Filed 11/20/15 P. v. Martinez CA4/1
OPINION AFTER TRANSFER FROM CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063719
Plaintiff and Respondent, (Super. Ct. No. FSB801884)
v.
JOE MARTINEZ
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino County.
Michael A. Smith, Judge. Reversed and remanded for further proceedings.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
In 2008, a jury convicted Joe Martinez for, among other things, inflicting corporal
injury on his wife (Pen. Code,1 § 273.5, subd. (a)) and spousal rape (§ 262, subd. (a)(1)).
The jury also found that Martinez had two prior strike convictions. The trial court
sentenced Martinez to prison as a third strike offender to 25 years to life for the section
273.5, subdivision (a) offense and an additional consecutive term of 25 years to life for
the section 262, subdivision (a)(1) offense.
On November 6, 2012, California voters approved Proposition 36, the Three
Strikes Reform Act of 2012 (the Act), which amended sections 667 and 1170.12 and
added section 1170.126. (See People v. Yearwood (2013) 213 Cal.App.4th 161, 167
(Yearwood).) Martinez then filed a petition to recall his sentence and for resentencing
under section 1170.126, focusing on his convictions under sections 273.5 (count 1) and
262, subdivision (a)(1) (count 5).
The superior court denied the petition, finding that Martinez did not satisfy the
criteria of section 1170.126, subdivision (e). The court noted that Martinez's current
commitment offenses are "serious and violent felonies making [Martinez] ineligible for
re-sentencing under" section 1170.126.
Martinez appeals the order denying his petition, contending that he was not
statutorily ineligible for resentencing pursuant to section 1170.126 as to his conviction
under section 273.5, subdivision (a). The People disagreed, arguing: (1) the court's
1 Statutory references are to the Penal Code unless otherwise specified.
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denial of the petition was not appealable, and (2) count 5 is a serious and violent felony
that rendered Martinez ineligible to be resentenced.
In our prior opinion we treated Martinez's appeal as a petition for writ for habeas
corpus. We concluded that the superior court did not err in denying Martinez's petition
for resentencing because Martinez's sentence was imposed, in part, for spousal rape
(§ 262, subd. (a)), which is a serious felony under section 1192.7, subdivision (c) and a
violent felony under section 667.5, subdivision (c). Accordingly, we affirmed the trial
court's denial of the petition for resentencing.
Thereafter, the Supreme Court granted Martinez's petition for review (S216922).
On October 14, 2015, the Supreme Court transferred the case to this court with directions
to reconsider our opinion in light of People v. Johnson (2015) 61 Cal.4th 674 (Johnson).
We have reconsidered our opinion and, in light of Johnson, we now reverse and remand
the case to the superior court for such further proceedings as may be appropriate.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Martinez was convicted of inflicting corporal injury on his wife (§ 273.5,
subd. (a), count 1); attempted forcible sodomy (§§ 664 & 286, subd. (c)(2), count 3);
attempted forcible sexual penetration (§§ 664 & 289, subd. (a)(1), count 4); and spousal
rape (§ 262, subd. (a)(1), count 5). The jury found that Martinez had two prior strike
convictions for robbery in violation of section 211, both serious and violent felonies.
(§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i).)
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Martinez filed a Romero2 motion to strike his two previous strikes as to counts 1,
3, 4, and 5. The court granted the motion as to counts 3 and 4, but denied it as to counts 1
and 5. The court then sentenced Martinez as a third strike offender to an indeterminate
term of 50 years to life in prison, consisting of an indeterminate term of 25 years to life
for count 1 and a consecutive indeterminate 25-years-to-life sentence for count 5.3
After the Act went into effect, Martinez filed a petition to recall his sentence and
for resentencing under section 1170.126. The superior court summarily denied the
petition, finding Martinez was disqualified from seeking relief under the statute because
his "current commitment offenses include PC289(a)(1) and PC262 and PC664/286(c)(2)
are serious and violent felonies making [Martinez] ineligible for re-sentencing under
PC1170.126." Martinez timely appealed.
DISCUSSION
I
APPEALABILITY
After we filed our original opinion in this case, the Supreme Court issued the
opinion in Teal v. Superior Court (2014) 60 Cal.4th 595. There the court held the denial
of a motion to recall a sentence under section 1170.126 is an appealable order. (Teal,
supra, at pp. 598-601.)
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3 The court also sentenced Martinez to prison for four years under count 3 and four
years under count 4, both to run concurrently to his sentence for count 1.
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II
THE ACT
The Act changes the requirements for sentencing a third strike offender to an
indeterminate term of 25-years-to-life imprisonment. Under the original version of the
three strikes law, a recidivist, with two or more prior strikes, who is convicted of any new
felony is subject to an indeterminate life sentence. (Yearwood, supra, 213 Cal.App.4th at
pp. 167-168.) However, the Act altered the previous three strikes law and limits three
strike sentences to current convictions of serious or violent felonies and a limited number
of other felonies4 unless the offender has a prior strike conviction that falls within one of
several enumerated categories.5 If these exceptions do not apply to a defendant, then the
court is to sentence the defendant as a second strike offender. (See Yearwood, supra, 213
Cal.App.4th at p. 168; §§ 667, 1170.12.)
Section 1170.126 also establishes a procedure for qualified inmates serving
indeterminate life sentences under the three strikes law to seek resentencing under the
terms of the amended law. To this end, a defendant files a petition that "specif[ies] all of
the currently charged felonies, which resulted in the sentence under" section 667,
subdivision (e)(2) or section 1170.12, subdivision (c)(2), "or both, and . . . specif[ies] all
4 For example, a felony offense that results in mandatory registration as a sex
offender would make a defendant ineligible to petition for a resentence under the Act.
(See §§ 1170.126, subd. (c); 667, subd. (e)(2)(C)(ii); 1170.12, subd. (c)(2)(C)(ii).)
5 For example, offenses punishable by life in prison would make a defendant
ineligible for resentencing under the Act. (See §§ 1170.126, subd. (c); 667,
subd. (e)(2)(C)(iv)(VIII); 1170.12, subd. (c)(2)(C)(iv)(VIII).)
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of the prior convictions alleged and proved under subdivision (d) of Section 667 and
subdivision (b) of Section 1170.12." (§ 1170.126, subd. (d).) The superior court then
considers the petition and must make a threshold determination whether the defendant is
eligible for resentencing under section 1170.126, subdivision (e).
Section 1170.126, subdivision (e) states that an inmate is eligible for resentencing
if:
"(1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e)
of Section 667 or subdivision (c) of Section 1170.12 for a conviction
of a felony or felonies that are not defined as serious and/or violent
felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7.
"(2) The inmate's current sentence was not imposed for any of the
offenses appearing in clauses (i) to (iii), inclusive, of subparagraph
(C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i)
to (iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12.
"(3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12."
If the court finds the defendant is eligible under section 1170.126, subdivision (e),
then it shall resentence the defendant unless it determines that resentencing the defendant
would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)
Here, the parties disagree regarding Martinez's eligibility for resentencing under
section 1170.126, subdivision (e). Martinez contends that, in determining his eligibility,
the court should have only considered count 1, inflicting corporal injury on his wife
(§ 273.5, subd. (a)). Martinez argues this offense is neither a serious felony under section
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1192.7, subdivision (c) nor a violent felony under section 667.5, subdivision (c);
therefore, he satisfies the criteria of section 1170.126, subdivision (e)(1) and (2).
Martinez further asserts his two prior strikes were not disqualifying strikes under section
1170.126, subdivision (e)(3). Accordingly, Martinez insists he is eligible for
resentencing.
The People concede that count 1 is not a serious or violent felony, but argue that
the superior court was required to consider all offenses that led to an indeterminate life
sentence. The People note that count 5, spousal rape, is a violent and serious felony. As
such, the People maintain Martinez was ineligible under every prong of subdivision (e).
As such, we must determine whether a court, in considering a petition for resentencing
under section 1170.126, must consider all the offenses on which the petitioner was
sentenced or consider each offense and related term of imprisonment separately.
In Johnson, supra, 61 Cal.4th at pages 687 to 696, the court discussed the issue
presented in this case, i.e., when a defendant has received a third strike sentence for a
serious or violent felony, as well as a felony which is neither serious or violent, can the
defendant qualify for resentencing on the nonviolent/serious count. There the court
concluded that the approach to such case must be on a count-by-count basis. (Id. at pp.
690-691.) The court rejected the position taken by the People in this case.
In this case the trial court did not use the count-by-count approach now mandated
by our Supreme Court. Accordingly, we must reverse the trial court's decision and
remand the case to the trial court.
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DISPOSITION
The order denying the petition to recall the sentence for the conviction of violated
section 273.5, subdivision (a) is reversed. The case is remanded to the superior court for
further proceedings as may be appropriate.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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