Filed 10/6/20 P. v. Martinez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B298076
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA325247)
v.
DANIEL MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Robert Perry, Judge. Reversed and remanded.
Chris R. Redburn, 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, Assistant Attorney
General, Charles S. Lee and Stephanie A. Miyoshi, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Daniel Martinez appeals from the denial of his petition
for resentencing under Penal Code1 section 1170.95. Defendant, who
was the driver of the car involved in a gang-related drive-by shooting
that resulted in a death, was convicted of second degree murder in
2008. He filed a petition for resentencing in January 2019, which the
trial court summarily denied, finding that defendant was not eligible for
resentencing because he “clearly acted with an intent to kill and while
not the actual killer was a major participant and acted with reckless
indifference to human life”; the court also denied defendant’s petition
because it found that section 1170.95 and the bill enacting it (Senate
Bill No. 1437, hereafter S.B. 1437) were unconstitutional.
Defendant contends the trial court failed to comply with section
1170.95 and deprived him of his statutory and constitutional right to
counsel by denying his petition without appointing him counsel, and
that there was no evidence to support the court’s findings. He also
contends that section 1170.95 and S.B. 1437 are constitutional. The
Attorney General concedes that the trial court erred by summarily
denying defendant’s petition, and that S.B. 1437 is constitutional. Both
parties contend the matter must be remanded, that counsel must be
appointed for defendant, and that both sides must be allowed to submit
briefs in accordance with subdivision (c) of section 1170.95.2 We concur.
1 Further undesignated statutory references are to the Penal Code.
2 Although the conclusion in defendant’s opening brief seems to suggest
he is asking that the trial court be required, upon reversal, to issue an order
to show cause, he indicates in his reply brief that he is requesting that an
order to show cause be issued after completion of the first round of briefing,
2
Accordingly, we reverse the trial court’s order and remand the matter
with directions to the trial court to appoint counsel for defendant and,
after allowing briefing in accordance with section 1170.95, subdivision
(c), determine whether to issue an order to show cause.
BACKGROUND
Our summary of the factual and procedural background is based
in part upon our opinion affirming defendant’s conviction, People v.
Martinez (Nov. 9, 2010, B211420) [nonpub. opn.], 2010 WL 4457708
(Martinez I).
Defendant and George Gallegos were friends and members of a
gang. In May 2006, defendant was walking with two friends (who were
fellow members of the gang) when shots were fired at them. Defendant
was not hit, but his two friends were; one died from his gunshot
wounds, and the other was rendered a paraplegic. (Martinez I, supra,
2010 WL 4457708, at p. *1.)
On October 29, 2006, defendant and Gallegos attended the funeral
of a member of an allied gang who had been killed the prior week;
defendant and Gallegos’s signatures were adjacent to each other in the
condolence book from the funeral. Later that evening, three men were
standing outside a liquor store when a car drove up and stopped in front
of them. The passenger in the back seat asked one of them about their
tagging crew affiliation, and he responded that he was with a tagging
assuming, of course, the trial court finds that he might be entitled to
resentencing.
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crew that was a rival of defendant’s and Gallegos’s gang. Shots were
fired from the car, and one of the three men was killed. (Martinez I,
supra, 2010 WL 4457708, at p. *1.)
In July 2007, police arrested Gallegos for a different murder.
When officers executed a search of Gallegos’s home, defendant was
there. (Martinez I, supra, 2010 WL 4457708, at p. *1.) After the search,
one of the officers, who recognized defendant as a suspect in the October
2006 shooting, asked him if he would come to the station and speak
with some officers. Defendant agreed. He spent several hours at the
station, including almost three hours being interviewed about the
October 2006 shooting, and eventually admitted being the driver of the
car from which the shots were fired. (Martinez I, supra, 2010 WL
4457708, at p. *2.)
In a second amended information, defendant and Gallegos were
charged with the murder of the October 2006 victim (Gallegos also was
charged with two other murders in the same information). The
information also alleged that Gallegos personally and intentionally
discharged a firearm causing great bodily injury and death (§ 12022.53,
subds. (b), (c), (d)), and that a principal personally and intentionally
discharged a firearm causing great bodily injury and death (§ 12022.53,
subds. (b), (c), (d), (e)(1)). The information also alleged that the murder
was committed for the benefit of, at the direction of, and in association
with a criminal street gang (§ 186.22, subd. (b)(4)). Finally, the
information alleged as to Gallegos—but not as to defendant—that
Gallegos intentionally killed the victim while Gallegos was an active
participant in a criminal street gang (§ 190.2, subd. (a)(22)), and that
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the murder was intentional and perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside
the vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)).
A jury found defendant guilty of second degree murder, and found
the allegation that a principal discharged a firearm (§ 12022.53, subds.
(d), (e)(1)) and the gang allegation (§ 186.22, subd. (b)(4)) were true.
The jury also found to be true “the allegation that the murder was
perpetrated by means of shooting a firearm from a motor vehicle,
intentionally at another person outside the vehicle, with the intent to
inflict great bodily injury, pursuant to Penal Code section 190(d).”
Defendant was sentenced to 20 years to life in prison for the
murder under section 190, subdivision (d), plus 25 years for the gun
allegation, for a total of 45 years to life. We affirmed the judgment in
our prior opinion. (Martinez I, supra, 2010 WL 4457708.)
Defendant filed the section 1170.95 petition at issue in this appeal
in January 2019. In his petition, defendant alleged that a complaint,
information, or indictment was filed against him that allowed the
prosecution to proceed under a theory of felony murder or murder under
the natural and probable consequences doctrine, and that he had been
convicted of murder under a felony murder theory or the natural and
probable consequences doctrine and was entitled to be resentenced. He
also requested that counsel be appointed to represent him.
The trial court summarily denied the petition, stating: “In this
case, the scourge of gang violence influenced Defendant Martinez to join
in a drive-by shooting which resulted in death.” After setting forth the
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facts summarized above (i.e., the facts set forth in our prior opinion),3
the court concluded: “Martinez clearly acted with an intent to kill and
while not the actual killer was a major participant and acted with
reckless indifference to human life. He is specifically excluded from
sentencing relief under Penal Code Section 1170.95. See Penal Code
Section 189(e)(2) and (3). [¶] Martinez’ petition for resentencing is
unmeritorious and is denied.” The court went on to state that, as a
second and independent ground for denying the petition, it found that
S.B. 1437 and section 1170.95 were unconstitutional.
Defendant timely filed a notice of appeal from the denial of his
section 1170.95 petition.
DISCUSSION
As noted, defendant contends, and the Attorney General concedes,
that the trial court erred by summarily denying defendant’s petition
without first appointing counsel for him and without allowing the
parties an opportunity to file additional briefing. We agree.4
3 Because the issues in the prior appeal were narrow—i.e., whether
defendant’s admissions to the police were the result of an illegal seizure of his
person and the sufficiency of the evidence to support the gang enhancement
(Martinez I, supra 2010 WL 4457708, at p. *1)—our factual and procedural
summary in that opinion included only the facts necessary to address those
issues. Thus, we did not discuss the theory under which defendant was
prosecuted for murder, the arguments of counsel, or the instructions given to
the jury.
4 In light of this, and the Attorney General’s concession that S.B. 1437
and section 1170.95 are not unconstitutional, we need not address
defendant’s other arguments.
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A. Amendment of the Felony Murder Rule and Natural and
Probable Consequences Doctrine
On January 1, 2019, California’s felony murder rule and the
natural and probable consequences doctrine were altered by S.B. 1437.
S.B. 1437 was enacted to “amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to murder, to
ensure that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It
accomplished this purpose by amending section 188, defining malice,
and section 189, defining the degrees of murder.
In amending section 188, S.B. 1437 added the following provision:
“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 crime.” (§ 188, subd. (a)(3); Stats. 2018, ch.
1015, § 2.) S.B. 1437 also added the following as subdivision (e) of
section 189: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death occurs
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
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indifference to human life, as described in subdivision (d) of Section
190.2.” (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3.)
B. Petitions Under Section 1170.95
In addition to amending the felony murder rule and the natural
and probable consequences doctrine, S.B. 1437 also added section
1170.95. (Stats. 2018, ch. 1015, § 4.) That statute allows a person
convicted of felony murder, or murder under the natural and probable
consequences doctrine, to “file a petition with the court that sentenced
the petitioner to have the petitioner’s murder conviction vacated and to
be resentenced on any remaining counts when all of the following
conditions apply: [¶] (1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial. . . . [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189.” (§ 1170.95, subd. (a).)
Subdivision (b)(1) of section 1170.95 requires that the petition be
filed with the court that sentenced the petitioner, and must include (a)
a declaration by the petitioner that he or she is eligible for relief under
the section; (b) the superior court case number and year of conviction;
and (c) whether the petitioner requests appointment of counsel.
Subdivision (b)(2) provides that the trial court may deny the petition
without prejudice if any of the information required by subdivision
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(b)(1) is missing and cannot be readily ascertained by the court.
(§ 1170.95, subd. (b)(2).)
Subdivision (c) provides: “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 within 60
days of service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. These
deadlines shall be extended for good cause. 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.” (§ 1170.95, subd. (c).)
The remainder of the statute sets forth the procedure for
responding to, and the hearing on, the order to show cause, as well as
post-hearing matters.
Our court, and other appellate courts in California, have been
inundated with appeals from summary denials of section 1170.95. In
most, if not all, of those appeals defendants contend that section
1170.95 does not allow a trial court to deny a section 1170.95 petition
before the appointment of counsel (if requested) and briefing by the
parties. As we have noted in our previous opinions, that contention has
been rejected by numerous courts, and the issue is currently before our
Supreme Court. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-
1140 (Lewis), rev. granted, S260598, March 18, 2020; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius), rev. granted,
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S260410, March 18, 2020; People v. Verdugo (2020) 44 Cal.App.5th 320
(Verdugo), rev. granted, S260493, March 18, 2020.)
We find the analysis in Verdugo particularly persuasive. As that
court explained, “the relevant statutory language, viewed in context,
makes plain the Legislature’s intent to permit the sentencing court,
before counsel must be appointed, to examine readily available portions
of the record of conviction to determine whether a prima facie showing
has been made that the petitioner falls within the provisions of section
1170.95—that is, a prima facie showing the petitioner may be eligible
for relief because he or she could not be convicted of first or second
degree murder following the changes made by [S.B.] 1437 to the
definition of murder in sections 188 and 189.” (Verdugo, supra, 44
Cal.App.5th at p. 323; see also Lewis, supra, 43 Cal.App.5th at pp.
1137-1140; Cornelius, supra, 44 Cal.App.5th at p. 58.)
We need not discuss the Verdugo court’s analysis in detail here.
Suffice to say that a key component of that analysis is the appellate
court’s conclusion that subdivision (c) of section 1170.95 provides for an
initial prima facie review that “must be something more than simply
determining whether the petition is facially sufficient”5 (Verdugo,
supra, 44 Cal.App.5th at p. 328), but it “must also be different from the
postbriefing prima facie showing the petitioner ‘is entitled to relief,’
required for issuance of an order to show cause, if only in the nature
and extent of materials properly presented to the court in connection
5 The court noted that if this were not the case, the first sentence of
subdivision (c) would be surplusage in light of subdivision (b)(2). (Verdugo,
supra, 44 Cal.App.5th at pp. 328-329.)
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with the second prima facie step” (id. at p. 329). Thus, the court
concluded the initial prima facie review under subdivision (c) “is a
preliminary review of statutory eligibility for resentencing, a concept
that is a well-established part of the resentencing process under
Propositions 36 and 47. [Citations.] The court’s role at this stage is
simply to decide whether the petitioner is ineligible for relief as a
matter of law, making all factual inferences in favor of the petitioner.”
(Ibid.) The court cautioned that, “[b]ecause the court is only evaluating
whether there is a prima facie showing the petitioner falls within the
provisions of the statute, . . . 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 direct the prosecutor to file a
response to the petition, permit the petitioner (through appointed
counsel if requested) 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.” (Id. at pp. 329-330.)
C. The Record of Conviction Does Not Establish as a Matter of Law
That Defendant is Ineligible For Resentencing
As the Attorney General observes, the record supports defendant’s
allegation in his petition that he “was charged with and could have been
convicted of murder under the natural and probable consequences
theory, even though a theory of malice was alleged in the alternative.”
Although there is evidence that could support a finding that defendant
acted with malice in aiding and abetting the murder, the Attorney
General concedes “there appears to be no reason why as a matter of law
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. . . [defendant’s] claim [that he could not be convicted of murder under
the amended sections 188 and 189] must fail based on [defendant’s]
record of conviction, without resorting to weighing the evidence.” (See
People v. Drayton (2020) 47 Cal.App.5th 965, 980 [the authority to make
determinations of ineligibility under section 1170.95, subdivision (c) “is
limited to readily ascertainable facts from the record (such as the crime
of conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining whether the
petitioner showed reckless indifference to human life in the commission
of the crime)”].)
The Attorney General asks that the People “be given an
opportunity to brief whether any other information in the record of
conviction establishes [defendant’s] ineligibility as a matter of law,” and
that defendant be given an opportunity to file a reply in accordance
with section 1170.95. We conclude they are entitled to those
opportunities.
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DISPOSITION
The judgment is reversed. On remand, the trial court shall
appoint counsel for defendant, allow the People and defendant to
submit briefing in accordance with section 1170.95, subdivision (c), and
determine whether to issue an order to show cause.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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