People v. Martinez CA2/2 ( 2021 )

Filed 8/12/21 P. v. Martinez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308793
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA071089)
v.
ARMANDO MARTINEZ, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Suzette Clover, Judge. Affirmed.
Jonathan E. Demson, 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, Steven D. Matthews and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Armando Martinez, Jr. (defendant) filed a petition to vacate
his conviction for attempted murder pursuant to Penal Code
section 1170.95,1 as amended by Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437). The trial court summarily denied that
petition, and defendant now appeals. We conclude there was no
prejudicial error and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
In 2007, defendant and Natividad Delossantos
(Delossantos) got into a fistfight outside of a convenience store
with someone they believed to be a member of a rival street gang.
While defendant continued the fistfight, Delossantos retrieved a
gun from his car. Upon returning to the fray, Delossantos put
the gun to the rival’s temple and pulled the trigger two or three
times. The gun only clicked. The perceived rival ducked back
into the store, while Delossantos managed to fire off two or three
shots. All missed. Defendant and Delossantos fled the scene
together, shouting the name of their gang.
1 All subsequent statutory references are to the Penal Code,
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Martinez
(Nov. 23, 2010, B216964).)
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B. Prosecution, conviction and appeal
In the operative complaint, the People charged defendant
with one count of attempted premeditated murder (§§ 664/187,
subd. (a)), and three counts of assault with a semiautomatic
firearm (§ 245, subd. (b)) as to the perceived rival and other
customers in the store. As to all counts, the People alleged that
the offenses were committed in association with a criminal street
gang (§ 186.22, subd. (b)(1)(B)), and that a principal personally
used and discharged a firearm (§ 12022.53, subds. (b) and (e)(1)).
A jury convicted defendant on all counts and found all
enhancements to be true.
For the attempted murder, the trial court sentenced
appellant to a total of 35 years to life in prison comprised of a life
sentence plus 15 years for the gang enhancement plus 20 years
for the firearm enhancement. The court stayed the assault count
with respect to the intended victim of the attempted murder, but
imposed concurrent six-year prison terms for the assaults on the
remaining two customers.
II. Procedural Background
In 2020, defendant filed a motion for resentencing under
section 1170.95. The trial court summarily denied the petition,
noting that SB 1437 did not eliminate the natural and probable
consequences theory of culpability for attempted murder.
Defendant timely appealed this denial.
DISCUSSION
On appeal, defendant argues that the trial court erred in
denying his petition for relief under section 1170.95 because (1)
the statute provides relief for persons convicted of attempted
murder, and (2) construing the statute otherwise denies him
equal protection of the laws. Because these arguments turn on
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questions of statutory construction and constitutional law, our
review is de novo. (John v. Superior Court (2016) 63 Cal.4th 91,
95; People v. Zamudio (2008) 43 Cal.4th 327, 342.)
Defendant is seeking to overturn his final conviction of
attempted premeditated murder under section 1170.95. The
plain language of section 1170.95 forecloses such retroactive
relief: Subdivision (a) empowers a person to file a petition
seeking to “vacate[]” a “murder conviction” (§ 1170.95, subd. (a),
italics added), and authorizes a “hearing to determine whether to
vacate the murder conviction” (id., subd. (d)(1), italics added).
The statute says nothing about attempted murder.
In his section 1170.95 petition, however, defendant checked
the box indicating he was convicted of “murder.” This was
inaccurate. However, under People v. Lewis (July 26, 2021,
S260598) ___Cal.5th___ [2021 Cal.Lexis 5258] (Lewis), a
defendant who files a facially compliant petition and requests the
appointment of counsel is entitled to have the trial court appoint
counsel and entertain further briefing regardless of whether the
record of conviction unequivocally demonstrates that the
defendant is not entitled to relief. (Id. at p. *15.) Here,
defendant’s petition was facially compliant and he requested
counsel. Thus, Lewis dictates the conclusion that the trial court
erred in summarily denying defendant’s petition.
That being said, Lewis also provides that any error in
summarily denying a section 1170.95 petition is harmless unless
the defendant can show “‘“it is reasonably probable that if [he or
she] had been afforded assistance of counsel [and briefing] his [or
her] petition would not have been summarily denied without an
evidentiary hearing.”’ [Citation.]” (Lewis, supra, ___Cal.5th___
[2021 Cal.Lexis 5258 at p. *29].)
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Defendant has not carried this burden because it is not
reasonably probable that the outcome of this proceeding would
have been any different, even if defendant had counsel and the
opportunity for further briefing. Although the Court of Appeal
has split over whether SB 1437—the bill of which section 1170.95
is a part—authorizes trial courts to vacate murder convictions
prospectively or to vacate murder convictions that are not yet
final (compare People v. Lopez (2019) 38 Cal.App.5th 1087, 1092-
1093, review granted Nov. 13, 2019, S258175 [SB 1437 does not
apply to any attempted murder convictions]; People v. Munoz
(2019) 39 Cal.App.5th 738, 754, review granted Nov. 26, 2019
(S258234) [same]; People v. Dennis (2020) 47 Cal.App.5th 838,
841, review granted July 29, 2020, S262184 [same]; People v.
Alaybue (2020) 51 Cal.App.5th 207, 222 [same]; People v. Love
(2020) 55 Cal.App.5th 273, 279, review granted Dec. 16, 2020,
S265445 [same]; People v. Harris (2021) 60 Cal.App.5th 557, 566,
review granted Apr. 21, 2021, S267529 [same]; People v. Scott
(2020) 58 Cal.App.5th 1127, 1131-1132, review granted Mar. 17,
2021, S266853 [same]; with People v. Larios (2019) 42
Cal.App.5th 956, 966, 969-970, review granted Feb. 26, 2020,
S259983 [SB 1437 applies to attempted murder prospectively but
not retroactively]; People v. Sanchez (2020) 46 Cal.App.5th 637,
642, 644, review granted June 10, 2020, S261768 [same]; People
v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1017-1019, review
granted Mar. 11, 2020, S259948 [same], every Court of Appeal
panel has agreed that section 1170.95 does not authorize a trial
court to retroactively vacate a final attempted murder conviction.
(Harris, at p. 565 [“No court has held that Senate Bill 1437
applies retroactively to final convictions of attempted murder.”].)
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Defendant responds that attempted murder is a lesser
included offense to murder, such that SB 1437’s narrowing of the
definition of murder must necessarily extend to the crime of
attempted murder. Even if we accept this proposition as true, it
does not overcome our Legislature’s intent—as manifested in
section 1170.95’s plain text—only to extend retroactive relief to
final murder convictions. Indeed, as explained above, even the
decisions that find SB 1437 to reach the crime of attempted
murder prospectively or to reach nonfinal convictions agree that
SB 1437 does not apply to final attempted murder convictions
like defendant’s.
In Love, supra, 55 Cal.App.5th at p. 288, we specifically
rejected the equal protection challenge defendant now mounts.
We perceive no reason to depart from our prior analysis.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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