People v. Martinez CA4/2

• Court: California Court of Appeal
• Decided: January 26, 2024
• Docket: E082279
• Status: Unpublished

Opinion

Filed 1/26/24 P. v. Martinez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E082279

v. (Super.Ct.No. RIF148701)

GERARDO MARTINEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.

(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Appeal dismissed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Gerardo Martinez appeals the order of the Riverside

County Superior Court denying his petition for resentencing made pursuant to Penal

Code section 1172.6.1

BACKGROUND2

In April 2011, a jury convicted defendant of first degree murder in violation of

section 187, subdivision (a) and the court trial sentenced him to a term of 25 years to life

in state prison. Defendant appealed. (Martinez I., supra, E054066.) In response to

defendant’s insufficiency of the evidence claims, we found there was ample evidence to

establish defendant was the victim’s killer and to support the conviction for first degree

murder and affirmed the judgment. (Ibid.)

In July 2020, defendant filed a petition for resentencing pursuant to section

1172.6. The trial court found the jury had not been instructed on either the theory of

natural and probable consequences or aiding and abetting, and dismissed the petition.

Defendant appealed the order of dismissal and we affirmed. (Martinez II, supra,

E075962.)

1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.

2 Some facts recited in this section are taken from this court’s opinions issued in defendant’s appeal from the judgment, People v. Martinez (July 17, 2013, E054066) [nonpub. opn.] (Martinez I.), and in his subsequent appeal from an earlier denial of a section 1172.6 petition, People v. Martinez (May 26, 2021, E075962) [nonpub. opn.] (Martinez II). We take judicial notice of those opinions on our own motion.

2 In August 2023, defendant once again filed a petition for resentencing pursuant to

section 1172.6, which attached documents evidencing the many positive steps he had

taken while in prison such as Bible and Talmud studies, anger management classes, and

general education classes.

Upon receipt of the petition, the trial court set a status conference hearing and

appointed counsel for defendant. At that hearing, counsel for defendant and the People

advised the court that the case was a “one-on-one murder,” and their respective reviews

of the jury instructions confirmed the jury had not received instructions regarding aiding

and abetting, natural and probable consequences, felony murder, or any other theory by

which malice could possibly have been imputed to defendant. The court denied the

petition. Defendant timely noticed this appeal from the denial.

DISCUSSION

Defendant’s appointed appellate counsel filed an opening brief that sets forth

statements of the case and facts but does not present any issues for adjudication. Counsel

asked this court to independently review the record on appeal. Counsel states the

following issues were considered: (i) whether the trial court erred when it found

defendant was not convicted on a theory of natural and probable consequences or felony

murder, or in otherwise dismissing defendant’s appeal; (ii) whether this court has

jurisdiction to consider an appeal from the denial of a petition for resentencing where it

has affirmed the prior denial of such a petition; and (iii) whether trial counsel’s assistance

in connection with the resentencing petition was ineffective and, if so, whether defendant

suffered prejudice as a result.

3 Upon receipt of the opening brief, we advised defendant that, because the appeal is

from the denial of a postconviction proceeding, this court is not required to conduct an

independent review of the record, and cited People v. Delgadillo (2022) 14 Cal.5th 16.

We invited defendant to file any supplemental brief deemed necessary and advised him

that failure to do so might result in dismissal of the appeal as abandoned. Defendant did

not file a brief.

Neither defendant nor his counsel have presented an issue and upon our review of

the record, we do not find any error. Accordingly, we dismiss defendant’s appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J. MILLER J.