People v. Martinez CA4/3

Filed 9/21/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G061900

v. (Super. Ct. No. 14NF4890)

RUBEN MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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In 2017, a jury convicted defendant Ruben Martinez of first degree murder. 1 (Pen. Code, § 187, subd. (a).) The jury found it to be true that in the commission of murder, defendant personally used a deadly or dangerous weapon. (§ 12022, subd. (b)(1).) The trial court found true a prior strike conviction (§ 667, subds. (d), (e)(1)), and a prior prison term allegation (§ 667.5, subd. (b)). The court sentenced defendant to 52 years to life in state prison. In 2019, another panel of this court affirmed the judgment. (People v. Martinez (June 24, 2019, G054953) [nonpub.opn.].) In 2022, defendant filed a petition for resentencing pursuant to former 2 section 1170.95 (now 1172.6). In it, he averred that: 1. An information was filed against him that permitted the prosecution to proceed under a theory of murder under the natural and probable consequences doctrine; 2. he was convicted of murder; and 3. he could not presently be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019. The trial court denied the petition at the prima facie stage. The trial court concluded defendant was ineligible as a matter of law because he was convicted of first degree murder, and the jury was not instructed on felony murder, murder under the natural and probable consequences doctrine, or any other theory of murder liability in which malice was imputed to defendant merely based on his participation in a crime. Defendant timely filed a notice of appeal, and we appointed counsel to represent him. Counsel filed a brief in compliance with People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 accompanied by a declaration stating that she could find no arguable issues to assert on defendant’s behalf. Counsel requested that we exercise our discretion to review the record for arguable issues.