Filed 2/18/21 P. v. Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARIANO MARTINEZ,

 Defendant and Appellant.

 G059595

 (Super. Ct. No. 09NF1710)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cheri T. 

Pham. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.
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We appointed counsel to represent Mariano Martinez on appeal. Counsel 

filed a brief that set forth the facts of the case. Counsel did not argue against his client 

but advised the court he found no issues to argue on Martinez’s behalf. 

Counsel filed a brief following the procedures outlined in People v. Wende 

(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that 

sets forth a summary of proceedings and facts but raises no specific issues. Under these 

circumstances, the court must conduct an independent review of the entire record. When 

the appellant himself raises specific issues in a Wende proceeding, we must expressly 

address them in our opinion and explain why they fail. (People v. Kelly (2006)

40 Cal.4th 106, 110, 120, 124.) 

Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the 

court with its independent review, counsel provided the court with information as to an 

issue that might arguably support an appeal. Counsel raised one issue: whether the 

ameliorative benefits of Senate Bill No. 620 (S.B. 620) and Penal Code section 12022.53, 

subdivision (h),1are retroactive to cases that were final prior to its passage.

We gave Martinez 30 days to file written argument on his own behalf, and 

he did. He argues S.B. 620 should apply retroactively to final judgments, the interests of 

justice required relief, and the trial court’s failure to conduct a hearing denied him due 

process. He also references section 1016.8, which prohibits plea bargains from including 

a provision requiring a defendant to waive future benefits of legislative enactments, 

initiatives, appellate decisions, or other changes in the law that may retroactively apply 

after the date of the plea, but was not included in Martinez’s plea agreement.

We have reviewed the record in accordance with our obligations under 

Wende and Anders and considered the issue counsel listed and the issues Martinez raised 

in his supplemental brief. We find no arguable issues on appeal and affirm the judgment.

1 All further statutory references are to the Penal Code. 
3

FACTS

Martinez pleaded guilty to attempted murder (§§ 664, subd. (a), 187, subd. 

(a)), two counts of street terrorism (§ 186.22, subd. (a)), and possession of a deadly 

weapon (§ 12020, subd. (a)(1)), and admitted he was a gang member who vicariously 

discharged a firearm (§ 12022.53, subds. (c), (e)(1)). Martinez admitted that “on May 20, 

2009, [he] unlawfully and with the intent to kill, attempted to kill John Doe while [he] 

was an active participant in Chicanos Kicking Ass (‘CKA’), a criminal street gang, with 

the specific intent to benefit, promote . . . in criminal conduct by CKA. During the 

commission of this attempted murder as an active participant of CKA with the intent to 

benefit CKA, [he] vicariously discharged a firearm.” He further admitted, “On June 17, 

[section] 12020[, subdivision] (a)(1), in association with and for the benefit of CKA, [he] 

possessed a deadly weapon . . . .”

Five years later, Martinez filed an in propria persona petition for

resentencing asserting he had a right to have the trial court consider whether to strike the 

firearm enhancement predicated upon the January 1, 2018, passage of S.B. 620. In a 

minute order, the court denied the petition finding S.B. 620 was not retroactive as to final 

judgments. Martinez filed a timely notice of appeal.

DISCUSSION

Effective January 1, 2018, S.B. 620 (2017-2018 Reg. Sess.), gave trial 

courts previously unavailable discretion to strike or dismiss firearm enhancements 

otherwise required to be imposed by sections 12022.5 and 12022.53. Martinez asserts 

S.B. 620 was intended to be retroactive. Unfortunately, he does not provide any support 

for this assertion. He cites People v. Almanza (2018) 24 Cal.App.5th 1104, and People v. 

McDaniels (2018) 22 Cal.App.5th 420, but those cases do not help him because unlike 

Martinez’s final judgment, the judgment in those cases were not yet final.
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“‘In construing a statute, our role is to ascertain the Legislature’s intent so 

as to effectuate the purpose of the law. [Citation.] In determining intent, we must look 

first to the words of the statute because they are the most reliable indicator of legislative 

intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning 

of the statute governs. [Citation.]’ [Citation.] In other words, if there is ‘no ambiguity 

or uncertainty in the language, the Legislature is presumed to have meant what it said,’

and it is not necessary to ‘resort to legislative history to determine the statute’s true 

meaning.’ [Citation.]” (People v. Licas (2007) 41 Cal.4th 362, 367.) The amendment to 

section 12022.53, subdivision (h), gave trial courts the power to “in the interest of justice 

pursuant to [s]ection 1385 and at the time of sentencing, [to] strike or dismiss an 

enhancement otherwise required to be imposed by this section.” (Italics added.) There is 

no ambiguity as to when the court has the discretion to strike or dismiss an enhancement. 

Martinez argues the trial court may in the interests of justice strike an 

enhancement. True, but again, authority to strike an enhancement must be done at the 

time of sentencing. His argument section 1385 authorizes the relief he seeks after a 

judgment is final is meritless. (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.) 

Martinez also argues “to ensure proceedings that are just under the 

circumstances” the defendant and the prosecution must be present to advocate their 

positions. He claims he was denied due process because he was denied an opportunity to 

brief his case and appear at a hearing. Martinez cites People v. Rocha (2019)

32 Cal.App.5th 352, to support his position. In Rocha, after affirming defendant’s 

convictions, the court remanded the case to give the trial court an opportunity to exercise 

its discretion under section 12022.53, subdivision (h). The court did not hold a hearing, 

but issued a written statement declining to strike the firearm enhancement. The appellate 

court reversed and remanded directing the trial court to hold a hearing to consider 

whether to exercise its discretion. Unlike the defendant in Rocha whose judgment was 
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not yet final when it was challenged, Martinez is not statutorily eligible for section 

12022.53, subdivision (h), relief. Thus, Rocha does not support Martinez’s argument. 

In People v. Cole (2004) 33 Cal.4th 1158, 1231, our Supreme Court 

confirmed a criminal defendant does not have a constitutional due process right to be 

present at a particular proceeding unless he finds himself at a stage that is critical to the 

outcome and his presence would contribute to the fairness of the procedure. Here, 

because Martinez was not statutorily eligible for the relief he sought, his presence would 

not contribute to the fairness of the procedure in any way.

Finally, in his supplemental brief, Martinez suggests for the first time a trial 

court should retroactively apply section 12022.53 “In order for California to comply with

the overcrowding prison system.” Resolution of Martinez’s claim of prison 

overcrowding requires a fact specific inquiry and cannot be raised for the first time on 

appeal. (Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 

698, 718.) Accordingly, we decline to address this claim.

DISPOSITION

The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.