People v. Martinez CA3

Filed 1/16/24 P. v. Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C097624

Plaintiff and Respondent, (Super. Ct. No. CR58016)

v.

HUMBERTO MARTINEZ,

Defendant and Appellant.

In 1980, a jury found defendant Humberto Martinez guilty of two counts of robbery (Penal Code, § 211; statutory section citations that follow are found in the Penal Code unless otherwise stated), one count of kidnapping for the purpose of robbery (§ 209), and one count of conspiracy to commit murder (§§ 182, 187). The trial court sentenced defendant to 15 years to life on the conspiracy conviction, seven years to life on the kidnapping conviction, and three years as to each robbery conviction. In 2022, defendant filed a petition for resentencing pursuant to section 1172.6, which the trial court denied at the prima facie stage.

1

We note that, effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Defendant filed his petition under former section 1170.95, but we will cite to the current section 1172.6. On appeal, counsel filed a brief raising no arguable issues under People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and requesting we exercise our discretion to review the entire record for arguable issues on appeal. Defendant filed a supplemental brief arguing he was not the perpetrator who attempted to kill or maim anyone, a perpetrator who robbed anyone or threw them to the ground, and that the trial court’s denial of his motion was a word game. He also argues his sentence constitutes cruel and/or unusual punishment. We affirm the trial court’s order.

FACTS AND HISTORY OF THE PROCEEDINGS We summarize the relevant facts of this case from our prior unpublished opinion. (People v. Martinez (Sept. 22, 1986, C001059 (formerly CR14528)) [nonpub. opn.] (Martinez).) We recite these facts for context but rely only on the procedural history they disclose in rendering our decision. Preliminarily, we acknowledge there is a split of authority as to whether we may use these facts at the prima facie stage, but need not resolve that issue given our disposition of this case. (Compare People v. Brimmer (2014) 230 Cal.App.4th 782, 800 [holding a prior appellate opinion is part of the record of conviction that may be used at the prima facie stage] with People v. Flores (2022) 76 Cal.App.5th 974, 988 [suggesting in dicta that opinion may not be used at the prima facie stage].) As to the first victim, defendant, and four other men drove to Sacramento in a truck to visit defendant’s girlfriend. The group got lost and when defendant stopped to ask directions from a woman named M.M., a man from his party jumped out of the truck,