People v. Marquez CA5 ( 2024 )

Filed 10/15/24 P. v. Marquez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F087665
Plaintiff and Respondent,
(Super. Ct. No. VCF322617)
v.
LAZARUS DANIEL MARQUEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Melinda Myrle
Reed, Judge.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Meehan, J.
INTRODUCTION
In 2017, appellant and defendant Lazarus Daniel Marquez (appellant) was
convicted after a jury trial of kidnapping during a carjacking and other offenses, and
sentenced to life with the possibility of parole.
In 2023, appellant filed a motion for resentencing pursuant to Penal Code1
section 1170.91, which provides for resentencing of petitioners who have served in the
United States military and can demonstrate specified harms arising from their service.
(§ 1170.91, subd. (b).) The trial court found appellant was ineligible for resentencing and
denied the motion.
On appeal, appellate counsel filed a brief which summarized the facts and
procedural history with citations to the record, raised no issues, and asked this court to
independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant
did not file a supplemental brief on his own behalf. We independently review the record
and affirm.
FACTS
On July 10, 2015, appellant carjacked, kidnapped, robbed, and assaulted a victim
with a firearm. Appellant threatened the victim twice in case she tried to contact the
police, and took her personal identifying information.
PROCEDURAL BACKGROUND
On June 2, 2017, appellant was convicted after a jury trial of count 1, kidnapping
during a carjacking (§ 209.5, subd. (a)); count 2, assault with a firearm (§ 245,
subd. (a)(2)); count 3, carjacking (§ 215, subd. (a)); count 4, kidnapping (§ 207,
subd. (a)); count 5, second degree robbery (§ 211); counts 6 and 7, dissuading a witness
1 All further statutory citations are to the Penal Code.
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by means of force or threat (§ 136.1, subds. (b)(l), (c)); and count 8, identity theft
(§ 530.5, subd. (a)).
The jury found appellant personally used a firearm as to counts 1, 3, 4, and 5
(§ 12022.53, subd. (b)); count 2 (§ 12022.5, subd. (d); and counts 6 and 7 (§ 12022.5,
subd. (a)). The trial court found an on-bail enhancement true (§ 12022.1).
On July 14, 2017, the trial court sentenced appellant to an aggregate determinate
term of 20 years four months plus life with the possibility of parole.
In 2019, this court filed the nonpublished opinion in appellant’s direct appeal,
People v. Marquez (July 15, 2019, F076266), and rejected his evidentiary challenges.
We remanded the matter for the trial court to consider whether to exercise its discretion
to dismiss the firearm enhancements imposed pursuant to sections 12022.53 and 12022.5,
as a result of amendments enacted by Senate Bill No. 620 (2017–2018 Reg. Sess.), with
directions to affirm the judgment after resentencing.
On January 27, 2020, the trial court conducted the hearing on remand, and
declined to dismiss any of the firearm enhancements or modify the judgment.
SECTION 1170.91 MOTION
On November 8, 2023, appellant, in propria persona, filed in the trial court a
“Memorandum of Points and Authorities” (capitalization omitted) for resentencing under
the amendments to section 1170.91, enacted by Senate Bill No. 1209 (2021–2022
Reg. Sess.), effective January 1, 2023. Appellant asserted he served in the military and
suffered from service-related “PTSD,” that manifested after his conviction and
sentencing in this case. In support of the motion, appellant submitted a document that
stated his service was “under honorable conditions” (capitalization omitted) and he was
discharged in 2014 because of a “pattern of misconduct.” (Capitalization omitted.)
The trial court appointed counsel and scheduled a hearing.
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Court’s Denial of the Motion
On January 23, 2024, the trial court conducted the hearing, denied appellant’s
motion, and found he was statutorily ineligible for resentencing pursuant to
section 1170.91, subdivision (c), and section 667, subdivision (e)(2)(C)(iv), because he
was convicted of violating section 209.5, an offense that was punishable by a life term.
On February 26, 2024, appellant filed a timely notice of appeal.
DISCUSSION
As noted above, appellate counsel filed a Wende brief with this court. The brief
also includes counsel’s declaration that appellant was advised he could file his own brief
with this court. This court advised appellant by letter that he could file a supplemental
letter or brief raising any arguable issues. Appellant did not do so.
In 2022, the Legislature amended section 1170.91, and restricted eligibility for
resentencing “by adding subdivision (c), a carve-out provision stating that ‘[t]his section
does not apply to a person convicted of, or having one or more prior convictions for, an
offense specified in clause (iv) of paragraph (C) of paragraph (2) of subdivision (e) of
[s]ection 667 or an offense requiring registration pursuant to subdivision (c) of
[s]ection 290.’ (§ 1170.91, subd. (c).) These changes became effective on January 1,
2023.” (People v. Sherman (2023) 91 Cal.App.5th 325, 330, italics added.)
Section 1170.91, subdivision (c), also “applies to pending petitions for resentencing filed
before January 1, 2023, including those pending on appeal.” (Id. at p. 333.)
Appellant was convicted in count 1 of kidnapping during a carjacking in violation
of section 209.5, subdivision (a), that states: “Any person who, during the commission of
a carjacking and in order to facilitate the commission of the carjacking, kidnaps another
person who is not a principal in the commission of the carjacking shall be punished by
imprisonment in the state prison for life with the possibility of parole.” Appellant was
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sentenced to life and he was ineligible for resentencing under section 1170.91,
subdivision (c).
After independent review of the record, we find no reasonably arguable factual or
legal issues exist.
DISPOSITION
The trial court’s order of January 23, 2024, is affirmed.
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