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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOooRicardo Martinez appeals from the trial court’s denial of his petition for 

resentencing pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. The 

 

*Before Kane, Acting P.J., Detjen, J., and Smith, J.
2.

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 established 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-bodily-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 specifically 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 its 
3.

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 public safety, 

including (1) the prisoner’s criminal conviction history, (2) the prisoner’s disciplinary 

record while incarcerated, and (3) any other evidence the trial court deems applicable. 

Finally, as relevant to this case, Penal Code section 1170.18, subdivision (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, subdivision (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 abuses its discretion when it acts in an arbitrary, capricious, or 

patently 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 bounds 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 individual 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 possession 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 thorough review of the record, she could not identify any arguable 
4.

issues in the case. By letter dated 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 petition is affirmed.