Filed 9/10/20 P. v. Martinez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299702
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA070425)
v.
MARIO MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Patrick Connolly, Judge. Affirmed.
Victor J. Morse, 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, Kristen J. Inberg and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Mario Martinez appeals from the superior court’s order
denying his petition under Penal Code section 1170.95,1 which
allows certain defendants convicted of murder under a felony
murder or natural and probable consequences theory to petition
the court to vacate their convictions and for resentencing.
Martinez argues the superior court erred in summarily denying
his petition without giving him an opportunity to file a reply to
the prosecutor’s response to his petition. Martinez, however, was
not convicted under a felony murder or natural and probable
consequences theory, a fact he does not challenge. Therefore,
Martinez is not eligible for relief under section 1170.95, and any
procedural error in the superior court’s summary denial of his
petition was harmless.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Martinez of Second Degree Murder,
and This Court Affirms
In March 2002 Martinez was driving his car with co-
defendant Juan Hernandez in the passenger seat when they saw
Salvador Alvarez walking with his nephews. Martinez and
Hernandez drove slowly by the three men and began “mad
dogging” them.2 Martinez drove past Alvarez, stopped the car,
1 Statutory references are to the Penal Code.
2 “[M]ad-dogging” means looking at someone “in an
aggressive manner.” (People v. Gonzalez (2018) 5 Cal.5th 186,
194.)
2
and backed up. Hernandez repeatedly asked Alvarez, “‘Where
are you from?’” and “‘Who are you mad dogging?’” Alvarez
understood the questions as gang challenges and responded,
“‘What’s up?’” Hernandez and Martinez continued to ask
Alvarez, “‘Where are you from?’”
Martinez stopped the car, and Hernandez got out holding a
gun. Alvarez yelled, “Go ahead. Pull the trigger.” When
Hernandez was a few feet from Alvarez, he pointed the gun at
Alvarez’s chest and fired three times, hitting Alvarez once in the
chest and again as Alvarez spun around. Alvarez died from two
fatal gunshot wounds, one to his upper shoulder and one to the
middle of his back. Martinez stayed in the car during the
shooting. When Hernandez got back in the car, Martinez drove
away.
A jury found Martinez guilty of second degree murder
(§ 187, subd. (a)) on the theory he aided and abetted Hernandez.
The trial court sentenced him to a prison term of 15 years to life.
In December 2005 this court affirmed Martinez’s conviction.
(People v. Hernandez (Dec. 6, 2005, B177518) [nonpub. opn.].)
B. The Legislature Enacts Senate Bill No. 1437 and
Establishes the Section 1170.95 Petition Procedure
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective
January 1, 2019, amended the felony murder rule and eliminated
the natural and probable consequences doctrine as it relates to
murder by amending sections 188 and 189. New section 188,
subdivision (a)(3), provides: “Except as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
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crime.” New section 189, subdivision (e), provides that, with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs (that is, those crimes that provide the basis
for first degree felony murder), an individual is liable for murder
“only if one of the following is proven: [¶] (1) The person was
the actual killer. [¶] (2) The person was not the actual killer,
but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.” (See People v. Galvan (2020) 52
Cal.App.5th 1134, 1140 [Senate Bill No. 1437 “eliminated the
natural and probable consequences doctrine as a basis for murder
liability, and added a requirement for felony murder that a
defendant must have been at least a major participant in the
underlying felony and have acted with reckless indifference to
human life”].)
Senate Bill No. 1437, through new section 1170.95, also
authorized an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and to be resentenced
on any remaining counts if the individual could not have been
convicted of murder under Senate Bill No. 1437’s changes to the
definition of the crime. The petition must include a declaration
by the petitioner he or she is eligible for relief under
section 1170.95, the superior court case number and year of the
petitioner’s conviction, and a statement whether the petitioner
requests the appointment of counsel. (§ 1170.95, subd. (b)(1); see
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People v. Verdugo (2020) 44 Cal.App.5th 320, 326-327, review
granted Mar. 18, 2020, S260493 (Verdugo).)3
If the petition contains all required information, and the
court determines the petition is facially sufficient, section
1170.95, subdivision (c), prescribes a two-step procedure for the
court to determine whether to issue an order to show cause: “‘The
court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply . . . . If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.’” (Verdugo, supra, 44 Cal.App.5th
at p. 327.) Thus, subdivision (c) “prescribes two additional court
reviews before an order to show cause may issue, one made before
any briefing to determine whether the petitioner has made a
prima facie showing he or she falls within section 1170.95—that
is, that the petitioner may be eligible for relief—and a second
after briefing by both sides to determine whether the petitioner
has made a prima facie showing he or she is entitled to
relief.” (Verdugo, at pp. 327-328.)
3 The Supreme Court deferred briefing in Verdugo, supra,
S260493 pending its decision in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
The Supreme Court limited briefing and argument in Lewis to
the following issues: (1) May superior courts consider the record
of conviction in determining whether a defendant has made a
prima facie showing of eligibility for relief under Penal Code
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?
5
If the court determines the petitioner has made a prima
facie showing and issues an order to show cause, the court must
hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
the petitioner is ineligible for resentencing. (§ 1170.95, subd.
(d)(3).) The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence. (See People v.
Tarkington (2020) 49 Cal.App.5th 892, 898-899, review granted
Aug. 12, 2020, S263219; People v. Edwards (2020) 48 Cal.App.5th
666, 674, review granted July 8, 2020, S262481; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1136, review granted Mar. 18, 2020,
S260598.)
C. Martinez Files a Petition Under Section 1170.95
In January 2019 Martinez filed a petition under section
1170.95, using “a downloadable form petition/declaration
prepared by Re:Store Justice, a cosponsor of the legislation (see
Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1437
(2017-2018 Reg. Sess.) as amended Feb. 16, 2018, p. 1).”
(Verdugo, supra, 44 Cal.App.5th at p. 324.) The form petition
“consists of a declaration with boxes to be checked against
averments essentially tracking the statutory language as to the
prerequisites for filing a petition and demonstrating a prima facie
showing that the petitioner falls with the provisions of section
1170.95 and is eligible for relief.” (People v. Edwards, supra,
48 Cal.App.5th at p. 670.)
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Martinez checked almost every box on the form petition. In
particular, he checked boxes alleging (1) “A complaint,
information, or indictment was filed against me that allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”; (2a) “At
trial, I was convicted of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine”; (2b) “I pled guilty or no contest to 1st or 2nd degree
murder in lieu of going to trial because I believed I could have
been convicted of 1st or 2nd degree murder at trial pursuant to
the felony murder rule or the natural and probable consequences
doctrine”; (3) “I could not now be convicted of 1st or 2nd degree
murder because of changes made to Penal Code § § 188 and 189,
effective January 1, 2019”; and (4) “I request that this court
appoint counsel for me during this re-sentencing process.”
Martinez also checked boxes stating “I was not the actual killer”;
“I did not, with the intent to kill, aid, abet, counsel, command,
induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree”; “I was not a major
participant in the felony or I did not act with reckless indifference
to human life during the course of the crime or felony”; “The
victim of the murder was not a peace officer . . . .”; and “I was
convicted of 2nd degree murder under the natural and probable
consequences doctrine or under the 2nd degree felony murder
doctrine and I could not now be convicted of murder because of
changes to Penal Code § 188, effective January 1, 2019.”
Martinez’s petition included his name, his superior court case
number, and the year of his conviction.
The superior court responded to the petition with a series of
orders that, in retrospect, appears to have combined elements of
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the first and second steps under section 1170.95, subdivision (c).
On February 28, 2019 the superior court issued an order stating
that the court had reviewed Martinez’s petition and “requested
the actual court file from archives but is not in possession of the
necessary documents at this time. The court is requesting any
documentary evidence that may assist the reviewing court,”
including “copies of the jury instructions used at [Martinez’s]
trial (specifically those that relate to a theory of felony-murder of
any degree, or a theory of natural and probable consequences).”
The court also requested “all verdict forms and their findings
from that trial,” any “appellate opinions affirming the petitioner’s
conviction and sentence,” and “any other available documentary
evidence that may assist the court in the review of the petition
. . . .” The court stated that, after it reviewed “the petition and
the submissions of the parties,” it would hold a hearing on the
petition on March 14, 2019. The court did not find Martinez had
stated a prima facie case for relief or issue an order to show
cause, but the next day, March 1, 2019, the court appointed
counsel to represent Martinez on his petition.
On March 14, 2019 the superior court, over Martinez’s
objection, granted the prosecutor’s “request for extension of time
to file [a] return” and set the next hearing for May 15, 2019. On
May 15, 2019 the prosecutor filed a request for an “extension of
time to file [a] return.” The court entered an order extending the
prosecutor’s time to file an “informal response” and stated, “The
court does not make a prima facie finding today.” The court
ordered the prosecutor to file the informal response by June 11,
2019 and set a “prima facie hearing” for June 27, 2019. On
June 11, 2019 the court continued the hearing to July 31, 2019.
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On July 9, 2019 the prosecutor filed a response to Martinez’s
petition, attaching as exhibits this court’s opinion in Martinez’s
direct appeal and the jury instructions in Martinez’s trial. The
prosecutor argued Martinez was ineligible for relief under section
1170.95 because he was not convicted of murder under a felony
murder or natural and probable consequences theory, but rather
was convicted as a direct aider and abettor who acted with malice
and intent to kill.
The next day, July 10, 2019, before counsel for Martinez had
an opportunity to file a reply, the court summarily denied
Martinez’s petition. The court ruled Martinez was not entitled to
relief under section 1170.95 as a matter of law because, “although
the jury was instructed as to aiding and abetting, the jury was
not instructed regarding natural and probable consequences nor
pursuant to a theory of felony-murder. Further, the jury found
the defendant guilty pursuant to a theory of malice
aforethought/intent to kill thus rendering petitioner’s claims
pursuant to . . . section 1170.95 meritless.” The court also
vacated the July 31, 2019 hearing. Martinez timely appealed.
DISCUSSION
As we explained in Verdugo, the “structure and grammar of
[section 1170.95, subdivision (c),] indicate the Legislature
intended to create a chronological sequence: first, a prima facie
showing; thereafter, appointment of counsel for petitioner; then,
briefing by the parties.” (Verdugo, supra, 44 Cal.App.5th at
p. 332.) For the second step of the prima facie analysis under
section 1170.95, subdivision (c), involving briefing, the statute
states that the “prosecutor shall file and serve a response within
60 days of service of the petition” and that “the petitioner may
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file and serve a reply within 30 days after the prosecutor
response is served.” Martinez contends the superior court erred
in denying his petition because the court “failed to comply with
the requirement set forth in the statute that the court allow [the
petitioner] 30 days to file a reply to the prosecution’s response in
opposition to appellant’s petition.”
The superior court appears to have believed at least at the
outset that Martinez made an initial prima facie showing under
the first step of section 1170.95, subdivision (c): The court on
March 1, 2019 appointed counsel for Martinez and referred to
what the court was requiring the prosecutor to file as a “return.”
By May 15, 2019, however, the court called the prosecutor’s filing
an “informal response” and stated the court was not yet making a
prima facie finding.
If the court had proceeded to the second step of the prima
facie analysis under section 1170.95, subdivision (c), the court
should have allowed Martinez to file a reply. As we stated in
Verdugo, if the petitioner’s ineligibility for resentencing under
section 1170.95 is not established as a matter of law by the record
of conviction, the court must appoint counsel if requested, direct
the prosecutor to file a response to the petition, permit the
petitioner to file a reply, and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.
(Verdugo, supra, 44 Cal.App.5th at pp. 330-331.) If this is what
the court did, the court may have violated section 1170.95 by
denying Martinez the opportunity file a reply, although the law
governing the procedure under the newly enacted statute was not
as developed then as it is today.
As we also explained in Verdugo, however, the superior
court, after receiving a facially sufficient petition, may examine
10
readily available portions of the record of conviction to determine
whether the petitioner has made a prima facie showing and thus
falls within the provisions of section 1170.95. (Verdugo, supra, 44
Cal.App.5th at pp. 329-331.) In particular, the court may review
“the complaint, information, or indictment filed against the
petitioner; the verdict form or factual basis documentation for a
negotiated plea; and the abstract of judgment.” (Id. at
pp. 329-330; see People v. Soto (2020) 51 Cal.App.5th 1043, 1055;
People v. Tarkington, supra, 49 Cal.App.5th at p. 908; People v.
Edwards, supra, 48 Cal.App.5th at p. 674.) The court may also
review a “court of appeal opinion, whether or not published,
[that] is part of the appellant’s record of conviction.” (Verdugo, at
p. 333; Lewis, supra, 43 Cal.App.5th at p. 1138.)
Here, the record of conviction shows that Martinez was not
convicted of felony murder or murder under the natural or
probable consequences theory. The trial court did not instruct
the jury on felony murder or murder under a natural or probable
consequences theory, nor is there any reference to either theory
in this court’s prior opinion. (See People v. Soto, supra, 51
Cal.App.5th at p. 1055 [petitioner “was not and could not have
been convicted of second degree murder under the natural and
probable consequences doctrine” where “the jurors were not
provided any instruction on which they could have found [the
petitioner] guilty of murder under that doctrine,” but “under the
instructions, the jury necessarily found [the petitioner] culpable
for murder based on his own actions and mental state as a direct
aider and abettor of murder”]; People v. Offley (2020) 48
Cal.App.5th 588, 595-596 [direct aiding and abetting theory of
liability survives the changes following Senate Bill No. 1437.)
Indeed, Martinez does not argue he was convicted under either
11
such theory. Thus, section 1170.95 does not apply to Martinez’s
conviction.
In these circumstances, a reply brief would not have
changed the fact Martinez is ineligible for relief under section
1170.95 as a matter of law. (See People v. Law (2020)
48 Cal.App.5th 811, 826 [any error in denying the defendant’s
section 1170.95 petition was harmless because, “[g]iven the trial
evidence, counsel would not have been able to demonstrate in a
reply brief or otherwise” the petitioner was eligible for relief],
review granted July 8, 2020, S262490; People v. Edwards, supra,
48 Cal.App.5th at p. 675 [because the petitioner “does not fall
within the provisions of section 1170.95 as a matter of law, any
. . . purported [procedural] errors were harmless under any
standard of review [citations] and remand would be an idle act”].)
Therefore, any procedural error in not allowing Martinez to file a
reply brief under the second step of section 1170.95,
subdivision (c), was harmless under the state law error standard
of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v.
Epps (2001) 25 Cal.4th 19, 29 [when the error is “purely one of
state law, the Watson harmless error test applies]; cf. In re
Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [“violation of a
statutory right to counsel is properly reviewed under the
harmless error test enunciated in People v. Watson”].)4
4 For the same reason, any violation by the court of
Martinez’s due process rights in denying his petition before he
filed a reply brief was harmless beyond a reasonable doubt under
the standard in Chapman v. California (1967) 386 U.S. 18, 24 [87
S.Ct. 824].
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DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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