Filed 11/29/21 P. v. Martinez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B306457
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA095527)
JOSE ANGEL MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Reversed and
remanded.
Law Office of Steven Schorr and Steven Schorr, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Jose Angel
Martinez (defendant) in 2017 of first degree murder and arson.
He and an accomplice killed victim Christopher Waters and
burned his body in an effort to avoid capture for the crime.
(People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez I).)
After defendant’s conviction, the Legislature passed and
the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437). The legislation, which took effect on January
1, 2019, “‘amend[s] the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).) Substantively, Senate Bill 1437 accomplishes this by
amending [Penal Code] section 188, which defines malice, and
[Penal Code] section 189, which defines the degrees of murder,
and as now amended, addresses felony murder liability. Senate
Bill 1437 also adds [to the Penal Code] . . . section 1170.95, which
allows those ‘convicted of felony murder or murder under a
natural and probable consequences theory . . . [to] file a petition
with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts . . . .’ ([Pen. Code, ]§ 1170.95, subd. (a).)”
(Martinez I, supra, 31 Cal.App.5th at 723.)
On direct appeal, this court affirmed defendant’s
conviction. (Martinez I, supra, 31 Cal.App.5th at 730.) Among
other things, we held defendant was not entitled to seek relief on
direct appeal based on the changes in law made by Senate Bill
1437; instead, we held he must seek such relief via the
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petitioning procedure provided by Penal Code section 1170.95.
(Id. at 727-729.)
With his avenues for direct appeal in California courts
exhausted, defendant filed a Penal Code section 1170.95 petition
in the trial court in May 2019. Via boxes checked on the form
petition, defendant asserted he was convicted of murder at trial
pursuant to the felony murder rule or the natural and probable
consequences doctrine and he could not be convicted of murder
under current law because of the aforementioned changes in
murder law made by Senate Bill No. 1437. The People opposed
the petition in the trial court, arguing defendant could still be
convicted of murder under current law as a direct aider and
abettor who harbored an intent to kill or as a major participant
who acted with reckless indifference to human life. 1 In reply,2
defendant argued the jury was instructed on the natural and
probable consequences doctrine (a doctrine that can no longer
support murder liability under current law) and also made no
finding as to whether defendant was a major participant who
acted with the requisite reckless indifference.
The trial court denied defendant’s Penal Code section
1170.95 petition. Discussing the evidence presented at trial, the
court found “the evidence was consistent with . . . [defendant
being] . . . active, engaged, part of this killing, not just sidelines,
1
The People also argued defendant could be convicted as a
“direct perpetrator in the attack and killing,” but did not argue
he was the “actual killer.” The People conceded it was “not clear
what the exact roles [defendant] or his accomplice took in
wrapping the electrical cord around the victim’s neck . . . .”
2
Counsel retained by defendant filed the reply brief.
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not just standby, not just accessory after the fact.” The court
stated its view that the evidence “supports a premeditated lying
in wait, which clearly means that the defendant would be guilty
of a first degree,” the evidence “supports a clear aiding and
abetting,” and the evidence indicates defendant was “up to his
elbows, so to speak, in this crime[—] involved and active.” The
trial court conceded “we don’t know what the jury—what theory
[of murder] they ultimately agreed upon,” but observed it was not
then necessary to ask the jury what theory it agreed on and
believed it was not “fair to the prosecution to say, ‘Well, we
should have asked now in hindsight,’ because we didn’t have to.”
Now on appeal, the People represented by the Attorney
General concede the trial court’s denial of defendant’s Penal Code
section 1170.95 petition was erroneous. The trial court relied on
the evidence at trial and made a factual determination that
defendant was ineligible for relief when, as the People correctly
observe, Penal Code section 1170.95 does not permit a court to
weigh the facts without first issuing an order to show cause and
holding a Penal Code section 1170.95, subdivision (d)(3) hearing.
(People v. Lewis (2021) 11 Cal.5th 952, 972 [“In reviewing any
part of the record of conviction at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ([People v. ]
Drayton [(2020)] 47 Cal.App.5th [965, ]980)”].) We agree
defendant satisfied the “‘very low’” threshold (ibid.) for stating a
prima facie claim for relief and, thus, a determination of
eligibility will have to wait until an order to show cause issues
and a hearing is held (assuming the question of whether relief
should be granted remains contested). We shall accordingly
reverse and remand to permit the trial court to issue an order to
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show cause and to thereafter proceed as required by Penal Code
section 1170.95, as since amended by Senate Bill No. 775 (2020-
2021 Reg. Sess.).
DISPOSITION
The order denying defendant’s Penal Code section 1170.95
petition is reversed and the cause is remanded for further
proceedings, on or after January 2, 2022, consistent with Penal
Code section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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