Filed 3/18/22 P. v. Martinez CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with directions.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Banta, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Lynne G. McGinnis and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Louis Robert Martinez, filed a petition for resentencing pursuant to Penal Code section 1170.95,[1] which the court summarily denied. On appeal, defendant contended the court erred in summarily denying his petition without affording him the opportunity “to brief the issues, or allow[] [defendant] to develop the record and to marshal evidence bearing upon whether an Order to Show Cause . . . should issue.” We affirmed.

On December 22, 2021, the California Supreme Court ordered the matter transferred to this court with directions to vacate our decision and reconsider the matter in light of Senate Bill No. 775 (Stats. 2021, ch. 551). On January 3, 2022, we vacated our opinion and provided that any party could file a supplemental brief within 15 days. Both parties have filed briefs maintaining the matter must be reversed and remanded. We reverse and remand the matter for reconsideration.

I. PROCEDURAL BACKGROUND[2]

The People charged defendant, and two other defendants, Jason Lee Lucero and Paul Peter Aguilar, in the same information with the following offenses: conspiracy to commit murder (§ 182, subd. (a)(1), count 1); willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a), count 2); residential burglary (§ 459, count 3); two counts of assault with a semiautomatic firearm (§ 245, subd. (b), counts 4 & 5); and actively participating in a criminal street gang (§ 186.22, subd. (a), count 6). It was further alleged that all three defendants intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1), counts 1 & 2) and committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1), counts 1, 2 & 3). (Martinez, supra, E036407.)

The People tried all three defendants before the same jury. Lucero was tried as the shooter. The People prosecuted defendant and Aguilar as aiders and abettors to the premeditated attempted murder. (Martinez, supra, E036407.)

The jury was unable to reach a verdict on count 1, and a mistrial was declared on that count. The jury found all three defendants guilty as charged on the other counts and found the firearm and gang allegations true. On July 16, 2004, the court sentenced defendant to 35 years to life.

Defendant appealed the judgment contending, in part, that the trial court erroneously instructed the jury that an aider and abettor may be guilty of premeditated attempted murder under the natural and probable consequences doctrine even if the aider and abettor does not personally act with premeditation. By opinion filed May 5, 2006, this court concluded that the trial court properly instructed the jury on the liability of an aider and abettor for premeditated attempted murder under the natural and probable consequences doctrine. (Martinez, supra, E036407.)

Defendant additionally maintained that the gang enhancements in counts 2, 4, and 5, and his 15-year minimum parole eligibility date (MPED) on count 2 were unauthorized and must be stricken. This court agreed, struck the gang enhancements, reversed the MPED, and remanded the matter with directions to modify the judgment to correct the sentencing errors. (Martinez, supra, E036407.) The court subsequently resentenced defendant to a determinate term of 20 years imprisonment and an indeterminate term of life with the possibility of parole.

On June 12, 2020, defendant filed a form petition for resentencing pursuant to section 1170.95 in which he alleged he had been convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine. At the hearing on his petition on August 7, 2020, the People noted, “This is another case that involves only attempt[ed] murder. [¶] . . . [¶] My notes indicated attempt[ed] murder and other non-homicide convictions only.” The court confirmed, “It’s an attempt[ed] murder only.”

Defense counsel made a nonspecific objection to the court dismissing the matter. The court observed, “the prevailing case law is that [section] 1170.95 terms do[] not apply to attempt[ed] murder.” The court then summarily denied the petition.[3]

II. DISCUSSION

The parties agree that the amendments to section 1170.95 rendered by Senate Bill No. 775 expressly afford those convicted of attempted murder relief under certain circumstances. Thus, they maintain we must reverse and remand the matter for reconsideration by the court below. We agree.

Senate Bill No. 1437 (2017-2018 Reg. Sess.) added section 1170.95 (Stats. 2018, ch. 1015, § 4), setting forth the procedure by which a “person convicted of felony murder or murder under a natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner’s murder . . . conviction vacated and to be resentenced on any remaining counts.” (Former § 1170.95, subd. (a).) 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.

Senate Bill No. 775 resolved the split of authority expressly affording relief to persons convicted of attempted murder in certain circumstances, including, retroactively. pursuant to section 1170.95 (Stats. 2021, ch. 551, § 2). Senate Bill No. 775’s amendments to section 1170.95 became effective January 1, 2022.

The merits of defendant’s petition have not been reviewed by the trial court, a necessary predicate to our review of its decision. In light of the amendments, we will remand the matter to the trial court for further proceedings pursuant to section 1170.95. At the hearing, the court may determine if an order to show cause should issue pursuant to subdivision (c), and, if so, the parties may introduce additional evidence as contemplated by subdivision (d) of section 1170.95.

III. DISPOSITION

The order dismissing defendant’s petition is reversed, and the matter is remanded for reconsideration by the court below.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

SLOUGH

J.

MENETREZ

J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] By order dated October 26, 2020, we took judicial notice of the opinion in People v. Martinez (May 5, 2006, E036407) [nonpub. opn.] (Martinez), from defendant’s appeal from the judgment. (Evid. Code, § 459.)

On January 5, 2021, we reserved ruling on defendant’s request filed December 11, 2020, for judicial notice of legislative materials. We deny the request as unnecessary to the resolution of the issue on appeal.

On February 16, 2022, we reserved ruling on the People’s request filed February 14, 2022, for judicial notice of several of the instructions given to the jury. We deny the request.

[3] The reporter’s transcript reflects that the court summarily denied the petition. The minute order indicates the court dismissed the petition. We shall direct the court to correct the minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing court has the authority to correct clerical errors in the minute order. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)