People v. Martinez CA4/3

Filed 6/10/15 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051288

v. (Super. Ct. No. 12CF2699)

LAURO MARTINEZ OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

Appellant Lauro Martinez pled guilty in 2013 to two felonies: second degree vehicle burglary and receiving stolen property. He also pled guilty to possession of burglary tools, a misdemeanor. Late last year, he filed an application to have his felony convictions reduced to misdemeanors pursuant to Penal Code section 1170.18 subdivision (f), a motion for what is generally referred to as Proposition 47 relief. The trial court granted the motion as to the receiving stolen property charge, but denied it as to the vehicle burglary. Martinez appealed. We appointed counsel to represent him on that appeal. Counsel filed a brief which set forth the procedural facts of the case (the facts of the crimes themselves are largely irrelevant because the argument is solely directed at Martinez’s plea and the application to it of Pen. Code, § 1170.18). Counsel did not argue against her client, but advised us there were no issues to argue on his behalf. Martinez was invited to express his own objections to the proceedings against him, but did not. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of Martinez’s lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which Martinez would prevail, but only issues upon which he might possibly prevail. We have examined the record and found no arguable issue. Martinez’s counsel below made a valiant effort to convince the court the statute applied because Martinez’s crime was one of a theft involving less than $950, the ceiling provided by the new definition of petty theft. But the trial court correctly found that the crime was one of entering a vehicle – a burglary – not one of theft. It reduced the receiving stolen property charge, but not the vehicle burglary. That ruling appears to us – as it did to appellate counsel – unassailable. Proposition 47 simply does not provide for reduction of burglary charges. The property