People v. Martinez CA1/2

Filed 6/22/23 P. v. Martinez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A166013 v. SAMUEL MARTINEZ, (Solano County Super. Ct. No. FCR348129) Defendant and Appellant.

A jury found defendant Samuel Martinez guilty of second degree robbery, and the trial court sentenced him to the upper term of five years in prison. In a prior appeal, we affirmed the conviction but remanded to the trial court for resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.) (S.B. 567). (People v. Martinez (Feb. 23, 2022, A159821) [nonpub. opn.] 2022 WL 538053, at [8] (Martinez I).) Martinez appeals following resentencing. We affirm. BACKGROUND Second degree robbery is punishable by imprisonment for two, three, or five years. (Pen. Code,1 § 213, subd. (a)(1)(B)(2).) When the trial court originally sentenced Martinez, it had broad authority under former section 1170 to select a term from the sentencing triad that “in the court’s discretion,

1 Further undesignated statutory references are to the Penal Code.

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best serve[d] the interests of justice.” (Former § 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 15.) The trial court imposed the upper term of five years. (Martinez I, supra, 2022 WL 538053, at [7].) Effective January 1, 2022, S.B. 567 amended section 1170 “in several fundamental ways.” (People v. Flores (2022) 73 Cal.App.5th 1032, 1038 (Flores).) Under S.B. 567, a sentencing court may impose an upper term only under certain circumstances. Section 1170, subdivision (b)(2), now provides in relevant part, “The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” Subdivision (b)(3) of the statute, however, provides an exception, permitting the sentencing court to “consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” In addition, S.B. 567 “establishes a presumption of the lower term” in certain circumstances, including that psychological, physical, or childhood trauma contributed to the commission of the offense. (Flores, supra, 73 Cal.App.5th at p. 1039; § 1170, subd. (b)(6)(A).) In Martinez’s prior appeal, the parties agreed S.B. 567 applied retroactively to this case and the matter should be remanded to the trial court for resentencing under current law. We remanded, noting, “On remand, the parties are free to argue for the term they believe is appropriate under the applicable law.” (Martinez I, supra, 2022 WL 538053, at