People v. Martinez CA4/3 ( 2023 )

Filed 5/17/23 P. v. Martinez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061873
v. (Super. Ct. No. 12ZF0158)
DAVID ARTHUR MARTINEZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
* * *
A jury convicted defendant David Arthur Martinez of conspiracy to commit
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murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a); count 1) and active participation
in a criminal street gang (§ 186.22, subd. (a); count 2). The jury also found true the
allegation that count 1 was committed to benefit a criminal street gang. (§186.22, subd.
(b)(1).) The court imposed a prison sentence of 25 years to life on count 1 with a 15-year
minimum parole eligibility period under section 186.22, subdivision (b)(5). The court
further stayed an additional two-year term on count 2 pursuant to section 654. In 2015,
another panel of this court affirmed the judgment. (People v. Martinez (Feb. 2, 2015,
G049337) [nonpub. opn.].)
In February 2022, defendant filed a petition for resentencing under former
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section 1170.95 (now § 1172.6). In his petition, defendant averred: “1. A complaint,
information, or indictment was filed against me that allowed the prosecution to proceed
under a theory 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, or attempted murder under the natural and probable
consequences doctrine. [Citation.] [¶] 2. I was convicted of murder, attempted murder,
or manslaughter following a trial or I accepted a plea offer in lieu of a trial at which I
could have been convicted of murder or attempted murder. [Citation.] [¶] 3. I could not
presently be convicted of murder or attempted murder because of changes made to Penal
Code §§ 188 and 189, effective January 1, 2019.” (Bold & underlining omitted.)
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All further statutory references are to the Penal Code.
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Effective June 30, 2022, section 1170.95 was renumbered section 1172.6,
with no change in text (Stats. 2022, ch. 58, § 10).
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The trial court summarily denied defendant’s petition for resentencing. The
court concluded defendant was ineligible for relief as a matter of law because he was
convicted of conspiracy to commit murder. The court emphasized defendant was never
convicted of, or ever charged with, murder, attempted murder, or manslaughter.
Defendant timely filed a notice of appeal. His appointed counsel advised
the court he was unable to find an issue to argue on defendant’s behalf and requests that
we review the entire record. (People v. Wende (1979) 25 Cal.3d 436.) Consistent with
Anders v. California (1967) 386 U.S. 738, appointed counsel also identified two issues to
assist in our independent review: (1) whether section 1172.6 should be construed to
permit a petition for resentencing from a judgment of conspiracy to commit murder “[i]n
light of the express malice element of conspiracy to commit murder, and in light of the
Legislature’s express intent to abrogate judicially-created theories for imputing malice
based on non-life-threatening conduct”; and (2) whether this former legal question is
distinct from the issue of whether the record of a petitioner’s trial or plea proceeding
shows the petitioner’s personal malice was found true beyond a reasonable doubt or
established by his or her plea. Defendant was given the opportunity to file written
argument on his own behalf, but he has not done so. Although defendant has not filed a
supplemental brief, we exercise our discretion to conduct an independent review of the
record and appointed counsel’s Wende brief. (People v. Delgadillo (2022) 14 Cal.5th
216, 232.)
We have examined the entire record and have not found an arguable issue
on appeal. Accordingly, we affirm the postjudgment order.
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DISCUSSION
Relief under section 1172.6 is restricted to those convicted of murder
“under a theory 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 . . . .” (§ 1172.6, subd. (a)(1).) In determining whether
the petitioner has made a prima facie case for relief under section 1172.6, the trial court
may rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971.)
The record of conviction includes the court’s own documents, including “the underlying
facts as presented in an appellate opinion, the trial evidence, the jury instructions, and
closing arguments of counsel.” (People v. Lopez (2022) 78 Cal.App.5th 1, 13.) As our
Supreme Court explained, “The record of conviction will necessarily inform the trial
court’s prima facie inquiry . . . allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, at p. 971.)
Here, defendant’s petition is without merit because the record of conviction
establishes defendant was not convicted based on felony murder or under a natural and
probable consequence theory. He was convicted of conspiracy to commit murder as
evidenced by the jury verdict forms, the trial court minutes, and the abstract of judgment.
As a matter of law, a defendant convicted of such a crime is not eligible for resentencing
under section 1172.6. (People v. Whitson (2022) 79 Cal.App.5th 22, 34-36; see People v.
Medrano (2021) 68 Cal.App.5th 177, 183 [conviction of conspiracy to commit murder
requires finding of intent to kill].)
Because defendant was not convicted based upon felony murder, the natural
and probable consequences theory, or other theory under which malice is imputed, as he
alleges, relief under section 1172.6 is not available to him.
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DISPOSITION
The postjudgment order is affirmed.
SANCHEZ, J.
WE CONCUR:
GOETHALS, ACTING P. J.
DELANEY, J.
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