Filed 7/29/15 P. v. Martel CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B261803
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA028360)
v.
TIMOTHY MANUEL MARTEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Daniel B. Feldstern, Judge. Affirmed.
Timothy Manuel Martel, in pro. per. and Richard B. Lennon, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________
Timothy Manuel Martel was convicted in 1997 after a jury trial of carrying a
concealed dirk or dagger with special findings, following a bifurcated court trial, that he
had suffered serious or violent felony convictions for attempted robbery in 1986 and
attempted murder in 1989 within the meaning of the three strikes law. The trial court
sentenced Martel to an aggregate indeterminate state prison term of 25 years to life.
On July 25, 2013 the trial court denied Martel’s petition for recall of sentence
pursuant to Penal Code section 1170.1261 on the ground Martel was ineligible for
resentencing because one of his prior convictions was for attempted murder. (§§ 667,
subd. (e)(2)(C)(iv)(IV), 1170.12, subd. (c)(2)(C)(iv)(IV), 1170.126, subd. (e)(3).) Martel
filed a timely notice of appeal.
We initially concluded Martel was challenging a nonappealable order, treated his
purported appeal as a petition for writ of mandate, and denied the petition. Following the
Supreme Court’s decision in Teal v. Superior Court (2014) 60 Cal.4th 595, Martel
renewed his notice of appeal. We directed the trial court to accept the renewed notice of
appeal as timely.
We appointed counsel to represent Martel on appeal. After examination of the
record, counsel filed an opening brief in which no issues were raised. On April 28, 2015
we advised Martel he had 30 days within which to personally submit any contentions or
issues he wished us to consider.
On June 1, 2015 we received a two-page typed response in which Martel contends
the trial court was required to determine whether, during the commission of the
commitment offense, he was armed with a firearm or deadly weapon or intended to cause
great bodily harm, and under section 1170.126, subdivision (k), he is entitled to a new
sentencing hearing for the trial court to consider whether the commitment offense should
be reduced to a misdemeanor (§ 17, subd. (b)) or one of his prior strike convictions
should be dismissed in the interest of justice (§ 1385).
1
Statutory references are to this code.
2
Martel does not dispute his 1989 conviction for attempted murder (§§ 187, 664),
alleged and proved in this case, makes him statutorily ineligible for resentencing under
section 1170.126. Accordingly, there was no reason for the trial court to determine
whether the circumstance of the commitment offense itself also made him ineligible for
resentencing. The trial court did not err in denying the petition for recall of sentence.
Section 1170.126, subdivision (k), provides, “Nothing in this section is intended to
diminish or abrogate any rights or remedies otherwise available to the defendant.” Martel
misinterprets this provision as allowing the trial court, after a petition to recall sentence
has been heard and denied, to retain jurisdiction to modify his sentence for reasons other
than those specified in section 1170.126. Instead, subdivision (k) is simply a savings
clause, confirming that inmates included within the ambit of section 1170.126 retain the
right to file petitions for a writ of habeas corpus or seek other forms of postconviction
relief.
We have examined the entire record and are satisfied Martel’s attorney on appeal
has fully complied with the responsibilities of counsel and there are no arguable issues.
(See Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];
People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436,
441.)
DISPOSTION
The order is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J. SEGAL, J.
3