Filed 4/27/22 P. v. Martinez CA3
NOT TO BE PUBLISHED
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 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092508
Plaintiff and Respondent, (Super. Ct. No. 14F04828)
v.
SALVADOR RAMON MARTINEZ,
Defendant and Appellant.
Defendant Salvador Ramon Martinez appeals from the trial court’s order denying
his petition for resentencing under Penal Code section 1170.95.1 Defendant argues the
trial court erred when it found him ineligible for relief because he was convicted on a
theory of provocative act murder. We disagree and affirm the order.
1 Further undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s Conviction
In 2015, a jury found defendant guilty of one count of second degree murder
(§ 187, subd. (a)) and found true a firearm use allegation (§ 12022.53, subds. (b)-(d)). In
our opinion on the direct appeal from defendant’s conviction, we explained that
defendant and his friends were at a hookah lounge when a “multi-shooter gun battle”
occurred outside. (People v. Martinez (May 29, 2018, C081643) [nonpub. opn.] [p. 2]
(Martinez).) The victim “was killed by a shot fired by codefendant Ta[n]a Dania.
Defendant had been shooting at Dania, and Dania fired back at defendant. Dania
wounded defendant and killed [the victim], an uninvolved bystander.” (Ibid.)
We also described the theories the prosecution pursued at trial regarding
defendant’s participation in the murder. In the first theory, “defendant acted either with
intent to kill (express malice) or conscious indifference to human life (implied malice),
and his act was a substantial factor in [the victim’s] death, which was the natural and
probable consequence of defendant’s actions.” (Martinez, supra, C081643 [p. 7].) In the
second theory, “[t]he prosecutor outlined the elements of the provocative acts theory
consistent with the pattern instruction (CALCRIM No. 560), and described how the jury
could find how the evidence satisfied those elements.” (Id. [p. 4].) The provocative acts
theory, we explained, “ ‘has traditionally been invoked in cases in which the perpetrator
of the underlying crime instigates a gun battle, either by firing the first shot or otherwise
engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or
a victim of the underlying crime, responds with lethal force by shooting back and killing
the perpetrator’s accomplice or an innocent bystander.’ [Citation.]” (Id. [p. 10].) We
ultimately affirmed the conviction. (Id. [p. 17].)
2
Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which
became effective on January 1, 2019, was enacted “to amend 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).) The
legislation accomplished this by amending sections 188 and 189 and adding section
1170.95 to the Penal Code. More recently, Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Senate Bill No. 775), which became effective on January 1, 2022, added various
amendments to section 1170.95.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, 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.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs
is liable for murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) 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.” (Stats. 2018, ch. 1015, § 3.)
Section 1170.95, as amended, allows those “convicted of felony murder or murder
under the natural and probable consequences doctrine or other theory under which malice
is imputed to a person based solely on that person’s participation in a crime . . . [to] file a
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petition with the court that sentenced the petitioner to have the petitioner’s murder . . .
conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that person’s participation in a
crime . . . . [¶] (2) The petitioner was convicted of murder . . . following a trial . . . . [¶]
(3) The petitioner could not presently be convicted of murder . . . because of changes to
[s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, the court must consider the
petition and associated briefing and “determine whether the petitioner has made a prima
facie case for relief. If the petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c).)
Defendant’s Petition for Resentencing
In 2019, defendant, through retained counsel, filed a petition requesting
resentencing under section 1170.95. The petition declared that defendant had been
convicted of murder based on the natural and probable consequences doctrine. The
declaration further stated the jury “returned no verdict and made no finding that would
preclude petitioner from obtaining relief under [] section 1170.95” and defendant “could
not be convicted of second-degree murder on a theory of natural and probable
consequences because of change[s] to [] section[s] 188 and 189 made effective January 1,
2019.” The trial court set a briefing schedule and received briefing from both parties.
The trial court denied defendant’s petition in a written order without holding a
hearing. In the order, the court explained: “[D]efendant Martinez’s jury received no
instructions of any kind regarding aiding and abetting or felony murder, and instead was
instructed with CALCRIM Nos. 520, 240, 560, and 562, on malice aforethought murder
based on the provocative act doctrine, the substantial factor theory of causation, and
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transferred intent. This is because the crime occurred when defendant Martinez began a
shootout with his jointly-tried ‘codefendant,’ during which time the jointly-tried
‘codefendant’ fired the fatal shot that was meant for defendant Martinez but instead hit an
innocent bystander. The instruction on the provocative act doctrine required the jury, in
convicting for murder, to find that defendant Martinez intentionally did a provocative act,
knew that act’s natural and probable consequences were dangerous to human life, then
acted with conscious disregard for life. The instruction also defined a provocative act as
an act whose natural and probable consequences are dangerous to human life because
there is a high probability that the act will provoke a deadly response. As such, the jury,
in finding defendant Martinez guilty of second degree murder, necessarily found that
defendant Martinez’s provocative act of shooting at the jointly-tried ‘codefendant’ was a
substantial factor in the killing, and that defendant Martinez had committed that
provocative act while harboring implied malice, that is, conscious disregard for human
life. [Section] 188, even in the wake of [Senate Bill No.] 1437, continues to require
either express or implied malice for a conviction of murder.”
Citing People v. Lee (2020) 49 Cal.App.5th 254, review granted July 15, 2020,
S262459 (Lee), the court concluded “the provocative act doctrine does not appear to have
been affected by [Senate Bill No.] 1437 as a viable theory of murder.” Thus, because
defendant had been convicted under a theory of murder that was still viable after the
passage of Senate Bill No. 1437, defendant was ineligible for relief.
Defendant timely appealed. This case was fully briefed on April 22, 2021, and
assigned to this panel on July 23, 2021. After the parties had waived oral argument, we
vacated submission and ordered the parties to brief the application of Senate Bill No. 775
to this case. After numerous requests to continue, the supplemental briefing was
completed on February 15, 2022.
5
DISCUSSION
Defendant contends the trial court erred when it denied his section 1170.95
petition because he stated a prima facie case for eligibility. He agrees the prosecution in
his case relied on a theory of provocative act murder to obtain his conviction, but argues
that Senate Bill No. 1437 “invalidated the provocative act doctrine” because
“[p]rovocative act murder is a form of natural and probable consequences liability,” and
thus he should be eligible for relief under section 1170.95. Defendant acknowledges the
appellate court’s contrary conclusion in Lee, but asserts (without any analysis of its
reasoning) that it was incorrectly decided.
Following Lee, a number of other appellate courts have agreed that Senate Bill No.
1437 did not invalidate or otherwise eliminate the provocative act murder doctrine. (See,
e.g., People v. Mancilla (2021) 67 Cal.App.5th 854 (Mancilla); People v. Johnson (2020)
57 Cal.App.5th 257; People v. Swanson (2020) 57 Cal.App.5th 604, review granted Feb.
17, 2021, S266262.) As of this writing, no appellate court has disagreed. We agree as
well, as we next explain.
Murder requires the unlawful killing of a human being with either express or
implied malice. (§§ 187, subd. (a), 188, subd. (a).) Before Senate Bill No. 1437,
however, a defendant could be found guilty of murder without proof of malice under
either the felony-murder rule or the natural and probable consequences doctrine.
(People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez); People v. Roldan (2020)
56 Cal.App.5th 997, 1002.)
Under the felony-murder rule, a defendant could be convicted of murder when the
defendant or an accomplice killed someone while committing or attempting to commit an
inherently dangerous felony. (People v. Powell (2018) 5 Cal.5th 921, 942.) Before
Senate Bill No. 1437, a conviction using the felony-murder rule did “not require an intent
to kill, or even implied malice, but merely an intent to commit the underlying felony.”
(Gonzalez, supra, 54 Cal.4th at p. 654.)
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Under the natural and probable consequences doctrine, “a defendant who aided
and abetted a crime, the natural and probable consequence of which was murder, could be
convicted not only of the target crime but also of the resulting murder. (People v. Chiu
(2014) 59 Cal.4th 155, 161.) This was true irrespective of whether the defendant
harbored malice aforethought. Liability was imposed ‘ “for the criminal harms [the
defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’ ” (In re
R.G. (2019) 35 Cal.App.5th 141, 144.)
As Lee and its progeny explain, “[u]nlike felony murder or murder under the
natural and probable consequences doctrine, ‘[a] murder conviction under the
provocative act doctrine . . . requires proof that the defendant personally harbored the
mental state of malice, and either the defendant or an accomplice intentionally committed
a provocative act that proximately caused’ the death of another accomplice.” (Lee, supra,
49 Cal.App.5th at p. 264, review granted; People v. Johnson, supra, 57 Cal.App.5th at
pp. 266-268; People v. Swanson, supra, 57 Cal.App.5th at pp. 613-614, review granted.)
“The provocative act murder doctrine has traditionally been invoked in cases in which the
perpetrator of the underlying crime instigates a gun battle, either by firing first or by
otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the
police, or a victim of the underlying crime, responds with privileged lethal force by
shooting back and killing the perpetrator’s accomplice or an innocent bystander.”
(People v. Cervantes (2001) 26 Cal.4th 860, 867.)
“Provocative act murder has both a physical and a mental element which the
prosecution must prove beyond a reasonable doubt.” (People v. Mejia (2012)
211 Cal.App.4th 586, 603.) The mental state is malice aforethought. (Ibid.) The
physical element is the provocative act itself, defined as “an act, the natural and probable
consequence of which is the use of deadly force by a third party.” (Ibid.)
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Defendant asserts provocative act murder is merely one kind of criminal liability
under the natural and probable consequences doctrine, and that Senate Bill No. 1437 thus
eliminated provocative act murder. The same argument “has been rejected by every court
of appeal that has considered it.” (Mancilla, supra, 67 Cal.App.5th 854 at p. 867.) As
explained above, “a murder conviction under the provocative act doctrine requires proof
the defendant ‘personally harbored the mental state of malice.’ ” (Ibid.) “Thus, [the
amended] section 188, subdivision (a)(3), which provides malice shall not be imputed to
a person based solely on his or her participation in a crime, does not affect the theory of
provocative act murder.” (Id. at p. 868.)
Nor does the fact that the relevant jury instructions use the phrase “natural and
probable consequences” mean that provocative act murder is merely a subset of the
natural and probable consequences doctrine. “Consideration of the natural and probable
consequence of the defendant’s conduct in the context of provocative murder, as with any
case of implied malice murder, relates to proximate cause—that is to the actus reus
element of the crime, not the mens rea element that was the focus of Senate Bill [No.]
1437. [Citations.] ‘[I]n any provocative act case, [whereby] definition an intermediary’s
act killed the victim, an important question will be whether the defendant’s conduct
proximately caused the death. [Citation.] The court’s analysis of proximate cause in
terms of foreseeability of the natural and probable consequences of the defendant’s
malicious conduct does not somehow bring a provocative act killing within the malice-
free natural and probable consequences doctrine.’ ” (Mancilla, supra, 67 Cal.App.5th
854 at p. 868, fn. omitted.)
Here, defendant’s jury was not instructed on any theory of felony murder or the
natural and probable consequences doctrine. Rather, the prosecution pursued a
conviction using theories of express or implied malice murder, including provocative act
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murder. (Martinez, supra, C081643.)
Defendant contends that Senate Bill No. 775 expanded section 1170.95 to include
“defendants prosecuted on imputed malice theories other than [natural and probable
consequences] murder and felony murder,” and that, as he was convicted of murder under
a provocative act theory, he should now be eligible for relief. As we have explained,
however, provocative act murder where, like here, the accused committed the provocative
act, is not an imputed malice theory that is based solely on a defendant’s participation in
a crime; it requires a defendant to personally harbor malice. (Mancilla, supra,
67 Cal.App.5th at pp. 867-868; Gonzalez, supra, 54 Cal.4th at p. 655.) Here, defendant
himself fired the shots that resulted in the return fire that caused the death of the
bystander. Defendant was not charged with any crime other than murder, with a firearm
use allegation, for his role in the gun battle. Other than the provocative act of firing his
gun, that led to the return fire and death, there was no separate crime to which the jury’s
finding of malice could attach. Defendant’s attempts to differentiate between the “actus
reus” and “mens rea” elements of murder fail to persuade under the circumstances here.
Because the jury necessarily found that defendant personally harbored malice at the time
he fired his gun, rather than solely because he fired his gun, the theory of liability under
which he was convicted was not affected by any changes made by Senate Bill Nos. 1437
or 775. Defendant therefore cannot show that he “could not presently be convicted of
murder . . . because of changes to Section 188 or 189,” as required for relief under section
1170.95, subdivision (a)(3), and the trial court did not err when it denied his petition on
those grounds.2
2 We similarly reject defendant’s contention that his case should be remanded because,
under the changes made by Senate Bill No. 775, the trial court is now required to conduct
a hearing at the prima facie stage of review. Because defendant is ineligible for relief as
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DISPOSITION
The trial court’s order is affirmed.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Mauro, J.
a matter of law, he would not benefit from the changes and remand would be an idle act.
(People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419-420; People v. Coelho
(2001) 89 Cal.App.4th 861, 889 [rejecting remand “where doing so would be an idle act
that exalts form over substance”].)
10