People v. Martin CA2/6

Filed 3/19/24 P. v. Martin CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B327562 (Super. Ct. No. 1350270) Plaintiff and Respondent, (Santa Barbara County)

v.

CURTIS GENE MARTIN,

Defendant and Appellant.

Curtis Gene Martin appeals from the trial court’s order denying his request for resentencing after the Department of Corrections and Rehabilitation (CDCR) identified him as a person serving an invalid sentence. (Pen. Code,1 § 1172.75.) Martin contends the court was required to recall his sentence because it included a now-invalid enhancement. We vacate the denial order and remand for resentencing.

1 Statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL HISTORY In 2012, Martin pleaded no contest to attempted murder (§§ 664/187, subd. (a)), and admitted that he inflicted great bodily injury (§ 12022.7, subd. (a)) and used a deadly weapon (§ 12022, subd. (b)(1)) when committing his offense. He also admitted that the offense was a hate crime (§ 422.75, subd. (a)), that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)) and prior serious felony conviction (§ 667, subd. (a)), and that he served a prior term in prison (former § 667.5, subd. (b)). The trial court sentenced him to 26 years to life in state prison: 14 years to life on the attempted murder, three years for inflicting great bodily injury, one year for using a deadly weapon, three years for committing a hate crime, and five years for the prior serious felony. The court stayed the one-year term on Martin’s prison prior. CDCR subsequently notified the trial court that Martin’s sentence included a now-invalid prior prison term enhancement, rendering him eligible to have his sentence recalled under section 1172.75. The court tentatively determined that Martin was ineligible for section 1172.75 relief because the prison prior had been stayed. After a hearing, the court declined to recall Martin’s sentence. It concluded that section 1172.75 only applies to those “currently serving an additional year in prison because of the imposition of the punishment for [a prior prison term] enhancement.” (Italics original.) In the court’s view, Martin was not such a prisoner since the enhancement had been stayed. The court also believed there was “no legal authority to stay a prison