People v. Martinez CA2/5

Filed 11/16/20 P. v. Martinez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

THE PEOPLE, B298649

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. KA088341)

v.

LUIS MARTINEZ et al.,

Defendants and
Appellants.

APPEAL from orders of the Superior Court of Los
Angeles County, Robert Perry, Judge. Reversed and
remanded.
Jonathan E. Demson, under appointment by the Court
of Appeal, for Defendant and Appellant Luis Martinez.
Steven Schorr, under appointment by the Court of
Appeal, for Defendant and Appellant Efrain Prado.
 Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Charles S. Lee and
Stephanie C. Santoro, Deputy Attorneys General, for
Plaintiff and Respondent.
__________________________

Defendants and appellants Luis Martinez and Efrain
Prado appeal from the denial of their petitions for
resentencing pursuant to Penal Code section 1170.951 and
Senate Bill No. 1437 (Senate Bill 1437). Defendants
contend, and the People concede, that the trial court erred by
(1) denying their petitions on the ground that Senate Bill
1437 is unconstitutional, and (2) summarily denying
defendants’ petitions without first appointing counsel. We
reverse the trial court’s orders and remand for further
proceedings in accordance with section 1170.95, subdivision
(c).

1 All further statutory references are to the Penal Code
unless otherwise indicated.

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 PROCEDURAL HISTORY2

In separate jury trials, Martinez and Prado were
convicted of the first degree murder of Marquise Le Blanc on
April 17, 2009. (§ 187, subd. (a).) Defendants were among
nine people charged with killing LeBlanc in a brutal mass
beating. LeBlanc ultimately died of a fatal stab wound to
the heart, which was followed by a fatal gunshot to the head.
Although defendants participated in the beating, neither
was charged with stabbing or shooting LeBlanc. Instead,
both were tried as aiders and abettors in the attack that
resulted in LeBlanc’s death.
In both cases, the jury found that the murder was
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)), and that a principal personally and
intentionally discharged a firearm proximately causing the
victim’s death (§ 12022.53, subds. (d), (e)(1)). Defendants
were sentenced to 50 years to life in state prison. We
affirmed the judgment in both cases.
Following our Supreme Court’s decision in People v.
Chiu (2014) 59 Cal.4th 155, which held that an aider and
abettor may not be convicted of first degree premeditated
murder under the natural and probable consequences
doctrine, we reversed Prado’s and Martinez’s convictions and

2 The summary of the underlying proceedings is taken
from our prior unpublished opinions in People v. Martinez
(Jan. 9, 2014, B242710) and People v. Prado (Mar. 6, 2014,
B243204).

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permitted the prosecution to retry defendants or accept
reduced convictions of second degree murder. (People v.
Prado et al. (Jan. 13, 2015, B243204 [nonpub. opn.].) The
People elected not to retry defendants, and their convictions
were reduced to second degree murder.
On September 30, 2018, the Governor signed Senate
Bill 1437. (People v. Martinez (2019) 31 Cal.App.5th 719,
722.) “The legislation, which became effective on January 1,
2019, addresses certain aspects of California law regarding
felony murder and the natural and probable consequences
doctrine by amending Penal Code sections 188 and 189, as
well as by adding Penal Code section 1170.95, which
provides a procedure by which those convicted of murder can
seek retroactive relief if the changes in law would affect
their previously sustained convictions.” (Id. at pp. 722–723.)
In February 2019, defendants both petitioned to be
resentenced under section 1170.95, and requested that
counsel be appointed to them. The People opposed both
petitions, arguing that Senate Bill 1437 was
unconstitutional.
On March 22, 2019, the trial court denied both
petitions because it concluded that, based on the facts as
recited in our unpublished opinions, defendants both
intended to kill LeBlanc. Alternatively, the trial court found
section 1170.95 unconstitutional for impermissibly
amending Propositions 7 and 115, violating Marsy’s Law,
and violating the separation of powers doctrine with respect
to the powers of the judiciary and the governor.

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 DISCUSSION

On appeal, defendants argue that section 1170.95 and
Senate Bill 1437 are constitutional, and that they were
entitled to appointment of counsel because they alleged facts
that, if proven true, would entitle them to relief. Prado
additionally argues that the trial court erred by considering
the People’s opposition prior to appointing him counsel and
considering his reply. Defendants assert that the cause
must be remanded with instructions to the trial court to
appoint counsel, issue an order to show cause, and hold a
hearing to determine their entitlement to relief.
The People agree that section 1170.95 and Senate Bill
1437 are constitutional. The People also agree that
defendants are entitled to counsel, but for a different reason:
because the record does not demonstrate that defendants are
ineligible for relief under section 1170.95 as a matter of law.
We agree with the parties that Senate Bill 1437 and
section 1170.95 are constitutional. Contrary to defendants’
position that a trial court is required to appoint counsel even
absent a prima facie showing, we have previously held that a
petitioner is entitled to counsel only after he “has made a
prima facie case that he falls within [the statute’s]
provisions” as required by section 1170.95, subdivision (c),
and we maintain that view.3 (People v. Torres (2020) 46

3 Although we hold that a petitioner is entitled to
counsel only after making a prima facie showing that he falls
within section 1170.95’s provisions, our holding does not

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Cal.App.5th 1168, 1177–1178 (Torres), review granted June
24, 2020, S262011; see also People v. Smith (2020) 49
Cal.App.5th 85, 92 (Smith), review granted July 22, 2020,
S262835.) However, because we conclude that defendants
have made the initial prima facie showing under section
1170.95, subdivision (c), they are nonetheless entitled to
appointment of counsel.4

Constitutionality

The trial court denied defendants’ petitions on the
basis that Senate Bill 1437 unconstitutionally (1) amends
section 190, which was passed by referendum in 1978
through Proposition 7, and cannot be amended or repealed
except by the people’s vote; (2) amends Proposition 115
without a two-thirds majority vote; (3) conflicts with Marsy’s
Law (Art. 1, § 28, subd. (a)(6), § 29); (4) violates the
separation of powers with respect to the governor’s power of
clemency; and (5) violates the separation of powers with
respect to the judiciary’s power to resolve specific
controversies. The People concede, and we agree, that this
was error.

preclude a trial court from appointing counsel at an earlier
stage of the proceedings in its discretion.

4 Because we reverse for the trial court to appoint
counsel and conduct further proceedings, we need not decide
whether the court erred by considering the People’s
opposition in Prado’s case.

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 We have previously held that Senate Bill 1437 does not
unconstitutionally amend Proposition 7, and we have no
reason to deviate from our prior holding. (Smith, supra, 49
Cal.App.5th at pp. 91–92.) The remaining constitutional
challenges have been considered and rejected by numerous
courts. (People v. Lamoureux (2019) 42 Cal.App.5th 241;
accord People v. Nash (2020) 52 Cal.App.5th 1041; People v.
Lopez (2020) 51 Cal.App.5th 589; People v. Alaybue (2020) 51
Cal.App.5th 207; People v. Johns (2020) 50 Cal.App.5th 46;
People v. Prado (2020) 49 Cal.App.5th 480; People v. Bucio
(2020) 48 Cal.App.5th 300; People v. Solis (2020) 46
Cal.App.5th 762; People v. Cruz (2020) 46 Cal.App.5th 740;
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th
270.) We agree with the results reached in these cases, and
as the parties are also in agreement that Senate Bill 1437 is
not unconstitutional on any of these bases, we do not address
the issue further here.

Merits and Appointment of Counsel

Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under the natural and probable consequences
doctrine can petition to have his or her conviction vacated
and be resentenced. Section 1170.95 initially requires a
court to determine whether a petitioner has made a prima
facie showing that he or she falls within the provisions of the
statute as set forth in subdivision (a), including that “(1) [a]

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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) [t]he petitioner was
convicted of first degree or second degree murder following a
trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree
murder[, and] [¶] (3) [t]he petitioner could not be convicted of
first or second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.” (See § 1170.95,
subd. (c).) If it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the
trial court may deny the petition.5 (People v. Verdugo (2020)
44 Cal.App.5th 320, 323, 329–330 (Verdugo), review granted
Mar. 18, 2020, S260493.) If, however, a determination of
eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court
must appoint counsel and permit the filing of the

5 For example, if the jury was not instructed on a
natural and probable consequences or felony murder theory
of liability, the petitioner could not demonstrate eligibility as
a matter of law because relief is restricted to persons
convicted under one of those two theories. (See People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138–1139 (Lewis),
review granted Mar. 18, 2020, S260598 [appellate court
opinion holding that jury convicted defendant of murder as a
direct aider and abettor barred defendant from relief as a
matter of law].)

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submissions contemplated by section 1170.95. (Id. at p. 330;
Lewis, supra, 43 Cal.App.5th at p. 1140.)
Here, the trial court denied both defendants’ petitions
on the basis of an analysis of the facts underlying their
convictions without first allowing them the opportunity to
file briefs with the assistance of counsel. We disagree with
defendants that a trial court is required to appoint counsel
even absent a prima facie showing. (Torres, supra, 46
Cal.App.5th at pp. 1177–1178; Smith, supra, 49 Cal.App.5th
at p. 92.) However, because we have concluded that Senate
Bill 1437 and section 1170.95 are constitutional, and we can
discern no basis in the record for barring either defendant
from eligibility as a matter of law, defendants must be
permitted to proceed to the next stage of review under
section 1170.95, subdivision (c), in which the trial court
evaluates, after appointment of counsel (as requested) and
briefing, whether the facts and circumstances of the
offense(s) prevent the petitioner from making “a prima facie
showing that [he] is entitled to relief.”

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 DISPOSITION

The trial court’s orders denying Martinez and Prado’s
resentencing petitions are reversed. We remand for the trial
court to appoint counsel and conduct further proceedings in
accordance with the terms of section 1170.95.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.

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