People v. Martin CA2/2 ( 2023 )

Filed 5/31/23 P. v. Martin CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B306008
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA089862)
v.
JOEL MARTIN,
Defendant and Appellant.
THE COURT:
In April 2020, appellant and petitioner Joel Martin
(defendant) appealed from an order denying his petition for
resentencing pursuant to Penal Code section 1170.95, since
renumbered 1172.6.1 His appointed counsel filed a brief
1 Effective June 30, 2022, Penal Code former section 1170.95
was renumbered section 1172.6, with no change in text. (Stats.
pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no
issues and requesting this court to independently review the
record for arguable issues. We notified defendant of his counsel’s
brief and gave him leave to file his own brief or letter stating any
grounds or argument he might wish to have considered.
Defendant filed a supplemental brief, that we evaluated and
considered, but in accordance with our decision in People v. Cole
(2020) 52 Cal.App.5th 1028, 1038–1040, we did not conduct an
independent review. After considering defendant’s supplemental
brief, we affirmed the order denying his petition.
The California Supreme Court granted review of our
decision, and transferred the matter to this court “with directions
to vacate the decision and reconsider whether to exercise its
discretion to conduct an independent review of the record or
provide any other relief in light of People v. Delgadillo (2022) 14
Cal.5th 216, 232–233 & fn. 6.” (People v. Martin (March 29, 2023,
S267770).)
After the matter was transferred, the People, appointed
counsel, and defendant each filed a supplemental brief.
Appointed counsel again found no arguable issues, but requested
we conduct an independent review of the trial record in light of
recent authority. The People contend the trial court’s error was
harmless and again ask we affirm the summary denial. In his
supplemental brief, defendant also requests an independent
review of the trial record and contends the enhancements
2022, ch. 58, § 10.) We will refer to the section by its new
number.
All further statutory references are to the Penal Code,
unless otherwise indicated.
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imposed on his sentence under section 12022.53 were
unauthorized.2
Rather than conduct an independent review of the entire
record, we reconsider the matter in light of People v. Lewis (2021)
11 Cal.5th 952 (Lewis), published after our vacated opinion, as
well as other authorities clarifying the procedures under
subdivisions (b) and (c) of section 1172.6. Upon doing so, we
conclude the trial court erred in finding defendant ineligible for
relief under 1172.6 as a matter of law based upon the firearm
enhancements alleged under section 12022.53. Accordingly, we
reverse the order denying defendant’s petition and remand with
directions.
In accordance with the Supreme Court’s order, we hereby
vacate our decision filed February 10, 2021, and issue this
opinion in its place.
BACKGROUND
In 2010, defendant was charged with murder in the
shooting death of Carlos Espinoza, in violation of section 187,
subdivision (a). The information alleged pursuant to section
12022.53, subdivisions (b), (c), and (d), that defendant personally
2 Defendant argues that the enhancements should be
dismissed, as they were based upon false testimony and were
discriminatory. He also requests reconsideration of the evidence
relating to heat of passion. Defendant cites the Supreme Court’s
order regarding the exercise of discretion to provide other relief in
light of People v. Delgadillo, supra, 14 Cal.5th at pages 232–233
and footnote 6 as authority. Nothing in Delgadillo or
section1172.6 gives this court authority to vacate any part of
defendant’s judgment or sentence. These issues are more
properly raised in the trial court.
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used a firearm in the commission of the crime and that he
personally and intentionally discharged the firearm, causing the
victim’s death.3 A jury convicted defendant of second degree
murder, but deadlocked on the firearm allegations, and after
declaring a mistrial, a second trial was held solely as to those
allegations. The second jury found the allegations to be true.
(Martin I, supra, B232642 at p. 2.) Defendant was sentenced to
15 years to life for the murder and a consecutive term of 25 years
to life under section 12022.53, subdivision (d) for the intentional
discharge of a firearm causing death. Terms for the remaining
firearm enhancements were imposed and stayed. (Martin I,
supra, B232642 at p. 2.)
In March 2020, defendant filed a section 1170.95 petition
for vacatur of his murder conviction and for resentencing,
alleging he was convicted of murder under the felony murder rule
or the natural and probable consequences doctrine, and could not
be convicted today due to the amendments to sections 188 and
189. The trial court summarily denied the petition on April 8,
2020, based upon the first jury’s verdict of second degree murder
and the second jury’s true finding that defendant personally used
and discharged a firearm in the commission of the murder,
causing death. Defendant filed a timely notice of appeal from the
order.
DISCUSSION
After defendant’s conviction, the Legislature passed Senate
Bill No. 1437 (2017–2018 Reg. Sess.), which amended sections
188 and 189, the laws pertaining to felony murder and murder
3 We summarize the procedural facts set forth in our opinion
in People v. Martin (B232642, Feb. 6, 2013 [nonpub. opn.]), which
affirmed the judgment entered against defendant.
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under the natural and probable consequences doctrine, “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).) The bill also enacted former section 1170.95, now
section 1172.6, which provides a procedure to petition for
retroactive relief for those who could not be convicted under
sections 188 and 189 as amended effective January 1, 2019. (See
Lewis, supra, 11 Cal.5th at p. 957.)
As relevant here, defendant’s petition included the three
qualifying conditions specified in subdivision (a)(1) through (3) of
section 1172.6, by alleging the charging document filed against
him allowed the prosecution to proceed under the felony murder
rule or natural and probable consequences doctrine, that he was
convicted of second degree murder under the felony murder rule
or the natural and probable consequences doctrine, and that he
could not presently be convicted of murder because of changes to
section 188 or 189 made effective January 1, 2019. The petition
also alleged he was not the actual killer or a major participant
who acted with reckless indifference to human life, and that the
jury was instructed with regard to aiding and abetting.
Defendant included other information required by section 1172.6,
subdivision (b)(1), and requested appointment of counsel.
Defendant also attached a statement of facts to the petition,
alleging that because the first jury was unable to reach a verdict
as to the firearm enhancement it indicates he was convicted of
second degree murder as an aider and abettor under the natural
and probable consequences doctrine. The statement further
alleged that during the second trial to determine the firearm
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enhancements the jury’s true finding was the result of the trial
court’s removal of the issue of aiding and abetting from the jury’s
consideration.
As defendant’s petition was facially sufficient, the trial
court was required to appoint counsel, invite the prosecution to
file and serve a response, and allow defendant to file and serve a
reply prior to assessing whether a prima facie case for relief was
made under the statute. (§ 1172.6, subds. (b) & (c); see Lewis,
supra, 11 Cal.5th at pp. 957, 960, 962, 964.) The court was
further required to accept defendant’s factual allegations as true
and make a preliminary assessment of entitlement to relief if the
allegations were proved. Only where the record of conviction
contains established facts showing that petitioner is ineligible for
resentencing as a matter of law may the court find no prima facie
showing has been made. (See Lewis, supra, at p. 971; People v.
Duchine (2021) 60 Cal.App.5th 798, 815.) “[A]s a matter of law”
means that the record of conviction conclusively refutes the
allegations of the petition without resort to factfinding, weighing
of evidence, or credibility determinations. (People v. Lopez (2022)
78 Cal.App.5th 1, 14.) For example, where the record of
conviction shows no jury instructions were given regarding felony
murder or the natural and probable consequences doctrine, a
petitioner is ineligible for relief as a matter of law. (People v.
Daniel (2020) 57 Cal.App.5th 666, 677.)
The trial court did not specify the documents reviewed, but
apparently relied solely upon the first jury’s verdict of second
degree murder and the second jury’s finding true the allegation
defendant personally discharged a firearm, which caused the
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victim’s death.4 The court explained its summary denial of the
petition as follows:
“The petitioner’s indeterminate sentence rests on
verdicts reached by two separate juries. The first jury
convicted the defendant of murder in the second degree, but
it was unable to reach a unanimous decision on the conduct
enhancements alleging personal use and discharge of a
firearm within the meaning of Penal Code sections
12022.53, subdivisions (b), (c) and (d). A second jury was
impaneled to retry the enhancements and found them to be
true. Accordingly, petitioner was determined to be the
actual killer and consequently is not entitled to the relief
sought.”
In their supplemental brief filed after the Supreme Court’s
remand, the People argue the trial court properly considered the
two verdicts because they were part of the record of conviction
which, they argue, may be relied upon to deny relief at the prima
facie stage. Though the People rely on Lewis, supra, 11 Cal.5th
at page 971 for this argument, Lewis made clear when the
petition is facially adequate, as defendant’s is here, a court is
permitted to consider the record of conviction at this stage only
after appointing counsel and entertaining briefing by both
parties. (Lewis, supra, 11 Cal.5th at pp. 964, 971–972.) Then,
courts may look to the record of conviction at the prima facie
4 In his first supplemental brief, filed in November 2020,
defendant argued the court improperly used the preliminary
hearing transcript. It does not appear the court relied on the
preliminary hearing transcript, and we have found no indication
in this appellate record why the superior court clerk included the
preliminary hearing transcript.
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stage. Lewis cautioned that the “ ‘prima facie bar was
intentionally and correctly set very low,’ ” and that “[i]n
reviewing any part of the record of conviction at this preliminary
juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Lewis,
supra, 11 Cal.5th at p. 972.)
The People also assert the two verdicts establish defendant
was the sole perpetrator and thus the actual killer. There is no
finding in either verdict that defendant was the sole perpetrator.
Defendant’s allegation that an aiding and abetting instruction
was given, which amounts to an allegation that there was an
accomplice, is thus not refuted by the two verdicts.
Moreover, even if the trial court’s review of the record of
conviction had been proper prior to the appointment of counsel,
the two verdicts alone did not refute defendant’s allegation that
he was convicted under the natural and probable consequences
doctrine. Under the amendment to section 188, an accomplice
can no longer be convicted of second degree murder under the
natural and probable consequences doctrine. (People v. Gentile
(2020) 10 Cal.5th 830, 843.) However, implied malice murder
that is not based on the natural and probable consequences is
still a valid theory of murder liability. (Id. at p. 850–851.)
Implied malice exists “ ‘when the killing results from an
intentional act, the natural consequences of which are dangerous
to life, which act was deliberately performed by a person who
knows that his conduct endangers the life of another and who
acts with conscious disregard for life. [Citation.]’ ” (People v.
Lasko (2000) 23 Cal.4th 101, 107.) Thus, “an aider and abettor
who does not expressly intend to aid a killing can still be
convicted of second degree murder if the person knows that his or
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her conduct endangers the life of another and acts with conscious
disregard for life.” (People v. Gentile, at p. 850; see People v.
Powell (2021) 63 Cal.App.5th 689, 712–713.)
Section 12022.53, subdivision (d) requires a finding that
defendant personally fired a firearm and in so doing caused the
death of the victim, but it does not require that the defendant
acted either with the intent to kill or with conscious disregard to
life. Thus it does not establish that defendant acted with express
or implied malice aforethought. (People v. Offley (2020) 48
Cal.App.5th 588, 598, accord, In re Ferrell (2023 14 Cal. 5th 593,
604.) In People v. Offley the appellate court explained “[s]ection
12022.53, subdivision (d) provides that the defendant must have
intended to discharge a firearm, but does not refer to an ‘intent to
achieve any additional consequence.’ [Citation.] It is thus a
general intent enhancement, and does not require the
prosecution to prove that the defendant harbored a particular
mental state as to the victim’s injury or death. [Citations.]”
(People v. Offley, supra, at p. 598.)
Malice is a question for the trier of fact and usually must be
proved by circumstantial evidence. (See People v. Lashley (1991)
1 Cal.App.4th 938, 945–946; People v. James (1998) 62
Cal.App.4th 244, 277.) As implied malice is a subjective state of
mind, it is not enough to demonstrate that a reasonable person
would have been aware of the risk. (People v. Watson (1981) 30
Cal.3d 290, 296–297, 300.) Thus, although intentionally firing a
weapon that causes death provides evidence of implied malice, it
is a question of fact, not law; and factfinding is not permitted at
the prima facie stage of section 1172.6. (Lewis, supra, 11 Cal.5th
at p. 972.)
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In sum, as defendant alleged the conditions for relief under
section 1172.6 and the two verdict forms do not demonstrate
ineligibility for relief under the statute as a matter of law,
defendant must be given the opportunity to make a prima facie
showing of eligibility. (Lewis, supra, 11 Cal.5th at p. 971; see
People v. Duchine, supra, 60 Cal.App.5th at p. 815.) Thus the
trial court must appoint counsel as requested in defendant’s
petition, require the prosecution file and serve a response, and
allow defendant to file and serve a reply, prior to assessing
whether he has made a prima facie case for relief under the
statute. (§ 1172.6, subds. (b) & (c); see Lewis, supra, 11 Cal.5th
at pp. 957, 960, 962, 964.)
DISPOSITION
The order of April 8, 2020 denying the section 1172.6
petition is reversed and the matter remanded. The trial court is
directed to appoint counsel for defendant and thereafter proceed
as required by section 1172.6, subdivisions (c) and (d).
NOT TO BE PUBLISHED.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
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