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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR 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 Attorneys 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 petition

because the record of conviction, including the preliminary 

hearing transcript, unequivocally establishes that defendant was 

the sole perpetrator of voluntary manslaughter and attempted 

voluntary manslaughter, crimes to which he pleaded guilty.

BACKGROUND

In 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 used 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

At 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 approximately 6:00 p.m. on 

July 9, 2016. Victor was driving and Christian was in the 

passenger seat as they approached 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 their first names to avoid confusion.
3

cutting 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 signs at Victor and Christian through the SUV’s open 

window. The SUV then began following Victor and Christian.

Victor turned off Peck Road onto several side streets, but

the SUV continued to follow. Victor eventually stopped near the 

intersection of Klingerman Street and Cogswell Road, and both 

he and Christian exited the truck. Four people exited the SUV at 

the same time. Christian saw defendant exit from the 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, the 

person holding the knife lunged toward Victor and stabbed him. 

At the same time, defendant 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 wielding 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 shot. 

Christian looked over and saw Victor bleeding from his midsection. No longer able to drive, Victor stopped, exited the truck,
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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 identified in the photograph was the shooter.

Video footage recovered by detectives from surveillance cameras 

near the crime scene showed a man standing near the front 

driver’s side of a black Jeep Grand Cherokee SUV with his arm 

outstretched and pointing a handgun 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 three-count information charged defendant in count 1 

with the willful, deliberate, premeditated murder of Victor.

(§ 187, subd. (a).) Count 2 charged defendant with the attempted 

willful, deliberate, and premeditated 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 used 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).)
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After the preliminary hearing and pursuant to a plea 

agreement, the information was amended to add count 4, the 

voluntary manslaughter of Victor (§ 192, subd. (a)), with the 

appended allegation that defendant personally used a firearm in 

the commission of that crime (§ 12022.5, subd. (a)), and count 5, 

the attempted voluntary manslaughter of Christian. (§ 664/192, 

subd. (a).)

In exchange for a 21-year sentence, defendant pleaded no 

contest to the manslaughter charges and admitted the firearm 

allegation. As to the firearm allegation, the court accepting the 

plea asked defendant: “Do 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 pleas and admissions.

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 stating 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.”
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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. The reporter’s transcripts of defendant’s preliminary 

hearing, plea and sentencing proceedings, and the probation 

officer’s report were attached as exhibits to the district attorney’s 

opposition.

At the January 25, 2023 hearing on whether defendant 

made a prima facie showing of entitlement 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. Applicable legal principles

A. Senate Bill 1437 and imputed 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)), SB 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 by someone else, such as felony murder or the 
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natural and probable consequences doctrine—unless the 

prosecutor also proves 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 only 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 

amended section 188 to 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 a 
8

properly pleaded petition for resentencing. (Lewis, at pp. 963, 

966.) The court must then conduct a prima facie analysis with 

briefing 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 conducting 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 the 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 efficiently 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 determination 

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).)
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C. Preliminary hearing transcript

When 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 June 28, 

2023, S279670 (Patton).)3

“Courts 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, 989; compare 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 stage if evidence 

contained therein is uncontroverted], rev.gr.; People v. Nguyen

(2020) 53 Cal.App.5th 1154, 1166, with People v. Davenport 

(2021) 71 Cal.App.5th 476, 481 [trial court erroneously relied on 

preliminary hearing transcript in making prima facie 

determination because defendant did not stipulate to the 

3 See California 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 Patton, 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 

considered the preliminary hearing transcript 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 was the sole shooter and Victor’s actual killer. 

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 finding at the prima 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.
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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.