Filed 8/18/21 P. v. Martinez CA2/2

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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.

SANTOS MARTINEZ,

Defendant and Appellant.

 B306140

 (Los Angeles County

 Super. Ct. No. BA361997)

APPEAL from an order of the Superior Court of Los 

Angeles County, Renee Korn, Judge. Reversed and remanded.

Joanna McKim, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Susan 

Sullivan Pithey, Assistant Attorney General, Noah P. Hill and 

Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and 

Respondent.

* * * * * *
2

Defendant and appellant Santos Martinez (defendant) 

appeals from the summary denial of his petition for resentencing 

under Penal Code section 1170.95.1 Defendant contends that the 

trial court was required to appoint counsel and permit briefing 

prior to determining defendant’s eligibility for relief. We agree 

with defendant and remand for issuance of an order to show 

cause and further proceedings consistent with subdivision (d) of 

section 1170.95.

BACKGROUND

The 2013 murder conviction

In 2013 a jury convicted defendant of first degree murder 

with findings that a principal personally used and intentionally 

discharged a firearm causing great bodily injury or death and 

that the crime was committed for the benefit of a criminal street 

gang. The trial court sentenced defendant to a term of 50 years 

to life in prison. On direct appeal, we affirmed the judgment in 

People v. Martinez (Dec. 10, 2014, B253468) (nonpub. opn.)

(Martinez I).2

Trial evidence

At the time of the murder, both defendant and his 

codefendant Francisco Gutierrez were active members of the 

Playboys gang, and the victim Angel Bautista was a member of a 

rival gang. Bautista and a friend were waiting outside a market 

one evening in August 2007, when defendant approached, issued 

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.

2 We summarize procedural history and trial evidence from 

Martinez I, as did the parties.
3

a gang challenge and then fought with him. Gutierrez, wearing 

black clothing and a black ski mask, emerged from the passenger 

side of a sports utility vehicle (SUV) belonging to defendant and 

fatally shot Bautista three times with a shotgun. The SUV left 

the scene at a high rate of speed and soon crashed into a wall in 

an alley near the market.

When police officers found the SUV the keys were in the 

ignition and the air bags had deployed. Defendant’s DNA was 

found in blood on the airbags and other interior objects, as well as 

on the broken rearview mirror. After his arrest in 2009, 

defendant was recorded telling a cellmate that he knew he was 

“fighting a murder case,” that he “pulled the job,” crashed his car 

and left blood in the car, and that the police had his DNA.

The section 1170.95 petition

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017-2018 Reg. Sess.), which amended section 188 to provide in 

subdivision (a)(3) that “in order to be convicted of murder [except 

felony murder], a principal in a crime shall act with malice 

aforethought. Malice shall not be imputed to a person based 

solely on his or her participation in a crime.” This provision “bars 

a conviction for first or second degree murder under a natural 

and probable consequences theory.” (People v. Gentile (2020) 10 

Cal.5th 830, 846.)

3

3 Until this amendment, “when a person aided and abetted a 

nonhomicide crime that then resulted in a murder, the natural 

and probable consequences doctrine allowed him or her to be 

convicted of murder without personally possessing malice 

aforethought. So long as the direct perpetrator possessed malice, 

and the killing was a natural and probable consequence of the 

crime the defendant aided and abetted, it did not matter whether 
4

Section 1170.95 was added by Senate Bill No. 1437 (2017-

2018 Reg. Sess.) to provide a procedure by which those convicted 

of murder can seek retroactive relief if the changes in sections 

188 or 189 would affect their previously affirmed convictions. 

(People v. Martinez (2019) 31 Cal.App.5th 719, 722.) As relevant 

here, a person is entitled to relief under section 1170.95 if he was 

convicted of murder under the natural and probable 

consequences theory and all of the following conditions apply: (1) 

“[a] complaint, information, or indictment was filed against [him] 

that allowed the prosecution to proceed under a theory of . . . 

murder under the natural and probable consequences doctrine,” 

(2) he “was convicted of first degree or second degree murder 

following a trial,” and (3) he “could not be convicted of first or 

second degree murder because of changes to Section 188 or 189 

made effective January 1, 2019.” (§ 1170.95, subd. (a).)

In February 2020, defendant filed a petition for 

resentencing under section 1170.95. On April 16, 2020, after a 

reviewing the court’s file, including our appellate opinion in 

Martinez I, the trial court found defendant ineligible for relief 

under section 1170.95 and summarily denied the petition. The 

trial court issued a memorandum of decision explaining its ruling 

as follows:

“Notably, the Court of Appeal for the Second District 

has previously ruled on the underlying issues of fact 

in this case in Martinez. Petitioner was convicted of 

first degree murder. In affirming that conviction, the 

Court of Appeal[] held that Petitioner Martinez was 

not convicted under a theory of felony-murder of any 

the defendant intended to kill or acted with conscious disregard 

for human life.” (People v. Gentile, supra, 10 Cal.5th at p. 845, 

citing People v. Chiu (2014) 59 Cal.4th 155, 165-166.)
5

degree, or on an aider abettor theory of natural and 

probable consequences. ‘In this case, the prosecutor’s 

arguments and the evidence leaves no reasonable 

doubt that the jury based its first degree murder 

verdict on one of two valid legal theories: that the 

defendant directly aided and abetted the crime of 

first degree murder, or that defendant was guilty of 

first degree murder under a conspiracy theory.’ The 

Court of Appeal[] specifically found that counsel’s 

arguments and the instructions made clear that the 

jury could not find defendant Martinez guilty of first 

degree murder unless he harbored the required 

mental state of intent to kill. Accordingly, in 

affirming Petitioner’s first degree murder conviction, 

the Court of Appeal[] found that jurors found the 

Petitioner had intent to kill the victim.”

Defendant filed a timely notice of appeal from the order.

DISCUSSION

Defendant contends that that the summary denial of his 

petition without first appointing counsel and permitting briefing 

was error and resulted in a violation of his federal constitutional 

rights to due process and the assistance of counsel.

Defendant relies on People v. Cooper (2020) 54 Cal.App.5th 

106 (Cooper), review granted November 10, 2020, S264684, which 

held “that when a petitioner files a facially sufficient petition 

requesting counsel, . . . the trial court must appoint counsel and 

give the parties an opportunity to submit briefing before denying 

the petition.” (Id. at p. 112.)

In People v. Lewis (July 26, 2021, S260598) ___ Cal.5th ___ 

[2021 Cal.LEXIS 5258] (Lewis), our Supreme Court agreed with 

Cooper and held that if a defendant files a facially compliant 

petition and requests the appointment of counsel, the trial court 
6

must 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 pp. 10, 15.) Only 

after such further briefing does the trial court determine whether 

a petitioner has made a prima facie case for relief under section 

1170.95, subdivision (c). (Lewis, at p. 29.) The trial court and 

“the parties can, and should, use the record of conviction to aid 

the trial court in reliably assessing whether” the petitioner has 

done so. (Id. at p. 32.) Not until that time may the trial court 

deny the petition where the record of conviction shows as a 

matter of law that the petitioner is not eligible for relief. (Id. at 

pp. 30-31.)

As defendant’s petition was facially compliant and he 

requested counsel, Lewis dictates the conclusion that the trial 

court erred in summarily denying defendant’s petition. Lewis

provides that error in summarily denying a section 1170.95 

petition is reviewed under the standard of People v. Watson

(1956) 46 Cal.2d 818, 836, and thus any such error 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.”’” (Lewis, supra, 2021 

Cal.LEXIS at p. 36.) Here, the trial court appears to have 

primarily relied on our opinion in Martinez I. Defendant has 

cited other parts of the record of conviction, such as jury 

instructions and the prosecutor’s arguments to the jury, which 

demonstrate a reasonable probability that appointed counsel 

would have persuaded the court not only to grant the petition, 

but also to issue an order to show cause, as we explain.
7

A petitioner is ineligible for relief under section 1170.95 as 

a matter of law if, like defendant, he was not convicted of felony 

murder or murder under a natural and probable consequences 

theory. (People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-

1167; see § 1170.95, subd. (a).) Defendant brought a direct 

appeal from his 2013 judgment of conviction, challenging the 

jury’s finding of first degree murder. (Martinez I, supra, 

B253468.) In that appeal he argued that the jury instructions 

improperly permitted the jury to convict him of first degree 

murder as an aider and abettor under the natural and probable 

consequences doctrine. (Ibid.) 

In our 2014 holding we found the jury instructions given to 

be deficient as the jury was instructed that it could find 

defendant guilty of murder under two alternate theories of aiding 

and abetting: directly aiding and abetting the shooting 

(CALCRIM No. 401) or by aiding and abetting the target crime 

with murder as the natural and probable consequence 

(CALCRIM No. 403). The jury was specifically not told that 

defendant could not be guilty of first degree premeditated murder 

under the natural and probable consequences doctrine (People v. 

Chiu, supra, 59 Cal.4th 155). We then determined that based on 

the evidence and arguments made at trial there was no 

reasonable doubt that the jury reached its verdict on one of two 

then valid legal theories: that defendant was a direct aider and 

abettor of first degree murder or that he was guilty of murder 

under a conspiracy theory. (Martinez I, supra, B253468.)

Viewing Martinez I through the lens of current criminal 

law in California, we readily see that the conspiracy theory 

advanced in defendant’s trial is no longer a valid theory of 

conviction for murder. (See People v. Offley (2020) 48 
8

Cal.App.5th 588, 599.) Therefore it is impossible to now conclude 

that the record of conviction shows as a matter of law that 

defendant was not convicted under the natural and probable 

consequence doctrine as alleged in his section 1170.95 petition. 

Rather, a determination of defendant’s entitlement to 

resentencing is properly made upon an evidentiary hearing

pursuant to the procedures and burden of proof set forth in 

section 1170.95, subdivision (d). (Lewis, supra, 2021 Cal.LEXIS 

5258.)

DISPOSITION

The order denying the petition for resentencing is reversed. 

The matter is remanded to the superior court for the issuance of 

an order to show cause and further proceedings in accordance 

with Penal Code section 1170.95, subdivision (d).

___________________________

CHAVEZ, J.

We concur:

______________________________

ASHMANN-GERST, Acting P. J.

______________________________

HOFFSTADT, J.