People v. Martinez CA5

Filed 9/14/16 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F071336 Plaintiff and Respondent, (Super. Ct. No. VCF266169) v.

RICARDO MARTINEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- Ricardo Martinez appeals from the trial court’s denial of his petition for resentencing pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. The

*Before Kane, Acting P.J., Detjen, J., and Smith, J.

trial court denied the petition, concluding that Martinez posed an unreasonable risk of danger to public safety. We affirm the judgment. FACTS AND PROCEDURAL HISTORY Martinez’s petition alleged he was convicted of violating Health and Safety Code section 11350, subdivision (a), for which he currently serving a sentence. The district attorney opposed the petition, arguing Martinez posed an unreasonable risk of danger to public safety. At the hearing on the petition, it was established that when Martinez was 14 years old, a juvenile petition was sustained finding he had violated Penal Code sections 187 and 664 (attempted murder), with a gang enhancement, a firearm enhancement, and a great-bodily-injury enhancement. Martinez was sent to the California Youth Authority (now the Department of Juvenile Justice). In 2011, he was convicted of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), with a gang allegation being found true. At one point, although exactly when is unclear, Martinez was convicted of possession for sales (the applicable code section is not identified). The trial court denied the petition, finding that resentencing Martinez would pose an unreasonable risk to public safety. DISCUSSION The relevant portion of Proposition 47 is codified in Penal Code section 1170.18. This section provides that a prisoner may petition to have a felony conviction reduced to a misdemeanor if the felony conviction is specifically enumerated in subdivision (a) of the statute. The conviction Martinez sought to have reduced to a misdemeanor was a felony violation of Health and Safety Code section 11350, subdivision (a). This offense is listed in Penal Code section 1170.18, subdivision (a), so Martinez was eligible for resentencing. Penal Code section 1170.18, subdivision (b), provides that if the prisoner is eligible for resentencing, the trial court must recall his sentence unless “the court, in its