People v. Martel CA2/7

Filed 7/29/15 P. v. Martel CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B261803

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA028360) v.

TIMOTHY MANUEL MARTEL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed. Timothy Manuel Martel, in pro. per. and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Timothy Manuel Martel was convicted in 1997 after a jury trial of carrying a concealed dirk or dagger with special findings, following a bifurcated court trial, that he had suffered serious or violent felony convictions for attempted robbery in 1986 and attempted murder in 1989 within the meaning of the three strikes law. The trial court sentenced Martel to an aggregate indeterminate state prison term of 25 years to life. On July 25, 2013 the trial court denied Martel’s petition for recall of sentence pursuant to Penal Code section 1170.1261 on the ground Martel was ineligible for resentencing because one of his prior convictions was for attempted murder. (§§ 667, subd. (e)(2)(C)(iv)(IV), 1170.12, subd. (c)(2)(C)(iv)(IV), 1170.126, subd. (e)(3).) Martel filed a timely notice of appeal. We initially concluded Martel was challenging a nonappealable order, treated his purported appeal as a petition for writ of mandate, and denied the petition. Following the Supreme Court’s decision in Teal v. Superior Court (2014) 60 Cal.4th 595, Martel renewed his notice of appeal. We directed the trial court to accept the renewed notice of appeal as timely. We appointed counsel to represent Martel on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. On April 28, 2015 we advised Martel he had 30 days within which to personally submit any contentions or issues he wished us to consider. On June 1, 2015 we received a two-page typed response in which Martel contends the trial court was required to determine whether, during the commission of the commitment offense, he was armed with a firearm or deadly weapon or intended to cause great bodily harm, and under section 1170.126, subdivision (k), he is entitled to a new sentencing hearing for the trial court to consider whether the commitment offense should be reduced to a misdemeanor (§ 17, subd. (b)) or one of his prior strike convictions should be dismissed in the interest of justice (§ 1385).