People v. Martinez CA4/3

Filed 4/21/21 P. v. Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058876

v. (Super. Ct. No. 12CF3455)

ISAAC ANGEL MARTINEZ, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Barbara A. Smith for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal centers on the trial court’s obligations when it receives a recommendation to recall a defendant’s sentence from the Secretary of the California Department of Corrections and Rehabilitation (Secretary). Appellant contends such recommendations automatically trigger the right to a hearing and the appointment of counsel. However, we join People v. Frazier (2020) 55 Cal.App.5th 858 (Frazier) and People v. McCallum (2020) 55 Cal.App.5th 202 (McCallum) in concluding otherwise. We thus affirm the trial court’s decision not to afford appellant those rights after receiving a recommendation for recall in this case. PROCEDURAL BACKGROUND In 2012, appellant was charged with special circumstances murder, unlawful firearms possession and street terrorism. The information also alleged multiple enhancements related to appellant’s gang affiliation and criminal history, including seven prior strike allegations. Rather than risk spending the rest of his life in prison, appellant pleaded guilty to gang-related voluntary manslaughter and was sentenced to a 26-year term. That term included a five-year enhancement under Penal Code section 667, subdivision (a)(1) – commonly known as a “nickel prior” – based on the fact appellant 1 had previously been convicted of a serious felony offense. In 2018, three years after appellant’s guilty plea, the Legislature enacted Senate Bill No. 1393. That measure amended sections 667 and 1385 to allow trial courts to strike nickel priors in the interest of justice. (Stats. 2018, ch. 1013, §§ 1-2.) In the wake of that amendment, the Secretary wrote a letter to the trial court vesting it with authority to reexamine appellant’s sentence pursuant to section 1170, subdivision (d) (section 1170(d)). Given the trial court’s newfound authority to strike