People v. Martinez CA2/5

Filed 11/29/21 P. v. Martinez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B306457

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. NA095527)

JOSE ANGEL MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Reversed and remanded. Law Office of Steven Schorr and Steven Schorr, 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, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Jose Angel Martinez (defendant) in 2017 of first degree murder and arson. He and an accomplice killed victim Christopher Waters and burned his body in an effort to avoid capture for the crime. (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez I).) After defendant’s conviction, the Legislature passed and the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The legislation, which took effect on January 1, 2019, “‘amend[s] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill 1437 accomplishes this by amending [Penal Code] section 188, which defines malice, and [Penal Code] section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds [to the Penal Code] . . . section 1170.95, which allows those ‘convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts . . . .’ ([Pen. Code, ]§ 1170.95, subd. (a).)” (Martinez I, supra, 31 Cal.App.5th at 723.) On direct appeal, this court affirmed defendant’s conviction. (Martinez I, supra, 31 Cal.App.5th at 730.) Among other things, we held defendant was not entitled to seek relief on direct appeal based on the changes in law made by Senate Bill 1437; instead, we held he must seek such relief via the