People v. Martinez CA2/1

Filed 2/28/22 P. v. Martinez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B311549
(Los Angeles County
Plaintiff and Respondent,
Super. Ct. No. BA133104)
v.
DANIEL MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Shelly B. Torrealba, Judge. Reversed.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant and appellant Daniel Martinez challenges
the trial court’s summary denial of his petition for resentencing
under Penal Code1 section 1170.95. He contends that the trial
court erred by finding that he failed to make a prima facie case
that he was eligible for relief under the statute. We agree.
FACTUAL AND PROCEDURAL SUMMARY
In 1997, a jury convicted Martinez of one count of second
degree murder (§ 187, subd. (a)), one count of premeditated
attempted murder (§§ 187, subd. (a), 664), and one count of
assault with a firearm (§ 245, subd. (a)(2)). The trial court
sentenced him to 16 years to life in prison, plus an additional life
term with the possibility of parole, plus one year. We affirmed
the conviction on direct appeal. (People v. Morales (Oct. 21, 1998,
B111289) [nonpub. opn.] (Morales).)
Martinez’s convictions resulted from a shooting on
the evening of June 3, 1996. Martinez and his codefendants,
Mario Morales and Juan Carlos Rodriguez, along with a fourth
suspect,2 were members of the 18th Street gang and “bitter
enemies” of the La Mara Salvatrucha gang. (Morales, supra,
B111289, at p. 8.) We described the facts of the case in our prior
opinion: “Jose Funes, Paolo Figueroa and the decedent, Germain
‘Doggy’ Martinez, were drinking beer on the porch of Funes’
home. Funes’ home is located in the La Mara gang’s territory,
but Funes was not a gang member. Nor had he ever had any
1Subsequent unspecified statutory references are to the
Penal Code.
2
The fourth suspect was charged as a juvenile, and his
name does not appear in our prior opinion.
2
problem with La Mara or with the 18th Street gang. Figueroa
and Doggy belonged to the Francis Street clique of La Mara.
“About 9:30 p.m., three men walked up to the sidewalk
gate to the house. Someone said, ‘La Mara.’ Someone screamed
‘ “La Mara Salvatrucha,” ’ and Figueroa thought it was one of his
homeboys. Doggy responded, ‘ “rifa,” ’ slang for ‘rules’ the area.
The three men walked to the porch. Doggy asked what clique
they belonged to, and the three assailants started shooting. After
the shooting, the assailants ran together toward Hoover Street.
“No one shot from the porch. Doggy died from multiple
gunshot wounds. Funes was wounded in the leg. Figueroa was
not hit.” (Morales, supra, B111289, at p. 3, fn. omitted.)
Two police officers were patrolling nearby, heard gunshots,
and pursued a car fleeing from the scene. They apprehended
Martinez, Morales, Rodriguez, and the fourth suspect, and found
two handguns discarded nearby. At a field show-up, Figueroa
told police that Martinez was not present for the shooting but did
not say whether the other three were involved. Figueroa later
told a prosecutor that “he would not identify the shooters in court
because of the rules against being a ‘snitch.’ ” (Morales, supra,
B111289, at p. 5.)
In our prior opinion, we stated that Martinez had been
“convicted on an aiding and abetting theory of second degree
murder, assault with a firearm, and premeditated attempted
murder,” and we found that there was sufficient evidence to
support the convictions. (Morales, supra, B111289, at p. 6.)
Even if Martinez stayed in or near the car during the shooting,
we held that a jury could reasonably conclude that he was
a “shot caller” or leader of the 18th Street gang, and that
he encouraged his codefendants to commit the shooting as
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retaliation for a shooting by La Mara gang members two weeks
earlier. (Id. at pp. 8–9.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843.)
Under the new law, a conviction for felony murder requires
proof that the defendant was either the actual killer, acted with
the intent to kill, or “was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189,
subd. (e)(3).) The legislation also enacted section 1170.95, which
establishes a procedure for vacating murder convictions for
defendants who could no longer be convicted of murder because
of the changes in the law and resentencing those who were so
convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
Martinez filed a petition for resentencing on January 28,
2019. The district attorney opposed the petition on the ground
that Martinez was convicted as a direct aider and abettor, not
under the natural and probable consequences doctrine. In his
reply brief, Martinez, represented by appointed counsel, claimed
that he was eligible for resentencing, arguing that expert
testimony identifying him as a shot caller in the gang was
unreliable and inadmissible. He also noted that his attempted
murder conviction might also fall within Senate Bill No. 1437.
The trial court denied the petition, finding that Martinez
failed to make a prima facie case of eligibility for resentencing.
The court stated that Martinez “was convicted . . . on a[ ] [direct]
aider and abettor theory,” that in his appeal he “conceded to
being an aider and abettor,” that “[n]o evidence has been
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presented . . . establishing the use of an alternative theory of
liability” and that “[j]urors were not instructed on felony murder
or natural and probable consequence[s] theories of liability.”
DISCUSSION
When a defendant files a facially sufficient petition for
resentencing under section 1170.95, the trial court must first
determine whether the petitioner has made a prima facie
showing for relief. (§ 1170.95, subd. (c).) Our Supreme Court has
explained that “the prima facie inquiry under [section 1170.95,]
subdivision (c) is limited. Like the analogous prima facie inquiry
in habeas corpus proceedings, ‘ “the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief
if his or her factual allegations were proved. If so, the court
must issue an order to show cause.” ’ ([People v.] Drayton
[(2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules of Court,
rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s
factual allegations on credibility grounds without first conducting
an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted, citing
In re Serrano (1995) 10 Cal.4th 447, 456 . . . .) ‘However, if the
record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court
is justified in making a credibility determination adverse to
the petitioner.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971
(Lewis).) If the defendant makes a prima facie case, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether the defendant is entitled to
resentencing. (§ 1170.95, subds. (c) & (d)(1).)
At the prima facie stage, “a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
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discretion.’ (Drayton, supra, 47 Cal.App.5th at p. 980.) . . . [T]he
‘prima facie bar was intentionally and correctly set very low.’ ”
(Lewis, supra, 11 Cal.5th at p. 972.)
We agree with Martinez and the Attorney General that
Martinez has cleared this very low bar with respect to his murder
conviction. In our opinion in Martinez’s direct appeal, we stated
that he was “convicted on an aiding and abetting theory of second
degree murder” (Morales, supra, B111289, at p. 6), but the
Supreme Court has cautioned us that “the probative value of an
appellate opinion is case specific, and ‘it is certainly correct that
an appellate opinion might not supply all answers.’ ” (Lewis,
supra, 11 Cal.5th at p. 972.) In his original appeal, we reviewed
Martinez’s conviction only for substantial evidence, and our
conclusion that “the evidence sufficiently established Martinez’s
status as an aider and abettor” (Morales, supra, B111289, at p. 8)
does not establish as a matter of law that he was not convicted
under a natural and probable consequences theory.
The trial court denied Martinez’s petition in part on the
ground that the “[j]urors were not instructed on felony murder
or natural and probable consequence[s] theories of liability.”
This would be a valid reason for finding that Martinez failed
to make a prima facie case for resentencing (see People v.
Soto (2020) 51 Cal.App.5th 1043, 1055–1059), but the trial
court appears to have relied on an incomplete set of the jury
instructions in reaching its conclusion. Martinez’s appellate
counsel has submitted excerpts from the trial record showing
that the court instructed the jury on the natural and probable
consequences doctrine with respect to both murder and
attempted murder. The court also stated that Martinez
“conceded to being an aider and abettor” on appeal. The
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court’s statement appears to have been based on Martinez’s
contention on appeal that “the premeditation enhancement
[for attempted murder] was improperly imposed on him because
he was only an aider and abettor.” (Morales, supra, B111289,
at p. 31.) But in his appeal, Martinez challenged the sufficiency
of the evidence that he was an aider and abettor. His contention
regarding premeditation was simply an argument in the
alternative, and we do not understand it as a concession by
Martinez that he directly aided and abetted the shooting.
Our review of the record before us leads us to a
similar assessment to the one the trial court reached: The
prosecution primarily sought to convict Martinez as a direct
aider and abettor, rather than under the natural and probable
consequences theory. But to deny his petition on this basis
would involve factfinding of the kind the Supreme Court in
Lewis forbade us to do at the prima facie stage. As the court
noted in People v. DeHuff (2021) 63 Cal.App.5th 428, abrogated
on another ground by Lewis, supra, 11 Cal.5th at page 962, “[i]t
is tempting in cases where the trial record includes extensive
inculpatory evidence supporting the convictions for horrific
crimes to” engage in basic factfinding at the prima facie stage,
“and we have empathy for the trial courts that anticipate
an evidentiary hearing will have little chance of leading to a
different result.” (Id. at p. 440.) But Lewis allows us to deny a
petition at the prima facie stage only where the record disproves
the defendant’s allegations as a matter of law. That is not the
case here. Nor may we affirm the trial court’s decision on the
basis of harmless error. To demonstrate prejudice, a defendant
does not need to show a reasonable probability of ultimately
obtaining relief. Instead, he must show only that if not for the
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trial court’s error, “ ‘ “his . . . petition would not have been
summarily denied without an evidentiary hearing.” ’ ” (Lewis,
supra, 11 Cal.5th at p. 974.) Martinez has done that much.
The Attorney General concedes that Martinez is entitled
to an order to show cause and an evidentiary hearing as to his
murder conviction, but argues that he must file a new petition
to seek resentencing on his attempted murder conviction. We
disagree. At the time Martinez filed his petition, relief under
section 1170.95 was restricted to defendants “convicted of felony
murder or murder under a natural and probable consequences
theory” (former § 1170.95, subd. (a)) with no mention of relief
for those convicted of attempted murder. In 2021, however, after
the trial court denied Martinez’s petition, the Legislature enacted
Senate Bill No. 775, which amended section 1170.95 to allow
defendants convicted of “attempted murder under the natural
and probable consequences doctrine” to petition for resentencing.
(Senate Bill No. 775, § 2, amending § 1170.95, subd. (a).)
Martinez’s convictions for murder and attempted murder
resulted from the same conduct, and we are aware of no reason
Martinez would be entitled to resentencing on one conviction but
not the other.3 Furthermore, although Martinez did not mention
his attempted murder conviction in his petition, he noted in his
reply brief below that the Supreme Court had granted review of
3 The jury found that the attempted murder was “willful,
deliberate and premeditated,” but at the time of Martinez’s
conviction, this required the prosecution to prove only that the
slayer acted with premeditation, not Martinez himself. (See
In re Loza (2018) 27 Cal.App.5th 797, 804.) The jury instructions
confirm that the jury could have convicted Martinez of willful,
deliberate and premeditated attempted murder on the basis of
the natural and probable consequences doctrine.
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the question whether Senate Bill No. 1437 applied to attempted
murder liability under the natural and probable consequences
doctrine and suggested that the court should resentence him
on that conviction as well. To require him to file a new petition
on the attempted murder conviction alone would be a waste of
resources and needlessly delay the proceedings.
DISPOSITION
The trial court’s order denying the petition for resentencing
is reversed. On remand, the trial court shall issue an order to
show cause and hold an evidentiary hearing on whether to vacate
appellant’s convictions for murder and attempted murder and
resentence him.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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