People v. Martinez

1

THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY MARTINEZ, Defendant and Appellant.

F085298

California Court of Appeals, Fifth District

December 22, 2023

NOT TO BE PUBLISHED

Order Filed Date 1/11/24

APPEAL from a judgment of the Superior Court of Kern County, No RF008825A John D. Oglesby, Judge.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Carly Orozco, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING REHEARING

It is ordered that the opinion filed herein on December 22, 2023 be modified as follows:

On page 26, prior to the Disposition, the following paragraphs are inserted.

Anticipating forfeiture, appellant argues counsel was ineffective in failing to request the restitution fine be stayed and the assessment fees stricken based on his inability to pay.

To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1006 (Mai); see Strickland v Washington (1984) 466 U.S. 668, 687, 694.)

The record here does not explain why appellant's counsel did not object to the imposed restitution fine and fees. However, we do not identify any potential ineffective assistance of counsel on this issue as nothing in appellant's record indicates he did not have the ability to pay, either through prison wages or future earnings. Appellant's probation report indicates that, just prior to his arrest, he was working for a private company doing cement work and earning $380 to $400 a week, and earlier worked as a field laborer for $650 to $700 per week. (See, e.g., People v. Lowery (2020) 43 Cal.App.5th 1046, 1060-1061 [ability to pay fines includes consideration of wages appellant may earn in prison]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [trial court may consider a defendant's future ability to pay in determining whether a defendant has the ability to pay a restitution fine].) The total fee and fines imposed was $510 and appellant's trial counsel may have concluded that objecting to this amount would have been pointless.

Appellant fails to meet his burden to demonstrate counsel had no tactical purpose for failing to request the restitution fine be stayed and the assessments stricken based on his inability to pay. Furthermore, even if counsel's performance was deficient or counsel had objected to the imposed fine and fees and the trial court held an ability-to-pay hearing, appellant cannot establish he was prejudiced. As noted above, a trial court may consider the wages a defendant could earn in prison in determining an ability to pay under Duenas (People v. Oliver (2020) 54 Cal.App.5th 1084, 1101.) Just because it may take many years to earn the amount owed in fees and fines with prison wages or future wages upon release from prison does not mean a defendant lacks the ability to pay under Duenas. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1077.)

Appellant has not shown that there is a reasonable probability that, had trial counsel objected to the imposed fine and fees based on his inability to pay or requested the court to make an ability-to-pay finding under Duenas, it would not have imposed the restitution fine and assessments. Substantial evidence supports the court's implicit determination that appellant would be able to pay the $300 restitution fine and $210 in assessments with wages he could earn during the lengthy 29-years-to-life prison term imposed in this case or from future wages upon his release from prison. (See People v. Johnson (2019) 35 Cal.App.5^th 134, 139-140 [failure to challenge fees under Duenas is harmless where defendant can earn the $370 in fees owed during his eight-year prison term].) Because appellant has not shown that he was prejudiced by trial counsel's failure to raise the Duenas issue, he cannot show he was denied effective assistance of counsel.

There is no change in the judgment. Appellant's petition for rehearing filed on December 27, 2023, is denied.

OPINION

FRANSON, J.

Appellant Robert Anthony Martinez was charged by amended information, in count 1, with first degree attempted murder (Pen. Code, §§ 187, subd. (a), 189, 664)^[1]; in count 2, with assault with a deadly weapon (§ 245, subd. (a)(1)); and in count 3, with battery with serious bodily injury (§ 243, subd. (d)). As to each count, it was also alleged appellant personally used a deadly weapon (§ 12022, subd. (b)(1)) and that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). It was further alleged appellant had two prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)- (e)), both of which were serious felonies (§ 667, subd. (a)).

A jury found appellant not guilty on count 1 first degree attempted murder, but guilty of the lesser included offense of attempted voluntary manslaughter (§§ 192, subd. (a), 664), and guilty on counts 2 and 3. As to each of the three counts, the jury found true the allegations for personal use of a deadly weapon and personal infliction of great bodily injury.

In a bifurcated proceeding, the jury found true that appellant had suffered two prior strike convictions, which were also serious felonies.

The trial court sentenced appellant to 29 years to life, consisting of a third-strike sentence of 25 years to life for count 1; one year for the deadly weapon enhancement (§ 12022, subd. (b)(1)); and three years for the great bodily injury enhancement (§ 12022.7, subd. (a)). Sentence on counts 2 and 3 were stayed pursuant to section 654. The two prior serious felony enhancements (§ 667, subd. (a)) were struck pursuant to section 1385. Fines and fees totaling $510 were imposed.

On appeal, appellant argues: (1) the trial court erred in failing to instruct on selfdefense (defense of others); (2) appellant's conviction on counts 2 and 3 violate section 954; (3) the trial court erred in failing to dismiss all enhancements beyond single enhancement pursuant to section 1385, subdivision (c)(2)(B) (hereafter § 1385(c)(2)(B)); (4) and appellant's restitution fine should be vacated because it was imposed without a determination of an ability to pay. We affirm.

STATEMENT OF THE FACTS

Very early one morning in October 2021, Zachary Getchey offered to take his friend Isaias Barragan to Emma Fearn's home. Barragan and Fearn were in a romantic relationship. Fearn lived a few minutes away from Getchey, in an apartment unit facing an alley with a small front yard fenced in by a high fence.

Shortly before Getchey and Barragan arrived at Fearn's, Juan Aldana knocked on Fearn's door and asked for a cigarette and whether anyone was coming to her house. Fearn thought this was strange, as she did not know Aldana well, although he was Barragan's friend.

Getchey and Barragan then arrived at Fearn's, and Aldana immediately ran to the side of Fearn's house. Fearn also noticed two other men outside her house, appellant and Patrick Hull. Fearn described a "lot of yelling going on, and you could tell that there was about to be a physical altercation," with Getchey and Barragan on one "side" of the argument and appellant, Aldana and Hull on the other.

Getchey saw a "conflict" with Barragan against Aldana, Hull and appellant. Getchey knew all of them since childhood. Getchey assumed Hull arrived at Fearn's house "to fight." Fearn did not see Getchey provoke or instigate a fight. Getchey tried to intervene in the fight that ensued. Appellant told him to "stay out of it" and tried to "go around" Getchey to continue fighting. Getchey tried to protect Barragan from getting "stabbed or jumped" and admitted that he testified at the preliminary hearing that he "ended up getting stabbed for trying to stop that." Getchey testified that his recollection of the events was based on "what everybody told [him]" as he had been drinking alcohol and had taken drugs.

Fearn went into her house and emerged with a bat, fearing for her and Barragan's safety. When she emerged from the house Hull was directly in front of her door, and she hit him with the bat. Barragan and Hull then started fighting. Barragan took the bat from Fearn, and Barragan then fell on the ground. Hull landed on top of him. In the meantime, appellant and Getchey were "fighting or arguing and fighting."

Fearn saw appellant with a knife, and she started yelling that she was going to call the police. The knife worried Fearn, as she knew the knife could "kill ... or hurt someone." When Fearn yelled that she was going to call the police, everyone else ran outside the fence. Fearn then ran towards the group and saw Getchey holding his side saying he had been stabbed. He was bleeding profusely.

Appellant, Hull, and Aldana left in a vehicle, and Fearn and Barragan started arguing. Getchey got into the car he arrived in and drove to his girlfriend Desiree Mendiola's apartment, where he told her appellant had stabbed him. Mendiola saw Getchey's sweatpants were completely soaked in blood, and he was pale. Mendiola rushed to take Getchey to the hospital, but was pulled over.

During the traffic stop, Getchey got out of the vehicle and one of the officers applied trauma dressing. Getchey had a two-inch wound below his left armpit. Getchey was initially uncooperative and unwilling to speak, but...