People v. Martinez CA2/5

Filed 6/14/24 P. v. Martinez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B332648

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA053146) v.

ARMANDO MARTINEZ,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Rogelio G. Delgado, Judge. Affirmed. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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In 2003, following a jury trial, defendant was found guilty of one count of attempted premeditated murder. (Pen. Code, §§ 664, 187, subd. (a).)1 The jury found true the allegation that he personally and intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) He was sentenced to prison for life plus 25 years to life.2 In October 2022, defendant filed a petition for resentencing pursuant to former section 1170.95 (now section 1172.6). The trial court appointed counsel, who briefed the issue of defendant’s eligibility for relief; the prosecution opposed the petition. The prosecution’s opposition included as an exhibit the full set of jury instructions given at defendant’s trial. These instructions included CALJIC No. 8.66 (requiring the jury to find, for attempted murder, that the person committing the attempt “harbored express malice aforethought, namely a specific intent to kill unlawfully a human being”); CALJIC No. 8.67 (requiring the jury to find, for premeditation, that mental state on the part of the “would-be slayer”); and CALJIC No. 8.40 (permitting the jury to find defendant guilty of the lesser offense of attempted voluntary manslaughter if there was an absence of malice). No