Filed 6/28/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ED GAR OMAR MARTINEZ,

Defendant and Appellant. B328594

(Los Angeles County Super. Ct. No. KA113251)

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Affirmed. Jonathan E. Demson, 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, Senior Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorne ys General, for Plaintiff and Respondent.

________________________________2 Edgar Omar Martinez ( defendant ) appeals the summary denial of his petition for resentencing under Penal Code section

1172.6. 1 We affirm the trial court’s order denying the petiti on because t he record of conviction

, including the preliminary hearing transcript, unequivocally establishes that defendant w as the sole perpetrator of voluntary manslaughter and attempted voluntary manslaughter

, crimes to which he ple a d ed guilty

. BACKGROUND
I n 2018, defendant pleaded no contest to the voluntary manslaughter of Victor Garcia (Victor) and attempted voluntary manslaughter of Christian Garcia (Christian)

. 2 Defendant
further admitted that he personally us ed and discharged a firearm in the voluntary manslaughter of Victor. Pursuant to a negotiated plea agreement, defendant was sentenced to a 21

- year prison term , consisting of 11 years for voluntary manslaughter, a consecutive term of 10 years for personal use of the firearm , and a concurrent term of three years for attempted voluntary manslaughter. Preliminary hearing
A t the January 24, 2017 preliminary hearing

, Christian
testified that he and his brother Victor were in their father’s
truck in the City of El Monte at app roximately 6 :00 p.m. on July 9, 2016. Victor was driving and Christian was in the passenger seat as they a pproached the intersection of Peck Road
and Mountain View Road

. Victor turned right on Peck Road,

1 All further statutory references are to the Penal Code.

2 Because the victims share the same surname we refer to them by the ir first names to avoid confusion.3

c utting off a black SUV traveling on Peck Road in the same
direction. The driver of the SUV pulled up next to the truck and
made hand s igns at Victor and Christian t hrough the SUV’s open window. The SUV then began following Victor and Christian

. Victor turned off Pe ck Road onto several side streets

, but

t he SUV continued to follo w. Victor eventually stopped near the intersection of Klingerman Street and Cogswell Road

, and both
he and Christian exited t he truck

. Four people exited the SUV at the same time

. Christian saw d efendant exit from t he front
driver’s side of the SUV

, holding a black revolver

. One of the
other three occupants of the SUV held a knife with a six

- inch blade, and the other two wielded sticks. Victor was approximately 18 feet ahead of Christian as they approached the occupants of the SUV

. When Victor and the occupants of the SUV were approximately eight feet apart, t he

person holding the knife lunged toward Victor and stabbed him. At the same time, d efendant extended the revolver and pointed it
at Christian.
Victor and Christian ran back to their truck . Victor
entered the driver’s side of the vehicle and Christian entered the
passenger seat. The three individuals w ielding the knife and
sticks chased them and began hitting the side of the truck

. Victor started the engine, made a U

- turn, and drove back toward the intersection of Cogswell Road and Klingerman Street. As they drove past the SUV , Christian saw defendant raise his left
hand and point the revolver at them

. Christian ducked when he heard a gunshot

. Moments later Victor said he had been sho t

. Christian looked over and saw Victor bleeding from his mid

section. No longer able to drive, Victor stopped, exited the truck,4

and lay down on the ground. He died at the scene from the gunshot wound. On July 11, 2016, two days after the shooting , Christian
met with detectives . From a seven

- page array of photographs

, Christian identified defendant as the person who shot Victor.
Christian testified that he was one “hundred percent” positive
that the person he ide ntified in the photograph was the shooter. Video footage recovered by detectives from surveillance cameras
near the crime scene showed a ma n standing near the front driver’s side of a black Jeep Grand Cherokee SUV with his arm
outstretched and pointing a hand gun at the victims’ truck . The

man appeared to be tracking the movement of the truck with the gun as the truck approached him. As the truck passed , the man’s hand flew back, propelled by the recoil of the handgun. The charges and plea agreement
A th ree

- count information charged defendant in count 1 with the willful, deliberate, prem editated murder of Victor

. (§ 187, subd. (a)

. ) C ount 2 charged defendant with the attempted willful, deliberate, and premedi t ated murder of Christian (§§ 664/187, subd. (a)

. ) As to both counts 1 and 2, the information alleged that defendant personally and intentionally discharged a handgun which caused great bodily injury and death to Victor (§ 12022.53, subd. (d)), that he personally and intentionally discharged a handgun (§ 12022.53, subd. (c)), and that he personally u sed a handgun. (§ 12022.53, subd. (b).) Count 3 charged defendant with possession of a firearm by a felon. (§ 29800, subd. (a)(1).) As to all three counts, the information further alleged that defendant had one prior prison conviction. (§ 667.5, subd. (b).)5 After the preliminary hearing and pursuant to a plea agreement, the information was amend ed to add count 4, the voluntary manslaughter of Victor ( § 192, subd. (a)), with the

a ppended allegation that defendant personally used a firearm in
the commission of th at crime ( § 12022.5, subd. (a) ), and count 5, the attempted voluntary manslaughter of C hristian. (§ 664/192, subd. (a).) In exchange for a 21

- year sentence, d efendant pleaded no
contest to the manslaughter charges and admitted the firearm allegation. As to the firearm allegation, the court accepting the plea asked defendant : “ D o you admit that you personally used a firearm in the commission of that voluntary manslaughter upon Victor Garcia? Do you admit the truth?” Defendant responded

, “Yes.” On his plea form, defendant stipulated and agreed that there was a factual basis for his p lea s and admission s

. Petition for resentencing On February 18, 2022, defendant filed a petition for resentencing under what is now section 1172.6. On the form petition, defendant checked the boxes stat ing he was convicted of murder, attempted murder, or manslaughter following a trial or acceptance of a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder , and that he presented a facially sufficient petition and requested appointment of counsel to represent him

. Defendant also
submitted a letter stating in relevant part : “As there is new changes in the law and I would not be today convicted of attempted murder, manslaughter or murder [ due ] to changes in Penal Code 1170.95 I ask the court to vacate my conviction in the interest of justice.”6 The District Attorney of Los Angeles County opposed the petition

, arguing that defendant failed to make a prima facie case
for relief under section 1172.6 because defendant was prosecuted as the actual perpetrator of an unlawful killing under a theory of actual malice, and not under a theory of felony murder, natural and probable consequences, or any other theory of imputed
malice. T he reporter’s transcript s of def endant’s preliminary hearing

, plea and sentencing proceeding s , and the probation officer’s report were attached as exhibits to the d istrict a ttorney’s opposition

. A t the January 25, 2023 hearing on whether defendant made a prima facie showing of entitleme nt to relief under section 1172.6, the trial court heard argument from the parties and
denied defendant’s petition

. The court determined that
defendant was not entitled to relief as a matter of law because he was prosecuted as a direct perpetrator, not an accomplice or under a felony

- murder theory of liability. This appeal followed.
DISCUSSION I. Applica ble legal principles
A. Senate Bill 1437 and i mputed malice murder The Legislature enacted Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) ( Stats. 2018, ch. 1015; SB 1437) in 2018, effectively abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony

- murder
doctrine. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957 ( Lewis ).) With one narrow exception (§ 189, subd. (f)), S B 1437 effectively eliminated murder convictions premised on any theory of imputed malice

— that is, any theory by which a person can be convicted of murder for a killing committed b y someone else, such as felony murder or the7

natural and probable consequences doctrine

— unless the
prosecutor also prove s that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless disregard to human life. (§§ 188, subd. (a)(3) & 189, subd. (e).) SB 1437 amended the felony

- murder rule to provide that “[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable
for murder o nly if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).) SB 1437
amende d s ection 188 t o require that, when the felony

- murder rule does not apply, a principal in the crime of murder “shall act with malice aforethought” and “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3); People v. Gentile (2020) 10 Cal.5th 830, 842

– 843 ( Gentile ).)
B. Section 1172.6
SB 1437 also added former section 1170.95 (now § 1172.6), providing a procedure for vacating the murder convictions of defendants who could no longer be convicted of murder because of
the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4; Lewis , supra, 11 Cal.5th at pp. 959, 971; Gentile, supra , 10
Cal.5th at p. 843.) Section 1172.6, subdivision (c) requires the
trial court to appoint counsel when requested upon the filing of a8

properly pleaded petition for resentencing. ( Lewis , at pp. 963, 966.) The court must then conduct a prima facie analysis with
bri efing to determine the petitioner ’ s eligibility for relief, and, if the requisite prima facie showing is made, issue an order to show

cause. (§ 1172.6, subd. (c); Lewis, at p. 971; People v. Nieber (2022) 82 Cal.App.5th 458, 469

– 470.) Effective January 1 , 2022, Senate Bill No. 775 amended section 1172.6 to expand its coverage to individuals convicted of “attempted murder under the natural and probable consequences doctrine.” (§ 1172.6, subd. (a); People v. Saibu (2022) 81 Cal.App.5th 709, 747.)
In conduc ting its prima facie review, the trial court may not engage in fact finding involving the weighing of evidence or credibility determinations and must assume the truth of all facts stated in the petition. ( Lewis, supra , 11 Cal.5th at pp. 971

– 972

. )
But t he trial court may consider the record of conviction to
determine whether the petitioner made the requisite prima facie showing of entitlement to relief under section 1172.6 , thereby

“ allowing the court to distinguish petitions with potential merit
from those that are clearly meritless. This is consistent with the statute’s overall purpose: to ensure that murder culpability is commensurate with a person’s actions, while also ensuring that clearly meritless petitions can be efficient l y addressed as part of a single

- step prima facie review process

. ” ( Lewis, at p. 971.) Accordingly, “ ‘if the record, including the court ’ s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility d etermination adverse to the petitioner.” ’ ” ( Ibid

. ) Only if the trial court determines that the petitioner has made a prima facie showing of
entitlement to relief must it issue an order to show cause. (§ 1172.6, subd. (c).)9 C. P reliminary hearing trans cript
Whe n a defendant’s conviction follows a guilty plea rather than a trial, the record of conviction may include the transcript of
the defendant ’ s preliminary hearing if the transcript “reliably reflect[s] the facts of the offense for which the defendant was
convicted.” ( People v. Reed (1996) 13 Cal.4th 217, 223; see People
v. Patton (2023) 89 Cal.App.5th 649, 657, review granted Jun e 28, 2023, S279670 ( Patton ) .) 3
“Court s of Appeal are split on the import of the preliminary hearing transcript in determining whether a petitioner has made a prima facie case for resentencing under [former] section 1170.95 [now section 1172.6].” ( People v. Flores (2022) 76 Cal.App. 5th 974, 9 89 ; c ompare People v. Mares (2024) 99 Cal.App. 5th 1158, 1167 [record of conviction, including preliminary hearing transcript, supported no theory other than defendant acted alone as the actual killer], review granted May 1, 2024, S284232; People v. Pickett (2023) 93 Cal.App. 5th 982 [courts can rely on preliminary hearing transcripts to determine prima facie eligibility even if a defendant does not stipulate to it as a factual basis for a plea], review granted Oct. 11, 2023,
S281643 ; Patton , supra, 89 Cal.App. 5th 649 [court may rely on preliminary hearing transcript at prima facie sta g e if evidence contained therein is uncontroverted] , rev.gr. ; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166

, w ith People v. Davenport (2021) 71 Cal.App. 5th 47 6 , 481 [ trial court erroneously relied on preliminary hearing transcript in making prima facie determination because defendant did not stipulate to the

3 See Cal ifornia Rules of Court, rules 8.1105, 8.1115

.10

transcript as a factual basis for his plea] ; Flores

, supra , 76 Cal.App. 5th 974 .) The issue is pending before the California Supreme Court in Patt on , supra, 89 Cal.App. 5th 649, rev

. gr .)
D. Standard of review We review de novo whether the trial court properly denied defendant’s section 1172.6 petition without issuing an order to
show cause. ( People v. Coley (2022) 77 Cal.App.5th 539, 545; People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
II. No error We conclude that where, as here, defendant’s conviction
was based on his no contest plea, the trial court properly
consider ed the preliminary hearing transcr ipt in determining
whether defendant made a prima facie case for relief under
section 1172.6

. ( Patton , supra, 89 Cal.App.5th at p. 657, rev

. gr

. ) The preliminary hearing transcript unequivocally establishes
that defendant w as the sole shooter and Victor’s actual kille r

. Defendant when entering his plea further admitted that he personally used and discharged a firearm in committing the voluntary manslaughter of Victor. The trial court did not engage in improper fact fin ding at the prim a facie stage in finding defendant ineligible for relief under section 1172.6. The statute
does not apply to actual killers, and defendant is therefore ineligible for relief under section 1172.6 as a matter of law.11 DISPOSITION The order denying defendant’ s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

CHAVEZ, J.

HOFFSTADT

, J.