People v. Galvan-Martinez CA1/2

Filed 8/23/24 P. v. Galvan-Martinez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A169851

v. (San Mateo County PEDRO GALVAN- Super. Ct. No. 19NF009837A) MARTINEZ, Defendant and Appellant.

Pedro Galvan-Martinez1 was convicted of rape, forcible oral copulation, false imprisonment and making criminal threats. On appeal, his convictions were affirmed, but the sentence was vacated because upper terms imposed by the trial court could not be sustained under post-sentencing statutory amendments. This appeal is from the orders on resentencing. Galvan’s appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which he raises no issue and asks this court for an independent review of the record. Counsel attests that he advised Galvan of his right to file a supplemental brief, but Galvan has not filed one.

Pursuant to his expressed preference, appellant was referred to at 1

trial as “Galvan.” We will do the same in this opinion.

1

Having examined the entire record in accordance with Wende, we agree with counsel that there are no arguable issues requiring further briefing and affirm. BACKGROUND The facts underlying Galvan’s convictions were related in our unpublished opinion on the appeal. (People v. Galvan-Martinez (Apr. 26, 2023, A161995).) His convictions arise from an incident that Galvan claimed was a consensual sexual encounter. After a jury trial, Galvan was convicted of forcible rape (Pen. Code, § 261, subd. (a)(2))2 (count 1); forcible oral copulation (§ 287, subd. (c)(2)(A)) (count 2); false imprisonment by violence (§ 236) (count 3) and making criminal threats (§ 422, subd. (a)) (count 4). The jury found true allegations that Galvan used a deadly weapon in the commission of the offenses charged in counts 1 and 4. (§ 12022.3, subd. (a).) At sentencing, the trial court struck the deadly weapon enhancement for count 4 and imposed an aggregate sentence of 18 years, consisting of the upper term of eight years on count 1, the upper term of ten years on the enhancement for that count, and concurrent middle terms of six years on count 2 and two years on count 4. The court stayed sentence on count 3 pursuant to section 654. Galvan appealed and we affirmed the convictions but concluded resentencing was required due to the post-sentencing enactment of Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended section 1170, subdivision (b), so as to preclude imposition of an upper term sentence unless facts underlying the aggravating circumstances were stipulated to by the defendant or found true beyond a reasonable doubt. We remanded with