People v. Martinez CA2/3 ( 2021 )

Filed 10/20/21 P. v. Martinez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B307260
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A921413
v.
DAVID MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Edward J. Haggerty, 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, Idan Ivri and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1988, defendant David Martinez was convicted of second
degree murder. He appeals from the denial of his petition for
recall and resentencing under Penal Code section 1170.95.
Defendant contends that the trial court erred by denying his
petition without issuing an order to show cause. Specifically, he
argues the court engaged in improper fact-finding by relying on
the opinion in his prior appeal. Based on the instructions at trial,
however, although the jury in this case could have convicted
defendant of first degree murder under a felony murder theory,
the only theory of guilt for second degree murder was malice
aforethought.1 Because defendant could not have been convicted
under a now-invalid theory of murder, he is ineligible for relief as
a matter of law. We therefore affirm.
BACKGROUND2
By information dated February 9, 1988, defendant and
three other men were charged with one count of murder (Pen.
Code,3 § 187, subd. (a); count 1) and one count of aggravated
assault (§ 245, subd. (a); count 2). Count 2 was subsequently
dismissed under section 995. (People v. Martinez, et al. (Nov. 27,
1990, B041553) [nonpub. opn.] [p. 6] (Martinez).)4 A jury
1 The People’s unopposed request for judicial notice, filed July 22, 2021,
is granted.
2Because the facts underlying the charges are not relevant to
defendant’s eligibility for relief in this case, we do not address them.
3 All undesignated statutory references are to the Penal Code.
4On May 11, 2021, we granted defendant’s request for judicial notice of
the opinion in his prior appeal.
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convicted defendant of second degree murder, and the court
sentenced him to an indeterminate term of 15 years to life. A
different panel of this court affirmed by unpublished opinion.
(Martinez, [at p. 18].)
In February 2019, defendant filed a petition for recall and
resentencing under section 1170.95. Defendant argued that the
prosecution proceeded on theories of both malice aforethought
and accomplice liability but that he was neither the actual killer
nor an accomplice to the crime. Counsel was appointed to
represent him. The prosecution filed an opposition to the petition
arguing that defendant was a major participant in the underlying
felony who acted with reckless indifference to human life as well
as a separate opposition arguing that section 1170.95 was
unconstitutional. Defense counsel filed a reply. In
November 2019, the court denied the petition by written order.
The court’s order states in relevant part:
The facts of this case, derived from the statement
of the case of the Appeals Court, clearly establish[ ]
that petitioner’s conviction for second degree
murder was not obtained under a theory of felony
murder or the doctrine of natural and probable
consequences. The Court of Appeal[ ] made the
following observation[:] “… the prosecution was not
proceeding on a felony murder theory as to the
offense of second degree murder.” ([Martinez,
supra, B041553] at p. 12.) As to whether the jury
convicted petitioner of second degree murder on the
doctrine of natural and probable consequence[s],
petitioner acknowledges in his [r]eply brief that “it
does not appear the trial court instructed on a
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natural and probable consequence[s] theory of
liability.[”] [Citation.]
Petitioner, along with several other individuals,
was the actual killer in the group beating and
murder of Antonio Ramirez (victim) and thus was
convicted of second degree murder. [Fn. omitted.]
In other words, petitioner committed an act that
caused the death of another person[,] and when he
acted, he had a state of mind called malice
aforethought. This is what the jury found[,] and
[p]etitioner did not challenge that finding. He along
with four others were identified as having kicked
the victim, who was on the ground, in the head and
stomach area. According to trial testimony, the
beating lasted for about five minutes. The victim
did not fight back and just [lay] on the ground. A
medical examiner specifically opined that the
victim’s death resulted from the bleeding and
swelling of the brain, which was caused by internal
injuries to the brain due to blunt force trauma.
According to the medical examiner, these injuries
were consistent with the actions of five men
kicking the victim for five minutes.
Defendant is not entitled to relief under
section 1170.95 as a matter of law. Accordingly, the
petition is summarily denied.
On August 28, 2020, defendant filed an application for
relief from default for failure to file a timely notice of appeal. The
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People did not oppose the application, and we granted it on
September 24, 2020.
DISCUSSION
Defendant contends that the trial court improperly weighed
the evidence at the prima facie stage of proceedings. We need not
reach that issue, however, because the record of conviction
establishes that defendant is ineligible for relief as a matter of
law.
1. S.B. 1437
Senate Bill No. 1437 (S.B. 1437) 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); People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).) It accomplished this by amending
section 188, subdivision (a)(3), to require that all principals to
murder must act with express or implied malice to be convicted of
that crime, unless they are convicted of felony murder under
section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) For felony
murder convictions under section 189, subdivision (e), S.B.1437
requires that the defendant be the actual killer, an aider and
abettor to the murder who acted with intent to kill, or a major
participant in the underlying felony who acted with reckless
indifference to human life. (Stats. 2018, ch. 1015, § 3.)
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories of murder the opportunity to petition for
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resentencing under newly-enacted section 1170.95. (Stats. 2018,
ch. 1015, § 4.) Section 1170.95, subdivision (a)(3), describes who
may petition for resentencing under the statute. Subdivision (b)
explains what information the petition must contain, where the
petitioner must file it, who the petitioner must serve, and what
the court should do if it’s incomplete. Subdivision (c)—the section
at issue here—describes the process the court uses to determine
whether the petitioner is entitled to an evidentiary hearing:
Appoint counsel, if requested; wait for the prosecutor’s required
response and the petitioner’s optional reply; if the petitioner
makes a prima facie showing that he is entitled to relief, issue an
order to show cause. (Lewis, supra, 11 Cal.5th at p. 966.)
If the court issues an order to show cause after its prima
facie review, subdivisions (d)–(g) describe the procedures for
holding an evidentiary hearing, the type of evidence that may be
admitted, the burden of proof, and the requirements for
resentencing an eligible petitioner.
2. Defendant is ineligible for relief as a matter of law.
“While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court may deny a petition at this
stage only if the petitioner is ineligible for relief as a matter of
law. A petitioner is ineligible for relief as matter of law if the
record of conviction shows that he could not have been convicted
under any theory of liability affected by S.B. 1437—such as
where malice aforethought was the only theory presented to the
jury. “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
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‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] … [T]he prima facie bar was intentionally
and correctly set very low.” (Lewis, at p. 972.)
Here, the jury was instructed that it could convict
defendant of first degree murder based on either malice
aforethought (CALJIC Nos. 8.10, 8.11), felony murder during the
commission of a robbery (CALJIC Nos. 8.21, 8.79), or felony
murder as an aider and abettor to robbery (CALJIC No. 8.27).
By contrast, the jury was instructed that it could convict
defendant of second degree murder only if it found that he acted
with malice aforethought: “Murder of the second degree is the
unlawful killing of a human being with malice aforethought when
there is manifested an intention unlawfully to kill a human being
but the evidence is insufficient to establish deliberation and
premeditation.” (CALJIC No. 8.30.) It was not instructed on
aiding and abetting for second degree murder. Nor was it
instructed on the natural and probable consequences doctrine.
Finally, the jury was instructed that if defendant
unlawfully killed the victim without malice, he could be convicted
of manslaughter under various theories of guilt: “The crime of
manslaughter is the unlawful killing of a human being without
malice aforethought. It is not divided into degrees but is of two
kinds, namely, voluntary manslaughter and involuntary
manslaughter.” (CALJIC No. 8.37.) As relevant here, the jury
was instructed about the misdemeanor–manslaughter rule, with
robbery as the predicate misdemeanor. (CALJIC No. 8.51; see
People v. Rios (2000) 23 Cal.4th 450, 460 [difference between
murder and manslaughter is that “murder includes, but
manslaughter lacks, the element of malice”]; People v. Vasquez
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(2018) 30 Cal.App.5th 786, 793 [“An unlawful killing without
malice is involuntary manslaughter.”].)
By rejecting both first degree murder and manslaughter,
the jury indicated that it did not believe that the killing occurred
during a robbery—and by convicting defendant of second degree
murder in lieu of manslaughter, the jury necessarily found that
he acted with malice aforethought. Because the jury instructions
and verdict, without more, establish that defendant was
convicted under a still-valid theory of murder, he is ineligible for
section 1170.95 relief as a matter of law. (Lewis, supra,
11 Cal.5th, at pp. 971–972.) As such, the petition was properly
denied.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
MATTHEWS, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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