People v. Martinez CA3

Filed 3/27/14 P. v. Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072503

Plaintiff and Respondent, (Super. Ct. No. 10F04521)

v.

ISAAC MARTINEZ,

Defendant and Appellant.

After the murder trial of defendant Isaac Martinez had begun, defendant withdrew his plea of not guilty, entered a plea of no contest to voluntary manslaughter, and admitted gang and firearm use enhancements. Trial counsel and the trial court stated that the plea preserved defendant’s purported right to challenge the court’s in limine evidentiary rulings. Defendant appeals, contending that an in limine ruling permitting the introduction of uncharged prior conduct as a predicate offense to support the gang enhancement was prejudicial error. We conclude defendant may not attack this ruling on

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appeal following a plea of no contest, and the court’s promise that defendant could do so was illusory. We shall dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with murder. The information alleged that defendant personally discharged a firearm causing great bodily injury or death and that defendant committed the underlying offense for the benefit of a criminal street gang. Before trial, in response to the prosecutor’s statement that he intended to introduce evidence of uncharged criminal conduct by defendant as a predicate offense for the gang enhancement, defendant filed a written motion to exclude this evidence. The trial court denied the motion and ruled the evidence admissible. After trial began, an amended information was filed, adding a charge of attempting to dissuade a witness. Thereafter, defendant withdrew his not guilty plea and pled no contest to voluntary manslaughter as reasonably related to murder, admitted a gun use enhancement as reasonably related to the charged enhancement, and admitted the gang enhancement in return for the dismissal of the remaining charge, the promise of a 31-year maximum state prison sentence, and the purported right to appeal the denial of his in limine motions. The factual basis for his plea, as stipulated by counsel, was that on July 10, 2010, after being accosted by Damien Burkholder, defendant shot and killed Burkholder, personally using a .40-caliber handgun, and did so for the benefit of the Franklin criminal street gang. The trial court sentenced defendant to a 26-year state prison term (a six year middle term for voluntary manslaughter, plus 10 years consecutive for each enhancement). Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.