Filed 8/18/21 P. v. Martinez CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306140
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA361997)
v.
SANTOS MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Renee Korn, Judge. Reversed and remanded.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Noah P. Hill and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.
******
Defendant and appellant Santos Martinez (defendant)
appeals from the summary denial of his petition for resentencing
under Penal Code section 1170.95.1 Defendant contends that the
trial court was required to appoint counsel and permit briefing
prior to determining defendant’s eligibility for relief. We agree
with defendant and remand for issuance of an order to show
cause and further proceedings consistent with subdivision (d) of
section 1170.95.
BACKGROUND
The 2013 murder conviction
In 2013 a jury convicted defendant of first degree murder
with findings that a principal personally used and intentionally
discharged a firearm causing great bodily injury or death and
that the crime was committed for the benefit of a criminal street
gang. The trial court sentenced defendant to a term of 50 years
to life in prison. On direct appeal, we affirmed the judgment in
People v. Martinez (Dec. 10, 2014, B253468) (nonpub. opn.)
(Martinez I).2
Trial evidence
At the time of the murder, both defendant and his
codefendant Francisco Gutierrez were active members of the
Playboys gang, and the victim Angel Bautista was a member of a
rival gang. Bautista and a friend were waiting outside a market
one evening in August 2007, when defendant approached, issued
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 We summarize procedural history and trial evidence from
Martinez I, as did the parties.
2
a gang challenge and then fought with him. Gutierrez, wearing
black clothing and a black ski mask, emerged from the passenger
side of a sports utility vehicle (SUV) belonging to defendant and
fatally shot Bautista three times with a shotgun. The SUV left
the scene at a high rate of speed and soon crashed into a wall in
an alley near the market.
When police officers found the SUV the keys were in the
ignition and the air bags had deployed. Defendant’s DNA was
found in blood on the airbags and other interior objects, as well as
on the broken rearview mirror. After his arrest in 2009,
defendant was recorded telling a cellmate that he knew he was
“fighting a murder case,” that he “pulled the job,” crashed his car
and left blood in the car, and that the police had his DNA.
The section 1170.95 petition
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.), which amended section 188 to provide in
subdivision (a)(3) that “in order to be convicted of murder [except
felony 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.” This provision “bars
a conviction for first or second degree murder under a natural
and probable consequences theory.” (People v. Gentile (2020) 10
Cal.5th 830, 846.)3
3 Until this amendment, “when a person aided and abetted a
nonhomicide crime that then resulted in a murder, the natural
and probable consequences doctrine allowed him or her to be
convicted of murder without personally possessing malice
aforethought. So long as the direct perpetrator possessed malice,
and the killing was a natural and probable consequence of the
crime the defendant aided and abetted, it did not matter whether
3
Section 1170.95 was added by Senate Bill No. 1437 (2017-
2018 Reg. Sess.) to provide a procedure by which those convicted
of murder can seek retroactive relief if the changes in sections
188 or 189 would affect their previously affirmed convictions.
(People v. Martinez (2019) 31 Cal.App.5th 719, 722.) As relevant
here, a person is entitled to relief under section 1170.95 if he was
convicted of murder under the natural and probable
consequences theory and all of the following conditions apply: (1)
“[a] complaint, information, or indictment was filed against [him]
that allowed the prosecution to proceed under a theory of . . .
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of first degree or second degree murder
following a trial,” and (3) he “could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a).)
In February 2020, defendant filed a petition for
resentencing under section 1170.95. On April 16, 2020, after a
reviewing the court’s file, including our appellate opinion in
Martinez I, the trial court found defendant ineligible for relief
under section 1170.95 and summarily denied the petition. The
trial court issued a memorandum of decision explaining its ruling
as follows:
“Notably, the Court of Appeal for the Second District
has previously ruled on the underlying issues of fact
in this case in Martinez. Petitioner was convicted of
first degree murder. In affirming that conviction, the
Court of Appeal[] held that Petitioner Martinez was
not convicted under a theory of felony-murder of any
the defendant intended to kill or acted with conscious disregard
for human life.” (People v. Gentile, supra, 10 Cal.5th at p. 845,
citing People v. Chiu (2014) 59 Cal.4th 155, 165-166.)
4
degree, or on an aider abettor theory of natural and
probable consequences. ‘In this case, the prosecutor’s
arguments and the evidence leaves no reasonable
doubt that the jury based its first degree murder
verdict on one of two valid legal theories: that the
defendant directly aided and abetted the crime of
first degree murder, or that defendant was guilty of
first degree murder under a conspiracy theory.’ The
Court of Appeal[] specifically found that counsel’s
arguments and the instructions made clear that the
jury could not find defendant Martinez guilty of first
degree murder unless he harbored the required
mental state of intent to kill. Accordingly, in
affirming Petitioner’s first degree murder conviction,
the Court of Appeal[] found that jurors found the
Petitioner had intent to kill the victim.”
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that that the summary denial of his
petition without first appointing counsel and permitting briefing
was error and resulted in a violation of his federal constitutional
rights to due process and the assistance of counsel.
Defendant relies on People v. Cooper (2020) 54 Cal.App.5th
106 (Cooper), review granted November 10, 2020, S264684, which
held “that when a petitioner files a facially sufficient petition
requesting counsel, . . . the trial court must appoint counsel and
give the parties an opportunity to submit briefing before denying
the petition.” (Id. at p. 112.)
In People v. Lewis (July 26, 2021, S260598) ___ Cal.5th ___
[2021 Cal.LEXIS 5258] (Lewis), our Supreme Court agreed with
Cooper and held that if a defendant files a facially compliant
petition and requests the appointment of counsel, the trial court
5
must appoint counsel and entertain further briefing regardless of
whether the record of conviction unequivocally demonstrates that
the defendant is not entitled to relief. (Id. at pp. 10, 15.) Only
after such further briefing does the trial court determine whether
a petitioner has made a prima facie case for relief under section
1170.95, subdivision (c). (Lewis, at p. 29.) The trial court and
“the parties can, and should, use the record of conviction to aid
the trial court in reliably assessing whether” the petitioner has
done so. (Id. at p. 32.) Not until that time may the trial court
deny the petition where the record of conviction shows as a
matter of law that the petitioner is not eligible for relief. (Id. at
pp. 30-31.)
As defendant’s petition was facially compliant and he
requested counsel, Lewis dictates the conclusion that the trial
court erred in summarily denying defendant’s petition. Lewis
provides that error in summarily denying a section 1170.95
petition is reviewed under the standard of People v. Watson
(1956) 46 Cal.2d 818, 836, and thus any such error is harmless
unless the defendant can show “‘“it is reasonably probable that if
[he or she] had been afforded assistance of counsel [and briefing]
his [or her] petition would not have been summarily denied
without an evidentiary hearing.”’” (Lewis, supra, 2021
Cal.LEXIS at p. 36.) Here, the trial court appears to have
primarily relied on our opinion in Martinez I. Defendant has
cited other parts of the record of conviction, such as jury
instructions and the prosecutor’s arguments to the jury, which
demonstrate a reasonable probability that appointed counsel
would have persuaded the court not only to grant the petition,
but also to issue an order to show cause, as we explain.
6
A petitioner is ineligible for relief under section 1170.95 as
a matter of law if, like defendant, he was not convicted of felony
murder or murder under a natural and probable consequences
theory. (People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-
1167; see § 1170.95, subd. (a).) Defendant brought a direct
appeal from his 2013 judgment of conviction, challenging the
jury’s finding of first degree murder. (Martinez I, supra,
B253468.) In that appeal he argued that the jury instructions
improperly permitted the jury to convict him of first degree
murder as an aider and abettor under the natural and probable
consequences doctrine. (Ibid.)
In our 2014 holding we found the jury instructions given to
be deficient as the jury was instructed that it could find
defendant guilty of murder under two alternate theories of aiding
and abetting: directly aiding and abetting the shooting
(CALCRIM No. 401) or by aiding and abetting the target crime
with murder as the natural and probable consequence
(CALCRIM No. 403). The jury was specifically not told that
defendant could not be guilty of first degree premeditated murder
under the natural and probable consequences doctrine (People v.
Chiu, supra, 59 Cal.4th 155). We then determined that based on
the evidence and arguments made at trial there was no
reasonable doubt that the jury reached its verdict on one of two
then valid legal theories: that defendant was a direct aider and
abettor of first degree murder or that he was guilty of murder
under a conspiracy theory. (Martinez I, supra, B253468.)
Viewing Martinez I through the lens of current criminal
law in California, we readily see that the conspiracy theory
advanced in defendant’s trial is no longer a valid theory of
conviction for murder. (See People v. Offley (2020) 48
7
Cal.App.5th 588, 599.) Therefore it is impossible to now conclude
that the record of conviction shows as a matter of law that
defendant was not convicted under the natural and probable
consequence doctrine as alleged in his section 1170.95 petition.
Rather, a determination of defendant’s entitlement to
resentencing is properly made upon an evidentiary hearing
pursuant to the procedures and burden of proof set forth in
section 1170.95, subdivision (d). (Lewis, supra, 2021 Cal.LEXIS
5258.)
DISPOSITION
The order denying the petition for resentencing is reversed.
The matter is remanded to the superior court for the issuance of
an order to show cause and further proceedings in accordance
with Penal Code section 1170.95, subdivision (d).
___________________________
CHAVEZ, J.
We concur:
______________________________
ASHMANN-GERST, Acting P. J.
______________________________
HOFFSTADT, J.
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