California Court of Appeal Mar 23, 2022 No. E077034Unpublished
Filed 3/23/22 P. v. Martinez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077034
v. (Super.Ct.No. RIF095228)
JOHNNY MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molly, Judge.
Affirmed.
Patricia Ann Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Johnny Martinez appeals two orders of the Riverside
County Superior Court. One is the court’s summary denial of his petition made pursuant
to section 1170.95 of the Penal Code seeking resentencing of convictions on one count of
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second degree murder in violation of section 187 and one count of first degree attempted
murder in violation of sections 664 and 187.1 The other is the denial of his motion to
correct his sentence made pursuant to rule 60(b) of the Federal Rule of Civil Procedure.
In applying that standard here, we accept the petition’s facts as true but evaluate
them in light of facts readily ascertainable from the record of conviction, including our
opinion in Martinez I, supra, E033679. (Arias, supra, 66 Cal.App.5th at p. 999.) The
record of conviction clearly establishes that defendant was charged and convicted as the
actual killer of the victim and, therefore, is not eligible for relief pursuant to section
1170.95 as a matter of law. (§ 1170.95, subd. (a); People v. Mancilla (2021) 67
Cal.App.5th 854, 866-867.)
2 Rule 8.1115(e)(1) of California Rules of Court permits us to rely on appellate opinions as persuasive authority while review by the Supreme Court is pending.
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Defendant’s fourth and final argument is that the trial court erred in denying his
motion to correct his sentence to eliminate the additional time imposed due to the second
strike because, under People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), he is entitled
to have a jury decide if the strike was a serious or violent felony.
Gallardo held that, when imposing additional punishment based upon a
defendant’s prior conviction, a sentencing court may not rely on its own independent
review of a record to determine what conduct led to the prior conviction. (Gallardo,
supra, 4 Cal. 5th at p. 136.) Rather, it must limit its inquiry to identifying those facts that
were already necessarily found by a prior jury in rendering a guilty verdict or that were
admitted by the defendant in entering a guilty plea. (Ibid.)
We note the issue whether Gallardo applies in a case like the present one, in
which the conviction complained of is final, is pending before our Supreme Court.
(Compare, e.g., In re Haden (2020) 49 Cal.App.5th 1091, review granted Aug. 12.,
2020, S263261 [Gallardo does not apply retroactively to final convictions] with In re
Brown (2020) 45 Cal.App.5th 699, review granted June 10, 2020, S261454 [Gallardo
does apply retroactively].)
Here, it matters not whether Gallardo is retroactive because it provides no relief
for defendant. When he pled guilty to a felony violation of subdivision (a)(1) of section
245 in October 1999, defendant admitted assaulting his victim by means of force likely to
produce great bodily injury. He entered the plea with the express understanding that the
conviction constituted a “strike” under section 1192.7, subdivision (c)(8). That
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subdivision provides in relevant part that any felony in which the defendant personally
inflicts great bodily injury on another person is a “serious felony.” Accordingly, and
contrary to defendant’s claim on appeal, when he was sentenced in the present case in
2003, the trial court did not err in finding the prior strike was a serious or violent felony.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106 and in keeping
with People v. Gallo (2020) 57 Cal.App.5th 594, we have independently reviewed the
record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1170.95 and his motion to correct his sentence, finding the defendant was the actual killer and that his prior strike conviction was properly used for sentencing.
Issues
Whether the trial court erred in summarily denying the defendant's petition for resentencing under Penal Code section 1170.95.
Whether the trial court erred in denying the defendant's motion to correct his sentence regarding a prior strike conviction.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The record of conviction clearly establishes that defendant was charged and convicted as the actual killer of the victim and, therefore, is not eligible for relief pursuant to section 1170.95 as a matter of law.”
“we have independently reviewed the record for potential error and find no arguable issues.”