People v. Martinez CA5

Filed 6/20/22 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F082865 Plaintiff and Respondent, (Super. Ct. No. 09CM0397-003) v.

BENJAMIN MARTINEZ, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Kings County. Donna L. Tarter, Judge. Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric Christoffersen, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Franson, J. and Peña, J.

Appellant Benjamin Martinez appeals following the denial of his petition for resentencing under the then applicable statute, Penal Code1 former section 1170.95 (Stats. 2018, ch. 1015, § 4). The parties agree that the trial court erred in making certain factual findings and thus should not have denied appellant’s petition at the prima facie stage of the statutory proceedings. Upon review of the record and arguments, we agree and therefore reverse the trial court’s order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND On February 17, 2012, a first amended information was filed against David Lee Bonner, Jr., appellant, and Jose Manuel Vasquez. Count 1 of the seven-count information alleged that the three committed murder in violation of section 187, subdivision (a) by killing Eric Gomez. Count 1 further alleged that the killing occurred while the three were “engaged in the commission of carjacking and/or armed robbery, within the meaning of Penal Code section 190.2[, subdivision ](a)(17).” Shortly before appellant’s trial was scheduled to begin, appellant agreed to plead guilty “to count 1 a violation of [P]enal [C]ode section 187[, subdivision](a) in the second degree[,] doubled pursuant to [section ]667(b)–(i).” The parties agreed to a total term of 30 years to life, and the court accepted the plea. On December 4, 2013, appellant was sentenced consistent with the plea agreement. On February 1, 2021, appellant petitioned for resentencing under former section 1170.95 by submitting a preprinted form. By checking various boxes, appellant alleged he had been charged with an offense that allowed the prosecution to proceed under a felony-murder theory, that he pled guilty to second degree murder in lieu of going to trial, and that he could no longer be convicted of second degree murder because of changes made to sections 188 and 189. Appellant requested appointment of counsel and checked boxes stating he “was not the actual killer,” “did not, with the intent to kill,