People v. Martinez CA4/3

Filed 2/18/21 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059595

v. (Super. Ct. No. 09NF1710)

MARIANO MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

We appointed counsel to represent Mariano Martinez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Martinez’s behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to an issue that might arguably support an appeal. Counsel raised one issue: whether the ameliorative benefits of Senate Bill No. 620 (S.B. 620) and Penal Code section 12022.53, subdivision (h),1 are retroactive to cases that were final prior to its passage. We gave Martinez 30 days to file written argument on his own behalf, and he did. He argues S.B. 620 should apply retroactively to final judgments, the interests of justice required relief, and the trial court’s failure to conduct a hearing denied him due process. He also references section 1016.8, which prohibits plea bargains from including a provision requiring a defendant to waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea, but was not included in Martinez’s plea agreement. We have reviewed the record in accordance with our obligations under Wende and Anders and considered the issue counsel listed and the issues Martinez raised in his supplemental brief. We find no arguable issues on appeal and affirm the judgment. 1 All further statutory references are to the Penal Code. 2