People v. Martinez CA2/7

Filed 2/18/21 P. v. Martinez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN

THE PEOPLE, B300317

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA240842-01)
v.

JORGE ESTRADA
MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Affirmed.
Judith Kahn, 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, Charles S. Lee and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
 Jorge Estrada Martinez, convicted in 2008 of first degree
felony murder, appeals the superior court’s postjudgment order
denying his petition for resentencing under Penal Code
section 1170.951 without appointing counsel or conducting an
evidentiary hearing. Because the record of conviction establishes
that Martinez was the actual killer of the victim, Claro Cortes,
and, therefore, is not entitled to relief as a matter of law, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Martinez’s Felony-murder Conviction
As summarized in our opinion affirming Martinez’s
convictions (People v. Martinez (June 22, 2009, B209063)
[nonpub. opn.]), Martinez and Jorge Flores Sandoval went to
Cortes’s hardware store to collect $6,000 Martinez claimed Cortes
owed him for a drug transaction. Martinez and Sandoval were
each armed with a 9-millimeter semiautomatic handgun.
Sandoval walked into the store, saw Cortes speaking with a
customer in one of the aisles and walked toward him. Martinez
followed him into the store and approached Cortes’s wife, Elvia
Cortes, who stood at the cash register. Holding his gun, Martinez
told Elvia it was a robbery and ordered her to open the cash
register. Before she could open the register, shots were fired.
Martinez ran to the back of the store where he saw Cortes
shooting at Sandoval, who also had his gun drawn. In response
Martinez fired at Cortes, emptying his entire clip, before running
from the store. Cortes later died from multiple gunshot wounds.
Martinez and Sandoval were each charged with first degree
murder (§ 187, subd. (a)) while engaged in the commission of an

1 Statutory references are to this code.

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attempted robbery (§ 190.2, subd. (a)(17)), as well as two counts
of attempted robbery (§§ 211 & 664). The information also
alleged a principal was armed with a firearm during commission
of the offenses (§ 12022, subd. (a)(1)), and each man had
personally used and intentionally discharged a firearm
proximately causing death (§ 12022.53, subds. (b), (c) & (d)).
The People tried the case before separate juries on a felony-
murder theory. Martinez and Sandoval were each convicted of
the first degree murder of Cortes and two counts of attempted
robbery. The juries found true the special allegations that the
murder had been committed while Martinez and Sandoval were
engaged in the commission of an attempted robbery; a principal
was armed with a firearm during commission of the offenses; and
Martinez and Sandoval had personally used and personally and
intentionally discharged a firearm. In addition, Martinez’s jury,
but not Sandoval’s, found true the special allegation that he had
personally used and intentionally discharged a firearm that
proximately caused Cortes’s death.
On appeal we rejected Martinez’s and Sandoval’s argument
they were entitled to instructions on self-defense and
second degree murder, made minor modifications to the fines
imposed and custody credits awarded and, as modified, affirmed
the judgments. (People v. Martinez, supra, B209063.)
2. Martinez’s Petition for Resentencing
On May 31, 2019 Martinez, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel. In his petition Martinez declared he could
not now be convicted of first or second degree murder because of
changes made to sections 188 and 189, effective January 1, 2019;
he did not, with the intent to kill, aid or abet the actual killer in

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the commission of murder in the first degree; and he was not a
major participant in the underlying felony and did not act with
reckless indifference to human life during the course of that
felony. Martinez did not check the box on the preprinted form
petition stating he “was not the actual killer.”
The superior court summarily denied the petition on
June 13, 2019. In its order denying the petition the superior
court ruled section 1170.95 was unconstitutional—an argument
not presented in this appeal by the Attorney General—and, in
any event, Martinez was ineligible for relief because, “based upon
the totality of the evidence presented at trial and the overall
court record[,] the petitioner was indeed a major participant who
acted with reckless indifference.”
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020)
10 Cal.5th 830, 842-843 (Gentile))2 and significantly limited the

2 New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189 [governing felony murder],
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.” By
requiring proof of malice except in cases of felony murder,
Senate Bill 1437 thus eliminated natural and probable
consequences liability for murder “regardless of degree.” (Gentile,
supra, 10 Cal.5th at pp. 848, 851.)

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felony-murder exception to the malice requirement for murder.
(See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236;
People v. Bascomb (2020) 55 Cal.App.5th 1077, 1081.)3
Senate Bill 1437 also authorized, through new
section 1170.95, 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 be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
p. 859.) The petition must include a declaration the petitioner is
eligible for relief under section 1170.95 and a statement whether
the petitioner requests the appointment of counsel. (§ 1170.95,
subd. (b)(1); see People v. Verdugo (2020) 44 Cal.App.5th 320,
326-327 (Verdugo), review granted Mar. 18, 2020, S260493.)
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a process for the court
to determine whether an order to show cause should issue: “The
court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the

3 New section 189, subdivision (e)—the exception to
section 188, subdivision (a)(3)’s malice requirement for murder—
permits a murder conviction for a death that occurred during the
commission of certain serious felonies, absent proof of malice,
when other specified circumstances relating to the defendant’s
individual culpability have been proved: the person was the
actual killer; the person was not the actual killer, but, with the
intent to kill, aided or abetted the actual killer in the commission
of first degree murder; or 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.”

5
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.”
The exact nature of this procedure is the focus of
disagreement between People v. Lewis (2020) 43 Cal.App.5th
1128, 1136, review granted March 18, 2020, S260598, Verdugo,
supra, 44 Cal.App.5th 320, review granted, and the many
subsequent cases that have agreed with their interpretation of
section 1170.95, subdivision (c),4 on the one hand, and People v.
Cooper (2020) 54 Cal.App.5th 106, review granted November 10,
2020, S264684, on the other.
In Verdugo we held subdivision (c) prescribes a two-step
process for the court to determine if an order to show cause
should 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, supra,
44 Cal.App.5th at p. 328, review granted.)
As to the first step, we explained, “[B]ecause a petitioner is
not eligible for relief under section 1170.95 unless he or she was

4 See, e.g., People v. Soto (2020) 51 Cal.App.5th 1043, 1054,
review granted September 23, 2020, S263939; People v. Drayton
(2020) 47 Cal.App.5th 965, 975; People v. Torres (2020)
46 Cal.App.5th 1168, 1177, review granted June 24, 2020,
S262011.

6
convicted of first or second degree murder based on a charging
document that permitted the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine (§ 1170.95, subd. (a)(1), (2)), the
court must at least examine 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. Based on a threshold review of these documents, the
court can dismiss any petition filed by an individual who was not
actually convicted of first or second degree murder. The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189.” (Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review
granted.) A petitioner is entitled to appointment of counsel, we
held, only if the superior court does not determine he or she is
ineligible for relief as a matter of law at this first subdivision (c)
prima facie review. (Id. at p. 332; accord, People v. Lewis, supra,
43 Cal.App.5th at p. 1140, review granted.)
The court in People v. Cooper, supra, 54 Cal.App.5th 106,
review granted, disagreed that section 1170.95, subdivision (c),
contemplates two separate steps and held a petitioner is entitled
to counsel upon the filing of a facially sufficient petition for relief
that requests counsel be appointed. (Cooper, at p. 123.) In the
Cooper court’s view, section 1170.95, subdivision (c)’s first
sentence is simply “a topic sentence summarizing the trial court’s
task before issuing an order to show cause, and the following
sentences . . . specify the procedure in undertaking that task,”
meaning there is only one prima facie review before an order to

7
show cause issues. (Cooper, at p. 118.) Thus, once a petitioner
files a facially sufficient petition requesting counsel, the superior
court must appoint counsel before performing any review under
section 1170.95, subdivision (c). (Cooper, at p. 123.)
We do not find persuasive the Cooper court’s interpretation
of section 1170.95, subdivision (c). Unless we receive different
instructions from the Supreme Court, we adhere to the analysis
set forth in Verdugo and the cases that have followed it.5
Once the order to show cause issues, 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, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez, supra, 58 Cal.App.5th at p. 230;
People v. Lopez (2020) 56 Cal.App.5th 936, 949, review granted
Feb. 10, 2021, S265974; but see People v. Duke (2020)
55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309
[prosecutor must only prove a reasonable jury could find the
defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial

5 The Supreme Court will likely resolve this disagreement in
People v. Lewis, supra, S260598, in which briefing and argument
have been limited 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)?”

8
evidence”].)6 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981.)
2. The Superior Court Properly Considered the Record of
Conviction To Determine Whether Martinez Was Eligible
for Relief
Because the People proceeded at trial solely on a theory of
felony murder, Martinez contends his conviction for murder,
without more, established the requisite prima facie case of
eligibility for resentencing and argues the superior court erred in
examining the record of conviction to summarily deny his
petition. Martinez reads the requirement for a prima facie
showing far too narrowly.
Pursuant to section 1170.95, subdivision (a), a prima facie
showing of eligibility for resentencing requires evidence not only
that an individual was charged with murder under a theory of
felony murder or murder under the natural and probable
consequences doctrine and convicted of first or second degree
murder but also that he or she could not now be convicted of

6 In granting review in People v. Duke, S265309, the
Supreme Court limited the issue to be briefed and argued to the
following: “Can the People meet their burden of establishing a
petitioner’s ineligibility for resentencing under Penal Code
section 1170.95, subdivision (d)(3) by presenting substantial
evidence of the petitioner’s liability for murder under Penal Code
sections 188 and 189 as amended by Senate Bill No. 1437
(Stats. 2018, ch. 1015), or must the People prove every element of
liability for murder under the amended statutes beyond a
reasonable doubt?”

9
murder—that is, a prima facie case that he or she could not be
convicted of malice murder as defined in section 188 or felony
murder as now limited by section 189, subdivision (e). As we held
in Verdugo, supra, 44 Cal.App.5th at pages 329 through 330 and
332, review granted, after determining the petition is facially
sufficient and before appointing counsel, the superior court may
examine the readily available portions of the record of conviction
to determine whether the petitioner made this prima facie
showing or whether the record of conviction established, as a
matter of law, that he or she could still be convicted of first or
second degree murder. (Accord, People v. Tarkington, supra,
49 Cal.App.5th at p. 898, review granted [“[t]he court must
determine, based upon its review of readily ascertainable
information in the record of conviction and the court file, whether
the petitioner is statutorily eligible for relief as a matter of law”];
People v. Offley (2020) 48 Cal.App.5th 588, 597 [“[t]he trial court
may examine the record of conviction”].) A court of appeal
opinion, “whether or not published, is part of the appellant’s
record of conviction.” (Verdugo, at p. 333; accord, People v. Lewis,
supra, 43 Cal.App.5th at p. 1136, fn. 7, review granted [“[t]he
record of conviction includes a reviewing court’s opinion”].)
Even under People v. Cooper, supra, 54 Cal.App.5th 106,
review granted, review of the record of conviction is proper on
appeal to determine whether a petitioner is ineligible for relief as
a matter of law. The Cooper court held, although a petitioner has
a statutory right to counsel upon filing a facially sufficient
section 1170.95 petition, the violation of that right is not
structural error, and thus not reversible per se. As the same
panel that decided Cooper explained in People v. Daniel (2020)
57 Cal.App.5th 666, 675, “[T]he failure to appoint counsel upon

10
the filing of a facially sufficient petition under section 1170.95 is
susceptible to review for prejudice. [Citation.] And harmlessness
is established if the record ‘conclusively demonstrate[s] that [the
petitioner] was ineligible for relief as a matter of law.’”7 (Accord,
People v. Law (2020) 48 Cal.App.5th 811, 826, review granted
July 8, 2020, S262490 [any error in failing to appoint counsel was
harmless because counsel would not have been able to
demonstrate petitioner was eligible for resentencing]; People v
Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8,
2020, S262481 [any error in failing to appoint counsel was
harmless because petitioner did not fall within the provisions of
section 1170.95 as a matter of law].)
3. Martinez Is Ineligible for Resentencing as a Matter of
Law as Cortes’s Actual Killer
Section 189, subdivision (e), which permits a felony-murder
conviction only when specified facts relating to the defendant’s

7 The Daniel court held, to demonstrate prejudice, a
petitioner has the burden of establishing it is reasonably probable
that, if he or she had been afforded assistance of counsel, the
petition would not have been summarily denied without an
evidentiary hearing, the standard for state law error established
in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Daniel,
supra, 57 Cal.App.5th at p. 676.) There is no federal
constitutional right to counsel under section 1170.95,
subdivision (c). (Daniel, at p. 675 [“legislation ‘intended to give
inmates serving otherwise final sentences the benefit of
ameliorative changes to applicable sentencing laws,’ including
Senate Bill No. 1437, does not implicate the Sixth Amendment”];
accord, People v. Lopez (2019) 38 Cal.App.5th 1087, 1114-1115,
review granted Nov. 13, 2019, S258175 [the retroactive relief
afforded by Senate Bill 1437 “‘is not subject to Sixth Amendment
analysis’”]; see People v. Perez (2018) 4 Cal.5th 1055, 1063-1064.)

11
individual culpability have been proved, incorporates in
subdivision (e)(3) the same requirements for proving the
defendant acted with reckless indifference to human life as a
major participant in one of the identified serious felonies as
necessary for a felony-murder special-circumstance finding under
section 190.2, subdivision (d). Based upon its review of the
record, the superior court concluded Martinez had been a major
participant in the attempted robbery of Cortes and his wife and
had acted with reckless indifference to human life during those
felonies, making him still liable for felony murder under
section 189, subdivision (e)(3), and, therefore, ineligible for
resentencing under section 1170.95 as a matter of law.
Martinez effectively concedes his jury’s felony-murder
special-circumstance finding on its face seems to satisfy the
current requirements for a felony-murder conviction.
Nonetheless, emphasizing that the factors properly considered in
assessing such a felony-murder special-circumstance finding were
clarified by the Supreme Court in People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 nearly
two decades after his conviction, Martinez argues he is entitled to
an evidentiary hearing to assess his eligibility for resentencing in
light of the Banks/Clark factors. In his respondent’s brief the
Attorney General contends any challenge to the sufficiency of a
pre-Banks/Clark felony-murder special-circumstance finding
must be raised in a petition for writ of habeas corpus, not a
section 1170.95 petition—a position we recently rejected in People
v. Harris (Feb. 16, 2021, B300410) ___ Cal.App.5th ___ [2021
Cal.App. Lexis 127]—and argues, in any event, the record of
conviction established as a matter of law (that is, without any
impermissible factfinding prior to an evidentiary hearing) that

12
Martinez’s actions in Cortes’s store met the Banks/Clark
standards for a major participant acting with reckless
indifference to human life.
We need not address the Banks/Clark issue in this case,
however. As the Attorney General also argues, Martinez was
ineligible for relief as a matter of law based on the jury’s finding
pursuant to section 12022.53, subdivision (d), that he had
personally and intentionally discharged a firearm that
proximately caused Cortes’s death. Martinez, not Sandoval, was
Cortes’s actual killer.8 As the actual killer, Martinez could be
convicted of felony murder under section 189, subdivision (e)(1),
and, therefore, as a matter of law was ineligible for resentencing
under section 1170.95.9 Indeed, we anticipated this exact
situation in Verdugo, supra, 44 Cal.App.5th at page 330, review
granted, where we gave as examples of an individual whose
record of conviction could establish ineligibility for relief as a
matter of law “a petitioner who admitted being the actual killer
as part of a guilty plea or who was found to have personally and
intentionally discharged a firearm causing great bodily injury or

8 As discussed, Sandoval’s jury found true that he had
personally used and personally and intentionally discharged his
firearm pursuant to section 12022.53, subdivisions (b) and (c), but
not that he had personally and intentionally discharged his
firearm proximately causing Cortes’s death under
section 12022.53, subdivision (d).
9 Although the superior court did not base its decision to
summarily deny Martinez’s petition on this ground, we generally
affirm a trial court’s ruling if correct on any ground, even if the
court’s reasoning was incorrect. (See, e.g., People v. Brooks (2017)
3 Cal.5th 1, 39; People v. Chism (2014) 58 Cal.4th 1266, 1295,
fn. 12.)

13
death in a single victim homicide within the meaning of
section 12022.53, subdivision (d).”
Martinez attempts to avoid the clear meaning of the jury’s
findings by noting that the court of appeal in People v. Offley,
supra, 48 Cal.App.5th 588 held the section 12022.53,
subdivision (d), firearm enhancement in that case did not
establish as a matter of law the petitioner could still be convicted
of murder on a ground that remains valid after Senate Bill 1437.
(Offley, at p. 598.) Martinez misreads the court’s analysis in
Offley, which has no applicability to evaluating the significance of
a section 12022.53, subdivision (d), finding on an individual’s
liability for felony murder under current law.
In Offley the petitioner, one of five defendants who took
part in a gang-related shooting, was charged with murder,
attempted murder and shooting into an occupied vehicle. (People
v. Offley, supra, 48 Cal.App.5th at p. 592.) Even though there
was no separate conspiracy count, the People presented evidence
of a conspiracy among the gang members; and the jury was
instructed a member of a conspiracy is guilty not only of the
particular crime he knows his confederates agreed to and
committed, but also for the natural and probable consequences of
any crime of a coconspirator to further the object of the
conspiracy. (Id. at p. 593.) Offley was convicted of the
three crimes charged, and the jury found true that he had
personally used and intentionally discharged a firearm
proximately causing death to the victim. (Ibid.)
The superior court summarily denied Offley’s
section 1170.95 petition at the first stage of the section 1170.95,
subdivision (c), review as described in Verdugo, supra,
44 Cal.App.4th 320, review granted, based on the jury’s true

14
finding of the firearm enhancement. (People v. Offley, supra,
48 Cal.App.5th at p. 597.) The court of appeal reversed. Offley
had arguably been convicted of murder under the natural and
probable consequences doctrine; he had not be charged with, and
the jury was not instructed on, felony murder. In fact, shooting
into an occupied vehicle—the only non-homicide-related charge
against him—could not be the basis for a felony-murder
conviction, even under the law prior to Senate Bill 1437. (See
People v. Chun (2009) 45 Cal.4th 1172, 1200 [a killing during the
course of an inherently dangerous assaultive felony, such as
shooting into an occupied vehicle, is not felony murder].) Thus,
the Offley court held Offley could now be convicted of murder only
upon proof he had acted with express or implied malice when
shooting the victim; and, “[b]ecause an enhancement
under section 12022.53, subdivision (d) does not require that the
defendant acted either with the intent to kill or with conscious
disregard to life, it does not establish that the defendant acted
with malice aforethought.” (Offley, at p. 598.)10 Elaborating on
this point, the court explained, “The jury might have concluded
that Offley intended to take part in a conspiracy to commit
assault with a firearm, or to fire into an occupied vehicle, with

10 The Offley court continued, “Of course, the trial court may
look beyond the abstract of judgment and consider the entire
record of conviction, including any prior Court of Appeal opinions
in the case, in determining whether a petitioner has made a
prima facie case of eligibility. [Citation.] In many instances,
additional information from the record will establish that a
defendant’s conviction was not based on the natural and probable
consequences doctrine, and that the jury must have convicted the
defendant on the basis of his own malice aforethought.” (People
v. Offley, supra, 48 Cal.App.5th at pp. 598-599.)

15
the aim of either injuring or merely frightening Barrales. The
jury could have then concluded that Barrales’s death was the
natural and probable consequence of the conspiracy and
convicted [Offley] of murder without finding beyond a reasonable
doubt that he acted with malice aforethought. For this reason,
we cannot say that Offley ‘is ineligible for relief as a matter of
law.’” (Id. at p. 599.)
Here, in contrast to Offley, Martinez was convicted of
felony murder (murder during the commission of attempted
murder). Today, under section 188, subdivision (e)(1), if a death
occurs during an attempt to perpetrate a robbery, the actual
killer is guilty of first degree felony murder without the need to
prove he or she acted with express or implied malice.
Accordingly, whatever it may or may not prove with regard to
malice, the section 12022.53, subdivision (d), finding in this
single victim case unequivocally established Martinez was the
actual killer of Cortes and is ineligible as a matter of law for
resentencing under section 1170.95.
DISPOSITION
The order denying Martinez’s petition for resentencing is
affirmed.

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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