Filed 6/22/23 P. v. Martinez CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A166013
v.
SAMUEL MARTINEZ, (Solano County Super. Ct.
No. FCR348129)
Defendant and Appellant.
A jury found defendant Samuel Martinez guilty of second degree
robbery, and the trial court sentenced him to the upper term of five years in
prison. In a prior appeal, we affirmed the conviction but remanded to the
trial court for resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.)
(S.B. 567). (People v. Martinez (Feb. 23, 2022, A159821) [nonpub. opn.] 2022
WL 538053, at *8 (Martinez I).)
Martinez appeals following resentencing. We affirm.
BACKGROUND
Second degree robbery is punishable by imprisonment for two, three, or
five years. (Pen. Code,1 § 213, subd. (a)(1)(B)(2).) When the trial court
originally sentenced Martinez, it had broad authority under former section
1170 to select a term from the sentencing triad that “in the court’s discretion,
1 Further undesignated statutory references are to the Penal Code.
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best serve[d] the interests of justice.” (Former § 1170, subd. (b), as amended
by Stats. 2020, ch. 29, § 15.) The trial court imposed the upper term of five
years. (Martinez I, supra, 2022 WL 538053, at *7.)
Effective January 1, 2022, S.B. 567 amended section 1170 “in several
fundamental ways.” (People v. Flores (2022) 73 Cal.App.5th 1032, 1038
(Flores).) Under S.B. 567, a sentencing court may impose an upper term only
under certain circumstances. Section 1170, subdivision (b)(2), now provides
in relevant part, “The court may impose a sentence exceeding the middle
term only when there are circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” Subdivision (b)(3) of the statute,
however, provides an exception, permitting the sentencing court to “consider
the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a
jury.”
In addition, S.B. 567 “establishes a presumption of the lower term” in
certain circumstances, including that psychological, physical, or childhood
trauma contributed to the commission of the offense. (Flores, supra, 73
Cal.App.5th at p. 1039; § 1170, subd. (b)(6)(A).)
In Martinez’s prior appeal, the parties agreed S.B. 567 applied
retroactively to this case and the matter should be remanded to the trial
court for resentencing under current law. We remanded, noting, “On
remand, the parties are free to argue for the term they believe is appropriate
under the applicable law.” (Martinez I, supra, 2022 WL 538053, at *8.) The
disposition provided, “The sentence is vacated and the matter is remanded to
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the trial court to sentence defendant under Penal Code section 1170 as
amended by S.B. 567. The judgment is otherwise affirmed.” (Ibid.)
On remand, the prosecution filed a sentencing memorandum on March
17, 2022, arguing the upper term was warranted based on the aggravating
circumstance, “defendant’s prior convictions . . . are numerous or of
increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)). Copies of
certified criminal records attached to the memorandum documented
Martinez’s criminal history: in California, he had convictions for
misdemeanor battery and theft from person and felony possession of a
dangerous weapon in 2002, felony grand theft in 2003, and misdemeanor
driving under the influence in 2008; in Texas, he had convictions for
misdemeanor assault causing bodily injury in 2013, misdemeanor driving
while intoxicated in 2015, misdemeanor theft in 2018, misdemeanor theft
with a previous conviction and felony theft of property with two previous
convictions in 2019, as well as misdemeanor public intoxication with three
prior convictions in 2015 and 2019.
On May 20, 2022, Martinez filed a sentencing memorandum urging a
middle term. He argued the upper term was not justified based solely on his
prior convictions because only one conviction from 2013 (misdemeanor
assault causing bodily injury) involved “any sort of violence” and “he has no
prior violent felonies.” The memorandum concluded, “the record supports a
mid term sentence for Mr. Martinez.”
The hearing on resentencing was held on August 23, 2022. Arguing the
prior convictions alone justified an upper term, the prosecutor stated, “If you
look at the Defendant’s 25-year criminal history, they are numerous, they are
increasing in severity.· And if you look at the two most recent convictions[,]
the Defendant was released from prison . . . in Texas, on August 27th of 2019,
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and within two months picks up this case which I will describe as a strong-
arm robbery . . . .”
Defense counsel suggested the mere fact this court remanded the
matter for resentencing rather than affirming the upper term was “fairly
clear guidance from the Appellate Court what is appropriate in this matter.”
The trial court imposed the upper term. The court explained, “I think
this record, his criminal history, on its own, is aggravating enough to warrant
the high term because there really wasn’t any mitigation that was presented
to say, oh, the mitigating evidence and the aggravating evidence balance each
other out, ergo the mid term.· There was zero.”
DISCUSSION
On appeal, Martinez contends the trial court erred in sentencing him
without considering or weighing mitigating factors. He claims the trial court
here “failed to conduct individualized consideration of the offense, the
offender, and the public interest by failing to identify and weigh the
mitigation factors,” citing People v. Sandoval (2007) 41 Cal.4th 825, 847. In
Sandoval, the court instructed, “The trial court’s sentencing discretion must
be exercised in a manner that is not arbitrary and capricious, that is
consistent with the letter and spirit of the law, and that is based upon an
‘individualized consideration of the offense, the offender, and the public
interest.’ ” (Ibid.)
We do not discern any error. Martinez’s sentencing memorandum did
not mention mitigating factors, and defense counsel did not argue any
mitigating circumstances at the sentencing hearing. The trial court expressly
stated that it considered whether mitigating factors counterbalanced
Martinez’s extensive criminal history, but it found “there really wasn’t any
mitigation that was presented” to “balance . . . out” the aggravating
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circumstance. Nothing in the record suggests the trial court failed to conduct
individualized consideration of the offense, the offender, and the public
interest in making its sentencing choice.
Indeed, Martinez does not claim the trial court abused its discretion.
Rather, Martinez argues the trial court “misapplied” section 1170 because it
“failed to explain how appellant’s misdemeanor and out of state convictions
demonstrated that his conduct ‘indicate[d] a serious danger to society,’ ”
citing California Rules of Court, rule 4.421(b)(1). This argument fails
because the prosecutor argued for an upper term relying on rule 4.421(b)(2),
not 4.421(b)(1). Rule 4.421(b)(2) provides that a factor in aggravation is, “The
defendant’s prior convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing seriousness.” (Italics
added.) Martinez does not dispute that his prior convictions are numerous; it
is not necessary that they also indicate a serious danger to society.
Further, as the Attorney General points out, Martinez has forfeited any
claim regarding the adequacy of the trial court’s statement of reasons for its
sentencing decision because no objection on this basis was made at the
sentencing hearing. (See People v. Scott (1994) 9 Cal.4th 331, 353 (Scott)
[forfeiture applies to “claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices”].)
In Scott, our high court held that, where a defendant received a
sentence that was “permitted by law,” an appellate claim that the sentence
was nonetheless “imposed in a procedurally or factually flawed manner” is
forfeited unless raised with the trial court in the first instance. (Scott, supra,
9 Cal.4th at p. 354). In his reply, Martinez argues the trial court failed to
consider circumstances in mitigation described in the probation report. But
this is essentially a claim that the trial court assessed the factors in
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mitigation in a “factually flawed manner.” (Ibid.) The claim is therefore
forfeited because Martinez failed to raise the point with the trial court.
DISPOSITION
The judgment is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A166013, People v. Martinez
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