People v. Martinez CA4/3 ( 2023 )

Filed 9/21/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G061900
v. (Super. Ct. No. 14NF4890)
RUBEN MARTINEZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Cheri T. Pham, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
In 2017, a jury convicted defendant Ruben Martinez of first degree murder.
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(Pen. Code, § 187, subd. (a).) The jury found it to be true that in the commission of
murder, defendant personally used a deadly or dangerous weapon. (§ 12022, subd.
(b)(1).) The trial court found true a prior strike conviction (§ 667, subds. (d), (e)(1)), and
a prior prison term allegation (§ 667.5, subd. (b)). The court sentenced defendant to 52
years to life in state prison. In 2019, another panel of this court affirmed the judgment.
(People v. Martinez (June 24, 2019, G054953) [nonpub.opn.].)
In 2022, defendant filed a petition for resentencing pursuant to former
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section 1170.95 (now 1172.6). In it, he averred that: 1. An information was filed against
him that permitted the prosecution to proceed under a theory of murder under the natural
and probable consequences doctrine; 2. he was convicted of murder; and 3. he could not
presently be convicted of murder because of changes made to sections 188 and 189,
effective January 1, 2019.
The trial court denied the petition at the prima facie stage. The trial court
concluded defendant was ineligible as a matter of law because he was convicted of first
degree murder, and the jury was not instructed on felony murder, murder under the
natural and probable consequences doctrine, or any other theory of murder liability in
which malice was imputed to defendant merely based on his participation in a crime.
Defendant timely filed a notice of appeal, and we appointed counsel to
represent him. Counsel filed a brief in compliance with People v. Wende (1979) 25
Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 accompanied by a declaration
stating that she could find no arguable issues to assert on defendant’s behalf. Counsel
requested that we exercise our discretion to review the record for arguable issues.
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All 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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Defendant personally filed a supplemental brief raising a single issue of ineffective
assistance of counsel.
We have exercised our discretion to review the entire record for arguable
issues per counsel’s request. For the reasons stated below, we have not found an
arguable issue on appeal because defendant is ineligible for relief under section 1172.6 as
a matter of law. Moreover, as we explain, we reject defendant’s argument for ineffective
assistance of counsel. Accordingly, we affirm the postjudgment order.
DISCUSSION
Defendant’s petition was properly denied at the prima facie stage because
the record of conviction establishes that defendant was not convicted based on felony
murder or the natural and probable consequences theory of vicarious liability. In
determining whether the petitioner has made a prima facie case for relief, 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.)
“A petitioner is ineligible for resentencing as a matter of law if the record
of conviction conclusively establishes, with no factfinding, weighing of evidence, or
credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner
was not the actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree, (3) the petitioner was a major participant in the underlying
felony and acted with reckless indifference to human life, or (4) the petitioner acted with
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malice aforethought that was not imputed based solely on participation in a crime.”
(People v. Lopez, supra, 78 Cal.App.5th at p. 14.)
Here, the jury was never instructed on felony murder or natural and
probable consequences. Indeed, the jury was not instructed on any theory of aiding and
abetting at all. Moreover, the defense-oriented instructions demonstrate that his defense
at trial was self-defense and voluntary intoxication. Additionally, the jury not only found
defendant guilty of first degree murder, which required findings that defendant acted
willfully, deliberately, and with premeditation, but also found that he personally used a
dangerous weapon in the commission of the murder. Between the instructions and the
jury’s findings, it is incontrovertible that defendant was convicted as the actual killer and
that he acted with malice aforethought that was not imputed to him merely based on his
participation in a crime. Accordingly, he was ineligible for resentencing as a matter of
law.
In his supplemental brief, defendant argues he received ineffective
assistance of counsel at the hearing on his petition in that, accordingly to defense
counsel’s representation at the hearing, defendant gave her authority under section 977 to
appear on his behalf in his absence. In his supplemental brief, he asserts that he gave no
such authority.
We reject his argument for two reasons.
First, there is nothing in the record for us to determine that defendant did
not give his counsel authority to appear without him. Although he has made that claim in
his brief, his brief is not evidence, and in a direct appeal, unlike a petition for habeas
corpus, we are confined to the record of the proceedings below. (See People v. Bills
(1995) 38 Cal.App.4th 953, 962 [“The general rule concerning appellate claims of
ineffective assistance is that often the alleged deficiency of counsel is not shown by the
record on appeal; such cases do not lead to reversal of the judgment on appeal; rather the
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defendant is relegated to the remedy of habeas corpus, wherein the defendant can bring
forth evidence outside the record on appeal”].)
Second, there is nothing in this record to suggest defendant’s physical
absence prejudiced him at all. (See People v. Whitmore (2022) 80 Cal.App.5th 116, 127
[“Violations of the state right to be present are reviewed under the Watson reasonable
probability standard: the matter is reversible only if it is reasonably probable the result
would have been more favorable to the defendant absent the error”].) As we have
explained above, defendant is ineligible for resentencing as a matter of law, and his
physical presence could not have changed that outcome. Moreover, the hearing spans
less than two pages in the reporter’s transcript. The matter was decided entirely on the
papers. Defendant has not explained how his physical presence would have changed
anything.
DISPOSITION
The postjudgment order is affirmed.
SANCHEZ, ACTING P. J.
WE CONCUR:
MOTOIKE, J.
DELANEY, J.
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