People v. Martinez CA6

Filed 7/14/16 P. v. Martinez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042708 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS150651A)

v.

RICARDO MENDOZA MARTINEZ,

Defendant and Appellant.

Defendant Ricardo Mendoza Martinez was charged by information with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1),1 one count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2), and one count of unlawful possession of ammunition (§ 30305, subd. (a)(1), count 3). The information also alleged, as to counts 1 and 2, that Martinez personally used a firearm and personally inflicted great bodily injury on the victim in connection with those offenses. (§§ 12022.5, subd. (a), 12022.7, subd. (a).) Finally, the information alleged that, as to counts 1, 2, and 3, that Martinez had suffered two prior felony convictions. (§ 1170.12, subd. (c)(2).) A jury convicted Martinez of count 2 and count 3, and acquitted him on count 1. The jury also found not true the allegations that Martinez personally used a firearm and personally inflicted great bodily on the victim in connection with count 1.2 In a

1 Unspecified statutory references are to the Penal Code. 2 During trial, the prosecution struck these allegations with respect to count 2.

bifurcated proceeding, the trial court found true the allegation that Martinez had suffered two prior felony convictions. Martinez was sentenced to six years on count 2 (upper term of three years doubled under § 1170.12, subd. (c)(2)) and the trial court imposed, but stayed, a consecutive term of eight months (one third the middle term of two years) on count 3. We appointed counsel to represent Martinez in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Martinez of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Martinez. I. FACTUAL AND PROCEDURAL BACKGROUND On November 9, 2013, Frank Hewitt was working at the Uni-Kool Partners produce warehouse on West Market Street in Salinas, which is located near the railroad tracks. A man walked up to the office where Hewitt was working, and asked Hewitt to call 911 because he had been shot. The man waited out front for the police and emergency medical responders to arrive. Hewitt did not hear any gunshots that morning. Detective Kenneth Schwener was dispatched to the Uni-Kool warehouse and, on his arrival, saw the victim sitting on the ground outside being attended to by emergency medical responders. Schwener looked at the victim’s right arm and saw that he had been shot through the forearm, with the bullet exiting near the wrist. Officer Oscar Dydasco responded to the scene around 8:30 a.m. to assist other officers by taking photographs of the crime scene. When he arrived, he observed paramedics treating the victim and Dydasco took photos of the victim’s injury. Based on his training and experience, Dydasco believed the wound to be a gunshot wound. Dydasco searched the area including the railroad tracks and discovered a .22-caliber bullet casing.