Filed 7/14/16 P. v. Martinez CA6
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                           SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                                  H042708
                                                                            (Monterey County
          Plaintiff and Respondent,                                          Super. Ct. No. SS150651A)

          v.

RICARDO MENDOZA MARTINEZ,

          Defendant and Appellant.


          Defendant Ricardo Mendoza Martinez was charged by information with one count
of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1),1 one count of
possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2), and one count of
unlawful possession of ammunition (§ 30305, subd. (a)(1), count 3). The information
also alleged, as to counts 1 and 2, that Martinez personally used a firearm and personally
inflicted great bodily injury on the victim in connection with those offenses.
(§§ 12022.5, subd. (a), 12022.7, subd. (a).) Finally, the information alleged that, as to
counts 1, 2, and 3, that Martinez had suffered two prior felony convictions. (§ 1170.12,
subd. (c)(2).)
          A jury convicted Martinez of count 2 and count 3, and acquitted him on count 1.
The jury also found not true the allegations that Martinez personally used a firearm and
personally inflicted great bodily on the victim in connection with count 1.2 In a


          1
              Unspecified statutory references are to the Penal Code.
          2
              During trial, the prosecution struck these allegations with respect to count 2.
bifurcated proceeding, the trial court found true the allegation that Martinez had suffered
two prior felony convictions. Martinez was sentenced to six years on count 2 (upper term
of three years doubled under § 1170.12, subd. (c)(2)) and the trial court imposed, but
stayed, a consecutive term of eight months (one third the middle term of two years) on
count 3.
       We appointed counsel to represent Martinez in this court. Appointed counsel filed
an opening brief which states the case and the facts, but raises no specific issues. We
notified Martinez of his right to submit written argument in his own behalf within
30 days. That period has elapsed, and we have received no written argument from
Martinez.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       On November 9, 2013, Frank Hewitt was working at the Uni-Kool Partners
produce warehouse on West Market Street in Salinas, which is located near the railroad
tracks. A man walked up to the office where Hewitt was working, and asked Hewitt to
call 911 because he had been shot. The man waited out front for the police and
emergency medical responders to arrive. Hewitt did not hear any gunshots that morning.
       Detective Kenneth Schwener was dispatched to the Uni-Kool warehouse and, on
his arrival, saw the victim sitting on the ground outside being attended to by emergency
medical responders. Schwener looked at the victim’s right arm and saw that he had been
shot through the forearm, with the bullet exiting near the wrist.
       Officer Oscar Dydasco responded to the scene around 8:30 a.m. to assist other
officers by taking photographs of the crime scene. When he arrived, he observed
paramedics treating the victim and Dydasco took photos of the victim’s injury. Based on
his training and experience, Dydasco believed the wound to be a gunshot wound.
Dydasco searched the area including the railroad tracks and discovered a .22-caliber
bullet casing.


                                             2
       Officer Jared Dominici responded to the scene at about 8:30 a.m. to assist other
officers in investigating the shooting. Later that day, Dominici responded to a report that
a vehicle belonging to a suspect in the shooting had been located near 311 Archer Street.
Dominici assisted other officers in searching that vehicle, a silver Buick sedan. In the
trunk, Dominici found a case containing a loaded silver .22-caliber Ruger semiautomatic
weapon. Dominici also located several types of controlled substances in the trunk and
the passenger compartment of the car.
       Schwener conducted a recorded interview with Martinez at the police department
following his arrest. At the outset of the interview, which was played for the jury,
Schwener informed Martinez he was under arrest for attempted murder, and read him his
Miranda3 warnings. Martinez said, he had slept in his car the night before the shooting,
and at about 8:00 or 8:30 a.m., he saw the victim, who owed him about $100. Martinez
said the victim had owed him this money for about three months and kept saying he
would repay him, but never did. Martinez confronted the victim by the railroad tracks,
near the warehouses.
       When Schwener asked Martinez why he shot the victim, Martinez initially seemed
surprised, but then admitted he shot him because the victim would not repay what he
owed. Martinez denied having any intent to kill the victim, explaining he shot him “in
the hand.” Martinez said he only fired once, then told the victim “You’re not hurt bad or
nothing. So go get my money.”
       Martinez told Schwener he was given the gun about two or three months before
the shooting. It was a grey and black .22-caliber weapon that he kept in a silver suitcase
in the trunk of his car.




       3
           Miranda v. Arizona (1966) 384 U.S. 436.
                                             3
       Schwener asked Martinez about the methamphetamine they found in his car.
Martinez again seemed surprised at first, asking if Schwener was kidding. He then
immediately said “I take full responsibility” for everything found in the car.
       The parties stipulated that Martinez had been convicted of a prior felony. The
parties also stipulated that the district attorney’s office had charged a third party with
possession of the narcotics that were found in Martinez’s vehicle and that the third party,
following a plea of no contest, was found guilty of that charge.
       The jury acquitted Martinez on count 1, but found him guilty on counts 2 and 3.
In a bifurcated proceeding, the trial court found true the allegations that Martinez had two
prior felony convictions. The trial court subsequently sentenced Martinez to the upper
term of three years, doubled to six years pursuant to section 1170.12, subdivision (c)(2),
on count 2. As to count 3, the trial court imposed and stayed a consecutive eight month
sentence (one-third the middle term). Martinez was awarded a total of 1,300 days of
custody credits, consisting of 650 days actual credits plus 650 days of conduct credits.
The trial court ordered Martinez to pay a $600 restitution fine (§ 1202.4, subd. (b)) and
an additional $600 restitution fine was imposed but stayed pending successful completion
of parole (§ 1202.45). Martinez was further ordered to pay a court operations assessment
of $80 (§ 1465.8, subd. (a)(1)) and a court facilities assessment of $60 (Gov. Code,
§ 70373).
       Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40
Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable
issue on appeal.
II.    DISPOSITION
       The judgment is affirmed.




                                              4
                             Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




People v. Martinez
H042708
