People v. Martinez CA2/1

Filed 2/28/22 P. v. Martinez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE THE PEOPLE, B311549

(Los Angeles County Plaintiff and Respondent, Super. Ct. No. BA133104)

v.

DANIEL MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Shelly B. Torrealba, Judge. Reversed. Johanna Pirko, 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, Amanda V. Lopez and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

Defendant and appellant Daniel Martinez challenges the trial court’s summary denial of his petition for resentencing under Penal Code1 section 1170.95. He contends that the trial court erred by finding that he failed to make a prima facie case that he was eligible for relief under the statute. We agree.

FACTUAL AND PROCEDURAL SUMMARY In 1997, a jury convicted Martinez of one count of second degree murder (§ 187, subd. (a)), one count of premeditated attempted murder (§§ 187, subd. (a), 664), and one count of assault with a firearm (§ 245, subd. (a)(2)). The trial court sentenced him to 16 years to life in prison, plus an additional life term with the possibility of parole, plus one year. We affirmed the conviction on direct appeal. (People v. Morales (Oct. 21, 1998, B111289) [nonpub. opn.] (Morales).) Martinez’s convictions resulted from a shooting on the evening of June 3, 1996. Martinez and his codefendants, Mario Morales and Juan Carlos Rodriguez, along with a fourth suspect,2 were members of the 18th Street gang and “bitter enemies” of the La Mara Salvatrucha gang. (Morales, supra, B111289, at p. 8.) We described the facts of the case in our prior opinion: “Jose Funes, Paolo Figueroa and the decedent, Germain ‘Doggy’ Martinez, were drinking beer on the porch of Funes’ home. Funes’ home is located in the La Mara gang’s territory, but Funes was not a gang member. Nor had he ever had any