People v. Martinez CA6

Filed 4/21/21 P. v. Martinez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048045 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1230681)

v.

CHARLES RAY MARTINEZ,

Defendant and Appellant.

Under Penal Code section 1170, subdivision (d)(1)1 (hereafter section 1170(d)(1)), the trial court may “at any time upon the recommendation of the secretary or the Board of Parole Hearings” recall an inmate’s sentence and resentence that individual. Appellant Charles Ray Martinez was the subject of such a recommendation. The trial court declined to recall Martinez’s sentence, and Martinez argues the trial court abused its discretion in so doing. For the reasons explained below, we agree and therefore vacate the order and remand the matter to the trial court for it to exercise its informed discretion under the statute.

1 Unspecified statutory references are to the Penal Code.

I. FACTS AND PROCEDURAL BACKGROUND The record on appeal contains no information about the facts of Martinez’s offenses. In June 2013, Martinez was charged by information with assault with a firearm (§ 245, subd. (a)(2); count 1) with an enhancement for the personal use of a firearm (§ 12022.5, subd. (a)), shooting at an inhabited dwelling (§ 246; count 2) with an enhancement for personal use of a dangerous or deadly weapon (§§ 667, 1192.7), shooting at an occupied motor vehicle (§ 246; count 3) with an enhancement for personal use of a dangerous or deadly weapon (§§ 667, 1192.7), theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a); count 4), misdemeanor resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1); count 5), misdemeanor possession of burglar tools (§ 466; count 6), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1; count 7), and owning, purchasing, receiving, or possessing a firearm by a felon (§ 12021, subd. (a)(1); count 8). The information further alleged Martinez had a prior serious felony conviction (§ 667, subd. (a) (hereafter § 667(a)), a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12), two prior prison terms for a felony conviction (§ 667.5, subd. (b)), and Martinez was on state parole when he committed the offenses (§ 1203.085, subd. (b)). On November 22, 2013, the trial court sentenced Martinez to an aggregate term of 12 years in prison, which term included five years for the prior serious felony conviction enhancement under section 667(a). On November 22, 2019, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) wrote a letter to the trial court. The letter described its purpose as “provid[ing] the court with authority to resentence [Martinez] pursuant to Penal Code section 1170, subdivision (d).” The letter stated, “Courts were previously barred from striking prior serious felony convictions [under section 667(a)] for purposes of enhancement under this section. However, effective September 30, 2018, courts are now authorized to exercise their discretion to strike prior serious felony convictions for 2