Filed 8/28/24 P. v. Martinez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEXANDER MARTINEZ,

Defendant and Appellant.

 B331023

 (Los Angeles County

 Super. Ct. No. BA477963)

APPEAL from an order of the Superior Court of Los

Angeles County, Eleanor J. Hunter, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________
2

A jury convicted defendant and appellant Alexander 

Martinez of one count of mayhem (Pen. Code, § 203)1 for 

attacking and permanently injuring a man in retaliation for an 

earlier fight. Martinez contends the trial court abused its 

discretion by imposing the upper term of eight years in prison, 

and by imposing a five-year enhancement for a prior serious 

felony conviction (see § 667, subd. (a)(1)) rather than exercising

its authority under section 1385 to strike or dismiss the 

enhancement. We find no error and affirm.2

FACTUAL BACKGROUND AND PROCEEDINGS BELOW

During the morning of May 13, 2019, two women in East 

Los Angeles reported to police that a homeless man, later 

identified as James Hester, had been harassing and grabbing 

them as they were walking on the street. A witness testified that 

she saw Hester following the two women until Martinez arrived, 

got out of his car, and began fighting with Hester, apparently 

trying to defend the two women. Hester put Martinez in a 

headlock and threw him to the ground. Martinez suffered a 

bump on his head and was bleeding from his ears and nose. After 

the fight, he drove away before the police arrived.

1 Unless otherwise specified, subsequent statutory 

references are to the Penal Code. 

2 Martinez also requests that we review the trial court’s

conduct of an in camera hearing under Pitchess v. Superior Court 

(1974) 11 Cal.3d 531 to determine if the court improperly 

withheld any documents relating to police misconduct. We have 

done so and have not found any error in the trial court’s conduct 

of the hearing.
3

About two hours later, Martinez attacked Hester at a 

nearby bus stop. Surveillance cameras showed Hester standing 

at the bus stop when a car approached and stopped nearby. 

Martinez exited the car and met up with a second, unidentified

man. Martinez and the second man ran up to Hester from behind 

and attacked him. Martinez punched Hester in the back of the 

head, causing him to fall and hit his head on the concrete. 

Martinez kicked or stomped on Hester’s chest, and the second 

man also kicked Hester. Both Martinez and the second man then 

fled.

Hester sustained serious injuries in the attack and had 

difficulty breathing afterward. The temporal bone near his ear

was fractured, and part of the bone on the left side of his head 

was removed to treat elevated intracranial pressure and allow 

fluid to drain from his brain. Hester’s father testified that Hester

spent months in rehabilitation and had to relearn to feed himself, 

walk, and talk. He then suffered a massive stroke or seizure,

undoing all his progress. At the time of the trial, more than three 

years after the attack, Hester’s right arm and leg were paralyzed, 

and he remained unable to speak.

The prosecution charged Martinez with one count of 

attempted murder (§§ 187, subd. (a), 664) and one count of 

aggravated mayhem (§ 205), and alleged that he had suffered one 

prior serious felony conviction (§ 667, subd. (a)(1)) and one prior 

strike conviction (§§ 667, subd. (d), 1170.12, subd. (b)). The 

prosecution also alleged several aggravating factors regarding 

the offenses and Martinez’s prior criminal history. A jury 

acquitted Martinez of attempted murder but convicted him of 

mayhem (§ 203), a lesser-included offense of aggravated 
4

mayhem.3 Martinez admitted the prior convictions and chose to 

submit the aggravating factors to trial by the court rather than 

the jury.

Martinez moved that the court strike his prior serious 

felony conviction for purposes of sentencing pursuant to People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497, and that it not

impose a five-year enhancement under section 667, subdivision 

(a)(1). The trial court declined to strike the five-year 

enhancement, but granted the Romero motion and thus did not 

double the base term of Martinez’s sentence, as otherwise would 

have been required. (See §§ 667, subd. (e)(1), 1170.12, subd.

(c)(1).) The court found that the prosecution had proved five 

alleged aggravating factors beyond a reasonable doubt and

imposed the upper term of eight years for mayhem, resulting in a 

total sentence of 13 years.

DISCUSSION

A. The Trial Court Did Not Abuse its Discretion by 

Imposing the High Term Sentence

Martinez contends the trial court abused its discretion by 

imposing the high term sentence of eight years for mayhem. In 

Martinez’s view, the upper term sentence resulted from the

court’s failure “to properly balance factors in mitigation” against 

the aggravating factors the court found true. We are not 

persuaded. Martinez has not shown that the trial court’s 

3 Both mayhem statutes proscribe the infliction of a 

permanent disability or disfigurement. Aggravated mayhem

differs from ordinary mayhem in that it additionally requires 

that the defendant intentionally cause such a disability or 

disfigurement. (People v. Park (2003) 112 Cal.App.4th 61, 64.)
5

“ ‘ “sentencing decision was irrational or arbitrary” ’ ” (People v. 

Carmony (2004) 33 Cal.4th 367, 376), as is required to overturn a 

court’s discretionary sentencing decision on appeal.

A trial court may not impose an upper term determinate 

sentence unless “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.” (§ 1170, subd. (b)(2).) Furthermore,

“unless the court finds that the aggravating circumstances 

outweigh the mitigating circumstances [such] that imposition of 

the lower term would be contrary to the interests of justice, the 

court shall order imposition of the lower term” when any of 

several specified mitigating factors was present and “was a 

contributing factor in the commission of the offense.” (Id., subd. 

(b)(6).)

In the amended information, the prosecution alleged seven 

factors in aggravation: that “[t]he crime involved great violence, 

great bodily harm, threat of great bodily harm, or other acts 

disclosing a high degree of cruelty, viciousness, or callousness” 

(Cal. Rules of Court, rule 4.421(a)(1)); that “[t]he victim was 

particularly vulnerable” (id., rule 4.421(a)(3)); that “[t]he 

defendant induced others to participate in the commission of the 

crime or occupied a position of leadership or dominance of other 

participants in its commission” (id., rule 4.421(a)(4)); that “[t]he 

manner in which the crime was carried out indicates planning, 

sophistication, or professionalism” (id., rule 4.421(a)(8)); that 

“[t]he defendant has served a prior term in prison or county jail 

under section 1170[, subdivision] (h)” (id., rule 4.421(b)(3)); that 
6

Martinez showed a lack of remorse; and that he was a member of 

a criminal street gang.4

After the jury returned its verdict on the substantive 

offenses, Martinez requested a court trial on the aggravating 

circumstances. The prosecutor dismissed the allegation that 

Martinez was a gang member, and the court found not true the 

allegation that the circumstances of the crime suggested 

“planning, sophistication, or professionalism.” (Cal. Rules of 

Court, rule 4.421(a)(8).) The court found that the People had 

proved the five remaining allegations of aggravating 

circumstances beyond a reasonable doubt. Martinez does not 

dispute that substantial evidence supports the court’s findings as 

to these aggravating circumstances.

Martinez’s attorney filed a brief arguing that the court 

should impose the middle or low term sentence in light of several 

mitigating factors, including childhood trauma Martinez suffered, 

4 These last two alleged factors are not aggravating 

circumstances specifically mentioned in California Rules of 

Court, rule 4.421(a) and (b), but the prosecution alleged they 

were relevant under rule 4.421(c), which states that courts may 

consider as aggravating circumstances “other factors statutorily 

declared to be circumstances in aggravation or that reasonably 

relate to the defendant or the circumstances under which the 

crime was committed,” as well as rule 4.408(a), which states that 

“[t]he listing of factors in these rules for making discretionary 

sentencing decisions is not exhaustive and does not prohibit a 

trial judge from using additional criteria reasonably related to 

the decision being made.”
7

as well as a learning disability.5 The trial court stated it was 

“looking at the mitigating factors that [the attorney] did present 

in his packet” and did “consider that,” but nevertheless found 

that “the aggravating factors warrant the court giving the 

defendant the high term.”

Martinez argues that the trial court “failed to properly 

balance factors in mitigation,” resulting in an “irrational and 

arbitrary” decision to impose the high term sentence. We 

disagree. The trial court carefully reviewed the evidence of the 

aggravating factors, noting that Martinez “coldcocked [Hester] in 

the head” while he was facing the opposite direction, instantly

knocking him out, then stomped on him while he was down. In 

addition, the court found that Martinez showed a lack of remorse 

in a video recording of an interview with police after the incident 

even when told that Hester might die of his injuries. Reasonable 

minds might differ over the importance of Martinez’s prior 

conviction, which occurred many years earlier, or of the 

significance of his difficult childhood. But nothing in the court’s 

decision suggests it failed to consider the proper factors, nor that 

“its decision [was] so irrational or arbitrary that no reasonable 

person could agree with it,” as is required for a showing of abuse 

of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 377.)

5 Because Martinez argued against the imposition of an 

upper term sentence, we reject the People’s argument that 

Martinez forfeited the argument on appeal. Martinez’s attorney 

called attention to the mitigating factors at sentencing and 

requested that the court impose the low or middle term. We see 

no justification for requiring him to make a further objection 

after the trial court rejected his arguments.
8

B. The Trial Court Did Not Abuse its Discretion by 

Declining to Strike the Five-year Enhancement

The trial court imposed a five-year enhancement under 

section 667, subdivision (a)(1) on the ground that Martinez had 

suffered a prior serious felony conviction for a robbery he 

committed in 2010. Martinez argues that the trial court abused 

its discretion because it failed to apply the correct legal standard 

in deciding to impose the enhancement. We disagree.

Section 1385 gives trial courts discretion to strike or 

dismiss sentence enhancements “if it is in the furtherance of 

justice to do so” (id., subd. (c)(1)), and provides direction to courts 

in applying that discretion. In particular, the statute instructs 

courts to “consider and afford great weight to evidence offered by 

the defendant to prove that any of [several] mitigating 

circumstances . . . are present. Proof of the presence of one or 

more of these circumstances weighs greatly in favor of dismissing 

the enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety. ‘Endanger public 

safety’ means there is a likelihood that the dismissal of the 

enhancement would result in physical injury or other serious 

danger to others.”

6 (Id., subd. (c)(2).)

The statute lists nine potential mitigating factors, three of 

which Martinez argues apply in this case: “The current offense is 

6 The statute was amended to add the requirement to 

consider these mitigating factors as a part of Senate Bill No. 81 

(2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) which became 

effective January 1, 2022. (See People v. Anderson (2023) 88 

Cal.App.5th 233, 238, review granted April 19, 2023, S278786.) 

Martinez’s sentencing hearing took place in 2023, when the new 

law was in effect.
9

connected to mental illness” (§ 1385, subd. (c)(2)(D)); “[t]he 

current offense is connected to prior victimization or childhood 

trauma” (id., subd. (c)(2)(E)); and “[t]he enhancement is based on 

a prior conviction that is over five years old” (id., subd. (c)(2)(H)). 

Martinez argues the trial court erred by failing to “afford great 

weight” (id., subd. (c)(2)) to these mitigating circumstances, and 

by not making a finding as to whether “dismissal of the 

enhancement would endanger public safety” (ibid.).

The People argue Martinez forfeited his claim by failing to 

call the trial court’s attention to these mitigating factors. We 

disagree. Although Martinez’s attorney focused at the sentencing 

hearing on other grounds

7 for striking the enhancement, he filed 

a motion in advance of the hearing in which he made the same 

arguments for dismissing the enhancement that he does now. As 

exhibits to the motion, Martinez included a psychologist’s 

assessment and records regarding Martinez’s childhood. Further, 

during the sentencing hearing, the court referred to the 

mitigating materials that Martinez’s attorney submitted. This 

was sufficient to preserve the argument on appeal.

Nevertheless, we disagree with Martinez’s claim that the 

trial court abused its discretion by declining to strike the 

enhancement. The trial court discussed its decision to impose the 

enhancement only briefly, after explaining in detail its findings 

on the aggravating and mitigating factors: “Now, with regard to 

the [enhancement under section] 667 . . . , the court is going to 

impose the five years, for a total of 13 years. The court 

recognizes it has the discretion to strike that [enhancement], in 

7 Martinez does not renew these arguments on appeal, and 

we do not address them.
10

unique circumstances, and also [on] a case-by-case basis; 

however, in this situation, I don’t believe that it is warranted at 

all. And the court is recognizing its discretion and its ability and 

declining to exercise that.”

Absent evidence to the contrary, “we presume that the trial 

court followed established law and thus properly exercised its 

discretion in sentencing a criminal defendant.” (People v. 

Weddington (2016) 246 Cal.App.4th 468, 492.) Nothing in the 

court’s statement regarding the enhancement overcomes that 

presumption. Martinez is correct that the court did not discuss 

whether “dismissal of the enhancement would endanger public 

safety” (§ 1385, subd. (c)(2)), but that does not mean the court did 

not consider the issue. “Error may not be presumed from a silent 

record.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) 

Furthermore, if Martinez believed the court failed to adequately 

consider the question of his dangerousness or other relevant 

parts of the statute, he could have called the court’s attention to 

the oversight during the sentencing hearing. Having failed to do 

so, he may not now complain that the court did not make more 

robust findings on the record.

As noted above (see Discussion, part A, ante), the court did 

address the mitigating factors when explaining its decision to 

impose the high-term sentence. We infer the court considered 

those factors as well when deciding not to strike the 

enhancement. Furthermore, the presence of mitigating 

circumstances does not require the court to dismiss an 

enhancement. (People v. Walker (Aug. 15, 2024, S278309) ___

Cal.5th ___, ___ [2024 WL 3819098 at p. *6].) Instead, even if the 

court concludes dismissal would not endanger public safety, it

still “must determine whether dismissal is in furtherance of 
11

justice” by balancing the mitigating circumstances against any

“substantial, relevant, and credible evidence of aggravating 

factors.” (Ibid.) The court in People v. Ortiz (2023) 87 

Cal.App.5th 1087 described this approach, in a formulation our 

Supreme Court later endorsed, as “a holistic balancing with 

special emphasis on the enumerated mitigating factors.” (Id. at 

p. 1096, cited in People v. Walker, supra, at p. ___ [2024 WL 

3819098 at p. *6].)

In this case, the trial court could have reasonably 

concluded, in light of Martinez’s extreme and violent retaliation 

in which he returned to assault Hester after a relatively minor 

fight, that dismissing the five-year enhancement from his 

sentence would indeed endanger public safety. Alternatively, if 

the court did not believe dismissing the enhancement would 

endanger public safety, the court reasonably could have found, 

even after “afford[ing] great weight” (§ 1385, subd. (c)(2)) to the 

mitigating factors, that they were insufficient to overcome the 

numerous and substantial aggravating circumstances in the case, 

such that imposition of the enhancement was warranted. 

Because Martinez has not shown that the trial court’s decision to 

impose the enhancement “was irrational or arbitrary” (People v. 

Carmony, supra, 33 Cal.4th at p. 376), nor that the court applied 

an incorrect legal standard, we affirm.
12

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

BENDIX, Acting P. J.

KELLEY, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.