People v. Martinez CA2/7 ( 2021 )

Filed 3/9/21 P. v. Martinez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306553
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA081995)
v.
HUBALDO MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Thomas Rubinson, Judge. Dismissed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
In 2017 Hubaldo Martinez pleaded no contest to voluntary
manslaughter (Pen. Code, § 192, subd. (a))1 and admitted he had
a prior conviction that was a serious felony conviction within the
meaning of section 667, subdivision (a)(1), and a serious or
violent felony within the meaning of the three strikes law (§§ 667,
subds. (b)-(j), 1170.12). The trial court sentenced him to a prison
term of 27 years.
In June 2020 Martinez filed a request for resentencing
under section 1170, subdivision (d)(1), which “authorizes the
court, ‘within 120 days of the date of commitment on its own
motion . . . [to] recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if
they had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence.’” (People
v. Frazier (2020) 55 Cal. App. 5th 858, 863.) Martinez argued that,
in light of recent changes in the law, it was in the interest of
justice to allow him to withdraw and renegotiate his plea. The
relevant change in the law, according to him, was the elimination
of the natural and probable consequences doctrine effected
January 1, 2019 by Senate Bill No. 1437 (Stats. 2018, ch. 1015,
§ 4). (See §§ 188, subd. (a)(3), 189, subd. (e).)
The superior court denied the request as untimely. The
court ruled section 1170, subdivision (d), “permits re-sentencing
on the court’s motion only within 120 days of sentencing. That
limit has been exceeded in this case.” The court also denied the
request on the merits, stating: “Defendant did not plead ‘no
contest’ to murder. He pled to voluntary manslaughter, which is
not a crime associated with, or provable by, the since-abolished
‘natural and probable consequences’ theory of murder.” Martinez
timely appealed.
1 Statutory references are to the Penal Code.
2
The order he appealed from, however, is not appealable.
Martinez requested relief under section 1170, subdivision (d),
which the superior court denied as untimely, a ruling Martinez
does not challenge. An order correctly denying a request for relief
under section 1170, subdivision (d), on the ground the period for
the court to act on its own motion has expired does not affect a
defendant’s substantial rights and therefore is not appealable.
(People v. Chlad (1992) 6 Cal. App. 4th 1719, 1725; see People v.
Loper (2015) 60 Cal. 4th 1155, 1165-1166 [“Because the trial
courts in Chlad and [People v. Gainer (1982) 133 Cal. App. 3d 636]
had no jurisdiction to resentence on their own motion, their
refusal to act on a defective defense motion for resentencing could
not have affected any legal rights the defendants in those cases
possessed, and the appellate courts properly dismissed the
appeals.”]; Gainer, at p. 641 [“The present defendant having
sought that relief [recall and resentencing under section 1170,
subdivision (d)] without right, the trial court’s denial of his
request is nonappealable.”].)
Martinez contends the trial court’s order denied a petition
under section 1170.95 and therefore is appealable under section
1237, subdivision (b), as a postjudgment order affecting his
substantial rights. (See People v. Larios (2019) 42 Cal. App. 5th
956, 961 [an “order denying a petition for recall of sentence and
resentencing pursuant to . . . section 1170.95 . . . is appealable
pursuant to section 1237, subdivision (b), as an order after
judgment affecting the substantial rights of the defendant”],
review granted Feb. 26, 2020, S259983.) But Martinez did not
file a petition under section 1170.95. His request for
resentencing did not mention that statute, and nothing in the
3
record suggests the superior court made, or was asked to make, a
ruling under it.2
The appeal is dismissed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
2 Even if Martinez had filed a petition under section 1170.95,
it would have been properly denied because section 1170.95 does
not apply to defendants convicted of voluntary manslaughter.
(See People v. Harris (2021) 60 Cal. App. 5th 557, 565-566; People
v. Sanchez (2020) 48 Cal. App. 5th 914, 916; People v. Turner
(2020) 45 Cal. App. 5th 428, 436-438; People v. Flores (2020)
44 Cal. App. 5th 985, 992-997.)
4