People v. Martinez CA4/2

Opinion

Filed 11/20/25 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E085732

v. (Super.Ct.No. FBA009327)

HUGO MARTINEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Enrique Guerrero,

Judge. Affirmed with directions.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance by Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Hugo Martinez appeals the trial court’s order following a

full resentencing hearing pursuant to Penal Code1 section 1172.75. Counsel has filed a

brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.

California (1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent

review of the record. We affirm with directions.

PROCEDURAL BACKGROUND

On July 9, 2008, a jury found defendant guilty of assault with a deadly weapon,

(§ 245, subd. (a)(1), count 1). {CT 16-17} In a bifurcated proceeding, the trial court

found true that defendant had sustained one prior prison term (§ 667.5, subd. (b)), one

prior serious felony conviction (§ 667, subd. (a)), and two prior strike convictions (§§

1170.12, subd. (a)-(d) & 667, subd. (b)-(i)). {CT 18-19} On January 30, 2009, the court

sentenced defendant to an indeterminate term of 25 years to life, plus five years for the

prior serious felony conviction and one-year term for the prior prison term enhancement,

for a total term of 31 years to life in state prison. The court ordered 1031 days of custody

credits (955 actual plus 76 conduct). {CT 33-34}

In 2023, the California Department of Corrections and Rehabilitation (CDCR)

identified defendant as eligible for resentencing pursuant to section 1172.75. {CT 40, 55}

On November 7, 2024, defendant filed a resentencing brief, arguing that the court should

exercise its discretion to dismiss his prior strike convictions (People v. Superior Court

1 All further statutory references will be to the Penal Code unless otherwise indicated.

2 (Romero) (1996) 13 Cal.4th 497) and the serious prior felony conviction enhancement, as

well as the prison prior. {Aug. CT 4-19} The prosecution filed an opposition brief,

arguing that it would not be in the furtherance of justice to dismiss defendant’s prior

strikes or the prior serious felony enhancement. The prosecution noted defendant’s

extensive criminal history, attached CDCR records of his multiple rule violations while in

custody, and argued that he was a danger to public safety. {CT 49-86}

On January 21, 2025, the trial court held a resentencing hearing. The prosecutor

acknowledged that the prison prior should be stricken but argued that, given defendant’s

disciplinary record as well as the facts of the instant case, nothing else should be stricken

beyond that. The court stated that it read and carefully considered the papers submitted

by both parties. It struck the prison prior under section 1172.75 but decided not to

exercise its discretion to dismiss the prior strikes or prior serious felony enhancement,

noting that it would not be in the interests of justice to do so and that defendant was a

public safety risk. The court then resentenced defendant to 25 years to life on count 1,

plus five years for the prior serious felony enhancement, for a total of 30 years to life.

The court gave him the same credits as originally awarded (955 actual, plus 76 conduct).

{RT 6-9, CT 89-92}

Defendant timely appealed. {CT 95}

DISCUSSION

Defendant appealed and, upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d

436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case and one

3 potential arguable issue: whether the court abused its discretion in denying his Romero

motion and/or motion to strike the prior serious felony enhancement. Counsel has also

requested this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which

he has not done.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

However, we note an apparent clerical error. Generally, a clerical error is one

inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error

can be made by a clerk, by counsel, or by the court itself. (Ibid. [judge misspoke].) A

court “has the inherent power to correct clerical errors in its records at any time so as to

make these records reflect the true facts.” (In re Candelario (1970) 3 Cal.3d 702, 705 .)

The resentencing court here awarded defendant the same number of custody

credits as the original sentencing court ordered in 2009 (955 actual plus 76 conduct, for a

total of 1031). {CT 33-36, 89-92} The court failed to recalculate the actual time

defendant had served pursuant to the sentence for which he was being resentenced and

reflect those credits in the amended abstract of judgment. Our Supreme Court

determined that when a trial court resentences a defendant on remand, it must credit him

with all actual days he spent in custody up to that time, including his time in custody after

the original sentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 37 [“the trial court,

having modified defendant’s sentence on remand, was obliged, in its new abstract of

judgment, to credit him with all actual days he had spent in custody”].) In a footnote,

4 appointed counsel acknowledges that defendant’s credits should have been recalculated

through the resentencing date, but contends that because the court clerk “did not change

the sentencing date on the amended abstract of judgment, the error is likely harmless

because the Department already is calculating appellant’s credits.” {AOB 6} However, in

order to ensure defendant receives credit for all the actual time he has served, we will

remand the matter for the trial court to recalculate his credits as of the date of the

resentencing hearing and order the amended abstract of judgment to reflect the date of the

resentencing hearing in the “Date of Hearing” section.

DISPOSITION

The matter is remanded and the trial court is directed to recalculate the proper

amount of custody credits as of the date of the resentencing hearing.

The trial court is directed to prepare an amended abstract of judgment setting forth

the modified credits and reflecting the date of the resentencing hearing, and to forward a

copy to the Department of Corrections and Rehabilitation. Otherwise, the judgment is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

RAMIREZ P. J. RAPHAEL J.