1

Filed 1/13/23 P. v. Martin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND DAVID MARTIN,

Defendant and Appellant.

C091375

(Super. Ct. No. 05F11358)

MODIFICATION

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on December 14, 2022, be modified as 

follows:

1. Delete the first sentence in footnote 2 on page 2 beginning with “Effective 

June 20, 2022,” and insert the following sentence in its place:
2

Effective June 30, 2022, former section 1170.95 was recodified without 

substantive change to section 1172.6.

This modification does not change the judgment.

BY THE COURT:

 

HULL, Acting P.J.

 

MAURO, J.

 

RENNER, J.
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Filed 12/14/22 P. v. Martin CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND DAVID MARTIN,

Defendant and Appellant.

C091375

(Super. Ct. No. 05F11358)

OPINION ON TRANSFER

Defendant Raymond David Martin was convicted of first degree murder with 

robbery and burglary special circumstances, and was sentenced to life without the 

possibility of parole. We affirmed his convictions on appeal. (People v. Martin (June 8, 

2010, C058391) [nonpub. opn.].)
2

Defendant later petitioned for resentencing under Penal Code1section 1172.62

based on changes to the felony murder rule and natural and probable consequences 

doctrine under Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019) (Senate 

Bill 1437). The court denied defendant’s petition after finding he was ineligible for relief

given the jury’s special circumstance findings.

In an unpublished opinion, we affirmed the court’s order denying defendant’s 

resentencing petition, holding that the jury’s true special circumstance findings, which 

had not been set aside through habeas, precluded relief under section 1172.6 as a matter 

of law. (People v. Martin (Sept. 27, 2021, C091375) [nonpub. opn.].)

The California Supreme Court subsequently granted review and transferred the 

matter back to us with directions to vacate our opinion and reconsider the cause in light 

of People v. Strong (2022) 13 Cal.5th 698 (Strong). By separate order, we vacated our 

decision. 

In supplemental briefing after transfer, the parties agree that under Strong the 

jury’s true findings on the robbery-murder and burglary-murder special circumstance 

allegations, which were made before our Supreme Court’s decisions in People v. Banks

(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) 

clarified what it means to be a major participant who acts with reckless indifference to 

human life, do not render defendant ineligible for relief as a matter of law. Having

reconsidered the matter, we agree and will reverse and remand for further proceedings 

under section 1172.6.

1 Further undesignated statutory references are to the Penal Code.

2 Effective June 20, 2022, former section 1170.95 was recodified without substantive 

change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under 

former section 1170.95, but we will refer to the current section number throughout this 

opinion.
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FACTUAL AND PROCEDURAL BACKGROUND

In 2008, a jury found defendant guilty of first degree murder (§ 187), assault with 

a firearm (§ 245, subd. (b)), first degree burglary (§ 459), and robbery (§ 211), and found 

true special circumstance allegations of robbery-murder (§ 190.2, subd. (a)(17)) and

burglary-murder (§ 190.2, subd. (a)(17)), and that a principal was armed with a firearm

during the commission of the crimes. (§ 12022, subd. (a)).

The convictions resulted from an attempted home invasion robbery of a drug 

dealer by defendant and his two codefendants, Vincent Gregory and Stanley Mason. 

During the robbery, Gregory shot and killed a man and shot the man’s girlfriend in the 

leg.

In 2019, defendant filed a section 1172.6 petition for resentencing, seeking to 

vacate his murder conviction on the ground that he could no longer be convicted of first 

degree murder because of changes made to sections 188 and 189 by Senate Bill 1437, 

effective January 1, 2019. The trial court appointed counsel and set a briefing schedule.

After the parties submitted their briefs, the court denied the petition, finding 

defendant failed to show he fell within the provisions of section 1172.6 and therefore 

failed to make a prima facie showing of eligibility for relief. Specifically, the court found 

relevant that a jury unanimously found defendant guilty of first degree murder and also 

found true the burglary-murder and a robbery-murder special circumstances. The jury’s 

findings, including special circumstances, were then upheld on appeal. Thus, the court 

concluded defendant was ineligible for relief under section 1172.6 because “Penal Code 

§§ 187 [sic] and 189 still provide for first degree murder based on burglary-murder and 

robbery-murder, when the trier of fact has found beyond a reasonable doubt that the 

defendant either was the actual killer, intended to kill, or was a major participant who 

acted in the burglary and robbery with reckless indifference to human life, as a 

unanimous jury in [defendant’s case] necessarily found,” and the jury’s special 

circumstances findings have not been vacated. Defendant timely appealed.
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DISCUSSION

Defendant originally argued the trial court prejudicially erred when it denied his 

petition after finding the jury’s pre-Banks and Clark special circumstance findings 

conclusively established his ineligibility for resentencing because the jury necessarily 

concluded that he was either the actual killer, a major participant, or acted with reckless 

indifference. In supplemental briefing, the parties now agree, as do we, that the trial 

court erred in denying defendant’s petition. 

Senate Bill 1437 amended 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).) Senate Bill 1437 achieves these goals 

by amending section 188 to require that a principal act with express or implied malice 

(§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state 

that a person can be liable for felony murder only if: (1) the “person was the actual 

killer”; (2) the person, with an intent to kill, was an aider or abettor in the commission of 

murder in the first degree; or (3) the “person was a major participant in the underlying 

felony and acted with reckless indifference to human life.” (§ 189, subd. (e), as amended 

by Stats. 2018, ch. 1015, § 3.)

As pertinent here, Senate Bill 1437 also added what is now section 1172.6, which 

permits a person convicted of felony murder or murder under a natural and probable 

consequences theory to petition the sentencing court to vacate the murder conviction and 

resentence the person on any remaining counts if, among other things, the petitioner 

could not be convicted of first or second degree murder due to the change in the law. 

(§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that requests 

counsel, the court shall appoint counsel and provide the parties an opportunity to submit 
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briefs. (§ 1172.6, subds. (b)(3), (c).) Following briefing, the court must hold a hearing to 

determine whether the petitioner has made a prima facie case for relief. (§ 1172.6, subd. 

(c).) If a sufficient prima facie showing is made, the court must issue an order to show 

cause. (§1172.6, subds. (c), (d).)

The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” 

(People v. Lewis (2021) 11 Cal.5th 952, 971.) The court “ ‘ “takes petitioner’s factual 

allegations as true and makes a preliminary assessment regarding whether the petitioner 

would be entitled to relief if his or her factual allegations were proved.” ’ ” (Ibid.) 

Although the court may rely on the record of conviction (including a prior appellate court 

opinion) in determining whether defendant has made a prima facie showing, the court 

“should not engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Id. at p. 972.)

Since defendant’s convictions, the Supreme Court has refined the analysis for who 

qualifies as a major participant acting with reckless indifference to human life in Banks 

and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, abrogated on other 

grounds in People v. Lewis, supra, 11 Cal.5th at p. 963.) After we rejected defendant’s 

claims in our previous opinion, our Supreme Court decided Strong, which concluded: 

“Findings issued by a jury before Banks and Clark do not preclude a defendant from 

making out a prima facie case for relief under Senate Bill 1437. This is true even if the 

trial evidence would have been sufficient to support the findings under Banks and Clark.” 

(People v. Strong, supra, 13 Cal.5th at p. 710.) Here, the trial court concluded that the 

jury’s pre-Banks and Clark findings, which defendant had never set aside through habeas, 

precluded defendant from making a prima facie showing. The trial court’s conclusion 

does not survive Strong.

Defendant’s resentencing petition was facially sufficient and alleged the essential 

facts necessary for relief under section 1172.6 if proven. (§ 1172.6, subds. (a)-(c); 

People v. Lewis, supra, 11 Cal.5th at pp. 970-972.) Nothing in the record demonstrates 
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defendant is ineligible for relief as a matter of law, so we must reverse and remand the 

matter for the trial court to issue an order to show cause, and, to the extent necessary, 

conduct an evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion on the 

ultimate resolution of the petition.

DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is reversed. On 

remand, the trial court is directed to issue an order to show cause, and, to the extent 

necessary, the court shall hold an evidentiary hearing on the petition.

 

HULL, Acting P. J.

We concur:

 

MAURO, J.

 

RENNER, J.