People v. Martinez CA2/1

Filed 8/25/15 P. v. Martinez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B260393

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA101245) v.

RICHARD MARTINEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed. Jill Ishida, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent. _________________________________

Defendant Richard Martinez appeals from an order denying his petition for Proposition 36 resentencing pursuant to Penal Code section 1170.1261 with respect to one of his two 1995 commitment offenses for which he received concurrent third strike terms. Although defendant recognizes he is ineligible for resentencing with respect to his first degree burglary conviction because it was a “serious” offense, he contends the trial court erred by concluding he was ineligible with respect to his conviction for dissuading a witness, which was not categorized as a “serious” or “violent” felony at the time of defendant’s conviction, although it was added to the list of “serious” felonies in 2000. (§ 1192.7, subd. (c)(37).) In light of the California Supreme Court’s recent decision in People v. Johnson (2015) 61 Cal.4th 674 (Johnson), we necessarily affirm. BACKGROUND Defendant was convicted of first degree burglary and dissuading a witness in violation of section 136.1, subd. (c)(1). Defendant waived a jury trial on five strike allegations (four residential burglaries and a robbery), and the court found these allegations true. The court sentenced defendant to concurrent third-strike terms of 25 years to life, plus 15 years on each count for three section 667, subdivision (a)(1) prior serious felony enhancements. In 2014 defendant filed a petition for Proposition 36 resentencing with respect to his dissuading conviction. The trial court denied the petition on the ground defendant’s first degree burglary conviction rendered him ineligible for resentencing. DISCUSSION Proposition 36, also known as the Three Strikes Reform Act of 2012, was approved by the voters on November 6, 2012, and went into effect the next day. It amended sections 667 and 1170.12 so that an indeterminate term of 25 years to life in prison is applied only where the “third strike” offense is a serious or violent felony or the