People v. Martinez CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCS247733
- Trial judge
- Ana Espana
- Outcome
- affirmed — Request for judicial notice granted. Affirmed.
- Area
- criminal
- Panel
- William S. Dato (author), Truc T. Do, Michele M. Castillo
Analysis
The trial court summarily denied Martinez's petition for resentencing under Penal Code section 1172.6, finding he was facially ineligible because he was convicted as the direct perpetrator of attempted murder rather than under the natural and probable consequences doctrine. The Court of Appeal affirmed, holding that the record of conviction conclusively established Martinez's direct perpetration, rendering him ineligible for relief as a matter of law.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of petition for resentencing under Penal Code section 1172.6 (Count 1: Attempted Murder with Firearm)“Martinez is ineligible for resentencing as a matter of law on count 1 because he was convicted of attempted murder. The only theory of attempted murder specified by section 1172.6 is “attempted murder under the natural and probable consequences doctrine.”” | de novo | correct | agree with court agree with court |
Summary denial of petition for resentencing under Penal Code section 1172.6 (Count 2: Attempted Murder with Motor Vehicle)“Because the jury found that Martinez personally drove the car that hit R.C., it was required to find that he had the intent necessary for attempted murder. ... Martinez was not convicted under the natural and probable consequences doctrine; consequently, he is ineligible for resentencing relief under section 1172.6 as a matter of law.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Lewis (2021) 11 Cal.5th 952 — Establishes the three-step process for reviewing section 1172.6 petitions and the standard for the prima facie stage.
- relied: People v. Ervin (2021) 72 Cal.App.5th 90 — Establishes that the decision to deny a petition at the prima facie stage is reviewed de novo and is appropriate only if the record demonstrates ineligibility as a matter of law.
- relied: People v. Coley (2022) 77 Cal.App.5th 539 — Clarifies that section 1172.6 applies by its terms only to attempted murder based on the natural and probable consequences doctrine.
- relied: People v. Estrada (2022) 77 Cal.App.5th 941 — Supports summary denial where the record demonstrates the trial court did not instruct the jury on the natural and probable consequences doctrine for the specific count.
- relied: People v. Offley (2020) 48 Cal.App.5th 588 — Supports summary denial if the jury did not receive an instruction on the natural and probable consequences doctrine, as the jury could not have convicted on that basis.
- relied: People v. Daniel (2020) 57 Cal.App.5th 666 — Establishes that a defendant is ineligible for relief as a matter of law if the jury received no instructions on the natural and probable consequences doctrine.
The appellate opinion: sound — The opinion correctly applies the de novo standard of review to the trial court's legal determination of ineligibility. It accurately distinguishes between direct perpetration and conviction under the natural and probable consequences doctrine, relying on the specific jury instructions and verdict forms to support its conclusion.
How this analysis was made · dispute it
unusual dispositionThe trial court summarily denied James Martinez's Penal Code section 1172.6 petition at the prima facie stage, finding he was the direct perpetrator of both attempted murders (count 1 by firearm, count 2 by motor vehicle) and therefore not convicted under the natural and probable consequences doctrine. The Court of Appeal, reviewing de novo, affirmed, holding that no natural and probable consequences instruction was given on count 1 and that the jury's personal-use-of-a-vehicle finding on count 2 established Martinez was the direct perpetrator whose intent could only have been imputed to his codefendant, not to him.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of section 1172.6 petition as to count 1 (attempted murder with a firearm) without issuing an order to show cause“While Martinez’s jury received a natural and probable consequences instruction, it was neither for count 1 nor Martinez’s role in count 2, as we discuss below.” | de novo | correct | agree with court Section 1172.6 reaches attempted murder only when based on the natural and probable consequences doctrine (Coley). CALCRIM No. 402 was given solely for counts 2 through 5, and Martinez conceded this. Under Offley and Estrada, where the jury was never instructed on the doctrine for a count, the conviction could not rest on it and summary denial is proper. The court properly avoided deciding whether the trial court misread the personal-discharge finding, since the instruction record alone resolves eligibility. |
Summary denial of section 1172.6 petition as to count 2 (attempted murder with a motor vehicle) despite the jury receiving a natural and probable consequences instruction“The verdict forms conclusively establish—without fact finding or weighing of evidence—that Martinez was the one who attempted to murder R.C. using a motor vehicle.” | de novo | correct | agree with court The CALCRIM No. 402 instruction as given required the jury first to find that a coparticipant in the count 1 attempted murder 'committed' the count 2 attempted murder, and only then allowed liability for the other coparticipant as a natural and probable consequence. Only Martinez was charged with and found to have personally used the vehicle, so he necessarily was the one who committed the act, and the imputation could run only to O'Neil (whose conviction was later reversed for insufficient evidence, consistent with his being the imputed-liability defendant). Using verdict forms and instructions to reach this conclusion is a legal inference permitted by Lewis, not factfinding. The result is defensible, though the court did not address the Supreme Court's then-days-old decision in Curiel on the limits of using jury findings to establish ineligibility; Curiel is distinguishable because it involved an aider and abettor rather than a defendant whose own act was found to be the actus reus. |
Authorities
- relied: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage the court accepts the petition's allegations as true, may consult the record of conviction (including, to a limited extent, prior appellate opinions) to see if the allegations are refuted, but may not engage in factfinding or weigh credibility.
- relied: People v. Ervin (2021) 72 Cal.App.5th 90 — Denial at the prima facie stage is proper only if the record of conviction shows the petitioner is ineligible as a matter of law; the question is legal and reviewed de novo.
- relied: People v. Coley (2022) 77 Cal.App.5th 539 — Section 1172.6 applies to attempted murder only when based on the natural and probable consequences doctrine.
- relied: People v. Estrada (2022) 77 Cal.App.5th 941 — Summary denial affirmed where the record shows the jury was not instructed on the natural and probable consequences doctrine.
- relied: People v. Offley (2020) 48 Cal.App.5th 588 — If the jury was not instructed on natural and probable consequences, it could not have convicted on that basis and the petition should be summarily denied.
- relied: People v. Daniel (2020) 57 Cal.App.5th 666 — A petitioner whose jury received no natural and probable consequences instruction is ineligible for relief as a matter of law.
- relied: People v. Drayton (2020) 47 Cal.App.5th 965 — Trial courts may not engage in factfinding or credibility determinations at the prima facie stage of a resentencing petition.
- missed: People v. Curiel (2023) 15 Cal.5th 433 — A jury finding (there, intent to kill) does not by itself render a petitioner ineligible as a matter of law where the jury was instructed on the natural and probable consequences doctrine, unless the findings establish every element of liability under current law; the opinion did not address this decision issued three days earlier, though it is distinguishable because Martinez's personal-use finding established him as the actual perpetrator rather than an aider and abettor.
The appellate opinion: sound with gaps — The opinion correctly applies Lewis, Coley, Offley and Estrada to hold count 1 categorically outside section 1172.6 and gives a cogent, instruction-based explanation for why the personal-use finding on count 2 makes Martinez the direct perpetrator rather than the recipient of imputed malice. It does not, however, engage with the Supreme Court's Curiel decision filed days earlier on the limits of using jury findings at the prima facie stage, and its treatment of why a personal-use finding (which carries no mental-state element) necessarily forecloses an imputed-intent conviction is compressed.
Opinion
Filed 11/30/23 P. v. Martinez CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081288
Plaintiff and Respondent, v. (Super. Ct. No. SCS247733)
JAMES MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Ana Espana, Judge. Request for judicial notice granted. Affirmed. Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent. Defendant James Martinez appeals after the trial court summarily denied his petition for resentencing under Penal Code1 section 1172.6 (former section 1170.95) without an evidentiary hearing. Because Martinez was not convicted on a theory for which section 1172.6 potentially affords relief, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Given the nature of this case, and the restrictions on the evidence that may be considered, a lengthy recitation of the facts is unnecessary. The People charged Martinez and codefendant Sean O’Neil with two counts of attempted murder. (§§ 664, 187, subd. (a).) Count 1 involved the use of a firearm against the victim, R.R. As to count 2, the victim was a police officer and the attempted murder was allegedly accomplished by means of a motor vehicle. The second incident gave rise to three additional charges—assault with a deadly weapon on a peace officer, R.C. (§ 245, subd. (c), count 3), resisting an executive officer (§ 69, count 4), and evading an officer with reckless driving (Veh. Code § 2800.2, subd. (a), count 5). In 2012, a jury found both defendants guilty on all five counts with various enhancements. In 2012, Martinez and O’Neil appealed their convictions, asserting multiple errors. As to Martinez, this court ordered a 30-year parole eligibility term stayed, but otherwise affirmed the judgment.2 As to O’Neil, we reversed his convictions on counts 2 through 5 on the grounds of insufficient evidence.
1 Further section references are to the Penal Code unless noted otherwise. 2 We have taken judicial notice of the record on the previous appeal. (People v. Martinez et al. (July 23, 2014, D062720) [nonpub. opn.].)
2 Nearly a decade after his conviction, Martinez filed a petition under section 1172.63 requesting that his convictions for attempted murder—counts 1 and 2—be vacated and he be resentenced. His supporting declaration consisted of a preprinted form where he checked boxes that stated (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable causes doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial at which he could have possibly been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019. The People opposed Martinez’s petition, and the trial court summarily denied it without issuing an order to show cause.
DISCUSSION
Martinez asserts on appeal that the trial court erred in denying his resentencing petition at the prima facie stage. He contends the court inaccurately interpreted the jury’s findings and that, because the jury received instructions on the natural and probable consequence doctrine, he is not facially barred from resentencing relief. We disagree. When a trial court reviews a petition for resentencing under section 1172.6, it first determines if the petitioner has shown a prima facie case for 3 Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered section 1170.95 to 1172.6, effective June 30, 2022. 3 relief under the statute. (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) The court accepts the allegations as true and evaluates whether the petitioner would be entitled to relief if he or she proves the allegations. (Ibid.) The court may review the record of conviction, including to a limited extent any prior appellate opinion, to determine if the petitioner’s allegations are rebutted by the record. (Id. p. 972.) But the court may not engage in factfinding and weighing credibility at the prima facie stage of petition review. (Id. at p. 971, citing People v. Drayton (2020) 47 Cal.App.5th 965, 979–980.) A court’s decision to deny a resentencing petition at the prima facie stage “ ‘is appropriate only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of law.’ [Citations.] This is a purely legal conclusion, which we review de novo.’ ” (People v. Ervin (2021) 72 Cal.App.5th 90, 101.) In this case, the trial court indicated it had reviewed the jury verdict forms, the second amended information, the court minutes from the jury trial through sentencing, and the appellate opinion issued by this court in July, 2014. It found that Martinez was facially ineligible for resentencing on count 1 because he “was found to be the person who attempted to kill the victim by shooting him multiple times with a firearm.” The court concluded that, as the direct perpetrator, Martinez was not convicted under a theory of felony murder or under the natural and probable consequences doctrine. Further, the court found Martinez was facially ineligible for resentencing on count 2 because he “was found by the jury to be the person who attempted to kill [the] Chula Vista police officer” and Martinez himself “was the person behind the wheel.”
4 Martinez contends that the trial court erred by denying his section 1172.6 petition for relief without an evidentiary hearing. He asserts he was eligible for relief: (1) on count 1, because the trial court misinterpreted the record when it concluded Martinez personally discharged the firearm; and (2) on count 2, because the jury received a natural and probable consequences instruction. We address each count in turn.
A. Attempted Murder Using a Firearm—Count 1 The jury received CALCRIM No. 600 on attempted murder with respect to counts 1 and 2, and CALCRIM No. 402 on natural and probable consequences doctrine only with respect to counts 2 through 5. Accordingly, we evaluate count 1, attempted murder using a firearm, without considering the natural and probable consequences doctrine instruction. The attempted murder instruction (CALCRIM No. 600) explicitly stated that the perpetrator must have “intended to kill” the victim. The jury found Martinez and his codefendant guilty of attempted murder using a firearm as charged in count 1. Martinez is ineligible for resentencing as a matter of law on count 1 because he was convicted of attempted murder. The only theory of attempted murder specified by section 1172.6 is “attempted murder under the natural and probable consequences doctrine.” (Id., subd. (a); see People v. Coley (2022) 77 Cal.App.5th 539, 548 [the statute “applies by its terms only to attempted murder based on the natural and probable consequences doctrine”].) While Martinez’s jury received a natural and probable consequences instruction, it was neither for count 1 nor Martinez’s role in count 2, as we discuss below. Martinez acknowledges the instruction was “only given on count two.”
5 Accordingly, Martinez was not convicted of attempted murder on count 1 on any theory implicated by section 1172.6.4 (See, e.g., People v. Estrada (2022) 77 Cal.App.5th 941, 946 [summary denial of section 1172.6 petition affirmed where record demonstrated trial court did not instruct jury on natural and probable consequences doctrine; People v. Offley (2020) 48 Cal.App.5th 588, 599 [“if the jury did not receive an instruction on the natural and probable consequences doctrine, the jury could not have convicted the defendant on that basis, and the petition should be summarily denied”].)
B. Attempted Murder Using a Motor Vehicle—Count 2 The jury also found Martinez and his codefendant O’Neil guilty of attempted murder using a motor vehicle as charged in count 2. We later reversed O’Neil’s conviction on grounds of insufficient evidence. (People v. Martinez et al., supra, D062720.) The Legislature effectively eliminated the natural and probable consequences doctrine for murder and attempted murder by adding subdivision (a)(3) to section 188, which states that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) Under section 1172.6, a person convicted of attempted murder based on the natural and probable consequences doctrine may petition the sentencing court to vacate the sentence and be resentenced on any remaining counts if he could not have been convicted of attempted murder because of these statutory changes.
4 Given that Martinez’s conviction on count 1 is facially ineligible for relief, we need not address whether the trial court misinterpreted the record when it stated that the jury found that “Martinez personally used and discharged a firearm.” 6 (See Lewis, supra, 11 Cal.5th at pp. 959–960.) If the jury received no instructions on the natural and probable consequences doctrine, Martinez would be ineligible for relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.) In this instance, however, the jury did receive instructions on the natural and probable consequences doctrine. They were told that if “[d]uring the commission of Attempted Murder as charged in Count One, a coparticipant in that Attempted Murder as charged in Count One, committed the crimes [charged in Counts Two through Five],” then the other coparticipant in the count 1 attempted murder could also be guilty of the crimes charged in counts 2 through 5 if they were a “natural and probable consequence” of the first attempted murder. In other words, before it could resort to the natural and probable consequence doctrine to convict anyone on counts 2 through 5, it had to first determine there was a direct perpetrator of those crimes. Here, the record clearly reveals that the jury convicted Martinez as the direct perpetrator on counts 2 through 5. The verdict forms conclusively establish—without fact finding or weighing of evidence—that Martinez was the one who attempted to murder R.C. using a motor vehicle. The People charged only Martinez with personally using “a deadly and dangerous weapon, to wit: a motor vehicle” (count 2). And the jury agreed, finding that Martinez, and only Martinez, “did personally use a deadly and dangerous weapon, to wit: a motor vehicle” in the commission of the attempted murder. Because the jury found that Martinez personally drove the car that hit R.C., it was required to find that he had the intent necessary for attempted murder. The instruction regarding the natural and probable consequences doctrine then permitted the jury, at least in theory, to impute Martinez’s 7 murderous intent to his codefendant O’Neil. Martinez was not convicted under the natural and probable consequences doctrine; consequently, he is ineligible for resentencing relief under section 1172.6 as a matter of law.
DISPOSITION
The order denying the petition for resentencing is affirmed.
DATO, Acting P. J.
WE CONCUR:
DO, J.
CASTILLO, J.
Cites, in this corpus
- People v. Lewis S260598 · 2021-07-26