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Filed 2/28/24 P. v. Martinez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

GABRIEL JOSEPH MARTINEZ,

Defendant and Appellant.

 A164499

 (Alameda County

 Super. Ct. No. 467975A)

Defendant Gabriel Joseph Martinez was convicted of shooting at an 

inhabited dwelling and two counts of second-degree robbery, offenses he 

committed when he was 17 years old. The criminal court sentenced him to 21 

years in prison. On appeal, Martinez argues he is entitled to a new juvenile 

court transfer hearing under Assembly Bill No. 2361 (2021–2022 Reg. Sess.). 

He further contends the trial court failed to consider recent statutory 

amendments affecting his sentence and violated the prohibition against the 

dual use of sentencing factors, and that his counsel provided ineffective 

assistance in not calling these matters to the trial court’s attention. Finally, 

he argues that he was entitled to presentence conduct credit under Penal 

Code section 4019, and that the imposition of a probation investigation fee 

must be stricken under Assembly Bill No. 1859 (2019–2020 Reg. Sess.).1 

1 Undesignated statutory references are to the Penal Code.
2

We conditionally reverse and remand the matter so that the juvenile 

court may conduct a transfer hearing. We also agree with Martinez that if 

the case is transferred back to criminal court, he is entitled to a new 

sentencing hearing, a computation of presentence conduct credits, and the 

vacation of the probation investigation fee. 

I. DISCUSSION

The parties are familiar with the facts and our opinion does not meet 

the criteria for publication. (Cal. Rules of Court, rule 8.1105(c).) 

Consequently, we resolve the cause before us, consistent with constitutional 

requirements, in an abbreviated opinion with reasons stated. (Cal. Const., 

art. VI, § 14; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1262 [“ ‘An 

opinion is not a controversial tract, much less a brief in reply to the counsel 

against whose views we decide. It is merely a statement of conclusions, and 

of the principal reasons which have led us to them.’ [Citation.]”].)

A. Assembly Bill No. 2361

Martinez first contends, and the People concede, that the passage of 

Assembly Bill No. 2361 entitles him to a conditional reversal so that the 

juvenile court may conduct a second transfer hearing under the newly 

heightened standard. We agree. 

At the time of Martinez’s transfer hearing in February 2018, the law 

required the People to prove by a preponderance of the evidence that the 

minor should be transferred to a court of criminal jurisdiction. Former 

Welfare and Institutions Code section 707, subdivision (a)(3) required the 

juvenile court to consider five criteria in making that decision: (1) the minor’s 

criminal sophistication; (2) whether the minor could be rehabilitated before 

juvenile court jurisdiction expired; (3) the minor’s previous delinquent

history; (4) the success of previous attempts at rehabilitation; and (5) the 
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circumstances and gravity of the alleged offenses. (Former Welf. & Inst. 

Code, § 707, subd. (a)(3)(A)–(E).) The law also required the court to recite the 

basis for its transfer decision in its order. (Id., subd. (a)(3).)

Effective January 1, 2023, Assembly Bill No. 2361 amended Welfare 

and Institutions Code section 707, subdivision (a)(3) in three ways: (1) it

raised the People’s burden of proof to clear and convincing evidence; (2) it 

made the minor’s amenability to rehabilitation “the ultimate question for the 

court to decide,” rather than one of the five factors to consider; and (3) it 

required the court to recite not only the basis for its decision, but to explain 

the reasons supporting its finding that the minor is not amenable to 

rehabilitation while under the jurisdiction of the juvenile court. (In re E.P. 

(2023) 89 Cal.App.5th 409, 416; Stats. 2022, ch. 330, § 1.)

We agree with the parties that the amendments apply retroactively to 

Martinez, as his case is not yet final. (In re E.P., supra, 89 Cal.App.5th at p.

416 [minor entitled to benefit of amended statute because case not final]; 

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 (Lara) [concluding 

Proposition 57 applies retroactively because it “reduces the possible 

punishment for a class of persons, namely juveniles.”].) 

We also agree with the parties that, applying the amendments 

retroactively, Martinez is entitled to a new transfer hearing at which the 

juvenile court is aware—as it could not have been at the first hearing—that it 

may order him transferred to adult criminal court only if it finds, based on 

clear and convincing evidence, that he is not amenable to rehabilitation 

under juvenile court jurisdiction. (Welf. & Inst. Code, § 707, subd. (b)(3).) As 

the court observed in In re F.M. (2023) 14 Cal.5th 701, where the trial court 

misunderstood its discretion in the first instance, reviewing courts have 

consistently remanded for reconsideration “[i]nstead of hypothesizing what 
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decision the juvenile court would have made if it had understood the extent of 

its lawful authority.” (F.M., at p. 716; see also In re E.P., supra, 89 

Cal.App.5th at pp. 416–417.) 

We therefore conditionally reverse Martinez’s convictions and sentence 

and remand the matter for the juvenile court to conduct a juvenile transfer 

hearing pursuant to Welfare and Institutions Code section 707 as amended 

by Assembly Bill No. 2361. After conducting the juvenile transfer hearing, if 

the court determines it would have transferred Martinez to a court of 

criminal jurisdiction, then his convictions are to be reinstated, and as 

discussed below, the trial court shall conduct a resentencing hearing. If, on 

the other hand, the juvenile court finds it would not have transferred 

Martinez to a court of criminal jurisdiction, then it shall treat his convictions 

as a juvenile adjudication and impose an appropriate disposition within its 

discretion. (Lara, supra, 4 Cal.5th at p. 310.) 

B. Sentencing Errors 

The trial court sentenced Martinez to 21 years in prison, consisting in 

part of the upper term of five years on count five, second-degree robbery, 

which was the principal term. (§ 211.) In the event the juvenile court 

transfers the matter to the trial court, Martinez argues he is entitled to a new 

sentencing hearing because the trial court erred in imposing the aggravated

term on count five, considering the sentencing provisions in section 1170, 

subdivision (b) that became effective on January 1, 2022. We agree that 

Martinez is entitled to a full resentencing hearing should the matter be 

transferred back to the trial court.2

2 In light of this conclusion, we need not and do not reach Martinez’s 

arguments that the trial court improperly relied on the gun enhancement 

findings in imposing the aggravated term and failed to consider factors it was 

required to consider under section 1385. He may advance these arguments 
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1. Additional Background

Prior to 2022, section 1170 gave the trial court discretion to select a 

term if a statute provided three possible terms. (Former § 1170, subd. (b); 

People v. Lopez (2022) 78 Cal.App.5th 459, 464, disagreed with on other 

grounds by People v. Dunn (2022) 81 Cal.App.5th 394, 409–410.) Section 213 

is such a statute, providing three possible terms of two, three, or five years 

for second-degree robbery. (§ 213, subd. (a)(2).) 

Effective January 1, 2022, approximately three weeks before Martinez’s

sentencing, Senate Bill No. 567 (2021–2022 Reg. Sess.; Stats. 2021, ch. 731, 

§§ 1.3, 3(c)) amended section 1170 in two significant ways. First, the middle 

term has become the presumptive term (§ 1170, subd. (b)(1)), and the trial 

court is authorized to impose the upper term only if there is one or more 

aggravating circumstances based on facts either “stipulated to by the 

defendant, or . . . found true beyond a reasonable doubt at trial by the jury or 

by the judge in a court trial” (id., subd. (b)(2)) or on certified records of 

conviction (id., subd. (b)(3)). Second, trial courts must impose the lower term 

if certain circumstances—including the defendant’s childhood trauma or 

youth—were contributing factors to the commission of the offense, “unless the 

court finds that the aggravating circumstances outweigh the mitigating 

circumstances [so] that imposition of the lower term would be contrary to the 

interests of justice.” (Id., subd. (b)(6)(A) & (B).) 

In this case, the trial court said it was imposing the aggravated robbery 

term “specifically due to the level of violence asserted by [Martinez] and the 

troubling recidivism apparent in this record.” The court relied on the 

following factors in the California Rules of Court (all “rule” references are to 

on remand. (See People v. Jones (2022) 79 Cal.App.5th 37, 45–46.) We also 

need not address Martinez’s ineffective assistance of counsel claims.
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the Rules of Court): the crime involves “great violence” (rule 4.421(a)(1); the 

robbery victims were “particularly vulnerable” (id., 4.421(a)(3)); Martinez

“occupied a position of leadership or dominance of other participants” in the 

robbery (id., 4.421(a)(4)); his prior convictions are “numerous or of increasing 

seriousness” (id., 4.421(b)(2)); and his prior performance on probation was 

unsatisfactory (id., 4.421(b)(5)). The court found no factors in mitigation. 

The aggravating factors relied on by the court were not found true by a jury, 

stipulated to by Martinez, or based on certified records of conviction, as 

required by the amendments to section 1170 for imposition of the upper term. 

(§ 1170, subd. (b).) 

Additionally, Martinez was 17 years old when he committed the 

robbery, qualifying as a youth under the amendments to section 1170. (§§ 

1170, subd. (b)(6), 1016.7, subd. (b) [youth means under age of 26 at time of 

offense].) And, he argues, the probation report shows that he has suffered 

childhood trauma and abuse that contributed to his commission of the 

offenses. 

The People agree that these ameliorative amendments apply 

retroactively to cases not yet final when they went into effect. (People v. 

Flores (2022) 73 Cal.App.5th 1032, 1039; People v. Achane (2023) 92 

Cal.App.5th 1037, 1041–1042; see In re Estrada (1965) 63 Cal.2d 740, 742–

748, disapproved on another ground as stated in Californians for Disability 

Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230 [when legislation reduces 

punishment for offense, we presume it applies to cases not yet final].)

Based on these principles, Martinez argues that he was entitled to the 

lower-term presumption, and that the trial court erred by imposing the upper 

term for count five based on aggravating factors that do not meet the 

requirements of section 1170, subdivision (b). He asks us, therefore, to 
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remand the matter so the trial court may resentence him in light of section 

1170’s new standards. The People urge us not to consider these arguments

because Martinez forfeited them by not raising them below. 

2. Forfeiture

“[T]he forfeiture rule for alleged sentencing errors” is that, “unless a 

party makes a contemporaneous objection, he or she generally cannot 

challenge a court’s ruling for the first time on appeal.” (People v.

McCullough (2013) 56 Cal.4th 589, 594.) “However, neither forfeiture nor 

application of the forfeiture rule is automatic.” (Id. at p. 593.) “An appellate 

court may exercise its discretion to review a claim affecting the substantial 

rights of the defendant despite forfeiture for failure to raise the issue below.” 

(People v. Denard (2015) 242 Cal.App.4th 1012, 1020.) Furthermore, a 

reviewing court is “more inclined to find an exception to the general rule of 

forfeiture when there has been a change in decisional law that affects the 

rights of the parties.” (GreenLake Capital, LLC v. Bingo Investments, LLC

(2010) 185 Cal.App.4th 731, 739, fn. 6.)

Given the relevant statute became effective only three weeks prior to 

the sentencing hearing in this case and there has been a change in the law 

affecting appellant’s substantial rights, we shall exercise our discretion to 

address Martinez’s argument on the merits.

3. Merits

Turning to the merits of Martinez’s claims, the People agree that if he 

has preserved his argument regarding the court’s reliance on improper 

factors in imposing the upper term on count five, then resentencing is 

appropriate if the juvenile court transfers the matter back to the trial court 

following our conditional remand. We accept the People’s concession. None 

of the aggravating factors relied on by the trial court were found true by a 
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jury, stipulated to by Martinez, or based on certified records of conviction, as 

required under section 1170 for imposition of the upper term (§ 1170, subd. 

(b)), and many of those factors require “a subjective assessment of the 

circumstances rather than a straightforward finding of facts,” requiring us to 

speculate that a jury would have reached the same conclusion as the court. 

(People v. Sandoval (2007) 41 Cal.4th 825, 840, superseded by statute on 

another ground as stated in People v. Lewis (2023) 88 Cal.App.5th 1125, 

1132.) 

Moreover, resentencing is warranted based on the potential 

applicability of subdivision (b)(6) of section 1170. As mentioned, under the 

amendments to section 1170, where a defendant’s youth or trauma 

contributed to the commission of the offense, that subdivision mandates 

imposition of the lower term unless the aggravating circumstances outweigh 

the mitigating circumstances. The People note the trial court considered the 

probation report and other evidence of Martinez’s trauma and found no 

mitigating factors. But given that the trial court and the parties appear to 

have been unaware of the court’s new discretion under section 1170, neither 

Martinez nor the court had a meaningful incentive to assess whether his 

youth or childhood trauma was a “contributing factor” in the offense, and 

whether the aggravating factors outweigh those mitigating factors.3 (§ 1170, 

subd. (b)(6).) 

In these circumstances, “the appropriate remedy is to remand for 

resentencing unless the record ‘clearly indicate[s]’ that the trial court would 

3 Corresponding to the changes to section 1170, the list of mitigating 

circumstances in Rules of Court, rule 4.423 was amended in March 2022, 

after Martinez’s sentencing, to include childhood trauma that was a factor in 

the commission of the crime (rule 4.423(b)(3)) and the defendant being under 

26 years old at the time of the commission of the crime (id., 4.423(b)(6)).
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have reached the same conclusion” had it been aware of its limited discretion 

under section 1170. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) It is 

not clear from the record whether the court would necessarily impose the 

same sentence if it relied only on those aggravating factors that are now 

permitted under section 1170, subdivision (b). Nor is it clear the court would 

find that the aggravating factors outweigh the mitigating factors, such that 

imposing the lower term would be contrary to the interests of justice. 

(§ 1170, subd. (b)(6).) 

Therefore, if the juvenile court transfers the matter back to the trial 

court following our conditional remand, Martinez is entitled to a full 

resentencing hearing. We express no opinion on how the trial court on 

resentencing Martinez should assess the factors and considerations under 

section 1170, subdivision (b).

C. Presentence Conduct Credits

Martinez contends the trial court erred in failing to award him 

presentence conduct credits pursuant to section 4019. The People appear to 

acknowledge that the record does not indicate whether the court determined 

Martinez’s entitlement to presentence conduct credits, and suggest the court 

address the issue on remand. We agree that if the juvenile court transfers 

the matter to the trial court following our conditional remand, the court 

should ascertain the amount of presentence conduct credits to which 

Martinez is entitled. 

Under section 4019, a criminal defendant in custody or county jail after 

arrest and prior to sentencing for a felony conviction must receive conduct 

credits against his sentence for work performed and good conduct in addition 

to credit for actual days in custody, “unless it appears by the record that the 

prisoner has refused to satisfactorily perform labor as assigned” or has not 
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“satisfactorily complied with the reasonable rules and regulations established 

by the [local custodial authority].” (§ 4019, subds. (a)(4), (b) & (c); People v. 

Buckhalter (2001) 26 Cal.4th 20, 30.) When, as here, the defendant is 

convicted of a violent felony listed in section 667.5, subdivision (c), the 

number of conduct credits cannot exceed 15 percent of defendant’s actual 

period of confinement. (§ 2933.1, subd. (a); see § 667.5, subd. (c)(9) [“violent 

felony” includes “[a]ny robbery”].)

In this case, the trial court awarded Martinez 2,075 days of actual 

presentence custody credit, and no conduct credits. At the sentencing 

hearing, the court asked the bailiff for Martinez’s “custody credits,” and the 

bailiff responded, “2,075.” The court then awarded 2,075 days of actual 

presentence custody credit but said nothing about presentence conduct credit. 

The minute order itself includes no further explanation. While the probation 

report noted some behavioral issues Martinez had while in custody, the 

report is silent regarding his conduct credits, and there was no discussion of 

his conduct credits before or at the hearing. Indeed, the record shows the 

court never ruled that Martinez was not eligible for conduct credits. 

A trial court has the obligation to calculate the number of credit days to 

which a defendant is entitled and to include the same in the abstract of

judgment. (§ 4019.) The court must award conduct credits at the time of 

sentencing, “not as an exercise of discretion, but based on the sheriff’s report 

of ‘the number of days that [the] defendant has been in custody and for which 

he or she may be entitled to credit.’ ” (People v. Lara (2012) 54 Cal.4th 896,

903.) “[B]efore a sentencing court may withhold conduct credits, the 

defendant is entitled to prior notice and an opportunity to (1) rebut the 

findings of his jail violations, and (2) present any mitigating factors.” (People

v. Duesler (1988) 203 Cal.App.3d 273, 277.) 
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It is apparent from the record that the court did not fulfill its obligation 

to determine the appropriate amount of presentence conduct credits, if any, 

to which Martinez was entitled. (People v. Acosta (1996) 48 Cal.App.4th 411, 

428, fn. 9. [“it is the duty of the trial court to award the correct amount of 

credits”].) Therefore, if the juvenile court transfers the matter to the trial 

court, the court is instructed to calculate on the record Martinez’s 

entitlement, if any, to presentence conduct credits under sections 2933.1 and 

4019. (See People v. Kennedy (2012) 209 Cal.App.4th 385, 394 [determination 

of whether a defendant is entitled to additional credit for labor and good 

behavior under section 4019 often involves factual determinations more 

properly resolved in trial court].) 

D. Probation Investigation Fee

The abstract of judgment imposed a $250 “Probation Investigation 

Fee.” The parties agree, as do we, that the abstract of judgment must be 

updated to vacate any unpaid portion of that fee, per Assembly Bill No. 1869 

(2019–2020 Reg. Sess.). 

Assembly Bill No. 1869, which became operative approximately six 

months prior to Martinez’s sentencing, eliminates the authority to collect 

certain court-imposed costs and fees. (Stats. 2020, ch. 92, §§ 11, 62; § 1465.9, 

subd. (a).) As applicable here, Assembly Bill No. 1869 amended the Penal 

Code by adding section 1465.9, which currently states: “The balance of any 

court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 

987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 

1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, 

shall be unenforceable and uncollectible and any portion of a judgment 

imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62, italics 

added; § 1465.9, subd. (a).) 
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Although the judgment does not specify the statutory basis for the 

probation investigation fee, the record indicates that the trial court imposed 

the fee pursuant to former section 1203.1b. Immediately prior to Assembly 

Bill No. 1869’s repeal of that statute, it provided: “(a) In any case in which a 

defendant is convicted of an offense and is the subject of any preplea or 

presentence investigation and report, whether or not probation supervision is 

ordered by the court, . . . the probation officer, or [the officer’s] authorized 

representative, taking into account any amount that the defendant is ordered 

to pay in fines, assessments, and restitution, shall make a determination of 

the ability of the defendant to pay all or a portion of the reasonable cost . . . 

of conducting any preplea investigation and preparing any preplea report 

pursuant to Section 1203.7, of conducting any presentence investigation and 

preparing any presentence report made pursuant to Section 1203 . . . . The 

reasonable cost of these services . . . shall not exceed the amount determined 

to be the actual average cost thereof.” (Former § 1203.1b, subd. (a), italics 

added.) Section 1203.7, in turn, requires a probation officer to “inquire” into 

a defendant’s “antecedents, character, history, family environment and 

offense” and prepare a report containing that information and his or her 

“recommendation for or against . . . probation.” (§ 1203.7, subd. (a).) 

Similarly, section 1203 refers to a probation officer’s “investigation” of facts 

relevant to a defendant’s sentencing. (§ 1203, subd. (b).) The trial court in 

this case specifically referred to the fee as a “probation investigation fee” in 

its oral pronouncement at the sentencing hearing, and the minute order for 

the hearing cites former section 1203.1b as the basis for the fee. We therefore 

conclude that the statutory basis for the $250 probation investigation fee the 

court imposed as reflected in the abstract of judgment was former section 

1203.1b. 
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Accordingly, in light of Assembly Bill No. 1869 and section 1465.9, we 

conclude that the unpaid balance of the probation investigation fee must be 

vacated. (§ 1465.9, subd. (a) [“portion of judgment imposing those costs shall 

be vacated”].) 

II. DISPOSITION

The judgment is conditionally reversed and the matter remanded to the 

juvenile court with directions to conduct a transfer hearing pursuant to 

Welfare and Institutions Code section 707 no later than 90 days from the 

filing of the remittitur.

If, at the transfer hearing, the juvenile court determines that it would

not have transferred the matter to a court of criminal jurisdiction, then

Martinez’s convictions will be juvenile adjudications as of that date. The 

juvenile court is then to conduct a dispositional hearing within its usual time 

frame. 

If, at the transfer hearing, the juvenile court determines it would have 

transferred Martinez to a court of criminal jurisdiction, the judgment shall be 

reinstated as of that date. The court is then directed to conduct a 

resentencing hearing and to calculate the presentence conduct credits 

Martinez is entitled to, if any. Following the hearings on remand, the clerk of 

the superior court is instructed to prepare an amended abstract of judgment 

reflecting the trial court’s sentencing decisions and its computation of 

presentence conduct credits. The clerk is further instructed to remove the 

probation investigation fee. The clerk shall serve certified copies on the 

Department of Corrections and Rehabilitation. 
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LANGHORNE WILSON, J.

WE CONCUR:

BANKE, ACTING P. J.

CASTRO, J.

A164499N

 Judge of the Alameda County Superior Court, assigned by the Chief Justice 

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