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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

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. G05 9595
(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.2 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 h is 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 rais es 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 th ey 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 argu ably support an appeal. Counsel raised one issue : whether the
ameliorative benefits o f Senate Bill No. 620 (S.B. 620) an d Penal Code section 12022.53, subdivision (h), 1 are retroactive to cases that we re 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 bargain s 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 retroacti vely 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 iss ues 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

we apon (§ 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, att empted to kill John Doe while [ he] was an active participant in Chicanos Kicking Ass ( ‘ C KA ’ ), a criminal street gang, with the specific intent to benefit, promote . . . in criminal conduct by C KA. During the commission of this attempted murder as an active participant of C KA with the i ntent to benefit C KA, [he] vicariously discharged a firearm. ” He further admitted, “ On June 17, [section] 12020[, subdivision] (a)(1), in association with and for the benefit of C KA, [he] possessed a deadly weapon . . . . ”

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

re sentencing asserting he h ad a right to have the trial court consider whether to strike the firearm enhancement pred icated upon the Januar y 1, 2018, passage of S.B. 620. In a minute order, the court denie d the petition finding S.B. 620 was not retroacti ve as to final judgments

. Martinez filed a timely n o tice of appeal

. DISCUSSION
Effective J anuary 1, 2018, S.B. 620 (2017

- 2018 Reg. Sess.), gave trial courts previously unavailable discretion to strike or dismiss firearm enhancements otherwise requi red to be imposed by sections 12022.5 and 12022.53. Martinez asserts
S .B . 620 was intended to be retroactive. Unfo r tunat e ly, he does not provide any support
for this assertion. He cites People v. Alm anza (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.4 “‘ In construing a statute, our role is to ascertain the Legislature ’ s intent so
as to eff ectuate 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 legis lative
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 h istory 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 court s the power to “ in the i nterest 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 interest s of justice stri ke an enhancement. True, b ut again, authority to strike an enhancement must be d one at the time of sentencing. His argument section 1385 authorizes the relief he seeks after a ju dgment 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 P e ople v. Rocha (2019)
32 Cal .App.5th 352, to support his position. In Rocha , after affirm ing 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 hear ing,
but issued a written statement declining to strike the firearm enhancement. The appellate

court r eversed and remanded directing the trial court to hold a hearing to consider
whether to exercise its discretion . Unlike the defendant in Rocha whose judgment was5

not yet final when it was challenged , Martinez is not statutorily eligible for section
12022.53 , subdivision (h), relief. Thus , Rocha does not support Ma r tinez ’ 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 proce dure. 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, i n his supplemental brief, Martinez suggests for the first time a trial
court sho uld retroactively apply section 12022.53 “ I n order for California to c o mply with
the o vercrowding 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. ( S ac ramentans for Fair Planning v. C ity of Sacramento (2019) 37 Cal.A pp.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.