People v. Martinez CA2/4

Filed 5/27/15 P. v. Martinez CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B257937

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA023514) v.

MICHAEL LASHON MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Edward B. Moreton, Jr., Judge. Reversed and remanded with directions. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent. ______________________

Appellant Michael Lashon Martinez appeals from a revised sentencing order in which his aggregate sentence was increased from the 116-year sentence that was approved in a prior appeal to 140 years. We conclude the increase is erroneous, and reverse and remand for imposition of a proper sentence not to exceed the 116-year aggregate sentence that was upheld in a prior appeal.

FACTUAL AND PROCEDURAL BACKGROUND As discussed in our prior opinions (No. B110602 and No. B241572), the case involves a 1995 armed robbery of a jewelry store. In connection with that incident, appellant was charged with attempted murder (count 1), robbery (counts 2-5), and assault with a firearm (counts 6-9). Personal firearm use and prior strike conviction allegations also were alleged. The jury found appellant guilty of the charged offenses and found the firearm allegations to be true. The five prior strike conviction allegations also were found to be true. The trial court exercised its discretion to strike one of the prior convictions, and with the prosecution’s consent vacated the attempted murder conviction (count 1). The court imposed an aggregate sentence of 120 years to life, consisting of four consecutive terms of 25 years to life (counts 2-5), with accompanying 5-year firearm enhancements. The sentences on counts 6 through 9 were stayed pursuant to Penal Code section 654. In the previous appeal from the judgment, we reduced the firearm use enhancements from 5 to 4 years, resulting in an aggregate sentence of 116 years to life. (People v. Martinez (Feb. 25, 1998, B110602) [nonpub. opn.].) In the previous habeas corpus proceeding, we issued a writ directing the trial court to conduct a new sentencing hearing at which it was to consider whether to impose concurrent or consecutive terms. (In re Martinez (Oct. 23, 2012, B241572) [nonpub. opn.].) At the new sentencing hearing on January 7, 2014, the People sought an aggregate sentence of 140 years to life, consisting of four consecutive terms of 25 years to life, with