People v. Martin CA1/1

Filed 7/2/14 P. v. Martin CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A140116

v. (Contra Costa County GARRETT LEMAR MARTIN II, Super. Ct. No. 51221506) Defendant and Appellant.

After a jury trial, Garrett Lemar Martin II was found guilty of violating Penal Code1 sections 273.5, subdivision (a) (inflicting corporal injury on a spouse, cohabitant, or child’s parent, a felony) and 368, subdivision (b)(1). The defendant now challenges the sufficiency of the evidence supporting each conviction. He also contends the trial court abused its discretion in not reducing the felony conviction to a misdemeanor. We find no error here and affirm the convictions. STATEMENT OF THE CASE The information in this case was filed December 11, 2012, charging defendant with three counts: (1) violation of section 273.5, subdivision (a), a felony (inflicting corporal injury to a spouse, cohabitant, or child’s parent); (2) violation of section 368, subdivision (b)(1), a felony (inflicting injury on an elder or dependent adult), and (3) violation of section 273a, subdivision (b), a misdemeanor (child endangerment).

1 Unless otherwise indicated, all further statutory references are to the Penal Code. 1

On July 12, 2013, the jury convicted defendant of count one as charged (§ 273.5, subd. (a)) and the lesser included offense of count two, misdemeanor elder abuse (§ 368, subd. (c)). On October 4, 2013, the trial court suspended the imposition of sentence and placed defendant on probation for three years, with the condition he serve four months in the county jail. Defendant made a timely appeal. STATEMENT OF FACTS Defendant attended a football game involving the Oakland Raiders on November 4, 2012 with a friend. While at the game, defendant consumed between four and six shots of alcohol. He was inebriated when he returned home. Defendant lived with his girlfriend, Erica, and their six-month-old son Andre. Also dwelling in the residence were Duane, Erica’s 72-year-old godfather, her two sisters, and Erica’s brother. Defendant arrived at the residence around 7:30 p.m. The couple began to argue upon defendant’s arrival. As she went upstairs to check on the infant, defendant followed her, making inappropriate remarks and challenging her. In the bedroom, he pushed her to the ground. When she went to the bathroom, he followed her and struck her. To avoid defendant and his behavior, Erica went into the closet, but he followed her there also. He grabbed her and pushed her head against the wall of the closet. He began choking her and this continued for approximately 15 seconds. Erica had trouble breathing. Eventually she was able to break away and exit the closet. While this was going on, Erica screamed out her request for defendant to stop hitting her. This got the attention of her godfather, Duane. The elder had been asleep but awoke at the sound. He went into her bedroom and saw defendant grabbing Erica very tightly with one hand while he held the child in the other hand. Duane tried to free his goddaughter from defendant. Defendant then let Erica loose but proceeded to punch Duane, knocking him to the floor. Erica picked up the infant and fled the scene. As she went down the stairs, defendant pursued her and grabbed her by the hair on the stairway.