Filed 4/27/23 P. v. Martin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B324490
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A982883-02)
v.
JEROME MARTIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed.
Larry Pizarro, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
___________________________
In 1989, defendant and his codefendant murdered two
people and attempted to murder a third. In 1993, he was
convicted of two counts of special circumstances murder (felony
murder), as well as attempted murder and other offenses. He
was sentenced to life imprisonment without the possibility of
parole. In 1995, his conviction was affirmed on appeal. (People v.
Martin (Apr. 25, 1995, B081736) [nonpub. opn.].)
In 2018, Senate Bill No. 1437 invalidated the natural and
probable consequences doctrine as it relates to murder, and
narrowed liability for felony murder. Specifically, a defendant
may no longer be convicted of felony murder unless he was (1) the
actual killer; (2) a direct aider and abettor, or (3) a major
participant in the crime who acted with reckless indifference to
human life, as defined in the felony-murder special circumstance.
(Pen. Code, § 189, subd. (e).)1 It also enacted section 1170.95
(now 1172.6), which provides means by which a defendant
convicted of murder under prior law could seek resentencing
under the new version of the law.
In 2019, defendant filed a form petition for resentencing
under section 1170.95. The trial court summarily denied the
petition. In 2021, we affirmed the denial, on the basis that
defendant was ineligible for relief as a matter of law. (People v.
Martin (Jan. 19, 2021, B299948) [nonpub. opn.] (1170.95
Appeal).) Specifically, we observed that, in connection with the
felony-murder special circumstance, defendant’s jury was
instructed that it must find he was either the actual killer or an
aider and abettor who acted with the intent to kill; there was no
1 All further undesignated statutory references are to the
Penal Code.
2
instruction on major participant acting with reckless indifference
to human life. (1170.95 Appeal, at p. 6.)
In February 2022, defendant filed a second petition.
Following appointment of counsel, briefing, and a hearing, the
trial court denied the petition, concluding that – even after
considering intervening changes in the law – defendant remained
ineligible for relief as a matter of law. Defendant filed the
present appeal.
Defendant’s counsel filed a brief indicating he could find no
arguable issues to raise on appeal and requesting this court to
(1) inform defendant of his right to file a supplemental brief; and
(2) exercise our discretion to conduct an independent review of
the record. (People v. Delgadillo (2022) 14 Cal.5th 216, 231-232.)
After receiving notice, defendant personally filed a brief
raising two issues: (1) the intervening authority of People v.
Strong (2022) 13 Cal.5th 698 (Strong); and (2) recently-
discovered evidence demonstrates his actual innocence.2
Strong is of no assistance to defendant. A defendant
convicted of felony murder is not eligible for section 1172.6 relief
if the defendant was the actual killer, had the intent to kill, or
was a major participant acting with reckless indifference to
human life. (Strong, supra, 13 Cal.5th at p. 703.) The Strong
opinion was concerned with the third alternative, major
participant acting with reckless indifference. (Ibid.) As we
explained in the 1170.95 Appeal, defendant’s jury was not
instructed on this basis for the felony-murder special
2 Defendant accompanied his petition with a request for
judicial notice. At his request, we take judicial notice of Strong
and section 1172.6, although it is unnecessary for us to formally
do so; we deny the remainder of his request.
3
circumstance. His jury found that he was either the actual killer
or had the intent to kill, rendering him ineligible for relief.
As defendant seems to acknowledge in his supplemental
brief, a section 1172.6 resentencing motion is not the appropriate
place to raise an issue of actual innocence based on new evidence.
We have independently reviewed the record and found no
error.
DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
4