People v. Martinez CA3

Filed 2/10/22 P. v. Martinez CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C092554

Plaintiff and Respondent, (Super. Ct. No. 03F01514

v. OPINION ON TRANSFER

ANTHONY MARTINEZ,

Defendant and Appellant.

Defendant Anthony Martinez appeals the trial court’s denial of his petition for resentencing under Penal Code1 section 1170.95. He contends his conviction for attempted murder should have been eligible for relief under section 1170.95. In an unpublished opinion, we affirmed the trial court’s order. (People v. Martinez (July 6, 2021, C092554) [nonpub. opn.].) The Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775. On transfer, the People now concede, and we agree, defendant is

1 Undesignated section references are to the Penal Code.

1

eligible for resentencing on his attempted murder conviction. Accordingly, we will reverse and remand with instructions to the trial court to appoint counsel and issue an order to show cause for further proceedings under section 1170.95. BACKGROUND In 2003, a jury found defendant guilty of attempted second degree murder, discharging a firearm, two counts of assault with a semiautomatic firearm, possession of stolen property, first degree robbery, and first degree burglary. The jury also found true firearm enhancement allegations. The trial court sentenced defendant to an aggregate term of 33 years eight months in state prison. Defendant appealed his conviction, which we affirmed. (People v. Martinez (Feb. 20, 2007, C049234) [nonpub. opn.].) In March 2019, defendant filed a petition for writ of habeas corpus in the trial court, seeking dismissal of his attempted murder conviction pursuant to section 1170.95. The trial court ordered the writ petition be “construed as a . . . § 1170.95 petition in Case No. 03F01514 itself.” The court ruled defendant was not eligible for section 1170.95 resentencing because section 1170.95 applies only to defendants convicted of murder, not attempted murder. The court, however, also found defendant may have an equal protection claim. Accordingly, the court appointed counsel and directed both parties to submit briefs addressing the equal protection claim, as well as whether defendant was eligible for relief under section 1170.95. Following submission of the parties’ briefs, the trial court denied defendant’s petition. In reaching its decision, the trial court noted the Courts of Appeal were split on whether Senate Bill No. 1437 “has substantively abrogated the natural and probable consequences doctrine with respect to attempted murder.” But, the weight of authority compelled the court to find that section 1170.95 relief is not available to defendants convicted of attempted murder.