P. v. Perez-Martinez

Filed 11/28/05 P. v. Perez-Martinez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. VINCENTE GABRIEL PEREZ-MARTINEZ, Defendant and Appellant.

A107960 (Humboldt County Super. Ct. No. CR043688)

Vincente Gabriel Perez-Martinez timely appeals from a September 27, 2004 judgment sentencing him to seven years in state prison. On August 24, 2004, Perez-Martinez pleaded guilty to assault with a deadly weapon and admitted he inflicted great bodily injury in the commission of that crime. (Pen. Code, §§ 245, subd. (a)(1) [assault with a deadly weapon], 12022.7, subd. (a) [three-year enhancement for infliction of great bodily injury].) Rodriguez makes two “dual use” arguments on appeal regarding the sentencing court’s imposition of the upper term on his assault charge: (1) the trial court improperly applied the aggravating factor that he was “engaged in violent conduct” (Cal. Rules of Court, rule 4.421, subd. (b)(1)); and (2) he was denied effective assistance of counsel when defense counsel did not object to the court’s use of the fact that Perez-Martinez was armed as an aggravating factor (Cal. Rules of Court, rule 4.421, subd. (a)(2)). We conclude the circumstances the court relied upon to impose the upper term were proper, and, even assuming the court relied on an improper circumstance, the error was harmless. We thus affirm.

BACKGROUND

A. Factual Background.^[1]

Perez-Martinez was a California Department of Corrections inmate at the Humboldt Recovery Center (“HRC”), a residential rehabilitation facility. On the night of July 22, 2004, Perez-Martinez and three other inmates escaped the HRC by forcing open a window. Before escaping, Perez-Martinez took two knives from the HRC kitchen. He and the other escapees rendezvoused in the alley behind the HRC with two “females” they had met earlier in the day. Together they went to a park where they met a group of teenagers drinking liquor. Although at first the escapees and teenagers got along, someone eventually felt disrespected. A fight ensued, and three of the escapees inflicted knife wounds on three of the teenagers. All three victims required surgery. The inmates fled the scene, but were “located at [the] HRC within the hour.” Although Perez-Martinez could remember drinking in the alley behind the HRC, he claimed he had no memory of the events after that. He admitted “to drinking, but that’s all.”

B. Procedural Background.

On August 24, 2004, Perez-Martinez pleaded guilty to assault with a deadly weapon on one of the teenagers, Jasper Rice (Pen. Code, § 245, subd. (a)(1)); admitted in committing that crime he inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)); and made a Blakely^[2] waiver. Pursuant to the plea agreement, the court dismissed a second count of assault with a deadly weapon and a third count for escape from prison (Pen. Code, § 4530, subd. (b)), as well as an allegation that Perez-Martinez had one prior conviction under the Three Strikes law.

At the sentencing hearing on September 27, 2004, the court sentenced Perez-Martinez to seven years in prison consisting of a four-year upper term on the assault with a deadly weapon count with a consecutive three-year enhancement pursuant to Penal Code section 12022.7, subdivision (a). During the hearing, defense counsel argued for imposition of the middle term on the assault count. He argued that using the factor in California Rules of Court, rule 4.421, subdivision (b)(1) – “[t]he defendant has engaged in violent conduct which indicates a serious danger to society” – to justify imposition of the upper term would be an impermissible “dual use of facts. Mr. Perez-Martinez has acknowledged great bodily injury as an enhancement and has received a three year consecutive enhancement for that.”

Defense counsel also argued there were three circumstances in mitigation: (1) “the victim was a willing participant in at least the initial contact” (Cal. Rules of Court, rule 4.423, subd. (a)(2)); (2) Perez-Martinez “may have been in[duced] by others” to participate in the crime (Cal. Rules of Court, rule 4.423, subd. (a)(5)); and (3) Perez-Martinez “voluntarily acknowledge[d] his role in that proceeding at an early stage in the [criminal] process” (Cal. Rules of Court, rule 4.423, subd. (b)(3)).

The prosecutor then argued that even without relying on rule 4.421, subdivision (b)(1) as a circumstance in aggravation, “the circumstances in aggravation outweigh the circumstances in mitigation.” He emphasized the fact that Perez-Martinez escaped the HRC where he was “undergoing residential treatment” and committed the crime. The court asked defense counsel again about the dual use issue. Then the court responded: “But we do have [California Rules of Court, rule 4.421, subdivision (b)(3)], Mr. Perez-Martinez having served a prior prison term. (b)(4) [“The defendant was on probation or parole when the crime was committed”] . . . – I’m not sure, frankly, whether the person is on parole when you’re placed in a half-way house, as it might be termed, or whether you’re still actually serving your commitment.” Defense counsel then said, “I believe that he was still serving a commitment and was not on parole or probation.”

The court then said, “Let me do this, Mr. Perez-Martinez is, at this time, statutorily ineligible for probation and, in fact, was, as just stated, serving a prison commitment at the time this offense occurred and was presumably being considered in some type of escape or absconding status at the time of the commission of this offense. [¶] And the Court then will deny probation. [¶] Regarding the aggravation, mitigation, it would appear that we would have, under [California Rules of Court, rule] 4.421 [, subdivision] (a)](2), defendant was armed with a weapon at the time of the commission of the offense. [¶] And we have [California Rules of Court, rule 4.421, subdivision (b)](1), the engagement of violent conduct which indicates a serious danger to others and is prohibited. Just on the other hand, that conduct in the abstract would be looked at [a]s a danger to others and not as a factor for the infliction of that injury, which, perhaps, is different, but we do have [California Rules of Court, rule 4.421, subdivision (b)](3) the – if not prior, the present prison term, and then the fact that Mr. Perez-Martinez was, in fact, in a prison commitment at the time the offense occurred.”

Next, regarding mitigation, the court rejected application of the factor in California Rules of Court, rule 4.423, subdivision (a)(2) (“The victim was an initiator of, willing participant in . . . the incident”), because while “the victim was a willing participant in the activities and . . . the group was engaged in some type of disagreement which arose between either the victim and others or the two groups . . . [,] it doesn’t appear that the victim would have been otherwise a willing participant in the crime.”

After further discussion with counsel regarding victim restitution and a Blakely issue, the court stated: “I think at this time the Court will follow the recommendation of the probation officer and find, based on the prior, slash, present prison term and the fact the defendant, while serving that term, did abscond from the service of that term, and while absconding did commit then the present offense which is a serious or violent felony, the Court then will find probation must be denied and commit Mr. Perez-Martinez to the California Department of Corrections for the aggravated term of four years for a violation of [Penal Code section] 245[, subdivision (a)](1), a felonious assault as stated in count one. [¶] And further, I will commit Mr. Perez-Martinez to a three-year term, consecutive to the four-year period, for a violation of 12022.7(a) of the Penal Code for a total commitment of seven years.” There was no further mention during the hearing by the court or counsel of the length of Perez-Martinez’s prison term.

DISCUSSION

Perez-Martinez argues the sentencing court improperly relied on two facts to impose the upper term of four years for his assault crime. These facts were (1) Perez-Martinez used a weapon during the crime and (2) the crime involved violent conduct. (Cal. Rules of Court, rule 4.421, subds. (a)(2) [aggravating circumstance that defendant was armed with or used a weapon], (b)(1) [aggravating circumstance that defendant “engaged in violent conduct which indicates a serious danger to society”].) The fact he used a weapon was also an element of the assault crime to which Perez-Martinez pleaded guilty. (Pen. Code, § 245, subd. (a)(1) [“assault . . . with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury”]; Cal. Rules of Court, rule 4.420, subd. (d) [“A fact that is an element of the crime shall not be used to impose the upper term”].) Perez-Martinez also asserts the court improperly relied on the fact he engaged in violent conduct in committing the assault because the court also used that fact to impose the three-year sentence enhancement for infliction of great bodily injury. (Pen. Code, §§ 12022.7, subd. (a) [imposing three-year consecutive term where defendant “inflicts great bodily injury”] & 1170, subd. (b) [“The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law”].) Perez-Martinez acknowledges that defense counsel did not object during the sentencing hearing to the use of the “armed with a weapon” factor. Consequently, he raises that alleged sentencing error as an ineffective assistance of counsel claim.

We conclude the sentencing court relied on Perez-Martinez’s prior prison term and his escape from the HRC in selecting the upper term. Such reliance was proper. The record indicates the court did not rely on the fact that Perez-Martinez used a weapon during the crime to select the upper term. We further conclude that even assuming the court also improperly relied on the violence of the crime, any such error was harmless and does not warrant remand for resentencing.

The record indicates it was near the end of the sentencing hearing when the court stated the circumstances in aggravation it relied on: “I think at this time the Court will follow the recommendation of the probation officer and find, based on the prior, slash, present prison term and the fact the defendant, while serving that term, did abscond from the service of that term, and while absconding did commit then the present offense which is a serious or violent felony, the Court then will find probation must be denied and commit Mr. Perez-Martinez to the California Department of Corrections for the aggravated term of four years . . . .”^[3] At that point in the hearing, the court actually pronounced the sentence. The earlier discussion between counsel and the court regarding other potentially applicable aggravating and mitigating circumstances does not appear to reflect the court’s final decision on the matter.

The court properly relied on Perez-Martinez’s prior prison term and his escape from the HRC as aggravating circumstances justifying imposition of the upper term. (Cal. Rules of Court, rules 4.421, subd. (b)(3) [“The defendant has served a prior prison term”] & 4.408, subd. (a) [“The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made”].) These circumstances did not present any dual use problem; they were not elements of the crime nor used to impose the three-year sentence enhancement.

In imposing sentence, the court also noted that Perez-Martinez’s crime was “a serious or violent felony.” Even assuming the court relied on this fact in selecting the upper term and this reliance created a dual use problem, “[i]mproper dual use of the same fact for imposition of both an upper term and a[n] . . . enhancement does not necessitate resentencing if ‘[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.” (People v. Coleman (1989) 48 Cal.3d 112, 166.) Here, the court stated it relied on two proper aggravating factors: the prior prison term and the escape from the HRC. (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband) [“Only a single aggravating factor is required to impose the upper term”].) The court indicated it was following the recommendation of the probation officer, who, in his report, emphasized that the HRC escape was a “strong circumstance in aggravation.”^[4] Consistent with the probation officer’s report, the court did not find any circumstances in mitigation. Indeed, earlier in the sentencing hearing, the court appears to have rejected defense counsel’s argument in support of three mitigating factors. Consequently, we conclude there is no reasonable probability that the court would have imposed a more favorable sentence. Resentencing is not required. (Osband, supra, 13 Cal.4th at p. 729.) For the same reasons, we conclude Perez-Martinez was not denied effective assistance of counsel during the sentencing hearing. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [for a claim of ineffective assistance of counsel, a defendant must establish “that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted”].)

DISPOSITION

The judgment is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

San Diego Lawyers are available and standing by to help you.

^[1] These facts are from the probation officer’s September 8, 2004 report, which in turn was based on a Eureka Police Department report.

^[2] (Blakely v. Washington (2004) 542 U.S. 296 (Blakely).)

^[3] The court’s reliance on the same factors for denying probation and for imposing the upper term “is permissible, as the actual choice requiring an explanation is not the denial [of probation], but the choice of a prison commitment.” (People v. Robinson (1992) 11 Cal.App.4th 609, 614.)

^[4] The probation officer also stated in his report: “[t]he fact that [Perez-Martinez] effected an escape from the [HRC], where he was an inmate undergoing local residential treatment, to commit this crime, renders [his] criminal conduct in this matter to be an outrageous and intolerable affront to this community.”