free' during the intervening 30 years. The court erred. The relevant question is not whether a defendant is totally free of crime since the time of a remote prior, but whether his criminal history shows he is a ' " revolving door" career criminal.' " It is quite clear to this court that the trial court understood what the " relevant question" was in determining whether to exercise its discretion. The parties' moving papers, which the trial court specifically mentioned in its ruling, make clear what the appropriate standard is. Taken in context, the court's statement does not show that the court denied the motion because appellant had not been crime free. What the court said was that despite the fact that appellant had not been crime free, if appellant's post-strike offenses and committing offenses had not involved violent assaults on women the court might have granted the motion. Although appellant argued that his record could be divided into two distinct periods, and thus he did not qualify as a recidivist for three strikes purposes, the court did not have to accept this portrayal of his criminal life. Appellant strangled, beat, and bit women during his strike offenses, had convictions for violence against women after incurring his strikes, and was being sentenced for a violent offense against a woman who passed out and was hit and bitten. The record shows that trial court understood its discretion and the appropriate criteria for its exercise when it declined to dismiss appellant's prior strike convictions.
Appellant observes the trial court acknowledged the impact of PTSD on appellant but then said, " it certainly does not excuse his criminal conduct." Appellant argues, " That appraisal may be relevant to the question of guilt, but it is not the salient factor in the sentencing context. Rather, the sentencer must consider whether a mental condition significantly reduced Martinez's culpability for the crime." Taken in context, the trial court's comment does not indicate that it " erred in considering whether guilt was excused, when it should have considered whether culpability was reduced." Appellant's assistance to the police in the homicide investigation, the threat on his life, and his PTSD were all presented and argued to the court as reducing his culpability. This was a sentencing hearing, not a trial, and the court clearly understood that it was not determining the question of guilt, noting that appellant had " accepted responsibility for his conduct by admitting guilt as well as accepting responsibility." The court said, " I have continually looked at all the information that has been provided to the Court. In order to determine whether or not there are factors pursuant to People v. Romero and all the other cases that would justify the court to exercise the – its discretion as far as striking the strikes alleged." The record shows that the trial court understood its discretion and the appropriate criteria for its exercise when it declined to dismiss appellant's prior strike convictions. Appellant has not shown that the court's decision was irrational or arbitrary.
Appellant contends that defense counsel provided ineffective assistance " when he failed to object to the court's reliance on improper factors and applied improper standards." Because we consider this record to indicate that the trial court relied on proper factors and applied proper standards, no objection was necessary. On the contrary, defense counsel, as the trial court said, " presented a thorough and complete job" for appellant and we " cannot think of any more that he could do."
Disposition
The judgment is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
_____________________________
PREMO, J.
People v. Martinez
H029394
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[1] Appellant argued that this sentence reflects the mitigated nature of the offenses. The prosecutor countered " that the current
[2] This quote is from the testimony of Sergeant Byron Jones of the San Jose Police Department. The flyer about which he spoke, which was marked for identification but not admitted, reads, " Tom 'Rat' Martinez [¶] Known Drug Dealer [¶] Sex Offender [¶] Turned In Wife's Son [¶] And North Side Home Boys [¶] For Reward Money [¶] We Want His Ass."
