People v. Martinez CA2/2

California Court of Appeal Aug 12, 2021 No. B308793Unpublished

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Holding. The court held that Penal Code section 1170.95 does not authorize the retroactive vacatur of a final conviction for attempted murder. Although the trial court erred by summarily denying the petition without appointing counsel as required by People v. Lewis, the error was harmless because the defendant was ineligible for relief as a matter of law.

Issues

Does Penal Code section 1170.95 provide a mechanism for the retroactive vacatur of a final conviction for attempted murder?
Did the trial court err by summarily denying the petition without appointing counsel?
Does the exclusion of attempted murder from section 1170.95 relief violate equal protection?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The plain language of section 1170.95 forecloses such retroactive relief”

“every Court of Appeal panel has agreed that section 1170.95 does not authorize a trial court to retroactively vacate a final attempted murder conviction.”

“In Love, supra, 55 Cal.App.5th at p. 288, we specifically rejected the equal protection challenge defendant now mounts.”

Filed 8/12/21 P. v. Martinez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B308793

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA071089) v.

ARMANDO MARTINEZ, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Suzette Clover, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent. ****** Armando Martinez, Jr. (defendant) filed a petition to vacate his conviction for attempted murder pursuant to Penal Code section 1170.95,1 as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437). The trial court summarily denied that petition, and defendant now appeals. We conclude there was no prejudicial error and affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts2 A. The underlying crime In 2007, defendant and Natividad Delossantos (Delossantos) got into a fistfight outside of a convenience store with someone they believed to be a member of a rival street gang. While defendant continued the fistfight, Delossantos retrieved a gun from his car. Upon returning to the fray, Delossantos put the gun to the rival’s temple and pulled the trigger two or three times. The gun only clicked. The perceived rival ducked back into the store, while Delossantos managed to fire off two or three shots. All missed. Defendant and Delossantos fled the scene together, shouting the name of their gang.

People v. Martinez CA2/2

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B308793

ARMANDO MARTINEZ, JR.,

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