People v. Martinez CA4/1

Opinion

Filed 3/2/15 P. v. Martinez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D066659

Plaintiff and Respondent,

v. (Super. Ct. No. SCS269689)

JOSE NETZA MARTINEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

Jose Netza Martinez pleaded guilty to one count of continuous sexual abuse of a

child (Pen. Code, § 288.5, subd. (a))1 and admitted having substantial sexual conduct

with a child under the age of 14 years (§ 1203.066, subd. (a)(8)). He also admitted that

the victim was under the age of 18 years and that the court's action began prior to the

1 All statutory references are to the Penal Code. victim's 28th birthday. (§ 801.1, subd. (a).) The trial court sentenced Martinez to 16

years in prison and ordered him to pay fines and fees.

Appointed appellate counsel filed a brief presenting no argument for reversal, but

inviting this court to review the record for error in accordance with People v. Wende

(1979) 25 Cal.3d 436 (Wende). After having independently reviewed the entire record

for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende,

we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2014, Martinez was charged with four counts of committing a

lewd act upon a child, four counts of committing a lewd act upon a child 14 or 15 years

of age, four counts of unlawful sexual intercourse with a minor under 16 years of age,

oral copulation on a person under 16 years of age, four counts of oral copulation of a

person under 18 years of age, and one count of secretly filming a person. (§§ 288, subd.

(a), 288, subd. (c)(1), 261.5, subd. (d), 288a, subd. (b)(2), 288a, subd. (b)(1), 647, subd.

(j)(3)(A).) The victim was Martinez' stepdaughter.

On June 23, 2014, Martinez pleaded guilty to one count of continuous sexual

abuse of a child and admitted that substantial sexual conduct had occurred when the

victim was less than 14 years old. (§§ 288.5, subd. (a), 1203.066, subd. (a)(8).) The

prosecution agreed to dismiss the other counts and allow the trial court to determine the

length of the sentence, which was to be either 12 or 16 years in state prison. Martinez

filed a written guilty plea acknowledging he had been advised of his constitutional rights

and the consequences of his guilty plea. He admitted that he lived in the same home with

2 the victim, who was under the age of 14 at the time, and that he had substantial sexual

contact with her. The court advised Martinez of his constitutional and trial rights and the

consequences of his guilty plea. Martinez, under oath, acknowledged he was advised of

his constitutional rights and the charges against him, and wished to plead guilty.

At sentencing, the court found that Martinez' sexual abuse of the victim continued

for seven years and stopped only when the victim moved away from home. Because

Martinez continuously sexually abused the victim during an extended period of time, the

court imposed the upper term of 16 years. Martinez received 279 days credit, calculated

as 243 actual days plus 36 days work time credit.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and

proceedings in the trial court. Counsel has presented no argument for reversal, and

invited this court to review the record for error in accordance with Wende, supra,

25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following

as possible, but not arguable, issues:

"1. Was appellant advised of his trial rights and the consequences of his plea

prior to entering the plea bargain?

"2. Is there a factual basis for the plea?

"3. Did appellant receive the agreed sentence?

"4. Did appellant receive the correct pre-sentencing credit?

"5. Did the sentencing judge abuse his discretion in imposing the upper term of

16 years?"

3 A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders,

supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no

reasonably arguable appellate issue. We granted Martinez permission to file a brief on

his own behalf. He has not responded. Martinez has been represented by competent

counsel on this appeal.

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.