Filed 9/6/22 P. v. Martinez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
THE PEOPLE, 2d Crim. No. B310331
(Super. Ct. No. NA081091)
Plaintiff and Respondent, (Los Angeles County)
v.
DANIEL KEITH MARTINEZ,
Defendant and Appellant.
In 2013, Daniel Keith Martinez and his co-defendant Raul
Tiscareno were convicted, by jury, of the first degree murder of
Ginie Samayoa. The jury also found true the special
circumstances allegation that the murder occurred during the
commission of a robbery. (Pen. Code, §§ 187, 190.2, subd.
(a)(17).)1 In 2020, appellant filed a facially sufficient petition for
1 All further statutory references are to the Penal Code.
resentencing under former section 1170.95 (now section 1172.6).2
The trial court summarily denied the petition without appointing
counsel, reasoning that the special circumstance finding meant
appellant was not eligible for resentencing as a matter of law.
We conclude the trial court erred when it failed to appoint
counsel. The error was, however, harmless because the trial
record establishes appellant is ineligible for section 1172.6 relief
as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 974
(Lewis).) Accordingly, we affirm the order denying appellant’s
petition for relief under section 1172.6.
Facts
Ginie Samayoa was found dead, sitting in the driver’s seat
of her car with a single gunshot in the back of her head. The
car’s engine was still running and it was parked in an alley
behind the apartment building where she had been living. About
30 minutes before her body was discovered, neighbors saw
Samayoa leave the building with appellant, co-defendant Raul
Tiscareno and Michael Bonfiglio. Another neighbor saw the
group get into Samayoa’s car.
Samayoa had been supporting herself by using a laptop
computer to make fraudulent credit cards and gift cards.
Bonfiglio, who was acquainted with Samayoa through his
girlfriend, wanted Samayoa to give him a computer and the
software that allowed her to create the cards. She told a
neighbor that she was not going to give him the computer. After
Samayoa’s death, a friend told investigating officers the only item
missing from her apartment was her laptop.
2 Effective June 30, 2022, section 1170.95 was renumbered
as section 1172.6 with not change in text. (Stats. 2022, ch. 58, §
10.) We will refer to the statute as section 1172.6.
2
Samayoa’s cell phone showed that she received 18 calls
from Bonfiglio’s girlfriend on the morning of her death. Her
laptop was found in Tiscareno’s apartment along with an
encoder, a credit card reader, narcotics paraphernalia and a debit
card in appellant’s name. Police recovered the murder weapon
after an acquaintance of appellants told them appellant had
buried it in the acquaintance’s backyard.
Trial and Jury Instructions
Appellant and Tiscareno were tried together for robbery
and first degree murder with a robbery special circumstance.
With respect to appellant, the trial court instructed the jury to
determine “if the following special circumstance: is true or not
true: that the Murder was committed while the defendant was
engaged in, or was an accomplice in the commission of, attempted
commission of the following felony: Robbery in violation of Penal
Code section 211 or 211.5. [¶] [¶] Unless an intent to kill is an
element of a special circumstance, if you are satisfied beyond a
reasonable doubt that the defendant actually killed a human
being, you need not find that the defendant intended to kill in
order to find the special circumstance to be true. [¶] If you find
that a defendant was not the actual killer of a human being, or if
you are unable to decide whether the defendant was the actual
killer or an aider and abettor or co-conspirator, you cannot find
the special circumstance to be true as to that defendant unless
you are satisfied beyond a reasonable doubt that such defendant
with the intent to kill aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted any actor in the
commission of the murder in the first degree.” (CALJIC No.
8.80.1.)
3
The jury found appellant guilty of the first degree murder
of Ginie Samayoa and found true the allegation that Samayoa’s
“unlawful killing” occurred “during the commission of the crime
of robbery . . . .” It found not true the allegations that the murder
was “willful, deliberate, and premeditated,” that appellant
personally and intentionally discharged a firearm which
proximately caused Samayoa’s death, that he personally and
discharged a firearm, and that he used a firearm. (Capitalization
omitted.) Appellant was also found guilty of robbery and
possession of a firearm by a felon.
Discussion
Appellant contends the trial court erred in summarily
denying his petition for resentencing because he was entitled to
appointed counsel and because his jury was instructed on the
now-discredited natural and probable consequences doctrine.
Respondent concedes the trial court erroneously failed to appoint
counsel to represent appellant, but contends the error was
harmless because appellant is ineligible for section 1172.6 relief
as a matter of law.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437)
amended 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).)
To that end, S.B. 1437 amended section 189, by adding
subdivision (e), which provides: “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) [e.g., robbery] in which a death occurs is liable for
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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 . . . .” (Stats. 2018, ch. 1015,
§3.) It also added subdivision (a)(3) to section 188, barring
conviction for murder under the natural and probable
consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830,
851.)
Section 1172.6 permits a person convicted 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, attempted
murder under the natural and probable consequences doctrine, or
manslaughter[,]” to file a petition to have his or her murder
conviction vacated and “to be resentenced on any remaining
counts” when certain conditions apply. (Id., subd. (a).) One such
condition is that “[t]he petitioner could not presently be convicted
of murder or attempted murder because of changes to Section 188
or 189 made [by S.B. 1437] effective January 1, 2019.” (Id., subd.
(a)(3).) The petition must include a declaration by the petitioner
showing that he or she is eligible for relief under the statute.
(Id., subd. (b)(1)(A).)
Once the petition has been filed, the trial court shall
appoint counsel to represent the petitioner, if the petitioner has
requested counsel. (§ 1172.6, subd. (b)(3).) After the prosecutor
and petitioner have filed briefs, “the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
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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. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.” (Id., subd. (c).) Within 60 days after issuing the order
to show cause, “the court shall hold a hearing to determine
whether to vacate the murder, attempted murder or
manslaughter conviction and to recall the sentence and
resentence the petitioner . . . .” (Id., subd. (d)(1).)
Lewis, supra, 11 Cal.5th 952 held, “the statutory language
and legislative intent of section [1172.6] make clear that
petitioners are entitled to the appointment of counsel upon the
filing of a facially sufficient petition (see §[1172.6], subds. (b), (c))
and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the
record of conviction to determine whether ‘the petitioner makes a
prima facie showing that he or she is entitled to relief.’
[Citation.]” (Id. at p. 957.)3 The failure to appoint counsel is,
however, harmless error if there is no reasonable probability the
petitioner would have obtained a more favorable result had
counsel been appointed. (Id. at p. 974.)
Here, the trial court erred when it summarily denied
appellant’s petition without first appointing counsel. The error
was, however, harmless. Appellant’s jury found true the special
circumstance that he committed murder during the commission
3 The Legislature has declared that recent amendments to
section 1172.6 “[c]odif[y] the holdings of People v. Lewis (2021) 11
Cal.5th 952, 961-970, regarding petitioners’ right to counsel and
the standard for determining the existence of a prima facie case.”
(Stats. 2021, ch. 551 (S.B. 775), § 1, subd. (b).)
6
of a robbery. This finding means that appellant is ineligible for
relief under section 1172.6 as a matter of law.
Section 189 provides that a person may be liable for murder
if, “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.” (Id., subd. (e)(2).) Appellant’s jury
was instructed, “If you find that a defendant was not the actual
killer . . . you cannot find the special circumstance to be true as to
that defendant unless you are satisfied beyond a reasonable
doubt that such defendant with the intent to kill aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
any actor in the commission of the murder in the first degree."
The special circumstance instruction is virtually identical
to the criteria for felony-murder found in the current version of
section 189. It follows that appellant cannot make the required
prima facie showing. Based on the special circumstances
instruction, the jury must have found beyond a reasonable doubt
that appellant acted with the intent to kill. The same finding by
a jury today would render him liable for first degree murder
under the felony-murder rule as defined in section 189,
subdivision (e)(2). As a consequence, appellant is ineligible for
resentencing under section 1172.6 as a matter of law. The trial
court’s failure to appoint counsel was harmless error. (Lewis,
supra, 11 Cal.5th at pp. 974-975.)
Appellant next contends his jury received conflicting and
misleading instructions on aiding and abetting that would have
allowed it to find the special circumstance true based on a co-
defendant’s intent to kill, rather than on his own intent. He
argues the trial court erred when it refused to appoint counsel or
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hold an evidentiary hearing because it could not have known
whether the jury relied on a valid theory of aiding and abetting
liability. At that hearing, he argues, the trial court should apply
the harmless error standard articulated in People v. Chiu (2014)
59 Cal.4th 155, 167 and People v. Guiton (1993) 4 Cal.4th 1116,
1128-1129. In his supplemental brief, appellant contends he is
also entitled, under the most recent amendments to section
1172.6 and the Sixth, 13th and 14th amendments to the
Constitution to have these issues decided by a jury.
But appellant is not entitled to an evidentiary hearing as a
matter of law. As we have explained, appellant’s jury was
instructed that it could not find the robbery-murder special
circumstance to be true unless it found either that appellant was
the actual killer or that he “with the intent to kill aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
any actor in the commission of the murder in the first degree.”
Because the record of conviction establishes that appellant was
convicted based either on his status as the actual killer or as an
aider and abettor with intent to kill, he was not entitled to an
evidentiary hearing on the petition because he is ineligible as a
matter of law for relief under section 1172.6.
Our Supreme Court’s recent opinion in People v. Strong
(2022) 13 Cal.5th 698, does not alter this result. There, our
Supreme Court considered whether a person was precluded from
making out a prima facie case for resentencing under section
1172.6 where the person was convicted of murder with a felony-
murder special circumstance (§ 190.2, subd. (a)) but was not
found to have been the actual killer (id., subd. (b)) or to have
abetted the felony with the intent to kill (id., subd. (c)). Instead,
the defendant in Strong was found to have been a “major
8
participant” in the underlying felony who acted “with reckless
indifference to human life” within the meaning of section 190.2,
subdivision (d). People v. Banks (2015) 61 Cal.4th 788 and People
v. Clark (2016) 63 Cal.4th 522, substantially clarified the law
surrounding the findings required under section 190.2,
subdivision (d). In light of these clarifications, our Supreme
Court held in Strong that a person convicted of felony murder
with a special circumstance finding under section 190.2,
subdivision (d) made before Banks and Clark were decided would
not be precluded from making out a prima facie case for
resentencing under section 1172.6. Strong does not apply here
because appellant’s jury did not consider section 190.2,
subdivision (d). Instead, appellant’s jury found that he abetted
the robbery “with the intent to kill,” within the meaning of
section 190.2, subdivision (c).
We also reject appellant’s third contention, that he is
entitled to a jury trial on his petition, for the same reason. Even
if appellant were eligible for section 1172.6 relief, he would be
entitled to resentencing, not a new jury trial. (People v. James
(2021) 63 Cal.App.5th 604, 607-611; People v. Howard (2020) 50
Cal.App.5th 727, 740.)
Conclusion
The order denying appellant’s petition for relief under
former section 1170.95 (now section 1172.6) is affirmed.
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NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Judith L. Meyer, Judge
Superior Court County of Los Angeles
______________________________
Edward H. Schulman, 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, Idan Ivri, J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.