Filed 1/27/22 P. v. Martinez CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308793
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA071089)
v.
ARMANDO MARTINEZ, JR., OPINION ON REMAND
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Reversed and remanded.
Jonathan E. Demson, 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, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Armando Martinez Jr. (defendant), who was convicted of
attempted murder and other crimes in 2009, appeals from the
denial of his petition for resentencing under Penal Code section
1170.95.1 In an unpublished opinion issued on August 12, 2021,
we affirmed that denial on the sole ground that section 1170.95
did not accord relief to persons convicted of attempted murder.
(People v. Martinez (Aug. 12, 2021, B308793) (Martinez II).)
Defendant filed a petition for review by the California Supreme
Court, which was held along with numerous other similar cases.
While this case was pending, our Legislature enacted and the
Governor signed into law Senate Bill No. 775 (Senate Bill 775).
(Stats. 2021, ch. 551.) Senate Bill 775 amended Section 1170.95
to expand eligibility for resentencing to persons convicted of
attempted murder. On October 20, 2021, the California Supreme
Court granted review in this case, and, in an order filed
December 29, 2021, transferred the case back to this court with
directions to vacate our prior decision and reconsider in light of
Senate Bill 775. In light of the enactment of Senate Bill 775, we
vacate our previous opinion and decision in this case (Martinez II)
and remand the matter to the trial court for a new evidentiary
hearing pursuant to section 1170.95, subdivision (d)(3).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
In 2007, defendant and Natividad Delossantos
(Delossantos) got into a fistfight outside of a convenience store
with someone they believed to be a member of a rival street gang.
While defendant continued the fistfight, Delossantos retrieved a
gun from his car. Upon returning to the fray, Delossantos put
the gun to the rival’s temple and pulled the trigger two or three
times. The gun only clicked. The perceived rival ducked back
into the store, while Delossantos managed to fire off two or three
shots. All missed. Defendant and Delossantos fled the scene
together, shouting the name of their gang.
B. Prosecution, conviction, and appeal
In the operative complaint, the People charged defendant
with one count of attempted premeditated murder (§§ 664/187,
subd. (a)), and three counts of assault with a semiautomatic
firearm (§ 245, subd. (b)) as to the perceived rival and other
customers in the store. As to all counts, the People alleged that
the offenses were committed in association with a criminal street
gang (§ 186.22, subd. (b)(1)(B)), and that a principal personally
used and discharged a firearm (§ 12022.53, subds. (b) & (e)(1)).
A jury convicted defendant on all counts and found all
enhancements to be true.
2 We draw these facts from our prior opinion affirming
defendant’s conviction. (People v. Martinez (Nov. 23, 2010,
B216964) [nonpub. opn.] (Martinez I).)
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For the attempted murder, the trial court sentenced
appellant to a total of 35 years to life in prison comprised of a life
sentence plus 15 years for the gang enhancement plus 20 years
for the firearm enhancement. The court stayed the assault count
with respect to the intended victim of the attempted murder, but
imposed concurrent six-year prison terms for the assaults on the
remaining two customers.
We affirmed defendant’s convictions and sentence.
(Martinez I, supra, B216964.)
II. Procedural Background
In 2020, defendant filed a motion for resentencing under
section 1170.95. The trial court summarily denied the petition,
noting that Senate Bill No. 1437 (Senate Bill 1437) did not afford
relief to persons convicted of attempted murder.
Defendant timely appealed. At that time, the Court of
Appeal was split on whether section 1170.95 applied to attempted
murder convictions. We affirmed the order denying the petition
because we interpreted then-existing section 1170.95 to authorize
relief for defendants convicted of murder, but not attempted
murder. (People v. Love (2020) 55 Cal.App.5th 273, 279, review
granted Dec. 16, 2020, S265445 (Love).) Defendant petitioned the
Supreme Court for review. The Supreme Court granted review,
transferred the matter back to this court, and directed us to
vacate our prior decision and reconsider in light of Senate Bill
775. (Stats. 2021, ch. 551.) Following the transfer, the Attorney
General and defendant submitted supplemental briefs addressing
the impact of Senate Bill 775 on this case.
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DISCUSSION
In his supplemental brief, the Attorney General concedes
that reversal and remand for a new hearing is appropriate. We
agree.
Senate Bill 1437 enacted section 1170.95, which
“amend[ed] 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);
People v. Gentile (2020) 10 Cal.5th 830, 842.)
Prior to the enactment of Senate Bill 775, the Court of
Appeal was split on whether Senate Bill 1437 applied to
attempted murder as well as murder, with some courts holding
that Senate Bill 1437 did not apply to attempted murder at all,
others holding that it applied only prospectively to attempted
murder, and still others holding that it applied both prospectively
and retroactively to nonfinal attempted murder convictions. (See,
Love, supra, 55 Cal.App.5th at pp. 278-279 [summarizing the
split of authority as of Oct. 1, 2020].)
Senate Bill 775 resolved this split of authority by amending
Senate Bill 1437 to explicitly afford relief to persons convicted of
attempted murder and manslaughter. Senate Bill 775’s
amendments to section 1170.95 became effective January 1, 2022.
Defendant’s appeal from the denial of his resentencing petition
was not final by that date; thus, defendant may avail himself of
this latest amendment. (People v. Vieira (2005) 35 Cal.4th 264,
306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed, and the matter remanded for a new evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3), as amended by
Senate Bill 775.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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