Filed 2/10/21 P. v. Martin CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306008
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA089862)
v.
JOEL MARTIN,
Defendant and Appellant.
THE COURT:
Appellant and petitioner Joel Martin (defendant) appeals
from an order denying his petition for resentencing pursuant to
Penal Code section 1170.95.1 His appointed counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no
issues. On October 27, 2020, we notified defendant of his
counsel’s brief and gave him leave to file, within 30 days, his own
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
brief or letter stating any grounds or argument he might wish to
have considered. Because defendant's appeal is from an order
denying post-conviction relief, he is not entitled to our
independent review of the record. (See People v. Cole (2020) 52
Cal.App.5th 1028, 1038-1039, review granted Oct. 14, 2020,
S264278; People v. Serrano (2012) 211 Cal.App.4th 496, 503.)
However, as defendant has filed a supplemental brief, he is
entitled to our evaluation of the arguments presented in that
brief. (See People v. Cole, supra, at p. 1040.) We have done so,
and affirm the order.
BACKGROUND
In 2010, defendant was charged with murder in the
shooting death of Carlos Espinoza (Espinoza), in violation of
section 187, subdivision (a). The information alleged pursuant to
section 12022.53, subdivisions (b), (c), and (d), that defendant
personally used a firearm in the commission of the crime and
that he personally and intentionally discharged the firearm,
causing the victim’s death.2 A jury convicted defendant of second
degree murder, but deadlocked on the firearm allegations, and
after declaring a mistrial, a second trial was held solely as to
those allegations. The second jury found the allegations to be
true. (Martin I, supra, B232642 at p. 2.) Defendant was
sentenced to 15 years to life for the murder and a consecutive
term of 25 years to life under section 12022.53, subdivision (d) for
his use of a firearm causing death. Terms for the remaining
firearm enhancements were imposed and stayed. (Ibid.)
2 To the extent necessary, we consider the facts and
procedure set forth in our opinion in People v. Martin (B232642,
February 6, 2013 [nonpub. opn.]), Martin I., affirming the
judgment entered against defendant.
2
The evidence at the first trial showed that two men pulled
up in a van close to Espinoza and a friend. The passenger pulled
out a gun, asked, “You Carlos?” When Espinoza acknowledged he
was, the passenger said, “Fuck you, Carlos,” and fired his weapon
at Espinoza five times. Before Espinoza died, he told
investigators that he knew the shooter from the neighborhood as
“Huero.” After a two-year search, defendant was found living in
New Mexico, detained, and interviewed. Defendant admitted
that his nickname was “Huero” and that he shot Espinoza.
(Martin I, supra, B232642 at pp. 3-4.) The same evidence was
presented at the second trial, after which the jury found the
firearm allegations to be true. (Id. at p. 4.)
In March 2020, defendant filed a petition for resentencing
pursuant to section 1170.95, alleging that defendant was
convicted of murder under the felony murder rule or the natural
and probable consequences doctrine, and could not be convicted
today under the amendments to sections 188 and 189. The trial
court summarily denied the petition on April 8, 2020, based upon
the first jury’s verdict of second degree murder and the second
jury’s finding that defendant personally used and discharged a
firearm in the commission of the murder, causing death.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
In his supplemental brief on appeal, defendant argues that
the trial court erred in considering the preliminary hearing
transcript instead of the trial transcript. Though the trial court
did not indicate specifically what documents the court reviewed,
it does not appear from the record that the court relied on the
preliminary hearing transcript. There is no explanation for the
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reason the superior court clerk included the preliminary hearing
transcript in the record on appeal.
Defendant also contends that the jury would not have
convicted him of second degree murder if it had determined that
he was the actual killer, but would instead have found him guilty
of first degree murder. We disagree. An actual killer is guilty of
murder of the first degree if it was proved that the killing was
willful, deliberate, and premeditated, or committed in the
perpetration of or attempt to perpetrate certain crimes not
relevant here. (See § 189, subd. (a).) When the evidence is
insufficient to establish deliberation and premeditation, but
“‘there is manifested an intention unlawfully to kill a human
being,’” the actual killer is guilty of second degree murder.
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 642, quoting
People v. Swain (1996) 12 Cal.4th 593, 601; see § 189, subd. (b).)
Second degree murder may be based upon a finding of “implied
malice”; that is, the intent to kill is implied when the defendant
commits an act, the natural consequences of which are dangerous
to life, knowing that his act endangers the life of another and acts
with conscious disregard for life. (People v. Soto (2018) 4 Cal.5th
968, 974.)3
3 Defendant apparently confuses implied malice murder with
the natural and probable consequences doctrine, although the
two theories are different. Under the natural and probable
consequence doctrine an aider and abettor of an intended lesser
crime could be found guilty of a more serious but unintended
crime committed by an accomplice, if the more serious crime was
the natural and probable consequences of the intended crime.
(See People v. Chiu (2014) 59 Cal.4th 155, 161.) Following the
2018 amendments to section 188 and 189 enacted by Senate Bill
1437, in order to convict a person of murder, he or she must be
4
When a defendant is convicted of second degree murder, a
finding that the he personally and intentionally used a firearm to
commit the crime supports a further finding that the defendant
was an “actual killer.” Since the changes to sections 188 and 189
are inapplicable to the actual killer, such a person is ineligible for
resentencing under section 1170.95. (People v. Cornelius (2020)
44 Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18, 2020,
S260410.) Defendant argues that the first jury rejected the
firearm allegations, suggesting a finding that he was not the
actual shooter, but an aider and abettor of the actual shooter.
However, the first jury did not reject the firearm allegations, but
was unable to reach a unanimous decision. The second jury, after
hearing the evidence, unanimously found, beyond a reasonable
doubt, that defendant had used a firearm to murder the victim.
A court may properly look to the record of conviction to
determine whether a defendant is eligible for relief under section
1170.95, or whether he is ineligible as a matter of law. As the
record of conviction in this case showed that defendant was
ineligible for section 1170.95 relief as a matter of law, the court
did not err in summarily denying the petition. (See Cornelius,
supra, 44 Cal.App.5th 54 at pp. 57-58; People v. Verdugo (2020)
44 Cal.App.5th 320, 328-330, review granted Mar. 18, 2020,
S260493.)
shown to have harbored an express or implied intent to kill,
which may imputed only if the person was a major participant in
the underlying felony and acted with reckless indifference to
human life. (See § 189, subd. (e); Stats. 2018, ch. 1015, § 2.)
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DISPOSITION
The order denying the petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P.J. ASHMMAN-GERST, J. CHAVEZ , J.
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