People v. Martinez CA5 ( 2020 )

Filed 11/24/20 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F079465
Plaintiff and Respondent,
(Super. Ct. No. MCR052566B)
v.
MELONY MARIE MARTINEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
Lynette Gladd Moore, 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., Poochigian, J. and Detjen, J.
PROCEDURAL HISTORY
By complaint filed October 21, 2015, in Madera County Superior Court, Melony
Marie Martinez (defendant) and two others were charged with kidnapping (Pen. Code,1
§ 207, subd. (a); count 1) and attempting to deter an executive officer by means of threats
or violence (§ 69, count 2), both felonies. On November 9, 2015, the complaint was
amended to reduce count 2 to a misdemeanor and add count 3, a felony violation of
section 278 (taking or withholding a child from the lawful custodian). Defendant pled
guilty to the amended charges.2 Imposition of sentence was suspended, and she was
placed on five years’ probation on various terms and conditions. Various monetary
obligations were also imposed.
On September 23, 2016, the probation department recommended that defendant’s
probation be revoked for failure to report to probation as directed and to appear at a Work
Force orientation as directed by her probation officer. It was further recommended that
probation be reinstated with additional terms and conditions, including that defendant
enroll in and complete the Day Reporting Program, and that she serve 60 days in jail.
Defendant subsequently admitted the violation of probation on condition that she serve
30 days in jail. She accepted the additional terms and conditions of probation, which the
court formally imposed.
On October 31, 2018, a petition to revoke defendant’s probation was filed,
alleging defendant had failed to enroll in the Day Reporting Program and to report to the
probation department as directed, and that she had been terminated from the Day
Reporting Program for failure to comply with attendance and program requirements.
Defendant asserted that she had several medical issues that kept her from complying with
1 All statutory references are to the Penal Code.
2 Because defendant pled guilty prior to the preliminary hearing, the record on
appeal contains virtually no factual information about the charged offenses.
2.
her probation terms and reporting as directed. As the probation department had received
no documentation of defendant’s medical history, and in light of the fact defendant had
been on abscond status for almost a year, the probation department asked that the matter
be referred back to it for a supplemental report and recommendation.
On April 12, 2019, defendant was informed of and waived her rights. The court
advised her of the potential consequences of admitting the probation violation allegations.
Defendant then admitted those allegations, and the matter was referred to the probation
department for a supplemental report and recommendation. A copy of defendant’s
medical records were appended to the supplemental report for the court’s consideration.
Defendant was sentenced on May 24, 2019. In arguing against the probation
officer’s recommendation that probation not be reinstated, defense counsel asserted that
defendant failed to report not out of a willful desire to ignore her responsibilities, but
because she was experiencing extensive medical trauma from several conditions that
caused pain and sometimes left her confined to a wheelchair. Counsel related there was
no mass transportation in the area where defendant lived, and that, while defendant
recognized she could have made more efforts to comply with the terms of her probation,
she was overwhelmed with her medical problems and family responsibilities.
The court stated it had read and considered the probation officer’s report and the
medical documentation. It observed that probationers needed to communicate with the
probation department, and that defendant had had more than one chance to participate in
probation and take advantage of the services offered. The court ordered that probation be
revoked and not reinstated. On count 3, defendant was sentenced to the mitigated term of
two years, to be served in county jail pursuant to section 1170, subdivision (h)(5)(A).
The court found the aggravated term would be appropriate, but imposed the lower term
due to defendant’s circumstances. A concurrent term, which amounted to credit for time
served, was imposed on count 2. A $300 restitution fine was imposed pursuant to section
1202.4, subdivision (b), and a probation revocation restitution fine in the same amount
3.
was imposed and suspended pursuant to section 1202.44. A $960 fine, comprising a base
fine and various state and local fees and assessments, was imposed pursuant to section
278. Defendant was directed to report to the County Revenue Officer for a determination
of ability to pay.
Defendant filed a timely notice of appeal. Her request for a certificate of probable
cause was denied.
APPELLATE COURT REVIEW
Defendant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating that defendant was advised she
could file her own brief with this court. By letter dated February 3, 2020, we invited
defendant to submit additional briefing. To date, she has not done so.3
After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
3 Defendant wrote to this court, asking for assistance regarding how to get her time
credits modified. We forwarded her correspondence to appellate counsel with directions
to communicate with defendant. Counsel advised us that she did so. Thereafter,
although defendant’s time to file her own brief was extended several times, this court
received no response to its Wende invitation.
4.