People v. Martinez CA3

Filed 2/10/22 P. v. Martinez CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C092554
Plaintiff and Respondent, (Super. Ct. No. 03F01514
v. OPINION ON TRANSFER
ANTHONY MARTINEZ,
Defendant and Appellant.
Defendant Anthony Martinez appeals the trial court’s denial of his petition for
resentencing under Penal Code1 section 1170.95. He contends his conviction for
attempted murder should have been eligible for relief under section 1170.95. In an
unpublished opinion, we affirmed the trial court’s order. (People v. Martinez (July 6,
2021, C092554) [nonpub. opn.].) The Supreme Court granted review and transferred the
matter back to us with directions to vacate our decision and reconsider the cause in light
of Senate Bill No. 775. On transfer, the People now concede, and we agree, defendant is
1 Undesignated section references are to the Penal Code.
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eligible for resentencing on his attempted murder conviction. Accordingly, we will
reverse and remand with instructions to the trial court to appoint counsel and issue an
order to show cause for further proceedings under section 1170.95.
BACKGROUND
In 2003, a jury found defendant guilty of attempted second degree murder,
discharging a firearm, two counts of assault with a semiautomatic firearm, possession of
stolen property, first degree robbery, and first degree burglary. The jury also found true
firearm enhancement allegations. The trial court sentenced defendant to an aggregate
term of 33 years eight months in state prison. Defendant appealed his conviction, which
we affirmed. (People v. Martinez (Feb. 20, 2007, C049234) [nonpub. opn.].)
In March 2019, defendant filed a petition for writ of habeas corpus in the trial
court, seeking dismissal of his attempted murder conviction pursuant to section 1170.95.
The trial court ordered the writ petition be “construed as a . . . § 1170.95 petition in Case
No. 03F01514 itself.” The court ruled defendant was not eligible for section 1170.95
resentencing because section 1170.95 applies only to defendants convicted of murder, not
attempted murder. The court, however, also found defendant may have an equal
protection claim. Accordingly, the court appointed counsel and directed both parties to
submit briefs addressing the equal protection claim, as well as whether defendant was
eligible for relief under section 1170.95.
Following submission of the parties’ briefs, the trial court denied defendant’s
petition. In reaching its decision, the trial court noted the Courts of Appeal were split on
whether Senate Bill No. 1437 “has substantively abrogated the natural and probable
consequences doctrine with respect to attempted murder.” But, the weight of authority
compelled the court to find that section 1170.95 relief is not available to defendants
convicted of attempted murder.
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DISCUSSION
The People now concede that reversal and remand for a new hearing is
appropriate. We agree.
Senate Bill No. 1437 enacted section 1170.95, which “amend[ed] the felony
murder rule and the natural and probable consequences doctrine, as it relates to murder,
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);
People v. Gentile (2020) 10 Cal.5th 830, 842.)
Prior to the enactment of Senate Bill No. 775, the Courts of Appeal were split on
whether Senate Bill No. 1437 applied to attempted murder as well as murder, with some
courts holding that Senate Bill No. 1437 did not apply to attempted murder at all, others
holding that it applied only prospectively to attempted murder, and still others holding
that it applied both prospectively and retroactively to nonfinal attempted murder
convictions. (See People v. Love (2020) 55 Cal.App.5th 273, 278-279, review granted
Dec. 16, 2020, S265445 [summarizing the split of authority as of Oct. 1, 2020].)
Senate Bill No. 775 resolved this split of authority by amending Senate Bill
No. 1437 to explicitly afford relief to persons convicted of attempted murder and
manslaughter. Senate Bill No. 775 was passed as nonurgency legislation during the
regular session and became effective on January 1, 2022. (Cal. Const., art. IV, § 8,
subd. (c)(1); see also People v. Camba (1996) 50 Cal.App.4th 857, 862.) The statute
applies to acts predating its enactment as either an ameliorative statute under In re
Estrada (1965) 63 Cal.2d 740, 748 or a clarification of law (Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 243; People v. Lee (2018) 24 Cal.App.5th 50, 57).
In either case, defendant is entitled to the benefit of the new provisions to section
1170.95.
Under subdivision (c) of section 1170.95, “[t]he court shall review the petition and
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determine if the petitioner has made a prima facie showing that the petitioner falls within
the provisions of this section. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. The prosecutor shall file and serve a response
within 60 days of service of the petition and the petitioner may file and serve a reply
within 30 days after the prosecutor response is served. These deadlines shall be extended
for good cause. If the petitioner makes a prima facie showing that he or she is entitled to
relief, the court shall issue an order to show cause.”
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing under
section 1170.95 is reversed. The matter is remanded with directions to issue an order to
show cause and hold a hearing under section 1170.95, subsection (d).
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Duarte, J.
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