Filed 9/9/20 P. v. Martinez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300232
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA471830)
v.
ELEGUA JESUS MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ray G. Jurado, Judge. Affirmed as
modified.
Cindy Brines, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Supervising Deputy
Attorney General, and Thomas C. Hsieh, Deputy Attorney
General for Plaintiff and Respondent.
____________
A jury found Elegua Jesus Martinez guilty of injuring his
girlfriend, attempting to dissuade a witness, and contempt of
court. His sentence included two prior prison term
enhancements under Penal Code section 667.5, subdivision (b).
His sole claim on appeal is the enhancements no longer apply and
should be stricken due to Senate Bill No. 136 (2019–2020 Reg.
Sess.) (SB 136). We order the enhancements stricken and
otherwise affirm.
All statutory citations are to the Penal Code.
I
We abbreviate the facts because Martinez’s single appellate
claim does not turn on them. On July 17, 2018, Martinez hit and
choked U.S., the woman with whom he had lived. We refer to the
victim by her initials to protect her personal privacy interests.
(Cal. Rules of Court, rule 8.90(b)(4).) Martinez admitted he
injured U.S. A court ordered him not to contact her, but
Martinez told U.S. not to come to court.
A jury convicted Martinez of one count of injuring a
cohabitant or girlfriend after he had a prior conviction for the
same offense (§ 273.5, subd. (f)(1)), three counts of attempting to
dissuade a witness (§ 136.1, subd. (a)(2)), and four counts of
misdemeanor contempt of court (§ 166, subd. (c)(1)). Martinez
admitted two prior felony convictions. The priors were for
assault with a deadly weapon (§ 245, subd. (a)(1)) and injuring a
spouse or cohabitant (§ 273.5).
On May 31, 2019, the court sentenced Martinez to 18 years
in state prison. For injuring a cohabitant or girlfriend, the court
sentenced him to 14 years: the midterm of four years, doubled to
eight years due to his prior strike (§§ 667, subds. (b)–(i), 1170.12),
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plus five years for the serious felony (§ 667, subd. (a)(1)), plus one
year for one of the prior prison term enhancements (§ 667.5,
subd. (b)). For one of the counts of attempting to dissuade a
witness, the court sentenced him to four years: the midterm of
two years, doubled due to his prior strike (§§ 667, subds. (b)–(i),
1170.12). The court imposed concurrent terms for the remaining
counts and imposed but stayed punishment for Martinez’s second
prior prison term enhancement.
II
At the time of Martinez’s sentencing, section 667.5,
subdivision (b) required the court to impose a one-year term for
each prior separate prison term under section 1170, subdivision
(h). On October 8, 2019, the Governor signed SB 136, and the
change became effective January 1, 2020. This bill amended
section 667.5, subdivision (b) to limit the enhancement to prior
prison or jail terms for certain sexually violent offenses.
SB 136 applies to Martinez. The People concede and we
agree SB 136 applies retroactively to Martinez, whose judgment
was not final when the ameliorative change took effect. (See
People v. Stamps (2020) 9 Cal.5th 685, 698–699.) Martinez had
no prior prison terms for sexually violent offenses. Accordingly,
the two prior prison enhancements must be stricken.
Martinez and the People disagree about whether we should
remand to the trial court for resentencing. Martinez says we
should strike the enhancements and direct the trial court to
prepare an amended abstract of judgment. The People say we
should remand to the trial court for resentencing.
We remand for resentencing because when an appellate
court strikes part of a sentence on review, a full resentencing as
to all counts is appropriate so the trial court may exercise its
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sentencing discretion in light of the changed circumstances.
(People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Jennings
(2019) 42 Cal.App.5th 664, 682.)
Martinez says we need not remand because the court said
at sentencing, “I did not impose and will not impose the high
term on any count . . . .” That statement was about whether the
court would apply the low, middle, or high terms for Martinez’s
counts. It did not address enhancements. Furthermore, the
court made the statement before SB 136 foreclosed Martinez’s
section 667.5, subdivision (b) enhancements. We remand for
resentencing because the court’s statement does not disclose
what the court would do under these changed circumstances.
DISPOSITION
The matter is remanded for a resentencing hearing. The
court shall strike the two section 667.5, subdivision (b)
sentencing enhancements. In all other respects, the judgment is
affirmed.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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