P. v. Martinez CA5

Filed 3/19/13 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F064431 Plaintiff and Respondent, (Super. Ct. No. F10905012) v.

JULIO PANTOJA MARTINEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Peña, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Detjen, J., and Franson, J.

STATEMENT OF THE CASE Appellant, Julio Pantoja Martinez, was charged in a criminal complaint, filed on October 1, 2010, with four felony counts of attempted home invasion robbery in concert with two or more persons (Pen. Code, §§ 664, 213, subd. (a)(1)(A), counts 1-4).1 The complaint also alleged an enhancement for each count that appellant used a gun (§ 12022.53, subd. (b)). An information was filed with the same allegations on March 9, 2011. On April 22, 2011, the trial court denied appellant’s motion for new counsel made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). On May 2, 2011, criminal proceedings were suspended pursuant to section 1368. The court directed a psychologist to examine appellant. Dr. Harold L. Seymour evaluated appellant on May 12, 2011. Dr. Seymour found appellant’s attention to be focused, his memory grossly intact, and his thinking processes linear and on topic. Although appellant was undergoing anxiety concerning his trial, Dr. Seymour found no major mental disorder that would interfere with appellant’s ability to be a competent defendant. Dr. Seymour found appellant competent to stand trial and with the ability to competently assist his legal counsel. On May 27, 2011, the trial court found appellant competent to stand trial and reinstated criminal proceedings. On December 15, 2011, a second Marsden motion was denied by the trial court. On that date, appellant entered into a plea agreement wherein he would admit the allegations in the information and receive a stipulated prison term of 13 years. Appellant executed a felony advisement, waiver of rights, and plea form acknowledging the terms of the plea agreement, the consequences of his plea, and his constitutional rights pursuant to Boykin/Tahl.2 Appellant waived his Boykin/Tahl rights in the form. At the hearing, 1 All statutory references are to the Penal Code. 2 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).