Filed 8/25/15 P. v. Martinez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD MARTINEZ,

Defendant and Appellant.

 B260393

 (Los Angeles County

 Super. Ct. No. BA101245)

APPEAL from a judgment of the Superior Court of Los Angeles County. William 

C. Ryan, Judge. Affirmed.

Jill Ishida, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Viet H. 

Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________
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Defendant Richard Martinez appeals from an order denying his petition for 

Proposition 36 resentencing pursuant to Penal Code section 1170.1261 with respect to one 

of his two 1995 commitment offenses for which he received concurrent third strike terms. 

Although defendant recognizes he is ineligible for resentencing with respect to his first 

degree burglary conviction because it was a “serious” offense, he contends the trial court 

erred by concluding he was ineligible with respect to his conviction for dissuading a 

witness, which was not categorized as a “serious” or “violent” felony at the time of 

defendant’s conviction, although it was added to the list of “serious” felonies in 2000. 

(§ 1192.7, subd. (c)(37).) In light of the California Supreme Court’s recent decision in 

People v. Johnson (2015) 61 Cal.4th 674 (Johnson), we necessarily affirm.

BACKGROUND

Defendant was convicted of first degree burglary and dissuading a witness in 

violation of section 136.1, subd. (c)(1). Defendant waived a jury trial on five strike 

allegations (four residential burglaries and a robbery), and the court found these 

allegations true. The court sentenced defendant to concurrent third-strike terms of 25 

years to life, plus 15 years on each count for three section 667, subdivision (a)(1) prior 

serious felony enhancements.

In 2014 defendant filed a petition for Proposition 36 resentencing with respect to

his dissuading conviction. The trial court denied the petition on the ground defendant’s 

first degree burglary conviction rendered him ineligible for resentencing.

DISCUSSION

Proposition 36, also known as the Three Strikes Reform Act of 2012, was 

approved by the voters on November 6, 2012, and went into effect the next day. It 

amended sections 667 and 1170.12 so that an indeterminate term of 25 years to life in 

prison is applied only where the “third strike” offense is a serious or violent felony or the 

 

1 Undesignated statutory references pertain to the Penal Code.
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prosecution pleads and proves an enumerated triggering factor. (§§ 667, subd. (e)(2)(A), 

(C), 1170.12, subd. (c)(2)(A), (C).)

Proposition 36 also created section 1170.126, which provides a procedure for 

resentencing “persons presently serving an indeterminate term of imprisonment” under 

the Three Strikes law “whose sentence under this act would not have been an 

indeterminate life sentence.” (§ 1170.126, subd. (a).) Such a person may file a petition to 

recall his or her sentence and be sentenced as a second strike offender. (§ 1170.126, 

subd. (b).) An inmate is eligible for such resentencing if his or her commitment offense is

not a serious or violent felony and none of the factors that would trigger a third strike 

sentence under the Three Strikes law as reformed by Proposition 36 apply. (§ 1170.126, 

subd. (e).) Resentencing of qualified inmates may nonetheless be refused if the trial 

court, “in its discretion, determines that resentencing the petitioner would pose an 

unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)

On appeal defendant contends that the status of a commitment offense as serious 

or violent must be assessed as of the time that offense was committed and that an inmate 

is eligible for Proposition 36 resentencing with respect to a commitment offense that is 

neither serious or violent, even though he or she has another commitment offense that is a 

serious or violent offense.

In Johnson, supra, 61 Cal.4th at page 680, the Supreme Court resolved both of 

these issues: “[W]e hold that when a court resentences a third-strike defendant the 

classification of an offense as serious or violent is based on the law as of November 7, 

2012, the effective date of Proposition 36, and that the presence of a current offense that 

is serious or violent does not disqualify an inmate from resentencing with respect to a 

current offense that is neither serious nor violent.”

Accordingly, because both of defendant’s commitment offenses constituted serious 

felonies on the effective date of Proposition 36 (§ 1192.7, subd. (c)(18), (37)), he was 

ineligible for resentencing under section 1170.126. The trial court did not err by denying 

his petition.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.