People v. Martinez CA2/3

Filed 9/22/21 P. v. Martinez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

THE PEOPLE, B301347

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA066428-02
v.

JONATHAN PETER MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Affirmed.

Gail Harper, under appointment by the Court of Appeal,
for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
 Jonathan Peter Martinez appeals from the superior court’s
order denying his petition under Penal Code section 1170.95.1
That statute allows certain defendants convicted of murder under
the felony-murder rule or the natural and probable consequences
doctrine to petition the court to vacate their convictions and
for resentencing. Martinez was not tried for or convicted of
murder under the felony-murder rule or the natural and
probable consequences doctrine. Accordingly, he is not eligible
for resentencing as a matter of law and the trial court properly
denied his petition. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The crimes, conviction, and appeal
As the facts of Martinez’s crimes are irrelevant to our
analysis, we summarize them only briefly.2
On the evening of July 22, 2001 a woman who was in
her backyard in Downey heard two gunshots. She peered into
the alley behind her yard and saw two men “ ‘casually’ ” walking
away from a two-door car stopped in the alley. She called the
police. A responding officer found the bodies of Rudy Estrada
and his wife or girlfriend Gabrielle Almaraz in the driver’s and
front passenger seats of the car. Each victim had been shot once

1 References to statutes are to the Penal Code.
2 We previously granted Martinez’s request that we take
judicial notice of “the entire record[ ]” in his direct appeal and
the related habeas proceeding, People v. Martinez (Mar. 29, 2004,
B164263, B171001) [nonpub. opn.] (Martinez I). As the truth of
the facts of the crimes recited in Martinez I are not necessary
for our resolution of this appeal, we summarize them only for
the basis of Martinez’s conviction. (See People v. Woodell (1998)
17 Cal.4th 448, 459-460.)

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in the head at the left ear. Estrada had been shot at point blank
range, with the gun’s muzzle touching his skin, and Almaraz had
been shot from a distance of less than three feet. (Martinez I.)
Martinez’s palm print and fingerprint were found on
the outside of the car. Police also found a fingerprint belonging
to Jacob Crespin. After speaking with Crespin, authorities
identified Martinez as a suspect. Police arrested Martinez,
who at first “denied knowing anything about the killings.”
Eventually, Martinez told detectives he, Crespin, and Estrada
“were friends and ‘home boys.’ ” Martinez claimed Crespin
shot the victims without warning. Martinez admitted having
“handled the gun earlier in the day,” but he denied having
“provided” it to Crespin. Martinez told the detectives he and
Crespin were both in the back seat and he “pushed the seat
in front of him forward,” got out, and ran. Forensic evidence
presented at trial contradicted Martinez’s account. (Martinez I.)
The People charged Martinez and Crespin with two counts
of murder. The information alleged Crespin personally used
and discharged a firearm. Martin’s motion to sever his trial
from Crespin’s was granted. Crespin was tried first and
acquitted of both murders. In Martinez’s trial the jury convicted
him of two counts of first degree murder. The trial court
sentenced Martinez to 50 years to life in prison. (Martinez I.)
The trial court instructed Martinez’s jury on direct
aiding and abetting (CALJIC Nos. 3.00 and 3.01) and first
and second degree murder (CALJIC Nos. 8.00, 8.10, 8.20,
and 8.30). The court’s murder instructions also included
the definition of “malice aforethought” (CALJIC No. 8.11).
The court did not instruct the jury on the felony-murder rule
or the natural and probable consequences doctrine.

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 In March 2004, we affirmed Martinez’s conviction
and denied his related petition for a writ of habeas corpus.
(Martinez I.)
2. The section 1170.95 petition
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) took effect, on June 17, 2019 Martinez filed a petition
for resentencing. On a downloadable form, Martinez checked
boxes 1, 2a, 3, 4, 5 and its subboxes, and 6. On box 6, Martinez
crossed out “2nd degree” and wrote “1st degree.” Accordingly,
by checking the boxes, Martinez declared he had been convicted
of murder under the felony-murder rule or the natural and
probable consequences doctrine. The petition had no
attachments or exhibits.
The trial court appointed counsel for Martinez. On
August 7, 2019, the prosecution filed a response to Martinez’s
petition. The prosecution contended Martinez was not entitled to
relief under Senate Bill 1437 because his jury was not instructed
on either felony murder or “a natural and probable consequences
theory of culpability”; therefore he was not convicted under either
of those doctrines.3 The prosecution attached copies of Martinez I
and of the jury instructions given at Martinez’s trial.
On August 28, 2019, Martinez’s counsel filed a reply
on his behalf. Counsel argued that—by checking the boxes
on the form—Martinez had “made a prima facie case for relief”
and the court was required to issue an order to show cause

3 The district attorney also argued at length that Senate
Bill 1437 was unconstitutional. The trial court did not address
that contention. On appeal, the Attorney General concedes
Senate Bill 1437 and section 1170.95 are constitutional.

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and schedule a hearing at which the prosecution had “to prove
beyond a reasonable doubt why relief should not be granted.”
On September 11, 2019, counsel appeared before the court.
Martinez was not present. The court stated it had received
the petition, the prosecution’s response, and Martinez’s reply.
The court asked, “Does either side wish to be heard?” The
prosecutor stated he’d submit on the paperwork, noting,
“This case does not involve felony murder or natural and
probable consequences. It looks like the jury was not instructed
on that issue. And because of that, I don’t think this murder
qualifies under 1170.95.”
Martinez’s counsel said,
“The only thing I will say, Your Honor, is that
in order to establish a prima facie case the bar
is set pretty low. And our position is that once
a petitioner files a petition and checks all of
the appropriate boxes, then there is a sufficient
showing of a prima facie case in order for the
court to issue an order to show cause as to why
relief should not be granted. Now certainly
it’s not a decision on the merits of the case.
But in terms of the prima facie case part of
the analysis, I think it’s sufficient. Submitted.”
The court stated if “just checking off all the boxes” were
enough to establish a prima facie case, then all courts “would
be wrong in . . . denying any relief on habeas [petitions].”
The court continued,
“But I don’t think that’s the case. I think you
do have to show a prima facie case. And I do
submit that it is a low standard . . . . But there

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 has to be something that, if true, would support
the finding of a prima facie case that they
would be entitled to relief. [¶] But here under
1170.95, it only applies to murder convictions
in which the People sought the conviction
under the theory of either felony murder or
natural and probable consequences. And
they were not instructed on those theories.
The People did not proceed on those theories.
So I do not believe there is a prima facie case
that has been established. And for those
reasons, the petition is denied.”
Martinez appealed and we appointed counsel to represent
him. On January 27, 2020, Martinez filed an application to
augment the record with a settled statement. Martinez noted
the trial court had not stated what materials it relied on—other
than the parties’ submissions and their exhibits—in denying
the petition. On February 24, 2020, we issued an order that the
trial court “prepare a report, in minute order form, identifying
all documents the court reviewed in connection with its denial of
the Penal Code section 1170.95 petition.” On February 26, 2020,
the trial court issued a minute order “identifying all documents
[the] court relied on in reaching its decision.”
“1. The petition for resentencing pursuant
to Penal Code section 1170.95 filed by
defendant[;] [¶]
“2. The People’s response to [the] 1170.95
petition and all attached exhibits filed
8/7/2019[;] [¶]

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 “3. The petitioner’s reply to the People’s
response filed 8/28/2019[;] [¶]
“4. The court of appeal opinion affirming
the conviction filed 3/29/2004 (contained
in court file and as exhibit to People’s
response)[;] [¶]
“5. The jury instructions given to the jury
(contained in the court file)[;] [¶]
“6. The verdict form finding petitioner guilty
of first degree murder (contained in court
file)[;] [¶]
“7. The preliminary hearing transcript
(contained in court file)[.]”
DISCUSSION
1. Senate Bill 1437
Senate Bill 1437 took effect on January 1, 2019. (See
Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder, to ensure a
person’s sentence is commensurate with his or her individual
criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830,
842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e). It provides that a participant
in the perpetration of qualifying felonies is liable for felony
murder only if the person: (1) was the actual killer; (2) was
not the actual killer but, with the intent to kill, acted as a
direct aider and abettor; or (3) was a major participant in the
underlying felony and acted with reckless indifference to
human life as described in section 190.2, subdivision (d).

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(See People v. Gentile, supra, 10 Cal.5th at p. 842.) It amended
the natural and probable consequences doctrine by adding
subdivision (a)(3) to section 188, which states that “[m]alice
shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby individuals convicted of murder under a
now-invalid felony-murder or natural and probable consequences
theory may petition to vacate their convictions and be
resentenced. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
charged with murder by means of a charging document that
allowed the prosecution to proceed under a theory of felony
murder or under the natural and probable consequences doctrine,
(2) he must have been convicted of first or second degree murder,
and (3) he could no longer be convicted of first or second degree
murder due to changes to sections 188 and 189 effectuated by
Senate Bill 1437. (§ 1170.95, subd. (a).)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he falls
within the provisions of section 1170.95 and is entitled to relief,
the superior court properly examines the record of conviction,
“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th
at p. 971.) However, “the prima facie inquiry under [section
1170.95,] subdivision (c) is limited. Like the analogous prima
facie inquiry in habeas corpus proceedings, ‘ “the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled
to relief if his or her factual allegations were proved. If so,

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the court must issue an order to show cause.” ’ . . . ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court
is justified in making a credibility determination adverse to
the petitioner.” ’ ” (Ibid.)
To be eligible for resentencing, Martinez was required
to show that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189” made by Senate
Bill 1437. (§ 1170.95, subd. (a)(3).) The jury instructions given
at Martinez’s trial conclusively demonstrate he cannot make
that showing. “[P]otential relief under section 1170.95 extends
only to those convicted of murder by operation of the natural and
probable consequence doctrine or of felony murder.” (People v.
Soto (2020) 51 Cal.App.5th 1043, 1056, review granted Sept. 23,
2020, S263939; People v. Lee (2020) 49 Cal.App.5th 254, 263-265,
review granted July 15, 2020, S262459.) Where the record
shows, as a matter of law, that the petitioner was not tried
under either of those theories, he necessarily was convicted
on a theory that survives the changes to sections 188 and 189
enacted by Senate Bill 1437.
Martinez’s jury was not instructed on either the natural
and probable consequences doctrine or the felony-murder rule.
Therefore, he could not have been convicted based on either of
those theories. (See, e.g., People v. Soto, supra, 51 Cal.App.5th
at pp. 1054-1055 [trial court may rely on jury instructions
when determining whether petitioner has made a prima facie
showing of entitlement to relief]; cf. People v. Nguyen (2020)
53 Cal.App.5th 1154, 1157, 1167-1168 [petitioner not entitled
to relief where he was convicted as direct aider and abettor,

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and not of felony murder or murder under a natural and probable
consequences theory].)
Martinez concedes “[t]he prosecutor pursued a straight
aiding and abetting theory to obtain the murder convictions”
at his trial, and he “was not tried on a felony murder theory.”
He contends, however, that he made “a prima facie showing
he was entitled to relief” and the court should have issued an
order to show cause because he “was convicted on the basis that
he shared Crespin’s intent to kill, where a separate jury found
Crespin did not intend to kill.” There are two problems with
this argument.
First, as we noted in Martinez I, “[t]he fact that a principal
is acquitted does not preclude the aider and abettor’s conviction.
(Standefer v. United States (1980) 447 U.S. 10, 21-25; People v.
Wilkins (1994) 26 Cal.App.4th 1089, 1093.)”
Second, Martinez never made this argument in the trial
court. He therefore has forfeited it. (People v. Rodriguez (2019)
40 Cal.App.5th 194, 203-204.) In any event, we know nothing
about why Crespin’s jury acquitted him. Martinez speculates
it was because the jury “found Crespin did not intend to kill.”
However, the jury could have acquitted Crespin for some other
reason—for example, because the prosecution had not proved
the identity of the shooter beyond a reasonable doubt.
Finally, even though he concedes he was not tried for felony
murder or under the natural and probable consequences doctrine,
Martinez seems to contend that—because he checked the boxes
on the form—his “petition was facially sufficient.” Citing People
v. Drayton (2020) 47 Cal.App.5th 965, 979, Martinez asserts
“[t]he facts alleged in the petition are taken as true unless
‘irrefutably contradicted’ by readily accessible facts in the record.”

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Here, however, Martinez’s checked boxes claiming he was
convicted under the felony-murder rule or the natural and
probable consequences doctrine are irrefutably contradicted
by readily accessible facts in the record: the jury instructions
given at his trial—instructions on which the trial court relied
and which Martinez himself has asked us, on appeal, judicially
to notice. As we have said, in Lewis our Supreme Court
instructed “the parties can, and should, use the record of
conviction to aid the trial court in reliably assessing whether
a petitioner has made a prima facie case for relief under
subdivision (c).” (Lewis, supra, 11 Cal.5th at p. 972.)

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 DISPOSITION
We affirm the superior court’s order denying Jonathan
Peter Martinez’s petition to vacate his murder conviction and
for resentencing under Penal Code section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

KALRA, J.


Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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