California Court of Appeal May 26, 2021 No. E075962Unpublished
Filed 5/26/21 P. v. Martinez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E075962
v. (Super.Ct.No. RIF148701)
GERARDO MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Gerardo Martinez appeals from an order of the Riverside
County Superior Court summarily denying his Penal Code1 section 1170.95 motion for
resentencing on his murder conviction. We will affirm.
BACKGROUND2
It was almost midnight on July 17, 2008, when a train conductor saw David
Martinez (the victim) lying across a railroad track in front of a moving train. The victim
was the defendant’s uncle. The train struck the victim, throwing his body some distance.
of record even though defendant did not file a supplemental brief].)
Recent opinions issued by this court reflect the division in approach to the
situation in which defendant does not file a supplemental brief. In Scott, one panel
concluded there is no reason to conduct an independent review of the record or to issue
an opinion in such a case and dismissed the appeal as abandoned. (Scott, supra, 58
Cal.App.5th at pp. 1131-1132 (but see dis. opn. of Miller, J.); accord People v. Figueras
(2021) 61 Cal.App.5th 108.)
In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court
concluded the interests of justice call for independent review of the record in
postjudgment no-issue appeals even if the defendant has not filed a supplemental brief.
(Id. at p. 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54
Cal.App.5th 266, 269 [when an appointed counsel files a Wende brief in an appeal from a
5
summary denial of a section 1170.95 petition, reviewing court is not required to
independently review the entire record, but the court can and should do so in the interests
of justice]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 [court of appeal has the
discretion to review the record in the interests of justice].)
We respectfully disagree with Scott and find the procedure in Gallo provides
indigent defendants an additional layer of due process while consuming comparatively
little in judicial resources.
Here, we offered defendant an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th
106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently
reviewed the record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
MILLER J.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the summary denial of the defendant's Penal Code section 1170.95 petition for resentencing after conducting an independent review of the record and finding no arguable issues.
Issues
Whether the trial court may consider the record of conviction to determine if a defendant made a prima facie showing for relief under section 1170.95.
Whether appointment of counsel under section 1170.95, subdivision (c) precludes the court from considering the record of conviction and prior appellate opinion.
Whether the evidence and jury instructions conclusively establish the defendant as the sole perpetrator, rendering any error in the dismissal of the petition harmless.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“we have independently reviewed the record for potential error and find no arguable issues.”