Filed 3/19/13 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F064431
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10905012)
                   v.

JULIO PANTOJA MARTINEZ,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Rosendo
Peña, Judge.

         Deborah Prucha, 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 Levy, Acting P.J., Detjen, J., and Franson, J.
                             STATEMENT OF THE CASE
       Appellant, Julio Pantoja Martinez, was charged in a criminal complaint, filed on
October 1, 2010, with four felony counts of attempted home invasion robbery in concert
with two or more persons (Pen. Code, §§ 664, 213, subd. (a)(1)(A), counts 1-4).1 The
complaint also alleged an enhancement for each count that appellant used a gun
(§ 12022.53, subd. (b)). An information was filed with the same allegations on March 9,
2011. On April 22, 2011, the trial court denied appellant’s motion for new counsel made
pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
       On May 2, 2011, criminal proceedings were suspended pursuant to section 1368.
The court directed a psychologist to examine appellant. Dr. Harold L. Seymour
evaluated appellant on May 12, 2011. Dr. Seymour found appellant’s attention to be
focused, his memory grossly intact, and his thinking processes linear and on topic.
Although appellant was undergoing anxiety concerning his trial, Dr. Seymour found no
major mental disorder that would interfere with appellant’s ability to be a competent
defendant. Dr. Seymour found appellant competent to stand trial and with the ability to
competently assist his legal counsel. On May 27, 2011, the trial court found appellant
competent to stand trial and reinstated criminal proceedings.
       On December 15, 2011, a second Marsden motion was denied by the trial court.
On that date, appellant entered into a plea agreement wherein he would admit the
allegations in the information and receive a stipulated prison term of 13 years. Appellant
executed a felony advisement, waiver of rights, and plea form acknowledging the terms
of the plea agreement, the consequences of his plea, and his constitutional rights pursuant
to Boykin/Tahl.2 Appellant waived his Boykin/Tahl rights in the form. At the hearing,
1      All statutory references are to the Penal Code.
2     Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122
(Boykin/Tahl).


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the trial court verified that appellant understood the terms of the plea agreement, the
consequences of the plea, and had executed and initialed the change of plea form. The
parties stipulated that the preliminary hearing transcript constituted a factual basis for the
plea. Appellant pled no contest to all four counts and admitted the gun use enhancement
as to each count.3
       On January 17, 2012, the trial court sentenced appellant to prison for a term of
three years on count one, plus a consecutive term of ten years for the gun use
enhancement for a total term of 13 years. The court sentenced appellant to concurrent
sentences on the remaining counts and enhancements. The court imposed a $2,600
restitution fine and granted petitioner 547 days of custody credits consisting of 476 actual
days in custody, plus 71 conduct credit days. Appellant did not obtain a certificate of
probable cause. Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende).
                                           FACTS
       On May 5, 2010, at about 6:30 a.m., three males armed with guns forced their way
into a residence on Hayes Street in Fresno. The armed robbers demanded drugs from
three residents in the home. A fourth resident was on her bedroom floor during the
robbery and telephoned her brother who lived next door. She saw appellant pointing a
shotgun at her uncle. The brother ran next door and interrupted the robbery. The victims
explained that the robbers were all wearing body armor and law enforcement badges.
The robbers fled, leaving behind a shotgun, body armor, a flannel jacket, and a police
badge near the residence. Appellant’s DNA was found on the clothing. Two




3      Appellant also admitted a misdemeanor driving under the influence allegation in
an unrelated criminal action.


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codefendants were later arrested and admitted being involved in the robbery with
appellant.
                           APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on June 29, 2012, we invited appellant to submit
additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




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