People v. Martinez CA2/3

Filed 4/22/16 P. v. Martinez CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B263156

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA096967) v.

PEDRO MARTINEZ, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Reversed and remanded for resentencing. Katherine Eileen Greenebaum, 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, Paul M. Roadarmel, Jr. and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Defendant Pedro Martinez, Jr. (Martinez) was convicted by jury of eight counts. The jury found true two firearm enhancements. Following a bifurcated bench trial, at which the court found Martinez had suffered two prior violent or serious felony convictions constituting strikes under the three-strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and six prior convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)), the court sentenced Martinez to six consecutive prison terms of 25 years to life, for a total term of 150 years to life. In a prior appeal from that judgment, this court in an unpublished opinion (People v. Martinez (Sept. 12, 2013, B243702 [nonpub. opn.] (Martinez I)) affirmed Martinez’s convictions but reversed the judgment due to sentencing errors. After the matter was remanded for a new sentencing hearing, the court resentenced Martinez to a total term of 125 years to life. In this appeal, Martinez contends the court prejudicially erred when it conducted the new sentencing hearing without his presence. Martinez also contends that upon remand a different judicial officer should hear his case. We agree with Martinez’s first contention, but reject his second. Accordingly, we reverse and remand for a sentencing hearing where Martinez is present with counsel. BACKGROUND 1. The Convictions and Prior Sentence In 2012, a jury convicted Martinez of evading an officer with willful disregard (Veh. Code, § 2800.2; count 1), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2), possessing methamphetamine for sale (Health & Saf. Code, § 11378; count 3), transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 4), possessing methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 5), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 6), being a felon carrying a loaded firearm in a vehicle on a public street (Pen. Code, § 25850, subd. (a); count 7), and being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 10).