People v. Martinez CA4/3

Filed 5/17/23 P. v. Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G061873

v. (Super. Ct. No. 12ZF0158)

DAVID ARTHUR MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

A jury convicted defendant David Arthur Martinez of conspiracy to commit 1 murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a); count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 2). The jury also found true the allegation that count 1 was committed to benefit a criminal street gang. (§186.22, subd. (b)(1).) The court imposed a prison sentence of 25 years to life on count 1 with a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5). The court further stayed an additional two-year term on count 2 pursuant to section 654. In 2015, another panel of this court affirmed the judgment. (People v. Martinez (Feb. 2, 2015, G049337) [nonpub. opn.].) In February 2022, defendant filed a petition for resentencing under former 2 section 1170.95 (now § 1172.6). In his petition, defendant averred: “1. A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine. [Citation.] [¶] 2. I was convicted of murder, attempted murder, or manslaughter following a trial or I accepted a plea offer in lieu of a trial at which I could have been convicted of murder or attempted murder. [Citation.] [¶] 3. I could not presently be convicted of murder or attempted murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” (Bold & underlining omitted.)