Filed 8/12/21 P. v. Martinez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO MARTINEZ, JR.,

Defendant and Appellant.

 B308793

 (Los Angeles County

 Super. Ct. No. GA071089)

APPEAL from an order of the Superior Court of Los 

Angeles County. Suzette Clover, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Roberta L. Davis, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Armando Martinez, Jr. (defendant) filed a petition to vacate 

his conviction for attempted murder pursuant to Penal Code 

section 1170.95,1 as amended by Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (SB 1437). The trial court summarily denied that 

petition, and defendant now appeals. We conclude there was no 

prejudicial error and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

A. The underlying crime

In 2007, defendant and Natividad Delossantos

(Delossantos) got into a fistfight outside of a convenience store 

with someone they believed to be a member of a rival street gang. 

While defendant continued the fistfight, Delossantos retrieved a 

gun from his car. Upon returning to the fray, Delossantos put 

the gun to the rival’s temple and pulled the trigger two or three 

times. The gun only clicked. The perceived rival ducked back 

into the store, while Delossantos managed to fire off two or three 

shots. All missed. Defendant and Delossantos fled the scene 

together, shouting the name of their gang. 

1 All subsequent statutory references are to the Penal Code, 

unless otherwise indicated.

2 We draw these facts from our prior, unpublished appellate 

opinion affirming defendant’s conviction. (People v. Martinez

(Nov. 23, 2010, B216964).)
3

B. Prosecution, conviction and appeal

In the operative complaint, the People charged defendant 

with one count of attempted premeditated murder (§§ 664/187, 

subd. (a)), and three counts of assault with a semiautomatic 

firearm (§ 245, subd. (b)) as to the perceived rival and other 

customers in the store. As to all counts, the People alleged that 

the offenses were committed in association with a criminal street 

gang (§ 186.22, subd. (b)(1)(B)), and that a principal personally 

used and discharged a firearm (§ 12022.53, subds. (b) and (e)(1)). 

A jury convicted defendant on all counts and found all 

enhancements to be true. 

For the attempted murder, the trial court sentenced 

appellant to a total of 35 years to life in prison comprised of a life 

sentence plus 15 years for the gang enhancement plus 20 years 

for the firearm enhancement. The court stayed the assault count 

with respect to the intended victim of the attempted murder, but 

imposed concurrent six-year prison terms for the assaults on the 

remaining two customers.

II. Procedural Background

In 2020, defendant filed a motion for resentencing under 

section 1170.95. The trial court summarily denied the petition, 

noting that SB 1437 did not eliminate the natural and probable 

consequences theory of culpability for attempted murder. 

Defendant timely appealed this denial. 

DISCUSSION

On appeal, defendant argues that the trial court erred in 

denying his petition for relief under section 1170.95 because (1) 

the statute provides relief for persons convicted of attempted 

murder, and (2) construing the statute otherwise denies him 

equal protection of the laws. Because these arguments turn on 
4

questions of statutory construction and constitutional law, our 

review is de novo. (John v. Superior Court (2016) 63 Cal.4th 91, 

95; People v. Zamudio (2008) 43 Cal.4th 327, 342.) 

Defendant is seeking to overturn his final conviction of 

attempted premeditated murder under section 1170.95. The 

plain language of section 1170.95 forecloses such retroactive 

relief: Subdivision (a) empowers a person to file a petition 

seeking to “vacate[]” a “murder conviction” (§ 1170.95, subd. (a), 

italics added), and authorizes a “hearing to determine whether to 

vacate the murder conviction” (id., subd. (d)(1), italics added). 

The statute says nothing about attempted murder. 

In his section 1170.95 petition, however, defendant checked 

the box indicating he was convicted of “murder.” This was 

inaccurate. However, under People v. Lewis (July 26, 2021, 

S260598) ___Cal.5th___ [2021 Cal.Lexis 5258] (Lewis), a 

defendant who files a facially compliant petition and requests the 

appointment of counsel is entitled to have the trial court appoint 

counsel and entertain further briefing regardless of whether the 

record of conviction unequivocally demonstrates that the 

defendant is not entitled to relief. (Id. at p. *15.) Here, 

defendant’s petition was facially compliant and he requested 

counsel. Thus, Lewis dictates the conclusion that the trial court 

erred in summarily denying defendant’s petition. 

That being said, Lewis also provides that any error in 

summarily denying a section 1170.95 petition is harmless unless 

the defendant can show “‘“it is reasonably probable that if [he or 

she] had been afforded assistance of counsel [and briefing] his [or 

her] petition would not have been summarily denied without an 

evidentiary hearing.”’ [Citation.]” (Lewis, supra, ___Cal.5th___ 

[2021 Cal.Lexis 5258 at p. *29].) 
5

Defendant has not carried this burden because it is not 

reasonably probable that the outcome of this proceeding would 

have been any different, even if defendant had counsel and the 

opportunity for further briefing. Although the Court of Appeal 

has split over whether SB 1437—the bill of which section 1170.95 

is a part—authorizes trial courts to vacate murder convictions 

prospectively or to vacate murder convictions that are not yet 

final (compare People v. Lopez (2019) 38 Cal.App.5th 1087, 1092-

1093, review granted Nov. 13, 2019, S258175 [SB 1437 does not 

apply to any attempted murder convictions]; People v. Munoz

(2019) 39 Cal.App.5th 738, 754, review granted Nov. 26, 2019 

(S258234) [same]; People v. Dennis (2020) 47 Cal.App.5th 838, 

841, review granted July 29, 2020, S262184 [same]; People v. 

Alaybue (2020) 51 Cal.App.5th 207, 222 [same]; People v. Love

(2020) 55 Cal.App.5th 273, 279, review granted Dec. 16, 2020, 

S265445 [same]; People v. Harris (2021) 60 Cal.App.5th 557, 566, 

review granted Apr. 21, 2021, S267529 [same]; People v. Scott

(2020) 58 Cal.App.5th 1127, 1131-1132, review granted Mar. 17, 

2021, S266853 [same]; with People v. Larios (2019) 42 

Cal.App.5th 956, 966, 969-970, review granted Feb. 26, 2020, 

S259983 [SB 1437 applies to attempted murder prospectively but 

not retroactively]; People v. Sanchez (2020) 46 Cal.App.5th 637, 

642, 644, review granted June 10, 2020, S261768 [same]; People 

v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1017-1019, review 

granted Mar. 11, 2020, S259948 [same], every Court of Appeal 

panel has agreed that section 1170.95 does not authorize a trial 

court to retroactively vacate a final attempted murder conviction. 

(Harris, at p. 565 [“No court has held that Senate Bill 1437 

applies retroactively to final convictions of attempted murder.”].)
6

Defendant responds that attempted murder is a lesser

included offense to murder, such that SB 1437’s narrowing of the 

definition of murder must necessarily extend to the crime of 

attempted murder. Even if we accept this proposition as true, it 

does not overcome our Legislature’s intent—as manifested in 

section 1170.95’s plain text—only to extend retroactive relief to 

final murder convictions. Indeed, as explained above, even the 

decisions that find SB 1437 to reach the crime of attempted 

murder prospectively or to reach nonfinal convictions agree that 

SB 1437 does not apply to final attempted murder convictions 

like defendant’s.

In Love, supra, 55 Cal.App.5th at p. 288, we specifically 

rejected the equal protection challenge defendant now mounts. 

We perceive no reason to depart from our prior analysis.
7

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ