People v. Martinez10/31/2002
llant's trial counsel.
On November 15, 2000, after reviewing Dr. Howsepian's November 5, 2000 report, the probation report, a letter from appellant, and listening to the statements from appellant's wife and appellant's mother, as well as appellant's own allocution, the court pronounced its judgment.
On count 1 (§§ 187, subd. (a), 664), the court imposed the lower term of five years, and added the mandatory 20-year enhancement under section 12022.53, subdivision (c), for a principal term of 25 years. On count 3 (§ 245, subd. (b)) the court imposed the midterm of six years, with an additional four-year enhancement under section 12022.5, subdivision (a)(1). On count 4 (§245, subd. (b)) the court imposed the midterm of six years, striking the enhancement under section 12022.5, subdivision (a)(1). On counts 5 and 6 (§ 245, subd. (a)(2)) the court imposed the midterm of three years on each, with an additional four years added to each as well, for the enhancement under section 12022.5, subdivision (a)(1). On count 7 (§ 246) the court imposed the midterm sentence of five years. On Count 8 (§ 422) the court imposed the midterm of two years. On count 9 (§ 246.3) the court imposed the midterm of two years. On count 10 (§ 69) the court imposed the midterm sentence of 2 years, striking the enhancement under section 12022.5, subdivision (a)(1). The court then stayed the sentences imposed on counts 3, 5 and 6. The remaining sentences (counts 4, 7, 8, 9 and 10) were ordered to run concurrent with appellant's 25-year sentence imposed on count 1. The court also imposed a restitution fine of $5,000 pursuant to section 1202.4, subdivision (b), and the court also imposed, and then stayed, a $5,000 restitution fine pursuant to section 1202.45.
Later that day, after the court had pronounced sentence, the court received a second mental health evaluation report, dated November 13, 2000, prepared by Adrian Della Porta, Ph.D., of the Fresno County jail assessment team. It was uncertain as to why this second report was prepared. In Dr. Della Porta's opinion appellant suffered from "Amphetamine-Induced Psychotic Disorder with hallucinations."
The court, in light of the receipt of this second report, brought appellant back into court to listen to any comments by appellant's trial counsel or the prosecution. The court's review of the report did not alter its decision on its earlier imposed judgment, as it considered the report of Dr. Howsepian to be a more thorough analysis. "And I thought it was very helpful to the Court. And it's the type of report that whichever way it goes you feel you've gotten a fair hearing and not just a cursory examination of a client, which is not what any of us want, but what some of us sometimes see." Appellant's trial counsel's only comment, with respect to the contents of the second report as far as sentencing issues, was "And I do agree though that [appellant] should be in a drug treatment program other than 25 years in prison. That I do agree with in the report."
On November 15, 2000, appellant timely filed his notice of appeal.
STATEMENT OF FACTS
On May 24, 2000, Andrew K., appellant's stepfather, drove up to his residence located in a gated community within the City of Fresno. Mr. K's daughter (who is appellant's half-sister), Heather K., who was seven at the time of trial, accompanied him and was sitting in the passenger's seat of his pickup truck. As Mr. K. drove up to his residence, he saw appellant standing on the lawn in front of Mr. K.'s residence. Mr. K. parked his pickup on the street in front of his residence. Through the open passenger's side window of the truck, appellant asked Mr. K. where his (appellant's) mo
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