Filed 7/26/16 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F071297
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF158077A)
                   v.

MICHAEL JOHN MARTINEZ,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Steven M.
Katz, Judge.
         Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Kane, J. and Detjen, J.
          Appellant Michael John Martinez pled no contest to first degree residential
burglary while another person was present (Pen. Code, §§ 459, 460, subd. (a), 667.5,
subd. (c)(21))1 and he admitted a serious felony enhancement (§ 667, subd. (a)(1)), a hate
crime enhancement (§ 422.75, subd. (a)), and allegations that he had a prior conviction
within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)). Following
independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we
affirm.
                        FACTUAL AND PROCEDURAL HISTORY
          On October 29, 2014, Martinez went to his neighbor Sandra Johnson’s apartment
and knocked on her front door, but Johnson, who is African-American, did not answer.
Martinez went back to his apartment but soon returned while Johnson was in an upstairs
room. Martinez yelled an obscenity and kicked in her front door. Johnson panicked and
opened a window on the second floor so she could jump out of the apartment and escape.
However, she remembered her son was in the apartment and ran to his room and got him.
As she ran back to the window, she saw Martinez walk through the kitchen and out the
front door. Johnson waited until Martinez walked back into his apartment before she ran
out of her apartment and around the corner where she waited for police.
          Johnson returned to her apartment with the police officers. While Johnson was
being interviewed, Martinez opened the door to his apartment. Johnson identified
Martinez as the person who broke into her apartment and the officers arrested him.
Martinez appeared to be under the influence of alcohol and initially denied breaking into
Johnson’s apartment. However, in route to the jail he began making numerous
derogatory and threatening comments about African-Americans. When asked why he
broke into Johnson’s apartment, Martinez stated that he would have raped Johnson and



1         All further statutory references are to the Penal Code.


                                                2.
done everything to her but kill her. He also stated that he picked Johnson, and not
another African-American, because she lived closest to him.
       On October 31, 2014, the district attorney filed a complaint charging Martinez
with the charges and allegations he pled to and with felony vandalism (count 2, § 594,
subd. (b)(1)), felony child endangerment (count 3, § 273a, subd. (a)), misdemeanor
interference with a business (count 4, § 602.1, subd. (b)), and misdemeanor interference
with a person’s civil rights (count 5, § 422.6, subd. (a)).
       On November 14, 2014, Martinez entered a no contest plea in the instant case, as
previously noted, in exchange for the dismissal of the remaining counts and allegations
and a stipulated prison term of 10 years. Martinez also admitted violating his probation
in an unrelated case.
       On February 25, 2015, the court sentenced Martinez, in accordance with his plea
agreement, to an aggregate, stipulated term of 10 years, the mitigated term of two years
on his burglary conviction, doubled to four years because of his prior strike conviction, a
five-year serious felony enhancement, and a one-year hate crime enhancement.
       Martinez’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) Martinez has not responded to this
court’s invitation to submit additional briefing.
       Following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




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