People v. Martinez CA3

Filed 10/7/21 P. v. Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C092940

Plaintiff and Respondent, (Super. Ct. No. STKCRFE19980005787) v.

LUIS ALBERTO MARTINEZ,

Defendant and Appellant.

Defendant Luis Alberto Martinez appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95.1 Defendant contends the trial court erred by summarily denying his petition after determining he failed to establish a prima facie case under the provisions of the statute. He argues the trial court should have issued an order to show cause and allowed the petition to proceed for full

1 Undesignated statutory references are to the Penal Code.

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consideration on its merits. We agree the trial court erred in denying defendant’s petition and will remand the case for further proceedings. BACKGROUND A. Trial In March 1999, defendant was charged with the murder of Vincent Lefebre (§ 187—count 1), the attempted willful, deliberate, premeditated murder of Armando Posada (§§ 664, 187, subd. (a)—count 2), and street terrorism (§ 186.22, subd. (a)— count 3). For count 1, it was alleged that defendant discharged a firearm from a motor vehicle causing great bodily injury and death (§ 12022.55); for counts 1 and 2, it was alleged that he personally used a firearm (§ 12022.5, subd. (a)), and that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). A jury found defendant guilty of all counts, with count 1 being first degree murder; it also found the gang enhancements true but found the firearm discharge and personal use allegations not true. He was sentenced to state prison for an determinate term of three years plus consecutive indeterminate terms of 25 years to life, and life with possibility of parole. Defendant appealed, and we affirmed the judgment in an unpublished decision. (People v. Martinez (Oct. 16, 2000, C033598) [nonpub. opn.] (Martinez).) The facts underlying defendant’s offenses, as recounted in Martinez, were as follows: Murder victim Lefebre and attempted murder victim Posada were members of a northern California street gang. (Martinez, supra, C033598.) On October 8, 1995, they were riding their bicycles in Stockton when a stolen pickup truck with five or six Hispanic men began following them; one of the truck’s windows had been removed to facilitate the firing of a gun. (Ibid.) As the truck pulled alongside the cyclists, Posada realized that he and Lefebre were going to be shot at, and he yelled at Lefebre to shoot at the truck. (Martinez, supra,