People v. Martinez CA3

Filed 8/16/23 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----

THE PEOPLE, C096927

Plaintiff and Respondent, (Super. Ct. No.
STKCRFE19980005787)
v.

LUIS ALBERTO MARTINEZ,

Defendant and Appellant.

In 1999, a jury found defendant Luis Alberto Martinez guilty of first degree
murder for the shooting death of Vincent L. In February 2019, following the enactment
of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant petitioned
the trial court for resentencing, contending that he was not the actual killer, did not aid
and abet the actual killer, and was not a major participant who acted with reckless

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indifference to human life. (See Pen. Code, § 1172.6.)1 The trial court denied the
petition at the prima facie stage. We reversed and remanded with directions to the trial
court to issue an order to show cause and hold a hearing to determine whether defendant
is entitled to relief under section 1172.6. (People v. Martinez (Oct. 7, 2021, C092940)
[nonpub. opn.] (Martinez II).) On remand, the trial court found beyond a reasonable
doubt that defendant acted as an aider and abettor with intent to kill and denied the
petition. Defendant appeals, contending that the trial court’s decision is not supported by
substantial evidence. Disagreeing, we affirm.
BACKGROUND
A. Facts
We recite the facts as summarized in our opinion on defendant’s direct appeal.
(People v. Martinez (Oct. 16, 2000, C033598) [nonpub. opn.] (Martinez I).)
“Murder victim Vincent [L.] and attempted murder victim Armando [P.] were
members of the East Side Stocktone gang. On October 8, 1995, they were riding their
bicycles in Stockton when a blue pickup truck began to follow them. The truck’s license
plates had been removed, and a window had been taken out to facilitate the firing of a
gun. Five or six Hispanic males were in the truck, which had been stolen two days
earlier.
“The truck came up beside the two cyclists. [Armando P.] realized that he and
[Vincent L.] were going to be shot at. [Armando P.] shouted to [Vincent L.] to shoot at
the truck. The men in the truck fired one or two shotgun blasts, followed by pistol shots.
One of the shotgun blasts killed [Vincent L.]. [Armando P.] was uninjured.

1 Defendant filed his petition under Penal Code section 1170.95. Effective June 30,
2022, the Legislature renumbered Penal Code section 1170.95 to section 1172.6 with no
change in the text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute by its current
number. Further undesignated statutory references are to the Penal Code.

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 “Defendant had been a member of the Vicky’s Town street gang, a southern
California gang, for ‘two or three years’ prior to December 1, 1997. In 1997, while
defendant was in county jail on an unrelated matter, police intercepted a letter he had
written describing his participation in the October 1995 shootings. When questioned,
defendant first denied any involvement [in the murder] but then admitted that he was in
the truck at the time of the shootings. He said that the driver had picked him up, and
they, along with two other passengers, were cruising. The driver and a passenger were
members of a southern California gang. As they passed Waterloo Road, a bicyclist saw
them and yelled out ESS, referring to the Eastside Stocktone gang, which was a northern
California gang. The driver yelled back, ‘puro sur,’ which means ‘pure south, all south,
all about south.’ The driver turned the truck around, and a passenger pulled out a shotgun
from under the seat. When the truck was alongside [Vincent L.], the passenger fired the
shotgun at him. When [Armando P.] fled, the driver took out a pistol and fired at him.
The truck sped off, and the group abandoned it on the street. Defendant admitted that the
truck had ventured into northern-gang territory.
“A police gang expert testified that the shooting was done for the purposes of the
southern California gangs in Stockton, which were involved in a long-standing feud with
the northern gangs.” (Martinez I, supra, C033598.)
B. Procedural History
A jury found defendant guilty of first degree murder (count 1), attempted willful,
deliberate, premeditated murder (count 2), and street terrorism (count 3), and also found
true that defendant committed counts 1 and 2 for the benefit of a criminal street gang.
(Martinez I, supra, C033598.) The jury found not true allegations in count 1 that
defendant discharged a firearm from a motor vehicle causing great bodily injury and
death (as well as allegations in counts 1 and 2 that defendant personally used a firearm).
(Martinez II, supra, C092940.) The trial court sentenced defendant to state prison for a

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determinate term of three years, plus a consecutive indeterminate term of 25 years to life
with possibility of parole. (Martinez I, supra, C033598.)
In February 2019, defendant filed a petition for resentencing under section 1172.6.
(Martinez II, supra, C092940.) The trial court denied the petition, concluding that the
evidence would support an argument that defendant was convicted as an aider and
abettor. (Martinez II, supra, C092940.) Defendant appealed, contending that the trial
court attempted prematurely to resolve disputed factual issues without an evidentiary
hearing. (Martinez II, supra, C092940.) The People agreed, as did we. (Ibid.) We
remanded the case with directions to the trial court to issue an order to show cause and
hold an evidentiary hearing on defendant’s petition. (Martinez II, supra, C092940.)
On remand, the trial court scheduled an evidentiary hearing. The People
submitted a brief that included a discussion of the letter written by defendant intercepted
while he was in jail. At trial, the letter had been introduced in evidence as written in
Spanish and in an English translation by a certified Spanish interpreter. A detective
testified that when he showed defendant the letter, defendant confirmed he wrote it. The
English translation of the letter read:
“Well to start, we began as follows. In 1995 on Cherokee Street [around]
7:00 p.m., it was almost getting dark. In a white car that was supposedly stolen, me and
my companions shot two, and one remained injured, but nobody ever knew anything
about us. In 199? (not legible) at about 10:00 [p.m.] me and my companions, shot two
and one died and one remained injured, but because we had a stolen truck, nothing was
ever known, on Waterloo 3 streets from Cherokee.
“And a month and a half ago we shot ? somebody on Sico (not legible) passed
charter way street, but he remained injured, but no one knew anything.
“These are things that appeared on the newspaper, and on these 3 things I have
been the one that has had the weapon, if they want to shut me up, well I am willing to do
anything especially kill. — Chaparro (Shorty)”

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 At trial, the detective testified that defendant confirmed his nickname was
“Chaparro,” Spanish for Shorty. Defendant said that most of the letter was not true, but
the description of shooting from a stolen truck where one person was killed was partly
true. The detective falsely told defendant that his fingerprints were found in the truck, to
see if defendant would admit to being in the truck. Defendant admitted he was in the
truck but said he was not there during the shooting. Later in the interview, defendant said
he was in the truck and saw the murder. Defendant told the detective he had been picked
up in the stolen truck. The driver was a man named Jose Juan, who was a member of the
Playboy Sureño gang, a southern California gang, and had the letters “PBS” tattooed on
his stomach. Defendant did not know the name of the man in the front passenger seat,
but the man in the rear driver’s seat was nicknamed “Perro,” meaning dog, and also had
PBS tattooed on his stomach. Defendant said Perro had a shotgun under the seat.
Defendant confirmed that they drove into an area defendant knew to be a Norteño
gang area. Defendant related the details of the shooting to the detective. Defendant said
they saw someone on a bike, who shouted “ESS,” which stood for Eastside Stocktone, a
Norteño gang. Jose Juan yelled back “puro sur.” Jose Juan said they had to go back and
drove around the corner. Perro pulled out the shotgun from beneath the seat. They
drove alongside the person on the bike, and Perro shot him through the rear driver’s side
window. There was another person on a bike, as well. Jose Juan took out a pistol and
began shooting at that person, who took off running. Defendant and the others drove off
and abandoned the truck.
On cross-examination, the detective testified that defendant said the descriptions
of shootings in the letter were not true and he made them up, except for the description of
the shooting from the stolen pickup truck, which was partly true, i.e., he was in the truck
but not the shooter. Defendant said he wrote the letter to gain influence with an older
Hispanic man in jail by showing him how tough defendant was. The letter was a
“resume” for defendant to get a job helping to sell drugs.

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 At trial, defendant also testified he wrote the letter because an individual he met in
jail was going to get him a job selling drugs. Defendant testified he was not involved in
the shootings but had made up the incidents or heard about them on the street, including
the names of the driver and passengers, the guns used, and where the truck was dumped.
The prosecution’s brief submitted in opposition to defendant’s section 1172.6
petition argued that defendant could be convicted beyond a reasonable doubt under the
recent amendments to sections 188 and 189, either as the actual killer or an aider or
abettor with intent to kill. The prosecutor asserted that the letter disclosed not only
defendant’s participation in the crime but his intent to kill because of defendant’s
bragging about having the gun, not being afraid to kill, and referring to the people with
him during crimes as his “companions.” As to aiding and abetting, the prosecutor
conceded that defendant was not the shooter but argued his statement in the letter that he
“ ‘has had the gun’ ” indicated he handled the gun before the shooting, which bolstered
the conclusion that he was an aider and abettor with intent to kill. Defendant did not
submit a brief.
No additional evidence was presented at the evidentiary hearing on defendant’s
petition. The trial court stated twice that it had read the transcript of the trial.
Defense counsel argued that the flaw in the prosecution’s argument was that the
jury found defendant was not the shooter, therefore jurors must have convicted him under
the now eliminated natural and probable consequences theory and the prosecution could
not prove that they did not.
In ruling, the trial court stated that the issue was whether there “is enough
evidence in the transcript . . . to find that defendant in this case, Mr. Martinez, aided and
abetted with an intent to kill. Now, his letter clearly establishes that. I mean it was
written, I assume in confidence. Law enforcement obtained it. He was quizzed a bit
about it. His testimony has multiple versions here. We allowed that [testimony along]
with this letter . . . for the record in the trial.” The court continued: “So I think there’s

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sufficient evidence to hold that he’s an aider and abettor and that he acted with the intent
to kill based on all the evidence. Most startling [in terms of] weight and difficulty for
him is the letter.”
Based on the evidence presented at trial, the trial court found beyond a reasonable
doubt that defendant acted as an aider and abettor with intent to kill.
DISCUSSION
Defendant contends there was insufficient evidence to support trial court’s
conclusion that defendant’s letter established his guilt for aiding and abetting first degree
murder, given the jury’s finding that the firearm discharge and personal use allegations
were not true. We disagree. The letter—coupled with defendant’s admissions in the
interview in which the detective showed him the letter—constituted sufficient evidence to
support the trial court’s decision to deny defendant’s petition.
A. Legal Principles
In Senate Bill 1437 (Stats. 2018, ch. 1015, § 2), effective January 1, 2019, the
Legislature eliminated the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder and narrowed the felony-murder exception to the
malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis
(2021) 11 Cal.5th 952, 957; see also People v. Strong (2022) 13 Cal.5th 698, 707-708;
People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Section 188, subdivision (a)(3) now
prohibits imputing malice based solely on an individual’s participation in a crime and
requires proof of malice for a murder conviction, except under the revised felony-murder
rule in section 189, subdivision (e). This provision requires proof that the defendant:
(1) was the actual killer; (2) although not the actual killer, with the intent to kill assisted
in the commission of the murder; or (3) was a major participant and acted with reckless
indifference to human life. (§ 189, subd. (e)(1)-(3); see Strong, at p. 708; Gentile, at
p. 842.)

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 However, the amendments to sections 188 and 189 did not eliminate direct aiding
and abetting liability for murder. (People v. Gentile, supra, 10 Cal.5th at p. 848.) The
elements of direct aiding and abetting are the following: “ ‘A “person aids and abets the
commission of a crime when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense; (3) by act or advice aids, promotes,
encourages or instigates, the commission of the crime.” ’ ” (People v. Nguyen (2015)
61 Cal.4th 1015, 1054 (Nguyen).) “ ‘Whether a person has aided and abetted in the
commission of a crime ordinarily is a question of fact. . . . [¶] . . . [¶] Among the
factors which may be considered in making the determination of aiding and abetting are:
presence at the scene of the crime, companionship, and conduct before and after the
offense.’ [Citation.]” (Nguyen, at p. 1054; see also People v. Garcia (2008)
168 Cal.App.4th 261, 273 [“Factors to be considered by the trier of fact in determining
‘whether one is an aider and abettor include presence at the scene of the crime, failure to
take steps to attempt to prevent the commission of the crime, companionship, flight, and
conduct before and after the crime’ ”].)
On appeal from an order denying a petition under section 1172.6 after an
evidentiary hearing, we review the trial court’s factual findings for substantial evidence.
(People v. Guiffreda (2023) 87 Cal.App.5th 112, 125; People v. Richardson (2022)
79 Cal.App.5th 1085, 1090.) “ ‘[O]ur job is to determine whether there is any substantial
evidence, contradicted or uncontradicted, to support a rational fact finder’s findings
beyond a reasonable doubt.’ [Citation.] We will not reverse unless there is no hypothesis
upon which sufficient substantial evidence exists to support the trial court’s decision.
[Citation.] We must ‘presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Guiffreda,
supra, at p. 125; see also Nguyen, supra, 61 Cal.4th at pp. 1054-1055.)

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 “ ‘The same standard applies when the conviction rests primarily on circumstantial
evidence.’ [Citation.] ‘An appellate court must accept logical inferences that the [trier of
fact] might have drawn from circumstantial evidence.’ [Citation.]” (People v. Guiffreda,
supra, 87 Cal.App.5th at p. 125.) “ ‘Evidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to
support a conviction.’ [Citation.]” (Nguyen, supra, 61 Cal.4th at p. 1055.)
B. Analysis
Here, there is sufficient evidence to support the trial court’s denial of defendant’s
petition, based the court’s finding that defendant acted as a direct aider and abettor in the
first degree murder of Vincent L. Indeed, all the circumstances identified by the courts to
determine whether a defendant is an aider and abettor militate in favor of the trial court’s
conclusion that defendant aided and abetted the murder of Vincent L., i.e., “ ‘presence at
the scene of the crime, failure to take steps to attempt to prevent the commission of the
crime, companionship, flight, and conduct before and after the crime’ ” (People v.
Garcia, supra, 168 Cal.App.4th at p. 273.)
Presence at the scene: Defendant admitted he was present at the scene of the
crime and did nothing to prevent the murder.2 Although not sufficient alone to constitute
aiding and abetting, defendant’s presence in the truck is a circumstance that may be
considered in passing on his guilt or innocence as an aider and abettor. (Nguyen, supra,
61 Cal.4th at p. 1055.)
Companionship: Defendant admitted he was a member of a Sureño gang riding in
a stolen pickup truck with members of another Sureño gang driving into a Norteño gang

2 The trial court’s statements in ruling on the petition indicated it found credible
defendant’s letter and his description of the incident to the detective when shown the
letter, as opposed to defendant’s blanket recantation at trial. “If a court holds an
evidentiary hearing, it may make credibility determinations, to which an appellate court
would generally defer.” (Guardianship of Saul H. (2022) 13 Cal.5th 827, 847.)

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area. Defendant in the letter expressly referred to the gang members with him as “my
companions [who] shot two and one died and one remain uninjured . . . .”
Flight: Defendant admitted that after the murder he and his confederates sped off,
dropped off Jose Juan with friends in another vehicle, abandoned the stolen pickup in
field, and waited at a gas station where Jose Juan picked them up. Defendant’s
participation in these planned maneuvers to flee the scene and dispose of the murder
vehicle is a further circumstance that the trial court could consider in determining
whether defendant was an aider and abettor. (In re Lynette G. (1976) 54 Cal.App.3d
1087, 1095; People v. Glukhoy (2022) 77 Cal.App.5th 576, 599.) Indeed, defendant
bragged in the letter that “because we had a stolen truck, nothing was ever known . . . .”
Conduct before the murder: The letter and defendant’s admissions are particularly
damaging regarding his conduct before the murder. To be sure, defendant’s admission
that he was a Sureño gang member in the company of other gang members is not
sufficient to prove defendant was an aider and abettor to a crime. (Nguyen, supra, 61
Cal.4th at p. 1055.) However, the police expert testified that this drive-by shooting was
done for the purposes of Sureño gangs in Stockton. The police expert also testified that a
drive-by shooting is a typical gang assault on a rival gang in which members have
different roles: “One fellow may provide the vehicle, another may come with weapons,
another with ammunition . . . .” In the letter, defendant stated, “I have been the one that
has had the weapon . . . .” Moreover, the expert explained the individuals involved get
together, check that the weapons are loaded, load the weapons in the vehicle, and go off
looking for a target—a description that matches defendant’s account of the murder.
Conduct after the murder: In addition to his participation in the planned
disposition of the stolen truck, defendant bragged about his role in the murder as a part of
“resume” offered to show that he had committed and was willing to commit violent
crimes. In short, defendant claimed the murder.

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 Moreover, when interviewed by the detective, defendant repeatedly lied,
evidencing consciousness of guilt. (See People v. Jackson (1996) 13 Cal.4th 1164, 1223;
People v. Kelly (1992) 1 Cal.4th 495, 531.) First, he said he knew nothing about the
murder and wasn’t involved. Then, defendant changed his story and claimed he was
dropped off before the murder. When shown the letter, defendant claimed he was in the
truck and saw the shooting but did not commit the murder.
Thus, the evidence supported multiple circumstances that courts consider in
determining aider and abettor liability.
Nonetheless, defendant contends that the trial court’s order must be reversed,
because a court considering only the evidence presented at trial could not make findings
inconsistent with the jury’s findings that defendant did not personally use a firearm
(§ 12022.5, subd. (a)) or discharge a firearm from a vehicle (§ 12022.55). (See People v.
Cooper (2022) 77 Cal.App.5th 393, 416-417; People v. Henley (2022) 85 Cal.App.5th
1003, 1017-1019.) However, the jury’s negative findings on these enhancements do not
preclude aiding and abetting liability. A defendant may be guilty of aiding and abetting a
murder where the defendant did not personally use a firearm in the commission of the
crime within the meaning of section 12022.5. (See People v. Ahmed (2011) 53 Cal.4th
156, 161, fn. 2; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1118.) As for the
enhancement for discharging a firearm from a vehicle, this enhancement may not be
imposed upon an aider and abettor who did not personally discharge the firearm.
(People v. Myers (1997) 59 Cal.App.4th 1523, 1533; In re Jose D. (1990)
219 Cal.App.3d 582, 588.) Thus, a negative finding on the section 12022.55
enhancement does not obviate aider and abettor liability but means only that the
defendant did not fire the weapon. In sum, the jury’s not true findings on these
enhancements would be inconsistent with a theory that defendant was the shooter, but not
with defendant’s aider and abettor liability for the conduct he admitted both in the letter
and in the interview with the detective.

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 Finally, defendant contends that, even if there was substantial evidence that
defendant aided and abetted a murder with intent to kill, the evidence was insufficient to
support the conclusion he was an aider and abettor to first degree murder. We disagree.
“ ‘An aider and abettor who knowingly and intentionally assists a confederate to kill
someone could be found to have acted willfully, deliberately, and with premeditation,
having formed his own culpable intent. Such an aider and abettor, then, acts with the
mens rea for first degree murder.’ ” (In re Lopez (2023) 14 Cal.5th 562; 579 People v.
Vasquez (2016) 246 Cal.App.4th 1019, 1024.) Here, there was substantial evidence to
support a finding that defendant aided and abetted first degree murder. Defendant stated
in the letter that he “had the weapon” used in the shooting of Vincent L. Bringing a gun
makes it “ ‘ “reasonable to infer that he considered the possibility of homicide from the
outset.” ’ ” (People v. Lee (2011) 51 Cal.4th 620, 636.) Indeed, defendant claims in the
letter that he brought the gun in multiple gang shootings, indicating defendant’s intention
that a shooting occur in these encounters. Further, the gang members in the truck entered
into rival gang territory to find victims, which demonstrates planning. (See People v.
Wright (1985) 39 Cal.3d 576, 593.) Evidence of defendant’s consciousness of guilt, as
previously discussed, also supports aiding and abetting liability for first degree murder.
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 296.) Lastly, defendant declared
his intent to kill, stating in the letter that his participation in three shootings showed that
he was “willing to do anything especially to kill.” The trial court justifiably referred to
this letter as “[m]ost startling” in its “weight and difficulty” for defendant.
In sum, numerous circumstances support defendant’s liability for first degree
murder.

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 DISPOSITION
The order denying defendant’s petition for resentencing under Penal Code
section 1172.6 is affirmed.

MESIWALA, J.

We concur:

DUARTE, Acting P. J.

BOULWARE EURIE, J.

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