People v. Martinez CA2/5

Opinion

Filed 9/8/26 P. v. Martinez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B350669

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24CJCF04858) v.

GERARDO MARTINEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Bork, Judge. Sentence vacated; remanded for resentencing. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Stephanie C. Brenan and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent. Gerardo Martinez contends, and the People concede, that the trial court erroneously composed Martinez’s eight-year prison sentence. We agree with the parties. We vacate the sentence and remand the matter to the trial court for resentencing.

PROCEEDINGS

A felony complaint filed on August 5, 2024, charged Martinez with driving or taking a vehicle without consent. (Veh. Code, § 10851, subd. (a); count 1.) The complaint alleged that Martinez had been convicted of 10 felonies within the meaning of Penal Code,1 section 1203, subdivision (e)(4), and convicted of two dangerous or violent felonies within the meaning of the Three Strikes law (§§ 667, subds. (b)–(j), 1170.12). The complaint further alleged that Martinez had served a prior term in prison and county jail pursuant to California Rules of Court, rule 4.421(b)(3). Finally, the complaint alleged that Martinez had been convicted of two other instances of taking or driving a vehicle without consent (Veh. Code, § 10851, subd. (a)), within the meaning of section 666.5. On July 22, 2025, Judge Yvette Verastegui made Martinez an indicated offer of two years, the sentence offered by the People. Defense counsel requested a suspended sentence. The court stated that it would put off sentencing to allow Martinez to get his affairs in order, but would not suspend the sentence. Martinez refused the offer and chose to proceed with trial.

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

2 On July 23, 2025, Judge Terry A. Bork informed the parties that the court would honor Judge Verastegui’s offer, even though the People now opposed it. Judge Bork indicated the court would strike Martinez’s two strike convictions and sentence him to the lower term of two years pursuant to section 666.5. Martinez would enter the plea that day, but sentencing would be put off for approximately one month. Martinez would agree to a Cruz waiver.2 Martinez would be required to appear at all hearings, obey all laws, be truthful with the court regarding his alleged medical condition, and provide the court with records substantiating his condition. Martinez agreed to these terms. The same day, Martinez pleaded no contest to driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), and admitted all allegations charged. Martinez waived the right to be sentenced within 24 days of his conviction, with the understanding that he would be sentenced within the next six months. In the interim, the court released Martinez on his own recognizance. The court warned Martinez that if he failed to appear at a hearing the court would sentence him to the maximum term of eight years in prison. On September 4, 2025, the trial court held a sentencing hearing. The court stated that Martinez had failed to meet the conditions of the plea. Martinez failed to provide records to substantiate his medical condition, and he was charged with a 2 “A ‘Cruz waiver’ gives a trial court the power to ‘withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term,’ if the defendant willfully fails to appear for sentencing. (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)” (People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.)

3 new felony. The court agreed with the probation officer regarding the factors in aggravation: Martinez had numerous convictions of increasing seriousness, he had served a prior prison or jail term under section 1170, subdivision (h), and his prior performances on probation and parole were unsatisfactory. The court found no mitigating factors. The court imposed an aggregate term of six years in count 1, composed of the high term of three years doubled pursuant to the Three Strikes law, plus an additional term of two years pursuant to section 666.5. The court stated, “The total aggregate term of imprisonment imposed for all counts and enhancements in this case is eight years.” (Italics added.) Martinez timely appealed.

DISCUSSION

The parties agree that the trial court erred in imposing Martinez’s eight-year term as a three-year term under Vehicle Code section 10851, doubled pursuant to the Three Strikes law, plus a two-year enhancement pursuant to section 666.5. Section 666.5 is not an enhancement. It is an alternative sentencing scheme. (People v. Lee (2017) 16 Cal.App.5th 861, 869.) The sentencing triad for section 666.5 is two, three, and four years. (§ 666.5, subd. (a).) The parties and the trial court intended and agreed that Martinez would be sentenced to the upper term of four years pursuant to section 666.5, doubled to eight years pursuant to the Three Strikes law if he failed to comply with the conditions of the plea agreement. Because the court made a judicial error in rendering the judgment and not a clerical error (People v. Boyd 4 (2024) 103 Cal.App.5th 56, 63), we remand the matter to the trial court to resentence Martinez pursuant to the plea agreement.

DISPOSITION

We vacate the sentence and remand the matter to the trial court for resentencing. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS MOOR, J. We concur:

HOFFSTADT, P. J.

KIM (D.), J.