Filed 9/14/16 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. RICARDO MARTINEZ, Defendant and Appellant. F071336
(Super. Ct. No. VCF266169)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.
Carol Foster , under appoi ntment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

Ricardo Martinez appeals from the trial court’s denial of his petition for resentencing pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. The

* Befor e Kane, Acting P.J., Detjen, J., and Smith, J.2

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trial court denied the petition, concluding that Martinez posed an unreasonable risk of danger to public safety. We affirm the judgment.

FACTS AND PROCEDURAL HISTORY Martinez’s petition alleged he was convicted of violating Health and Safety Code
section 11350, subdivision (a), for which he currently serving a sentence. The district attorney opposed the petition, arguing Martinez posed an unreasonable risk of danger to public safety. At the hearing on the petition, it was establish ed that when Martinez was 14 years old, a juvenile petition was sustained finding he had violated Penal Code sections 187 and 664 (attempted murder), with a gang enhancement, a firearm enhancement, and a great

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- injury enhancement. Martinez was sent to the California Youth Authority (now the Department of Juvenile Justice). In 2011, he was convicted of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), with a gang allegation being found true. At one point, although exactly when is unclear, Martinez was convicted of possession for sales (the applicable code section is not identified). The trial court denied the petition, finding that resentencing Martinez would pose an unreasonable risk to public safety.
DISCUSSION
The relevant portion of Proposition 47 is codified in Penal Code section 1170.18. This section provides that a prisoner may petition to have a felony conviction reduced to a misdemeanor if the felony conviction is specific ally enumerated in subdivision (a) of the statute. The conviction Martinez sought to have reduced to a misdemeanor was a felony violation of Health and Safety Code section 11350, subdivision (a). This offense
is listed in Penal Code section 1170.18, subdivision (a), so Martinez was eligible for resentencing.
Penal Code section 1170.18, subdivision (b), provides that if the prisoner is eligible for resentencing, the trial court must recall his sentence unless “the court, in its3

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discretion, determines that resentencing the [prisoner] would pose an unreasonable risk of danger to public safety.” Various factors are identified which the trial court may consider when deciding if the prisoner poses an unreasonable risk of danger to pu blic safety, including (1) the prisoner ’s criminal conviction history, (2) the prisoner’s discipli nary record while incarcerated, and (3) any other evidence the trial court deems applicable

. Finally, as relevant t o this case, Penal Code section 1170.18, s ubdivision (c), defines an unreasonable risk of danger to public safety as “an unreasonable risk that the petitioner will commit a new violent felony within the meaning of” Penal Code section 667,
subdivision (e)(2)(C)(iv).
Penal Code section 1170.18, s ubdivision (b), provides the trial court with discretion to determine whether the prisoner poses an unreasonable risk of danger to public safety. Accordingly, we review the trial court’s decision for an abuse of
discretion. A trial court abus es its discr etion when it acts in an arbitrary, capricious, or paten tly absurd manner that results in a miscarriage of justice. ( People v. Peoples (2016) 62 Cal.4th 718, 745.) In other words, the trial court abuses its discretion when its ruling
falls outside the bo unds of reason. ( People v. Johnson (2015) 61 Cal.4th 734, 750.)
The trial court did not abuse its discretion in this case. The trial court relied on Martinez’s criminal history in reaching its decision. This history established that Martinez, at the age of 14, attempted to murder another indivi dual with the use of a
firearm and for the benefit of a criminal street gang. In 2011, he was convicted of possession of a firearm for the benefit of a criminal street gang. He was later convicted of possessio n of narcotics for sale. The trial court could reasonably conclude that Martinez remained an active member of a criminal street gang and was likely to commit another serious offense within the meaning of Penal Code section 667,
subdivision (e)(2)(C)(iv), if his conviction was reduced to a misdemeanor. Appellate counsel filed a brief pursuant to People v. Wende (1979 ) 25 Cal.3d 436, asserting that, after a thoroug h review of the record, she could not identify any arguable4

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issues in the c ase. By letter dat ed September 29, 2015, we invited Martinez to inform this court of any issues he wished us to address. Martinez did not respond to our
invitation. We have independently reviewed the record and have no arguable issues.
DISPOSITION The order denying the p etition is affirmed.