P. v. Martinez CA5

Filed 5/20/13 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F063218 Plaintiff and Respondent, (Super. Ct. No. BF136720B) v.

BENJAMIN J. MARTINEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.

Thomas Owen, 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 Gomes, Acting P.J., Kane, J., and Franson, J.

FACTS AND PROCEEDINGS Appellant, Benjamin J. Martinez, was charged in an amended information filed on July 21, 2011, with felony second degree burglary (Pen. Code, § 460, subd. (b), count 1)1 and one count of resisting arrest, a misdemeanor (§ 148, subd. (a)(1), count 2). The information further alleged three prior prison term enhancements (§ 667.5, subd. (b)). On July 25, 2011, a jury found appellant guilty of both counts.2 In a bifurcated proceeding, the trial court found the three prior prison term enhancements to be true. At the sentencing hearing on August 22, 2011, the court sentenced appellant to the upper term of three years on count 1 plus three consecutive one-year terms for each of the prison term enhancements for a total sentence of six years. The court imposed a restitution fine of $200 and granted custody credits of 111 days and conduct credits of 111 days for total custody credits of 222 days. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On May 4, 2011, James Kephart left his business on Niles Street in Bakersfield at 5:00 p.m. The back of the property was surrounded by a six-foot fence with two locked gates. When Kephart left the property, he locked the doors to the building and the fence gates. At about 9:00 p.m., Kephart met police officers at his business after receiving a call from his alarm company.

1 All statutory references are to the Penal Code. 2 During its deliberations, the jury asked a single question concerning whether burglary was established by entry into the yard of the property or the structure. The trial court replied that burglary occurred by entering the structure. There was no court reporter’s transcript of discussions between the prosecutor, defense counsel, and the trial court as to how to answer the jury’s question. In a settled statement executed on August 3, 2012, the prosecutor, defense counsel, and the trial court stated that they had an off the record, unrecorded discussion as to how to answer the jury’s question.