Filed 10/20/21 P. v. Martinez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID MARTINEZ,

Defendant and Appellant.

B307260

Los Angeles County

Super. Ct. No. A921413

APPEAL from an order of the Superior Court of Los

Angeles County, Hector M. Guzman, Judge. Affirmed.

Edward J. Haggerty, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Allison H. Chung, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

In 1988, defendant David Martinez was convicted of second 

degree murder. He appeals from the denial of his petition for 

recall and resentencing under Penal Code section 1170.95. 

Defendant contends that the trial court erred by denying his 

petition without issuing an order to show cause. Specifically, he 

argues the court engaged in improper fact-finding by relying on 

the opinion in his prior appeal. Based on the instructions at trial, 

however, although the jury in this case could have convicted 

defendant of first degree murder under a felony murder theory, 

the only theory of guilt for second degree murder was malice 

aforethought.1 Because defendant could not have been convicted 

under a now-invalid theory of murder, he is ineligible for relief as 

a matter of law. We therefore affirm.

BACKGROUND2

By information dated February 9, 1988, defendant and

three other men were charged with one count of murder (Pen. 

Code,3 § 187, subd. (a); count 1) and one count of aggravated 

assault (§ 245, subd. (a); count 2). Count 2 was subsequently 

dismissed under section 995. (People v. Martinez, et al. (Nov. 27, 

1990, B041553) [nonpub. opn.] [p. 6] (Martinez).)4 A jury 

1 The People’s unopposed request for judicial notice, filed July 22, 2021, 

is granted.

2 Because the facts underlying the charges are not relevant to 

defendant’s eligibility for relief in this case, we do not address them.

3 All undesignated statutory references are to the Penal Code.

4 On May 11, 2021, we granted defendant’s request for judicial notice of 

the opinion in his prior appeal.
3

convicted defendant of second degree murder, and the court 

sentenced him to an indeterminate term of 15 years to life. A 

different panel of this court affirmed by unpublished opinion. 

(Martinez, [at p. 18].)

In February 2019, defendant filed a petition for recall and 

resentencing under section 1170.95. Defendant argued that the 

prosecution proceeded on theories of both malice aforethought 

and accomplice liability but that he was neither the actual killer 

nor an accomplice to the crime. Counsel was appointed to 

represent him. The prosecution filed an opposition to the petition 

arguing that defendant was a major participant in the underlying 

felony who acted with reckless indifference to human life as well 

as a separate opposition arguing that section 1170.95 was 

unconstitutional. Defense counsel filed a reply. In 

November 2019, the court denied the petition by written order.

The court’s order states in relevant part:

The facts of this case, derived from the statement 

of the case of the Appeals Court, clearly establish[ ]

that petitioner’s conviction for second degree 

murder was not obtained under a theory of felony 

murder or the doctrine of natural and probable 

consequences. The Court of Appeal[ ] made the 

following observation[:] “... the prosecution was not 

proceeding on a felony murder theory as to the 

offense of second degree murder.” ([Martinez, 

supra, B041553] at p. 12.) As to whether the jury 

convicted petitioner of second degree murder on the 

doctrine of natural and probable consequence[s], 

petitioner acknowledges in his [r]eply brief that “it 

does not appear the trial court instructed on a 
4

natural and probable consequence[s] theory of 

liability.[”] [Citation.]

Petitioner, along with several other individuals, 

was the actual killer in the group beating and 

murder of Antonio Ramirez (victim) and thus was 

convicted of second degree murder. [Fn. omitted.] 

In other words, petitioner committed an act that 

caused the death of another person[,] and when he 

acted, he had a state of mind called malice 

aforethought. This is what the jury found[,] and 

[p]etitioner did not challenge that finding. He along 

with four others were identified as having kicked 

the victim, who was on the ground, in the head and 

stomach area. According to trial testimony, the 

beating lasted for about five minutes. The victim 

did not fight back and just [lay] on the ground. A 

medical examiner specifically opined that the 

victim’s death resulted from the bleeding and 

swelling of the brain, which was caused by internal 

injuries to the brain due to blunt force trauma. 

According to the medical examiner, these injuries 

were consistent with the actions of five men 

kicking the victim for five minutes.

Defendant is not entitled to relief under 

section 1170.95 as a matter of law. Accordingly, the 

petition is summarily denied.

On August 28, 2020, defendant filed an application for 

relief from default for failure to file a timely notice of appeal. The 
5

People did not oppose the application, and we granted it on 

September 24, 2020.

DISCUSSION

Defendant contends that the trial court improperly weighed 

the evidence at the prima facie stage of proceedings. We need not 

reach that issue, however, because the record of conviction 

establishes that defendant is ineligible for relief as a matter of 

law. 

1. S.B. 1437

Senate Bill No. 1437 (S.B. 1437) was enacted to “amend the 

felony murder rule and the natural and probable consequences 

doctrine, as it relates to murder, to ensure that murder liability is 

not imposed on a person who is not the actual killer, did not act 

with the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human 

life.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021) 

11 Cal.5th 952, 959 (Lewis).) It accomplished this by amending 

section 188, subdivision (a)(3), to require that all principals to 

murder must act with express or implied malice to be convicted of 

that crime, unless they are convicted of felony murder under 

section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) For felony 

murder convictions under section 189, subdivision (e), S.B.1437 

requires that the defendant be the actual killer, an aider and 

abettor to the murder who acted with intent to kill, or a major 

participant in the underlying felony who acted with reckless 

indifference to human life. (Stats. 2018, ch. 1015, § 3.)

In addition to changing the law of murder prospectively, 

S.B. 1437 gave people who had been convicted under one of the 

now-invalid theories of murder the opportunity to petition for 
6

resentencing under newly-enacted section 1170.95. (Stats. 2018, 

ch. 1015, § 4.) Section 1170.95, subdivision (a)(3), describes who 

may petition for resentencing under the statute. Subdivision (b) 

explains what information the petition must contain, where the 

petitioner must file it, who the petitioner must serve, and what 

the court should do if it’s incomplete. Subdivision (c)—the section 

at issue here—describes the process the court uses to determine 

whether the petitioner is entitled to an evidentiary hearing: 

Appoint counsel, if requested; wait for the prosecutor’s required 

response and the petitioner’s optional reply; if the petitioner 

makes a prima facie showing that he is entitled to relief, issue an 

order to show cause. (Lewis, supra, 11 Cal.5th at p. 966.)

If the court issues an order to show cause after its prima 

facie review, subdivisions (d)–(g) describe the procedures for 

holding an evidentiary hearing, the type of evidence that may be 

admitted, the burden of proof, and the requirements for 

resentencing an eligible petitioner.

2. Defendant is ineligible for relief as a matter of law.

“While the trial court may look at the record of conviction 

after the appointment of counsel to determine whether a 

petitioner has made a prima facie case for section 1170.95 relief, 

the prima facie inquiry under subdivision (c) is limited.” (Lewis, 

supra, 11 Cal.5th at p. 971.) The court may deny a petition at this 

stage only if the petitioner is ineligible for relief as a matter of 

law. A petitioner is ineligible for relief as matter of law if the 

record of conviction shows that he could not have been convicted 

under any theory of liability affected by S.B. 1437—such as 

where malice aforethought was the only theory presented to the 

jury. “In reviewing any part of the record of conviction at this 

preliminary juncture, a trial court should not engage in 
7

‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ [Citation.] ... [T]he prima facie bar was intentionally 

and correctly set very low.” (Lewis, at p. 972.)

Here, the jury was instructed that it could convict 

defendant of first degree murder based on either malice 

aforethought (CALJIC Nos. 8.10, 8.11), felony murder during the 

commission of a robbery (CALJIC Nos. 8.21, 8.79), or felony 

murder as an aider and abettor to robbery (CALJIC No. 8.27).

By contrast, the jury was instructed that it could convict 

defendant of second degree murder only if it found that he acted 

with malice aforethought: “Murder of the second degree is the 

unlawful killing of a human being with malice aforethought when 

there is manifested an intention unlawfully to kill a human being 

but the evidence is insufficient to establish deliberation and 

premeditation.” (CALJIC No. 8.30.) It was not instructed on 

aiding and abetting for second degree murder. Nor was it 

instructed on the natural and probable consequences doctrine.

Finally, the jury was instructed that if defendant 

unlawfully killed the victim without malice, he could be convicted 

of manslaughter under various theories of guilt: “The crime of 

manslaughter is the unlawful killing of a human being without 

malice aforethought. It is not divided into degrees but is of two 

kinds, namely, voluntary manslaughter and involuntary 

manslaughter.” (CALJIC No. 8.37.) As relevant here, the jury 

was instructed about the misdemeanor–manslaughter rule, with 

robbery as the predicate misdemeanor. (CALJIC No. 8.51; see 

People v. Rios (2000) 23 Cal.4th 450, 460 [difference between 

murder and manslaughter is that “murder includes, but 

manslaughter lacks, the element of malice”]; People v. Vasquez
8

(2018) 30 Cal.App.5th 786, 793 [“An unlawful killing without

malice is involuntary manslaughter.”].) 

By rejecting both first degree murder and manslaughter, 

the jury indicated that it did not believe that the killing occurred 

during a robbery—and by convicting defendant of second degree 

murder in lieu of manslaughter, the jury necessarily found that 

he acted with malice aforethought. Because the jury instructions 

and verdict, without more, establish that defendant was 

convicted under a still-valid theory of murder, he is ineligible for 

section 1170.95 relief as a matter of law. (Lewis, supra, 

11 Cal.5th, at pp. 971–972.) As such, the petition was properly 

denied.
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DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

MATTHEWS, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.