People v. Martinez12/19/2001
As modified April 3, 2002. There is no change in judgment.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSEPH JOHN MARTINEZ, JR., DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of San Bernardino County. Dennis G. Cole, Judge. Affirmed with directions. (Super.Ct.No. FCH03660)
Flanagan, Unger, Danis & Grover; and Jonathan K. Golden for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lora Fox Martin and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
The opinion of the court was delivered by: Ramirez, P. J.
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
OPINION
A jury convicted Joseph John Martinez, Jr., of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), during which he fled the scene (Veh. Code, § 20001, subd. (c)), and felony hit and run (Veh. Code, § 20001, subd. (a)). He was sentenced to prison for 15 years and appeals, claiming sentencing error. We reject his contentions, save one concerning his custody credits. We therefore direct the trial court to correct the award of credits and otherwise affirm.
Facts
Around 1:15 a.m on February 1, 2000, Martinez, with a blood alcohol level of about 0.22 percent due to alcohol and marijuana ingestion, fatally hit a police officer, who had pulled another motorist to the side of the road, and the officer's patrol car, which was displaying flashing lights. After driving into the parking lot of a nearby convenience store, Martinez drove at a high rate of speed away from the lot before being stopped by another police officer. However, the officer told Martinez to drive on, having heard the dispatch about the officer who was fatally injured. Martinez took off, but stopped when he plowed into a stop sign.
Issues and Discussion
1. Preparation of the Probation Report by an Acquaintance or Friend of the Victim
During the sentencing hearing, defense counsel urged the trial court not to "place too much emphasis on the probation report [because ] . . . I don't think it was written from an impartial standpoint [in that the] . . . probation officer . . . is . . . a friend or an acquaintance of the victim . . . ." Counsel never specified in what regard the report was inaccurate or reflected any prejudice. In fact, only two paragraphs, and one sentence from a third, all under the title "Analysis" in the report are unprofessional in their tone. The trial court said, " agree with [defense counsel] about the probation officer's report. . . . I know to be a good probation officer, unfortunately [considering] his relationship with [the victim,] . . . I think his opinions were inappropriate, and I've only taken from his report those factors that are required."
Martinez here contends that the report was biased and induced the trial court to commit sentencing error. Nothing in the record before this court, however, supports such an assertion.
2. Aggravating Factors
The court cited as an aggravating factor the fact that "the victim was more vulnerable than the average pedestrian or citizen of a drunk driver as prohibit
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